If Immigration Warning Says Conviction “May,” O.K.?

In 2009 in Tehama County, California, police made a traffic stop of noncitizen Manuel Valdivias Soto.  Police found 29.9 grams of methamphetamine in his breast pocket.  Soto explained that he was paid $200 to transport the methamphetamine from one person to another.

He was then arrested and rather quickly pled guilty to possession of a controlled substance (methamphetamine) for sale, a violation of Health & Safety Code § 11378, transportation of methamphetamine, a violation of Health & Safety Code § 11379(a) and driving without a license, a violation of Vehicle Code § 12500(a). 

The pre-plea probation officer’s report noted that Soto moved from Mexico to the United States in the late 1980’s to be with the rest of his family already here and to have children of his own.  The report also noted that he had never attended school, was illiterate in English and spoke it poorly.  At the time of his plea in 2010, he had two U.S. citizen children ages nine and eleven and he was solely responsible for their support.

Despite this, prior to entering his plea, he initialed a form in which he indicated he understood that, as a noncitizen, his plea “may cause my deportation, exclusion from admission to the United States and denial of citizen citizenship or naturalization pursuant to the laws of the United States.” 

He also initialed a line that stated: “I read and understand the English language.”  This was untrue, as he used a Spanish translator throughout the proceedings and who even signed a separate form that she had translated the forms to Soto and he understood the form’s contents.

In addition, during his plea colloquy, he answered questions that called for a yes or no answer, i.e. “Do you understand . . .,” as “I am guilty.”  In fact, he said “I am guilty” to almost any question the judge asked him. 

The trial court judge then stated on the record that he found defendant “knows and understands the nature of the consequences of his plea.  His waiver is knowing, intelligent, express and explicit.” 

Immigration consequences were not discussed by the judge.

Before sentencing, Soto told his probation officer that he did not want to be deported.  In court, Soto’s counsel stated to the judge that leniency should be afforded to Soto, arguing “[b]ut for his status, his legal status, you know, more than likely he would be granted probation in a case like this.”  Noting defendant was already on probation for misdemeanor possession of a loaded weapon in public (Penal Code § 12031(a)), the judge sentenced Soto to two years in state prison and ordered him to register as a narcotics offender under Health & Safety Code § 11590.

In 2017, the Department of Homeland Security detained Soto as he applied for admission for entry back into the U.S. in San Luis, Arizona, as his conviction for violation of Health & Safety Code § 11358 is an “aggravated felony” under 8 U.S.C. § 1101, et seq., he was subject to mandatory deportation and exclusion from entry (8 U.S.C. § 1227(a)(2)(A)(iii)).

In January 2020, he filed a motion to vacate his plea under Penal Code § 1473.7, arguing that he did not meaningfully understand the immigration consequences of his plea due to the complexity of immigration law.  The motion explained that at the time of his plea, he had two children, ages 9 and 11 that he was solely responsible to support and that had he known then that he would have been deported back to Mexico, he would not have agreed to the conviction because he had “nothing left in Mexico to go back to.”

Consequently, he argued, “the right to remain in the United States was more important to me than any potential jail sentence.”  Yet, because he did not receive affirmative and competent advice regarding the potential immigration consequences, he mistakenly agreed to the conviction.

The trial court judge denied the motion, finding that the immigration consequences were “clearly stated in the waiver,” which defendant had initialed he understood.  Moreover, the judge stated that Soto’s “repeated statements that he was guilty suggest that his predominant feeling was that he had no chance of winning at trial, no matter what his underlying concerns.” 

Soto appealed the ruling to the Third Appellate District, which reversed because it found that the advisement concerning the immigration consequences of the plea – “may have” – is not an adequate immigration advisement for defendant charged with serious controlled substance offenses.”  People v. Ruiz (2020) 49 Cal. App. 5th 1061, 1065 (finding error in 1991 guilty plea to a drug offense where the defendant was advised of possible, rather than mandatory immigration consequences).  In such cases, “[d]efendants must be advised that they will be deported, excluded, and denied naturalization as a mandatory consequence of the conviction.” Id., original italics.

The Third Appellate District also noted that defendant showed prejudice due to this error because of his circumstances in 2010 with two young children depending upon him and “nothing left in Mexico to go back to.”  His ties to the United States, in other words, meant defendant put great importance on avoiding deportation, especially his comment to the probation officer that he wanted to avoid deportation.

Lastly, the appellate court noted that “[i]t is not necessary to show defendant could have obtained a more favorable outcome at trial.”  People v. Rodriguez (2021) 68 Cal. App. 5th 301, 311-312 [prejudice established if defendant “would have risked going to trial . . . even if only to figuratively throw a ‘Hail Mary’].