If you are not a U.S. citizen, a California criminal conviction can lead to deportation or other dire consequences for your immigration status. But it may be possible to petition a court to vacate or modify your conviction—and thereby preserve your right to stay in the country.
Immigration consequences of California criminal convictions
And certain other California criminal convictions (for so-called “inadmissible crimes”) can make you ineligible to
apply for a green card,
legalize your immigration status if you are here illegally, or
re-enter the country after leaving.2
Forms of post-conviction relief
But even if you have a conviction for a deportable or inadmissible crime on your record, all is not lost. With the help of a skilled criminal immigration attorney, you may be able to receive some form of post-conviction relief that will make your conviction disappear for immigration purposes.
This is especially likely if you were convicted or pled guilty because of ineffective assistance of counsel -- or were not properly informed of the potential immigration consequences of a conviction.
The most common forms of post-conviction relief are:
A motion to overturn the conviction based on ineffective assistance of counsel (i.e., your lawyer in the criminal case did a deficient job);
A motion for re-sentencing to avoid a conviction for an aggravated felony (an important concept in criminal immigration law) or other deportable or inadmissible crime;
A motion to withdraw a guilty or no-contest plea because the court did not advise you of the immigration consequences of the plea 3;
A motion to withdraw a plea for other reasons5; and
Example: Nikki is an immigrant from Jamaica. She has lived in the U.S. for 15 years and has a green card.
One night, Nikki is riding in a car with several friends. They get pulled over, and the cop finds the drug Ecstasy in the glove compartment. Nikki and all of her friends are charged with possession of a controlled substance.
One of Nikki's friends (who is a U.S. citizen) hires a lawyer, who advises the friend to enter a “no contest” plea. Nikki assumes that the same advice would apply to her as well and decides to plead “no contest” too.
But after she has entered her plea, Nikki finds out that pleading guilty to a California drug crime has made her deportable. 5 Nikki is distraught and immediately contacts an experienced criminal and immigration attorney. Her attorney works with her to file a motion to withdraw her plea —which, if successful, will eliminate the immigration consequences of the drug conviction.6
In order to help you better understand the forms of post-conviction relief that can help you avoid the immigration consequences of a criminal conviction, our California criminal defense and immigration attorneys will address the following:
1. Immigration Consequences of a California Criminal Conviction
2. Post-Conviction Relief Based on Ineffective Assistance of Counsel
2.1. Padilla motions
3. Motions for Re-Sentencing
4. Changing a Felony Conviction to a Misdemeanor
5. Motions to Withdraw a Guilty or No-Contest Plea
5.1. Motions to withdraw a plea based on Penal Code 1016.5 PC
6. Habeas Corpus Petitions
7. Post-Conviction Relief that Will NOT Eliminate Immigration Consequences
If, after reading this article, you have additional questions, we invite you to contact us.
Immigration Consequences of a California Criminal Conviction
Under the federal Immigration and Nationality Act (usually referred to as the “INA”), certain criminal convictions can have one of the following immigration consequences:
If a non-citizen is deportable, that means s/he may be removed from the country.
If an immigrant is inadmissible, that means s/he may not be able to
re-enter the country after leaving,
become a U.S. citizen,
apply for permanent residence (a “green card”), or
for illegal immigrants, apply for an “adjustment of status” – that is, a change from illegal to legal immigration status. 8
If you are convicted of a so-called “inadmissible crime,” a green card may be out of reach.
If you have a criminal conviction on your record that is on the list of deportable crimes and/or inadmissible crimes, then you will be deportable or inadmissible. It does not matter
how long you have lived in the country,9
how strong your ties (job, family, owning a business, etc.) are here,
whether you have a dependent child who is a U.S. citizen,10 or
whether you are a legal or an illegal immigrant.11
The major categories of “deportable crimes” are:
So-called “crimes of moral turpitude,”
So-called “aggravated felonies” (which includes crimes like murder, rape, and theft crimes that carry a sentence of more than one (1) year in prison12),
Controlled substances (drug) offenses,
Firearms offenses, and
Domestic violence crimes.13
And inadmissibility is typically triggered by:
A conviction for a crime of moral turpitude,
A conviction for a drug crime, or
Convictions for two (2) or more crimes where the total prison sentences add up to five (5) years or more. 14
Avoiding deportation or inadmissibility is a major priority for immigrants accused of crimes. The ideal outcome is to avoid a conviction for a deportable crime or an inadmissible crime in the first place.
But sometimes this is not possible. In those cases, post-conviction relief may be your best option.
2. Post-Conviction Relief Based on Ineffective Assistance of Counsel
Unfortunately, many immigrants who end up with convictions for deportable or inadmissible crimes took the advice of incompetent lawyers.
Criminal defense lawyers who don't understand immigration law may advise their clients to plead guilty or “no contest” to crimes without fully understanding how the plea can threaten their immigration status. Had the immigrants known the whole story, they never would have accepted the deal.
But the Sixth Amendment to the United States Constitution, which is part of the Bill of Rights, provides all criminal defendants with the right to a fair trial.15 If a non-citizen defendant's lawyer does a bad enough job, the defendant can argue that this right was violated by “ineffective assistance of counsel.” 16
Your constitutional right to a fair trial is violated by an incompetent attorney.
In the next sections of this article, we discuss procedural tools that a non-citizen facing deportation or inadmissibility and his/her attorney can use to overturn a prior conviction. With all of these tools, ineffective assistance of counsel is a common reason for judges to grant post-conviction relief.
2.1. Padilla motions
A specific kind of motion for post-conviction relief based on ineffective assistance of counsel is the so-called “Padilla motion.” (These are named after a U.S. Supreme Court case that established the legal basis for them. 17)
A Padilla motion is a form of post-conviction relief that can be granted if all of the following are true:
You are a non-citizen who pled guilty to a deportable or inadmissible crime;
You pled guilty because your lawyer did not do adequate research into the immigration consequences of a guilty plea and/or did not do a good enough job of informing you of those consequences;18 and
Your guilty plea became final after March of 2010.19
Example : Jose is from Honduras but has been a lawful permanent resident of the U.S. for over 40 years. He has even served in the U.S. Armed Forces and fought in Vietnam.
Jose is caught with a large amount of marijuana in his tractor-trailer. His lawyer advises him to plead guilty to transportation of a controlled substance. His lawyer tells him he doesn't need to worry about any immigration consequences of a conviction because he has been in the country so long. So Jose pleads guilty.
It turns out that his lawyer is wrong -- transportation of a controlled substance is a deportable crime. But Jose may be eligible to have his conviction vacated -- and avoid deportation -- because of the bad advice he got from his lawyer. 20
“Padilla motions are a potentially very powerful tool for challenging a California criminal conviction with immigration consequences. But the law on Padilla motions in California and elsewhere is always changing. It's best to consult with an experienced criminal and immigration attorneys to determine if a Padilla motion is a potential form of post-conviction relief for you.”
3. Motions for Re-Sentencing
A motion for re-sentencing is one way to receive post-conviction relief that can eliminate the immigration consequences of a conviction.
This is because the immigration consequences of convictions for certain kinds of crimes depend on the sentence that you receive. To list a few examples:
You can be made inadmissible if you have more than one criminal conviction and the total sentences you receive add up to five (5) years or more; 23 and
You can be made inadmissible if you are convicted of a crime of moral turpitude . . . unless the maximum sentence for that crime is one (1) year or less, AND your actual sentence is six (6) months or less.24
Therefore -- depending on the nature of your conviction -- you may be able to eliminate the immigration consequences of the conviction by having your sentence reduced. An attorney who is experienced with this form of post-conviction relief can submit a motion for re-sentencing to the judge who handled your sentence initially.
4. Changing a Felony Conviction to a Misdemeanor
Getting a conviction changed from a felony to a misdemeanor may also eliminate the immigration consequences of the conviction.
For example, a conviction cannot be for an “aggravated felony” -- a deportable crime 25 --unless it is actually a felony conviction.
Reducing a felony conviction to a misdemeanor may be a viable form of post-conviction relief if both of the following are true:
The conviction is for a crime that is a “wobbler” in California law, and
You were granted probation instead of a prison sentence.26
“Wobblers” are crimes that can be classified as either a misdemeanor or a felony depending on the sentence that the judge decides to give the defendant. 27
Some common “wobbler” crimes in California include:
Burglary of a structure that isn't inhabited,28
Assault with a deadly weapon,29and
If you are convicted of a wobbler crime as a felony and sentenced to probation, the judge may reduce your conviction to a misdemeanor after your probation has been completed -- if you can demonstrate to the court that you've been rehabilitated. 31 You are less likely to be deported if your conviction is changed from a felony to a misdemeanor.
Example : Hans is a German citizen living in the U.S. on a green card. When he is 19, he is involved in a burglary of a store. The prosecutor charges the crime as a felony, and Hans is convicted of felony burglary—but receives felony probation as a sentence.
Hans is concerned about possibly being deported or inadmissible because of his conviction. He and his criminal immigration attorney therefore petition the judge to reduce his conviction to a misdemeanor, making it less likely that there will be immigration consequences.
Seeing that Hans has stuck to the terms of his probation and has a clean record otherwise, the judge agrees.
5. Motions to Withdraw a Guilty or No-Contest Plea
One of the more common, and tragic, scenarios in criminal immigration law is where a non-citizen pleads guilty to a minor offense -- often a drug crime -- because s/he doesn't understand that even a minor conviction can in some cases lead to deportation or inadmissibility.
A successful motion to withdraw a plea usually needs to be made either:
Before the judge has handed down your sentence, OR
Within six (6) months after the judgment is final, IF you are granted a sentence of probation. 33
To withdraw a plea in California, you need to be able to show “good cause” to do so. 34
If you pled guilty because you did not know about the immigration consequences of the plea, you may be able to argue successfully that you have good cause to withdraw your plea.35
Example : Julio, a native of El Salvador and a lawful permanent resident of the U.S., is charged with possession of marijuana. He decides to plead guilty to the charge, and he is sentenced to three years of probation. Neither he, his lawyer, nor the judge accepting his plea realizes that this could make him deportable.
Not long after, U.S. immigration authorities contact Julio and inform him that he is subject to deportation for this conviction. Julio and his lawyer move to withdraw his plea, and the judge grants the motion -- Julio's ignorance of the immigration consequences of his plea is considered good cause to do so. 36
Ineffective assistance of counsel is another potential good cause for withdrawing your plea. As we discussed in Section 1 above, a so-called “Padilla motion” is based on the idea that it can be ineffective assistance of counsel for a lawyer to give his/her client inaccurate or insufficient advice about the immigration consequences of a guilty plea.37
The motion to withdraw a plea can therefore be a form of Padilla motion – if your guilty plea became final on or after March 2010. 38
5.1. Motions to withdraw a plea based on Penal Code 1016.5 PC
California Penal Code 1016.5 PC requires courts to give the following warning to criminal defendants:
“If you are not a citizen, you are hereby advised that conviction of the offense for which you have been charged may have the consequences of deportation, exclusion from admission to the United States, or denial of naturalization pursuant to the laws of the United States.” 39
the court fails to issue this warning,
you plead guilty, AND
you can show that the conviction may lead to deportation or inadmissibility,
then you have the right to withdraw your plea and have the conviction vacated.40 This will eliminate the immigration consequences of the conviction.
There is no time limit or deadline for seeking to vacate a conviction because you were not properly warned of potential immigration consequences as required by Penal Code 1016.5 PC.41
However, for post-conviction relief under this law, you are required to show that the failure to advise you of immigration consequences had an actual effect on your decision to plead guilty.42
For example, if the court didn't warn you about the potential immigration consequences -- but you are a paralegal trained in immigration law and clearly knew about them already -- then you may not be able to receive post-conviction relief under this law.
6. Habeas Corpus Petitions
In different circumstances, a petition for writ of habeas corpus may be the appropriate form of post-conviction relief.
“Habeas corpus” is a Latin phrase that means, “that you have the body.”43 In California, anyone who is
currently serving a prison sentence, or
otherwise restrained in some way by the criminal justice system (on probation or parole, for example),
can bring a habeas corpus petition.44
You can base a habeas corpus petition on the argument that you received ineffective assistance of counsel. 45
This would be another variation on the “Padilla motion” we described in Section 1—and could get you the post-conviction relief you need if you pled guilty after March 2010, based on the faulty advice of a lawyer who didn't understand the immigration consequences of the plea. 46
There are no strict deadlines for filing a habeas corpus petition…as long as it is filed while you are in custody (which can include probation or parole). 47
7. Post-Conviction Relief that Will NOT Eliminate Immigration Consequences
It is important to note that not every form of post-conviction relief will eliminate the immigration consequences of a conviction.
Simply put, a criminal conviction is erased for immigration purposes only if it is vacated because there was some sort of legal defect in the conviction. But if it is vacated for any other reason, that may not help with your immigration situation. 48
For example, in many states -- including California -- you may be eligible for an expungement of your criminal record on so-called “rehabilitative grounds.” 49 This kind of expungement can help you secure employment or obtain a state professional license in spite of the conviction.50
But rehabilitative post-conviction relief will NOT eliminate the immigration consequences of the conviction. The reason for that is that this kind of relief is granted for so-called “humanitarian” reasons -- rather than because there was a legal problem that made the conviction invalid from the get-go. 51
Call Us for Help…
If you or loved one is in need of help with post conviction relief and you are looking to hire an attorney for representation, we invite you to contact us at Shouse Law Group. We can provide a free consultation in office or by phone. We have local offices in Los Angeles, the San Fernando Valley, Pasadena, Long Beach, Orange County, Ventura, San Bernardino, Rancho Cucamonga, Riverside, San Diego, Sacramento, Oakland, San Francisco, San Jose and throughout California.
To learn about post-conviction relief for non-citizens in Nevada, please visit our page on post-conviction relief for non-citizens in Nevada.
You may also find helpful information in our related articles on California Deportable Crimes; California Inadmissible Crimes; “Ineffective Assistance of Counsel” in California Criminal Law; Legal Definition of a Felony in California Law; Legal Definition of a Misdemeanor in California Law; Habeas Corpus Petitions in California; Possession of a Controlled Substance California Health & Safety Code 11350 HS; Nolo Contendere or “No Contest” Pleas in California Criminal Law; California Drug Crimes; Motions to Withdraw a Plea in California; “Crimes of Moral Turpitude” in California Criminal Law; “ Padilla Motions” in California; Selling or Transportation of a Controlled Substance Health & Safety Code 11352 HS; California Theft Crimes; Reducing a Felony Conviction to a Misdemeanor Penal Code 17(b)(3) PC; Legal Definition of a “Wobbler” in California Law; California Burglary Laws Penal Code 459 PC; How “Felony Probation” Works in California; Motion to Withdraw a Guilty or No-Contest Plea in California; Possession of Marijuana Health & Safety Code 11357 HS; and Expungement of Criminal Records in California.
1 Immigration & Nationality Act (“INA”) 237, 8 U.S.C. 1227 – Deportable crimes [convictions for which a non-citizen may want to seek post-conviction relief].
2 INA 212, 8 U.S.C. 1182 – Inadmissible crimes [convictions for which a non-citizen may want to seek post-conviction relief].
See also INA 245, 8 U.S.C. 1255 – Adjustment of status of nonimmigrant to that of person admitted for permanent residence.
3 Penal Code 1016.5 PC – Advisement concerning status as alien; reconsideration of plea; effect of noncompliance [can be a basis for post-conviction relief]. (“(a) Prior to acceptance of a plea of guilty or nolo contendere to any offense punishable as a crime under state law, except offenses designated as infractions under state law, the court shall administer the following advisement on the record to the defendant: If you are not a citizen, you are hereby advised that conviction of the offense for which you have been charged may have the consequences of deportation, exclusion from admission to the United States, or denial of naturalization pursuant to the laws of the United States.”)
4 Penal Code 1018 PC – Defendant to plead in person; refusal of certain pleas; change of plea; corporate defendants; construction of section [may be basis of post-conviction relief]. (“Unless otherwise provided by law, every plea shall be entered or withdrawn by the defendant himself or herself in open court. No plea of guilty of a felony for which the maximum punishment is death, or life imprisonment without the possibility of parole, shall be received from a defendant who does not appear with counsel, nor shall that plea be received without the consent of the defendant's counsel. No plea of guilty of a felony for which the maximum punishment is not death or life imprisonment without the possibility of parole shall be accepted from any defendant who does not appear with counsel unless the court shall first fully inform him or her of the right to counsel and unless the court shall find that the defendant understands the right to counsel and freely waives it, and then only if the defendant has expressly stated in open court, to the court, that he or she does not wish to be represented by counsel. On application of the defendant at any time before judgment or within six months after an order granting probation is made if entry of judgment is suspended, the court may, and in case of a defendant who appeared without counsel at the time of the plea the court shall, for a good cause shown, permit the plea of guilty to be withdrawn and a plea of not guilty substituted. Upon indictment or information against a corporation a plea of guilty may be put in by counsel. This section shall be liberally construed to effect these objects and to promote justice.”)
5 INA 237(a)(2)(B) – Deportable crimes [convictions for which a non-citizen may want to seek post-conviction relief]. (“(B) Controlled substances (i) Conviction Any alien who at any time after admission has been convicted of a violation of (or a conspiracy or attempt to violate) any law or regulation of a State, the United States, or a foreign country relating to a controlled substance (as defined in section 802 of Title 21), other than a single offense involving possession for one's own use of 30 grams or less of marijuana, is deportable.”)
6 See Penal Code 1018 PC [form of post-conviction relief], endnote 4, above.
7 See INA 237, endnote 1, above; INA 212, endnote 2, above.
8 INA 245, 8 U.S.C. 1255 – Adjustment of status of nonimmigrant to that of person admitted for permanent residence [can be affected by immigration consequences of a California criminal conviction]. (“(a) The status of an alien who was inspected and admitted or paroled into the United States 1/ or the status of any other alien having an approved petition for classification as a VAWA self-petitioner 1aa/ may be adjusted by the Attorney General, in his discretion and under such regulations as he may prescribe, to that of an alien lawfully admitted for permanent residence if (1) the alien makes an application for such adjustment, (2) the alien is eligible to receive an immigrant visa and is admissible to the United States for permanent residence, and(3) an immigrant visa is immediately available to him at the time his application is filed. . . . (i) (1) 2a/ Notwithstanding the provisions of subsections (a) and (c) of this section, an alien physically present in the United States--(A) who--(i) entered the United States without inspection; . . . (2) Upon receipt of such an application and the sum hereby required, the Attorney General may adjust the status of the alien to that of an alien lawfully admitted for permanent residence if- (A) the alien is eligible to receive an immigrant visa and is admissible to the United States for permanent residence; and(B) an immigrant visa is immediately available to the alien at the time the application is filed.”)
9 See Sierra-Reyes v. INS, (5th Cir. 1978) 585 F.2d 762. (“The petitioner makes several other related arguments. For example, he argues that if he is an alien [with a criminal conviction that has immigration consequences] and if the deportation statutes therefore apply to him, the application of those statutes in this case violates the equal protection clause. His argument is that by virtue of his long residence, he stands similarly situated to any person born in the United States. Since "an individual born in this country would not be deported if he committed the same identical crimes" as the petitioner, the deportation statutes effect an unlawful discrimination. We have considered this and other arguments raised by petitioner and find them meritless.”)
10 Encis-Cardozo v. INS, (2d Cir. 1974), 504 F.2d 1252. (“[I]t appears to be firmly established that an infant's status as a citizen and his dependence on his alien parent do not prevent the deportation of the alien parent [following a criminal conviction]. . . .”)
11 See INA 101(a)(3), 8 U.S.C. 1101 – Definitions. (“(a) As used in this Act – . . . (3) the term “alien” means any person not a citizen or national of the United States.”)
12 See INA 101(a)(43) – Definitions.
13 INA 237, endnote 1, above.
14 INA 212, endnote 2, above.
15 U.S. Const., am. VI [can be a basis for post-conviction relief]. (“In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.”)
16 See Strickland v. Washington, (1984) 466 U.S. 668, 686.
17 Padilla v. Kentucky, (2010) 559 U.S. 356, 360 [basis for Padilla motion]. (“We granted certiorari, 555 U.S. 1169, 129 S.Ct. 1317, 173 L.Ed.2d 582 (2009), to decide whether, as a matter of federal law, Padilla's counsel had an obligation to advise him that the offense to which he was pleading guilty would result in his removal from this country. We agree with Padilla that constitutionally competent counsel would have advised him that his conviction for drug distribution made him subject to automatic deportation. Whether he is entitled to [post-conviction] relief depends on whether he has been prejudiced, a matter that we do not address.”)
18 See same.
19 Chaidez v. United States, (2013) 133 S.Ct. 1103, 1105.
20 Based on the facts of Padilla v. Kentucky, endnote 17, above.
21 San Diego criminal defense and immigration attorney Nicole Valera understands the unique issues facing immigrants charged with California crimes. She is experienced with representing aliens both in their initial criminal proceedings and in efforts to obtain post-conviction relief. Ms. Valera served as a public defender with the Los Angeles County Public Defender's Office before she began working as a private criminal defense lawyer. Today, she represents both U.S. citizen and non-citizen clients at courthouses in criminal proceedings throughout Southern California.
22 INA 237(a)(2)(iii) – Deportable crimes [convictions for which a non-citizen may want to seek post-conviction relief]. (“(iii) Aggravated felony Any alien who is convicted of an aggravated felony at any time after admission is deportable.”)
See also INA 101(a)(43) – Definitions. (“(43) The term “aggravated felony” means-- . . . G) a theft offense (including receipt of stolen property) or burglary offense for which the term of imprisonment at least one year; . . .”)
23 INA 212(a)(2)(B) – Inadmissible crimes [convictions for which a non-citizen may want to seek post-conviction relief]. (“(B) Multiple criminal convictions. Any alien convicted of 2 or more offenses (other than purely political offenses), regardless of whether the conviction was in a single trial or whether the offenses arose from a single scheme of misconduct and regardless of whether the offenses involved moral turpitude, for which the aggregate sentences to confinement were 5 years or more is inadmissible.”)
24 INA 212(a)(2)(A)(ii)(II) Inadmissible crimes [convictions for which a non-citizen may want to seek post-conviction relief]. (“(ii) Exception Clause (i)(I) shall not apply to an alien who committed only one crime if-- . . . (II) the maximum penalty possible for the crime of which the alien was convicted (or which the alien admits having committed or of which the acts that the alien admits having committed constituted the essential elements) did not exceed imprisonment for one year and, if the alien was convicted of such crime, the alien was not sentenced to a term of imprisonment in excess of 6 months (regardless of the extent to which the sentence was ultimately executed).”)
25 INA 237, endnote 1, above.
26 Penal Code 17(b)(3) PC – Classification of offenses [basis for post-conviction relief]. (“(b) When a crime is punishable, in the discretion of the court, by imprisonment in the state prison or by fine or imprisonment in the county jail [which is, by definition, a wobbler], it is a misdemeanor for all purposes under the following circumstances: . . . (3) When the court grants probation to a defendant without imposition of sentence and at the time of granting probation, or on application of the defendant or probation officer thereafter, the court declares the offense to be a misdemeanor.”)
27 Penal Code 17(b) PC – Classification of offenses [basis for post-conviction relief]. (“When a crime is punishable, in the discretion of the court, by imprisonment in the state prison or by fine or imprisonment in the county jail [which is, by definition, a wobbler], it is a misdemeanor for all purposes under the following circumstances: (1) After a judgment imposing a punishment other than imprisonment in the state prison. (2) When the court, upon committing the defendant to the Youth Authority, designates the offense to be a misdemeanor. (3) When the court grants probation to a defendant without imposition of sentence and at the time of granting probation, or on application of the defendant or probation officer thereafter, the court declares the offense to be a misdemeanor. (4) When the prosecuting attorney files in a court having jurisdiction over misdemeanor offenses a complaint specifying that the offense is a misdemeanor, unless the defendant at the time of his or her arraignment or plea objects to the offense being made a misdemeanor, in which event the complaint shall be amended to charge the felony and the case shall proceed on the felony complaint. (5) When, at or before the preliminary examination or prior to filing an order pursuant to Section 872, the magistrate determines that the offense is a misdemeanor, in which event the case shall proceed as if the defendant had been arraigned on a misdemeanor complaint.")
28 Penal Code 461 PC – Burglary [can be reduced from felony to misdemeanor as form of post-conviction relief]; punishment. (“(b) Burglary in the second degree: by imprisonment in the county jail not exceeding one year or imprisonment pursuant to subdivision (h) of Section 1170.”)
See also Penal Code 460 PC – Burglary; degrees. (“460. (a) Every burglary of an inhabited dwelling house, vessel, as defined in the Harbors and Navigation Code, which is inhabited and designed for habitation, floating home, as defined in subdivision (d) of Section 18075.55 of the Health and Safety Code, or trailer coach, as defined by the Vehicle Code, or the inhabited portion of any other building, is burglary of the first degree. (b) All other kinds of burglary are of the second degree.”)
29 Penal Code 245(a)(1) PC – Assault with a deadly weapon [can be reduced from felony to misdemeanor as form of post-conviction relief]. (“(a) (1) Any person who commits an assault upon the person of another with a deadly weapon or instrument other than a firearm or by any means of force likely to produce great bodily injury shall be punished by imprisonment in the state prison for two, three, or four years, or in a county jail for not exceeding one year, or by a fine not exceeding ten thousand dollars ($10,000), or by both the fine and imprisonment.”)
30 Penal Code 243.4 PC – Sexual battery [can be reduced from felony to misdemeanor as form of post-conviction relief]. (“(a) Any person who touches an intimate part of another person while that person is unlawfully restrained by the accused or an accomplice, and if the touching is against the will of the person touched and is for the purpose of sexual arousal, sexual gratification, or sexual abuse, is guilty of sexual battery. A violation of this subdivision is punishable by imprisonment in a county jail for not more than one year, and by a fine not exceeding two thousand dollars ($2,000); or by imprisonment in the state prison for two, three, or four years, and by a fine not exceeding ten thousand dollars ($10,000).”)
31 Penal Code 17(b)(3) PC – Classification of offenses [basis for post-conviction relief], endnote 26, above.
32 Penal Code 1018 PC – Motion to withdraw a plea [form of post-conviction relief]. (“Unless otherwise provided by law, every plea shall be entered or withdrawn by the defendant himself or herself in open court. No plea of guilty of a felony for which the maximum punishment is death, or life imprisonment without the possibility of parole, shall be received from a defendant who does not appear with counsel, nor shall that plea be received without the consent of the defendant's counsel. No plea of guilty of a felony for which the maximum punishment is not death or life imprisonment without the possibility of parole shall be accepted from any defendant who does not appear with counsel unless the court shall first fully inform him or her of the right to counsel and unless the court shall find that the defendant understands the right to counsel and freely waives it, and then only if the defendant has expressly stated in open court, to the court, that he or she does not wish to be represented by counsel. On application of the defendant at any time before judgment or within six months after an order granting probation is made if entry of judgment is suspended, the court may, and in case of a defendant who appeared without counsel at the time of the plea the court shall, for a good cause shown, permit the plea of guilty to be withdrawn and a plea of not guilty substituted. Upon indictment or information against a corporation a plea of guilty may be put in by counsel. This section shall be liberally construed to effect these objects and to promote justice.”)
33 See same.
34 See same.
35 See People v. Sup. Ct. (Giron), (1974) 11 Cal.3d 793, 798. (“The situation in the instant case is one in which the court was properly vested with discretion to grant or to deny the motion [for post-conviction relief] after considering all factors necessary to bring about a just result. We would not necessarily conclude that a court abused its discretion if it either granted or denied a motion to set aside a plea of guilty on evidence that an accused was or was not aware of the possibility of deportation; the test of abuse in such circumstances is whether after consideration of all relevant factors there was good cause shown for granting the motion and whether justice would be promoted thereby. (Pen. Code, § 1018; see People v. Flores (1974) 38 Cal.App.3d 484, 488 [113 Cal.Rptr. 272].) When, as here, the accused entered his plea of guilty without knowledge of or reason to suspect severe collateral consequences, the court could properly conclude that justice required the withdrawal of the plea on motion therefor. (Cf. People v. Coley (1968) 257 Cal.App.2d 787 [65 Cal.Rptr. 559].)”)
36 Based on the facts of the same.
37 See Padilla v. Kentucky, endnote 17, above.
38 See Chaidez v. United States, endnote 19, above.
39 Penal Code 1016.5 PC – Advisement concerning status as an alien [may be basis for post-conviction relief]. (“(a) Prior to acceptance of a plea of guilty or nolo contendere to any offense punishable as a crime under state law, except offenses designated as infractions under state law, the court shall administer the following advisement on the record to the defendant: If you are not a citizen, you are hereby advised that conviction of the offense for which you have been charged may have the consequences of deportation, exclusion from admission to the United States, or denial of naturalization pursuant to the laws of the United States. (b) Upon request, the court shall allow the defendant additional time to consider the appropriateness of the plea in light of the advisement as described in this section. If, after January 1, 1978, the court fails to advise the defendant as required by this section and the defendant shows that conviction of the offense to which defendant pleaded guilty or nolo contendere may have the consequences for the defendant of deportation, exclusion from admission to the United States, or denial of naturalization pursuant to the laws of the United States, the court, on defendant's motion, shall vacate the judgment and permit the defendant to withdraw the plea of guilty or nolo contendere, and enter a plea of not guilty. Absent a record that the court provided the advisement required by this section, the defendant shall be presumed not to have received the required advisement.”)
40 See same.
41 People v. Sup. Ct. (Zamudio), (2000) 23 Cal.4th 999, 204. (“Absent evidence defendant long ago had cause to question the accuracy of the trial court's 1992 immigration advisements, to hold he should have objected to them earlier would be unfair. This conclusion accords with the plain language of section 1016.5 [basis for post-conviction relief], which contains no time bar.”)
42 See same, at 199-200. (“For the foregoing reasons, and in order to avoid whatever constitutional infirmity a contrary construction might engender, we have no difficulty construing section 1016.5 to require that defendants, in order to obtain [post-conviction] relief under subdivision (b) of the statute, demonstrate they were prejudiced by any failure of the court to provide complete advisements under subdivision (a). Accordingly, when ruling on defendant's section 1016.5 motion, the trial court in this case erred in failing to consider, not only whether it formerly had failed to advise defendant as section 1016.5 requires and whether, as a consequence of his conviction on the offense to which he pleaded nolo contendere, defendant actually faces one or more of the statutorily specified immigration consequences, but also whether defendant was prejudiced by the court's having provided incomplete advisements.”)
43 Black's Law Dictionary (9th ed. 2009), habeas corpus [form of post-conviction relief]. (“[Law Latin ‘that you have the body'] (18c) A writ employed to bring a person before a court, most frequently to ensure that the person's imprisonment or detention is not illegal (habeas corpus ad subjiciendum). • In addition to being used to test the legality of an arrest or commitment, the writ may be used to obtain judicial review of (1) the regularity of the extradition process, (2) the right to or amount of bail, or (3) the jurisdiction of a court that has imposed a criminal sentence.”)
44 Penal Code 1473 PC – Persons authorized to prosecute writ; false evidence. (“(a) Every person unlawfully imprisoned or restrained of his liberty, under any pretense whatever, may prosecute a writ of habeas corpus [form of post-conviction relief], to inquire into the cause of such imprisonment or restraint.”)
45 People v. Jackson, (1973) 10 Cal.3d 265, 268. (“Denial of the right to effective assistance of counsel is one trial error which is cognizable on collateral review [in habeas corpus petition for post-conviction relief] whether or not it was raised on appeal.”)
46 See Padilla v. Kentucky, endnote 17, above; Chaidez v. United States, endnote 19, above.
47 Penal Code 1473 PC – Persons authorized to prosecute writ; false evidence, endnote 44, above.
48 Matter of Pickering, (BIA 2003) 23 I&N Dec. 621, 624. (“In accord with the federal court opinions applying the definition of a conviction at section 101(a)(48)(A) of the Act, we find that there is a significant distinction between convictions vacated on the basis of a procedural or substantive defect in the underlying proceedings and those vacated because of post-conviction events, such as rehabilitation or immigration hardships. Thus, if a court with jurisdiction vacates a conviction based on a defect in the underlying criminal proceedings, the respondent no longer has a “conviction” within the meaning of section 101(a)(48)(A). If, however, a court vacates a conviction [grants post-conviction relief] for reasons unrelated to the merits of the underlying criminal proceedings, the respondent remains “convicted” for immigration purposes.”)
49 Penal Code 1203.4 – Expungement of criminal record [form of post-conviction relief that may not help avoid immigration consequences]. (“(a)(1) In any case in which a defendant has fulfilled the conditions of probation for the entire period of probation, or has been discharged prior to the termination of the period of probation, or in any other case in which a court, in its discretion and the interests of justice, determines that a defendant should be granted the relief available under this section, the defendant shall, at any time after the termination of the period of probation, if he or she is not then serving a sentence for any offense, on probation for any offense, or charged with the commission of any offense, be permitted by the court to withdraw his or her plea of guilty or plea of nolo contendere and enter a plea of not guilty; or, if he or she has been convicted after a plea of not guilty, the court shall set aside the verdict of guilty; and, in either case, the court shall thereupon dismiss the accusations or information against the defendant and except as noted below, he or she shall thereafter be released from all penalties and disabilities resulting from the offense of which he or she has been convicted, except as provided in Section 13555 of the Vehicle Code. The probationer shall be informed, in his or her probation papers, of this right and privilege and his or her right, if any, to petition for a certificate of rehabilitation and pardon. The probationer may make the application and change of plea in person or by attorney, or by the probation officer authorized in writing. However, in any subsequent prosecution of the defendant for any other offense, the prior conviction may be pleaded and proved and shall have the same effect as if probation had not been granted or the accusation or information dismissed. The order shall state, and the probationer shall be informed, that the order does not relieve him or her of the obligation to disclose the conviction in response to any direct question contained in any questionnaire or application for public office, for licensure by any state or local agency, or for contracting with the California State Lottery Commission.”)
50 See Labor Code 432.7 LC.
51 See Matter of Roldan, (BIA 1999) 22 I&N Dec. 512, 524. (“We conclude that Congress did not intend for the various state rehabilitative measures [post-conviction relief] designed to avoid or erase the stigma of a conviction to be considered in determining whether an alien has been convicted for purposes of applying the immigration laws. “)