Tag Archives: Duty of counsel

Duty of counsel, Immigration, Standard of review

Case: 000240

Posted on by Gary McCurdy

Error and/or relief

The defendant entered the United States in 1991 and obtained permanent residency in the mid-2000s. She was convicted by plea in 2009 of grand theft and was ordered to serve one year in the county jail as a condition of probation. At the time of her plea, she was advised under section 1016.5 that conviction may have the consequences of deportation, exclusion of admission to the United States, or denial of naturalization. There was no indication that her then-attorney discussed immigration consequences with her. She was not aware that a jail term of 364 days instead of 365 days would have made a difference regarding her immigration status.

Because service of at least 365 days in custody constitutes an aggravated felony, in 2010 she was notified by immigration authorities that she was subject to removal. She conceded removability and was deported. In 2023, someone she had kept in contact with over the years suggested she contact the public defender. She did, and a petition to vacate her conviction was filed under section 1473.7 Based on our independent review, we conclude the defendant has shown prejudicial error based on the totality of the circumstances. It was error to deny the defendant’s petition under section 1473.7 to vacate her conviction because prejudicial error impaired her ability to understand the immigration consequences of her plea.

First Holding:

Section 1473.7 allows noncitizens who have served their sentences to vacate a conviction if they can establish by a preponderance of the evidence that their conviction is legally invalid due to prejudicial error damaging their ability to meaningfully understand, defend against, or knowingly accept the actual or potential adverse immigration consequences of a conviction or sentence. If the required showings are made, the court must vacate the conviction or sentence.

Authority:

PEN 1473.7(a)(1), (e)(1)

People v. Espinoza (2023) 14 Cal.5th 311, 316

Second Holding:

Appeals from section 1473.7 hearings are subject to independent review. Under this standard, an appellate court exercises its independent judgment to determine whether the facts satisfy the rule of law. We give deference to the trial court’s factual determinations if they are based on the credibility of witnesses the superior court heard and observed. But when the trial court’s findings derive entirely from written declarations and other documents, the trial court and the reviewing court are in the same position, and no deference is owed.

Authority:

People v. Espinoza (2023) 14 Cal.5th 311, 319-320

Third Holding:

Subject to statutory exceptions, a motion to vacate based on immigration consequences shall be deemed timely filed at any time in which the individual filing the motion is no longer in criminal custody. The exceptions state the motion may be deemed untimely filed if it was not filed with reasonable diligence after the later of several events: receipt of a notice to appear in immigration court, notice from immigration authorities asserting adverse consequences from the conviction or sentence, or notice of a final removal order.

Authority:

PEN 1473.7(b)(1) and (b)(2)

Fourth Holding:

The statutory exceptions to timeliness do not apply here. Because the defendant was given notice of immigration consequences before the 2017 effective date of section 1473.7, the test is: What event in her life that occurred after section 1473.7 became effective would have given her a reason to look for the existence of new legal grounds for relief or, at a minimum, put her on notice of the need to investigate? We assess the reasonableness of the petitioner’s diligence from that point forward. In so doing, we must take into account the totality of the circumstances. The record does not suggest some event occurred between the time the legislation became effective in 2017 and her contact with her attorney in 2023 that put her on notice. We conclude the motion was timely.

Authority:

People v. Alatorre (2021) 70 Cal.App.5th 747, 762, 765-766

Fifth Holding:

Relief pursuant to section 1473.7 requires that the defendant show prejudicial error damaging the moving party’s ability to meaningfully understand, defend against, or knowingly accept the actual or potential adverse immigration consequences of a conviction or sentence. Because the defendant’s conviction of theft with a one-year sentence constituted an aggravated felony, she was subject to mandatory deportation and permanent exclusion from the United States and was also ineligible for cancellation of removal, a form of discretionary relief allowing some deportable aliens to remain in the country.

Authority:

8 U.S.C. 1101(a)(43)(G)

8 U.S.C. 1227(a)(2)(A)(iii)

8 U.S.C. 1229b(a)(3), (b)(1)(C)

People v. Carrillo (2024) 101 Cal.App.5th 1, 15

Sixth Holding:

A defendant seeking section 1473.7 relief must demonstrate that the error is prejudicial, meaning a reasonable probability that the defendant would have rejected the plea if the defendant had correctly understood its actual or potential immigration consequences. This might be based either on the desire to go to trial or on the hope or expectation of negotiating a different bargain without immigration consequences. Relief is available if the defendant establishes he or she would have rejected the existing bargain to accept or attempt to negotiate another.

Authority:

People v. Espinoza (2023) 14 Cal.5th 311, 316

People v. Vivar (2021) 11 Cal.5th 510, 529

People v. Martinez (2013) 57 Cal.4th 555, 559

Seventh Holding:

Her ignorance of the immigration consequences of her conviction and sentence was an error that damaged her ability to meaningfully understand and knowingly accept those consequences. A showing of ineffective assistance of counsel was not required because the motion was based on the inadequate advisement by the trial court that the conviction may have immigration consequences and the defendant’s own error in not knowing that her plea would subject her to mandatory deportation and permanent exclusion from the United States. There was no indication her attorney considered the immigration consequences of her plea even though a social worker had expressed concern and the defendant had expressed concern to probation. This failure impeded the defendant’s ability to understand the consequences of her plea.

Authority:

PEN 1473.7(a)(1)

People v. Mejia (2019) 36 Cal.App.5th 859, 871

People v. Padron (2025) 109 Cal.App.5th 950, 960–961

Eighth Holding:

Defense counsel has a duty to advise criminal defendant clients of the immigration consequences.

Authority:

PEN 1016.2

PEN 1016.3

Padilla v. Kentucky (2010) 559 U.S. 356, 371

People v. Carrillo (2024) 101 Cal.App.5th 1, 17-18

Duty of counsel, Sentencing, Sixth Amendment

Case: 000237

Posted on by Gary McCurdy

Error and/or relief

The sentencing court erred by considering aggravating circumstances not proven at trial. Because we reverse and remand for resentencing, we need not address the defendant’s contention that the court committed dual use error by relying on same fact—that he was was armed with or used a firearm—to both impose enhancements and sentence him to the upper term. He may raise his dual use argument at resentencing.

First Holding:

The defendant’s attorney did not object to dual use of facts or reliance on factors in aggravation that were not proved at trial. In general, claims not raised in the trial court may not be raised for the first time on appeal. This includes claims involving the trial court’s failure to properly make or articulate its discretionary sentencing choices.

However, an appellate court may decline to apply the forfeiture rule. Where an otherwise forfeited claim presents an important question of constitutional law or a substantial right, the appellate court may exercise discretion to review the claim. Thus, in People v. Gonzalez, this court declined to apply forfeiture to the defendant’s section 1170(b) claim where the defendant did not refer to the statute at sentencing, citing the defendant’s alternative claim of ineffective assistance of counsel and stating the application of amended section 1170(b) implicates a constitutional right.

Authority:

People v. Gonzalez (2024) 107 Cal.App.5th 312, 326-327

People v. Coddington (2023) 96 Cal.App.5th 562, 568

People v. Denard (2015) 242 Cal.App.4th 1012, 1030, fn. 10

Second Holding:

The court may impose a sentence exceeding the middle term only when there are circumstances in aggravation of the crime that justify the imposition of a term of imprisonment exceeding the middle term and the facts underlying those circumstances have been stipulated to by the defendant or have been found true beyond a reasonable doubt at trial by the jury or by the judge in a court trial.

Authority:

PEN 1170

Third Holding:

Under the Sixth Amendment to the United States Constitution, any fact that exposes a defendant to a greater potential sentence must be found by a jury, not a judge, and established beyond a reasonable doubt. Virtually any fact that increases the prescribed range of penalties to which a criminal defendant is exposed must be resolved by a unanimous jury beyond a reasonable doubt (or freely admitted in a guilty plea). Under the current version of section 1170(b)(2), a Sixth Amendment violation occurs when the trial court relies on unproven aggravating facts to impose an upper term sentence, even if some other aggravating facts relied on have been properly established.

Authority:

Cunningham v. California (2007) 549 U.S. 270, 281

Erlinger v. United States (2024) 602 U.S. 821, 834

People v. Lynch (2024) 16 Cal.5th 730, 768

Fourth Holding:

When a trial court has given both proper and improper reasons for a sentence choice, a reviewing court will set aside the sentence only if it is reasonably probable that the trial court would have chosen a lesser sentence had it known that some of its reasons were improper. When the trial court actually relies on improperly proven aggravating facts to justify an upper term sentence, a Sixth Amendment violation occurs and the Chapman standard of reversal unless harmless beyond a reasonable doubt must be satisfied.

Authority:

People v. Price (1991) 1 Cal.4th 324, 492

Chapman v. California (1967) 386 U.S. 18

Abstracts and Minutes, Amelioration, Duty of the court, Sentencing

Case: 000172

Posted on by Gary McCurdy

Error and/or relief

Following the defendant’s resentencing, the abstract of judgment must be amended to reflect the additional days of credit for time served since the original sentence was imposed.

First Holding:

A sentencing court must award credits for all days in custody up to and including the day of sentencing. At resentencing, the trial court must calculate the actual time the defendant has already served and credit that time against the subsequent sentence.

Authority:

People v. Bravo (1990) 219 Cal.App.3d 729, 735

People v. Buckhalter (2001) 26 Cal.4th 20, 23

Second Holding:

The abstract of judgment incorrectly reflects the trial court’s calculation of custody credits. The abstract of judgment must be amended to include an additional [more than 4,000 days] for the period the defendant remained in custody between his [after 2010] original sentencing and his [before 2025] resentencing.

[GARY NOTE: There was no authority indicated in the opinion for the correction of the abstract. The error is so obvious that it hardly seems necessary to provide authority. Nonetheless, there is authority the court could have cited. The appellate court may direct the trial court to correct clerical errors in an abstract of judgment. I have set forth some of the authorities the court could have cited.]

Authority:

People v. Mitchell (2001) 26 Cal.4th 181, 185
People v. Delgado (2008) 43 Cal.4th 1059, 1070
People v. Leon (2020) 8 Cal.5th 831, 855
In re Black (1967) 66 Cal.2d 881, 890
People v. Zackery (2007) 147 Cal.App.4th 380, 385
People v. Farell (2002) 28 Cal.4th 381, 384, fn. 2

Abstracts and Minutes, Duty of counsel, Sentencing

Case: 000161

Posted on by Gary McCurdy

Error and/or relief

The abstract of judgment must be corrected to accurately reflect the sentence orally imposed by the court. Here, the abstract incorrectly states that the court imposed an enhancement term of 25 years to life for gang-related firearm enhancements. In fact, those enhancements were not retried; they both must be stricken from the abstract. The abstract also incorrectly states that the enhancement imposed and stayed on count 3 was imposed under both subdivisions (d) and (e)(1) of section 12022.53.

First Holding:

An abstract of judgment is not the judgment of conviction; it does not control if different from the trial court’s oral judgment and may not add to or modify the judgment it purports to digest or summarize.

Authority:

People v. Mitchell (2001) 26 Cal.4th 181, 185

Second Holding:

A defendant who fails to object before the trial court to a sentence on the ground that it is being imposed in a procedurally or factually flawed manner generally forfeits the right to challenge such error on appeal. The objections must be specifically articulated, to provide the trial court with a meaningful opportunity to evaluate the claims and correct any errors. Appellant did not object when the court stated its reasons for imposing consecutive sentences, nor did he object when given the opportunity to do so at the conclusion of the hearing. We accordingly find these arguments forfeited.

Authority:

In re F.M. (2023) 14 Cal.5th 701, 710

People v. Scott (1994) 9 Cal.4th 331, 354

People v. De Soto (1997) 54 Cal.App.4th 1, 9

Duty of counsel

Case 000015

Posted on by Gary McCurdy

Error and/or relief

You might want to draw a cuppa joe for this one.  It’s probably less related to criminal law practice than it is to law office management with regard to criminal clients.  The “Eighth Holding” is not a holding in the opinion, but some speculative observations by me. This case presented an unusual set of circumstances involving a request of a defendant for his prior attorney to provide him discovery under the auspices of Penal Code section 1054.9. The outcome of the litigation is not so important (but attorneys, remember that I will send you the actual opinion to your State Bar email address if you ask me for it). But it has some interesting statements on the ethical obligation to turn over a client’s file (something we probably all knew already). And now for something different: Effective January 1, 2026, the trial attorney must retain a copy of the client’s file (for the entire term of the defendant’s incarceration) for any client whose conviction of a felony resulted in incarceration in the Department of Corrections and Rehabilitation. What’s new is that previously it applied only to those whose convictions were for serious or violent felonies resulting in a sentence greater than 15 years. (No mention of actual incarceration being required. It’s possible that was simply understood. I haven’t researched that aspect, and as of 1/1/26, I don’t have to.) Instead, the amended version pertains to those convicted of any felony resulting in incarceration in the Department of Corrections and Rehabilitation for a term of any length.

First Holding:

Counsel has a duty to turn over client’s file to client.

Authority:

State Bar proposed opinion 19-0004 (duty to retain files while client is alive)
State Bar Rules of Professional Conduct rule 1.16

Second Holding:

As of 1/1/26, Penal Code section 1054.9 was be amended to expand its application to any defendant sentenced to a prison term, eliminate the requirement that the defendant first attempt to obtain discovery materials from their attorneys, and broaden the definition of discovery materials to include materials a defendant would be entitled to today (even if not discoverable at the time of the original trial), exculpatory evidence, and the prosecutor’s jury selection notes. Trial counsel shall retain a copy of a former client’s files for the term of that client’s imprisonment.

Authority:

PEN 1054.9

Barnett v. Superior Court (2010) 50 Cal.4th 890

People v. Superior Court (Morales) (2017) 2 Cal.5th 523

Satele v. Superior Court (2019) 7 Cal.5th 852

Third Holding:

Review of nonappealable order is by petition for writ of mandate.

Authority:

In re Steele (2004) 32 Cal.4th 682, 692 [after the trial court has ruled, either party may challenge that ruling by a petition for writ of mandate in the Court of Appeal]

Fourth Holding:

The appellate Court can treat the appellate opening brief as a petition for writ of mandate.

Authority:

Olson v. Cory (1983) 35 Cal.3d 390, 401

Shrewsbury Management Inc. v. Superior Court (2019) 32 Cal.App.5th 1213, 1221–1222

Fifth Holding:

Section 1054.9 was not intended to provide an avenue for a defendant to compel client files from defense counsel.

Authority:

Legislative history, AB 1987 in 2018

Sixth Holding:

The client can complain to the State Bar regarding lack of communication and effort to get files or can sue the attorney.

Authority:

Rose v. State Bar (1989) 49 Cal.3d 646, 653–655

White v. Molfetta (2021) 64 Cal.App.5th 628

Seventh Holding:

Section 1054.9’s purpose is to ensure defendant can compel discovery only from the prosecution, and imposes only a file retention duty on defense counsel.

Authority:

PEN 1054.9

Eighth Holding:

Well, not exactly a holding in the opinion, but here’s exactly what 1054.9(g) says effective January 1, 2026: “In criminal matters involving a conviction for a felony resulting in incarceration in the Department of Corrections and Rehabilitation, trial counsel shall retain a copy of a former client’s files for the term of that client’s imprisonment. An electronic copy is sufficient only if every item in the file is digitally copied in color and preserved. To the extent this section imposes new requirements on trial counsel, trial counsel shall begin retaining their physical files and digital color copies of evidence for all felony convictions on or after July 1, 2026.”  I was curious about the last sentence, as it says “for all felony convictions on or after July 1, 2026.”

That sentence makes no reference to “resulting in incarceration [in CDCR].” So I wondered whether that sentence was intended to be more expansive, or it simply assumed that the only convictions of concern are those mentioned in the first sentence of subdivision (g) (i.e., those resulting in incarceration in CDCR). I looked at the latest Senate Analysis prior to the signing of AB 1036. It seems reasonably clear that the Senate was contemplating retention only of those convictions resulting in CDCR incarceration, despite the lack of reference in the sentence I was curious about. That analysis says, in pertinent part, “[This Bill:] 9) Provides that to the extent this imposes new requirements on trial counsel, trial counsel shall begin retaining their physical files and digital color copies of evidence for all felony convictions resulting in incarceration in state prison on or after July 1, 2026.”

The final Assembly Analysis is not laid out quite the same way, but it does make reference to the report by the Senate Committee on Appropriations regarding costs, and characterizes it as follows: “Costs (local funds, General Fund) of an unknown amount to public defender offices to comply with the bill’s record retention requirements. The bill permits attorneys to retain digital color copies of evidence rather than storing physical copies of files, so costs may be primarily for additional workload to scan the files for all clients who meet the bill’s new eligibility requirements. General Fund costs will depend on whether the duties imposed by this bill constitute a reimbursable state mandate, as determined by the Commission on State Mandates.”

Although that section pertained to public defenders (because it was in the context of state-mandated costs incurred by government entities), the language “all clients who meet the bill’s new eligibility requirements” is telling. The only eligibility requirements are (a) felony conviction and (b) resulting in CDCR incarceration.

Authority:

Not much of one, Just Gary’s Brain