The Court of Appeal for the State of California, Fifth Appellate District, has held that a denial of a 1473.7 motion to vacate is subject to de novo review. The court noted that the trial court, in giving the required 1016.5 advisements, told the defendant he would suffer immigration consequences, not that he might suffer them. “After being specifically advised by the trial court his plea would lead to his deportation and denial of readmission to the United States, Tapia did not request more time to speak with counsel or further consider the appropriateness of entering a plea. Instead, when asked by the trial court if he understood, Tapia affirmatively stated he understood this advisement from the trial court.”

In addition, his criminal defense attorney stated in his declaration he specifically advised Tapia the negotiated disposition “exposed him to deportation proceedings and other negative consequences. These would include loss of permanent resident status, preclusion from citizenship and prevention of reentry, as this was my custom and practice in situations similar to … Tapia’s.” He further stated that he advised Tapia that immigration officials “could put a hold on him any day, and although he still faced deportation out of custody, the chances of such proceedings decreased when not in jail.” “Therefore, we uphold the trial court’s finding Tapia was advised of the specific immigration consequences of his plea and the effect the plea would have on his legal resident status. “

“Tapia also contends Collins rendered deficient representation by failing to negotiate an ‘immigration safe’ plea bargain. Tapia’s claim such a disposition could have been negotiated is pure speculation without support in the record.” “Collins also believed he advised Tapia immigration might put a hold on him any day, and the sooner Tapia was released from custody, the less likely it was he would face deportation proceedings. The probation report confirms there were no holds on Tapia at the time of entry of the plea precluding a release from custody. As such, the plea bargain allowing for a quick release from custody to avoid any immigration holds also provided a better resolution for immigration purposes.”

The full text in People v. Tapia can be found here: