The California Court of Appeal, Fourth District, has issued a decision regarding the obligations of criminal defense counsel in 2003 when representing a non-citizen defendant. The court determined that in 2003, there was no general obligation imposed by case law on defense counsel to discuss the immigration consequences of a plea. However, the court left open the possibility that expert testimony, the California Criminal Law CEB, and the ABA standards of practice could establish that advisals about immigration consequences were the professional norm at the time. Indeed, in this case, the criminal defense attorney (O’connor) testified that he would have researched immigration issues, and the defendant presented an expert witness (Mehr) on the prevailing norms.

“Although Mehr's testimony coupled with O'Connor's testimony may point toward the potential of a more robust obligation on behalf of criminal defense attorneys that might have existed in 2003, on the record before us, we need not make such a sweeping proclamation. Nor can we. Based on the specific facts of the case, it is apparent that, in the Fontana courthouse in San Bernardino County, criminal defense attorneys, in 2003, had the practice of advising noncitizen defendants.”

Interesting, the court focused on the prevailing professional standards in San Bernardino County, and more specifically, the Fontana courthouse within that county in 2003. “We are not holding that a criminal defense attorney, in 2003, had a duty to investigate and discuss all immigration consequences related to the offenses charged against a defendant. We do not conclude that, in 2003, a criminal defense attorney had the duty to attempt to negotiate a plea bargain that would reduce the immigration consequences of a plea. It might be that such duties existed then, but that determination cannot be reached on the record before us.” However, the court did conclude that O’Connor’s conduct fell below the prevailing norms.

The full text of People v. Novoa can be found here: