February 23, 2023 By Paul Wallin

How You Can Take Steps To Withdraw Your Guilty Plea in California | 1473.3 motion to vacate

Penal Code Section 1473.7 permits a defendant to vacate their plea in two ways: 1) Legal invalidity with actual or potential Immigration Consequences; or 2) Newly discovered evidence of actual innocence. The Court in Espinoza reviews the first one and provided the following guideline below to determine the reasonable probability of prejudicial error:

The Main Issue

What constitutes a sufficient showing of Prejudicial Error within the meaning of section 1473.7?

 The defendant must show by a preponderance of the evidence that their conviction is legally invalid. They can prove this by showing that they: 1) did not meaningfully understand the immigration consequences of their plea; and 2) that the defendant’s misunderstanding constituted prejudicial error

In California, prejudicial error means demonstrating a reasonable probability that the defendant would have rejected the plea if the defendant had correctly understood its actual or potential immigration consequences. In order to determine whether there is a reasonable probability a defendant would have rejected a plea offer if they had understood its immigration consequences, courts must consider the totality of the circumstances. 

Factors relevant to this inquiry include, but are not limited to, the defendant’s ties to the United States, the importance placed on avoiding deportation, priorities in seeking a plea bargain, whether the defendant had reason to believe an immigration-neutral negotiated disposition was possible, the probability of obtaining a more favorable outcome if the plea had been rejected, and the difference between the bargained-for term and the likely term if convicted at trial. 

These factors, however, must be supported by objective evidence that corroborates the defendant’s factual assertions. Objective evidence includes facts provided by declarations, contemporaneous documentation of the defendant’s immigration concerns or interactions with counsel, and evidence of the charges the defendant faced. 

The Court’s analysis in Espinoza provides three categories for evaluating objective evidence that must be considered as a whole: 

1) Community ties/Ties to the United States because they shed light on the defendant’s immigration priorities; 

2) Whether immigration-safe dispositions were available at the time of the defendant’s plea; 

3) the inquiry under section 1473.7 requires consideration of the totality of the circumstances, which involves a case-by-case examination of the record.

What does this mean? It ultimately means that a court’s totality of the circumstances analysis of prejudicial error must consider:

  • The Defendant’s Community Ties/Ties to the United States 
    • Objective evidence of community ties can be established by facts from a defendant’s declaration or declarations from family, friends, colleagues, community members, or other acquaintances. Such facts include:
      • Length of residence;
      • Immigration status;
      • Lack of connection to the country of origin;
      • Connections to family, friends, or the community;
      • Work history or financial ties; or 
      • Other forms of attachment
  • Whether immigration-safe dispositions were available at the time of the defendant’s plea
    • Objective evidence includes:
      • A defendant’s criminal record;
      • The strength of the prosecution’s case;
      • The seriousness of the charges or whether the crime involved sophistication;
      • The district attorney’s charging policies with respect to immigration consequences; and 
      • the existence of comparable offenses without immigration consequences
        • Key: A letter from an immigration attorney asserting alternatives the prosecution could have offered may be sufficient when coupled with another factor above. 
  • The 1473.7 inquiry involves a case-by-case examination of the record
    • A defendant is not required to provide the declaration of plea counsel; and
      • Note: Attempting to contact without success is sufficient as this evidence may not be available in all cases. 
    • A defendant is not required to submit contemporaneous documentation from the time of the plea. 

Contact An Experienced Wallin & Klarich Defense Lawyer Today. 

If you believe that you have grounds to withdraw your guilty plea or would like to further explore your case, our team of highly-skilled criminal defense lawyers would love to help. Wallin & Klarich has spent over 40 years fighting for our clients’ freedom and we will be here when you call. 

With offices in Orange County, Riverside, San Bernardino, Victorville, West Covina, Torrance, Los Angeles, and San Diego, there is an experienced Wallin & Klarich criminal defense lawyer available near you who will fight hard to help you obtain the best result possible in your case. Please contact us at (877) 4-NO-JAIL  or (714) 406-4738 for a free phone consultation. We will be there when you call.

AUTHOR: Paul Wallin

Paul Wallin is one of the most highly respected attorneys in Southern California. His vast experience, zealous advocacy for his clients and extensive knowledge of many areas of the law make Mr. Wallin a premiere Southern California attorney. Mr. Wallin founded Wallin & Klarich in 1981. As the senior partner of Wallin & Klarich, Mr. Wallin has been successfully representing clients for more than 30 years. Clients come to him for help in matters involving assault and battery, drug crimes, juvenile crimes, theft, manslaughter, sex offenses, murder, violent crimes, misdemeanors and felonies. Mr. Wallin also helps clients with family law matters such as divorce and child custody.

Practice area

  • Contact Us Now

    If you or a loved one have been accused of a crime, now is the time to contact us.

  • This field is for validation purposes and should be left unchanged.

SCHEDULE YOUR free consultation

If you or a loved one have been accused of a crime, this is the time to contact us.

  • This field is for validation purposes and should be left unchanged.