quick reference chart and notes for determining immigration - ILRC
quick reference chart and notes for determining immigration - ILRC
quick reference chart and notes for determining immigration - ILRC
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Cali<strong>for</strong>nia Quick Reference Chart <strong>and</strong> Notes<br />
February 2010<br />
amended complaint to make sure that they con<strong>for</strong>m to the plea. If not, have them corrected<br />
be<strong>for</strong>e you leave court. If the plea colloquy is helpful, assist the defendant to obtain a copy of<br />
the plea transcript. If the plea colloquy is not helpful, do not obtain a copy of this because the<br />
original will be available <strong>for</strong> ICE to get from the court file.<br />
Give a copy to the defendant of any of the above documents that can be beneficial to his<br />
case, including a certified copy of the written complaint or amended complaint, the minute<br />
orders of the plea, the written waiver <strong>for</strong>m or plea agreement, the Abstract of Judgment, <strong>and</strong>, if<br />
helpful, obtain the transcript of the plea colloquy. Tell the defendant to keep a copy of these<br />
documents <strong>and</strong> give them to his <strong>immigration</strong> attorney if he is ever put in removal proceedings or<br />
has an <strong>immigration</strong> problem. If he is headed <strong>for</strong> removal proceedings <strong>and</strong> will be unrepresented,<br />
tell him to keep them to show to the judge. In addition, give the defendant a short statement<br />
describing how the disposition prevents an <strong>immigration</strong> consequence. See discussion <strong>and</strong> draft<br />
statements at § N.14 Safer Pleas, infra.<br />
E. Factual Basis <strong>for</strong> the Plea 79<br />
Introduction. One of the many challenges facing criminal defense counsel who represent<br />
noncitizens is to meet two potentially conflicting m<strong>and</strong>ates: to make a sparse or vague record <strong>for</strong><br />
<strong>immigration</strong> purposes, <strong>and</strong> to meet requirements pertaining to a factual basis <strong>for</strong> the plea under<br />
criminal law requirements. Taking care with stipulation to the factual basis <strong>for</strong> the plea is of<br />
course beneficial from a criminal law perspective as well as <strong>immigration</strong> law. It may enable the<br />
defendant to avoid admitting facts that will support an enhanced sentence in the instant offense,<br />
or avoid causing the conviction to be counted as a “strike” in a future prosecution.<br />
In Cali<strong>for</strong>nia there are no statutory requirements <strong>for</strong> creating the factual basis, 80 but case<br />
law has established some rules. The Cali<strong>for</strong>nia Supreme Court discussed the requirements in<br />
People v. Holmes. 81 The court concluded that either the defendant or the defense counsel can<br />
provide the in<strong>for</strong>mation that serves as the factual basis. If the defendant is examined, the trial<br />
court has wide latitude to interview the defendant. If instead defense counsel is examined,<br />
counsel may stipulate to a particular document that provides an adequate factual basis such as a<br />
police report, a preliminary hearing transcript, a probation report, a gr<strong>and</strong> jury transcript, or,<br />
significantly, a complaint or a written plea agreement. 82 See also People v. French (2008) 43<br />
Cal.4th 36, discussed in Part 1, below.<br />
79 Thanks to James F. Smith <strong>for</strong> much of this analysis. In addition, some of this section draws from an excellent<br />
article, “Penal Code section 1192.5: A Short Précis on The Factual Basis For A Guilty Plea,” by Chuck Denton of<br />
the Office of the Alameda County Public Defender.<br />
80 Calif. PC § 1192.5 provides only that “[t]he court shall also cause an inquiry to be made of the defendant to<br />
satisfy itself that the plea is freely <strong>and</strong> voluntarily made, <strong>and</strong> that there is a factual basis <strong>for</strong> the plea.”<br />
81 People v. Holmes, 32 Cal. 4th 432 (2004).<br />
82 “We conclude that in order <strong>for</strong> a court to accept a conditional plea, it must garner in<strong>for</strong>mation regarding the<br />
factual basis <strong>for</strong> the plea from either defendant or defense counsel to comply with section 1192.5. If the trial court<br />
inquires of the defendant regarding the factual basis, the court may develop the factual basis <strong>for</strong> the plea on the<br />
record through its own examination by having the defendant describe the conduct that gave rise to the charge, or<br />
question the defendant regarding the factual basis described in the complaint or written plea agreement. If the trial<br />
Immigrant Legal Resource Center N-49