quick reference chart and notes for determining immigration - ILRC

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