quick reference chart and notes for determining immigration - ILRC

California Quick Reference Chart and Notes
February 2010
Counsel representing noncitizen clients should avoid having the defendant provide the
factual basis. Defense counsel should always provide the factual basis, and should try to
negotiate a factual basis for a plea that minimizes or avoids the adverse immigration
consequences of a conviction. The following are suggested strategies
1. As a factual basis for the plea, state your belief that the prosecution has specific
evidence to support its allegation of a factual basis and that it is prepared to present
that evidence, citing to People v. French (2008) 43 Cal.4th 36, 51.
In People v. French the California Supreme Court approvingly cited language similar to
the above and noted that “defense counsel's stipulation to the factual basis cannot reasonably be
construed as an admission by defendant.” Mr. French pled no contest to sex offenses, and the
trial court imposed a higher term because the “defendant took advantage of a position of trust
and confidence.” On appeal, defendant claimed that the court could not rely upon an aggravating
fact that had neither been admitted nor found true by a jury. The government argued that when
defense counsel stipulated to a factual basis for the plea, defendant effectively admitted the
aggravating factor. The Supreme Court disagreed, at 43 Cal.4th 36, 51.
Nothing in the record indicates that defendant, either personally or through his counsel,
admitted the truth of the facts as recited by the prosecutor. . . . when asked by the trial
court whether she believed there was a sufficient factual basis for the no contest pleas,
defense counsel stated, ‘I believe the People have witnesses lined up for this trial that will
support what the D.A. read in terms of the factual basis, and that's what they'll testify to.’
Indeed, counsel was careful to state that she agreed that witnesses would testify to the
facts as recited by the prosecutor; she did not stipulate that the prosecutor's statements
were correct. Under the circumstances of this case, defense counsel's stipulation to the
factual basis cannot reasonably be construed as an admission by defendant. . . .”
2. Plead pursuant to People v. West and decline to stipulate to a factual basis.
This may not be possible to obtain in many cases, but it is a good option. Since a West plea
is entered without any factual admission of guilt, argue that the court should allow entry of the
plea without establishing any factual basis for the plea. See, e.g., facts in United States v. Vidal,
504 F.3d 1072 (9th Cir. 2007) (en banc). In that case, the criminal defense counsel wrote
“People v. West” on the waiver form when asked for a factual basis, and declined to admit to a
factual basis or stipulate to any police reports or other documents.
court inquires of defense counsel regarding the factual basis, it should request that defense counsel stipulate to a
particular document that provides an adequate factual basis, such as a complaint, police report, preliminary hearing
transcript, probation report, grand jury transcript, or written plea agreement. Under either approach, a bare
statement by the judge that a factual basis exists, without the above inquiry, is inadequate.” Id. at 436 (internal
citations omitted).
N-50 Immigrant Legal Resource Center