quick reference chart and notes for determining immigration - ILRC

California Quick Reference Chart and Notes
February 2010
3. If the above suggestions are not possible, counsel should carefully craft a written plea
agreement or amended charge, and stipulate to that as the factual basis.
Under People v. Holmes, defense counsel may stipulate to any of several listed
documents. 83 Strategically, counsel should stipulate only to the complaint (which counsel may
move to amend) or a written plea agreement, because these documents give counsel the
necessary control over the record of conviction to avoid immigration consequences. Defense
counsel also can stipulate to a specific portion of a given document that does not contain
damaging facts against the defendant, e.g. the concluding paragraph of the police report dated
“x” on p. 2 that reads “…”
Counsel may have to negotiate exactly how much and what kind of detail is provided.
Recently a California appellate court held inadequate a stipulation to a charge that repeated the
language of the statute, with no additional information beyond the names of the defendant and
victim. 84 If there is an objection to using a charge or plea agreement that tracks the statute as
the factual basis for the plea, counsel can amend the document to provide additional details of
the kind that will not adversely affect the immigration case; it may be possible to highlight
specific facts that are beneficial to the case. It is a good idea to work closely with an
immigration expert on this wording.
Where a statute is divisible, counsel may plead the defendant to the safer option under the
statute, or if that is not possible to the statute in the disjunctive (using “or” rather than “and”).
Counsel should ensure that the factual basis for the plea also follows this course: either the safer
option under the statute, or at least in the disjunctive, or otherwise vaguely stated. For example,
a statement that “On x date I did sell or transport …” (to avoid an aggravated felony drug
conviction) or “On x date I used a dangerous weapon” (without identifying the weapon as a
firearm, if that is what must be avoided).” Note that a factual basis for the plea can be
stipulated to at sentencing rather than plea. See People v. Coulter, 163 Cal. App. 4th 1117, 1122
(Cal. App. 2d Dist. 2008).
For additional information, see discussion at Chapter 2, § 2.11(C)(6), Defending
Immigrants in the Ninth Circuit at www.ilrc.org.
83 People v. Holmes, 32 Cal. 4th at 436.
84 People v. Willard, 154 Cal. App. 4th 1329, 1335 (Cal. Ct. App. 2007). The court noted, “The complaint alleged
the date of the conduct and the names of defendant and the victim. The remainder of the complaint was in the
language of the statute. The statutory language set forth the elements of the offense, not facts. This was not enough
to satisfy the purpose of the factual basis inquiry, to corroborate what defendant had already admitted by his plea.”
Immigrant Legal Resource Center N-51