How do I erase a criminal conviction in California?

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POST CONVICTION RELIEF: “Motion to Withdraw/Vacate Plea” based on trial courts failure to advise a non-citizen defendant of immigration consequences

Many people who are non-citizens are not aware that there are severe immigration consequences that result from entering a guilty plea to a number of criminal offenses and later seek post-conviction relief to “erase” their guilty plea as if it didn’t happen.

One of the most common channels for seeking post-conviction relief through a “Motion to Withdraw/Vacate Plea.” There is statutory relief for defendant’s who seek vacate their plea under Penal Code section 1016.5, which is based on the trial courts failure to advise a defendant of the immigration consequences of his plea. According the clear language of 1016.5, a defendant must be told that his conviction could result in 1) Deportation, 2) Exclusion of admission into the United States, and 3) Denial of Naturalization. With regard to the second requirement, trial courts have often toyed with “exclusion of admission” which is a term of art for immigration purposes.

Unfortunately most trial courts in California have adopted the holding in People v. Guiterrez, which held that “substantial compliance” of ones immigration consequences is sufficient. Basically following the premise that a defendant does not need to actually be told the exact immigration consequences he faces as a result of his plea.

However, not all hope is lost. Other courts had previously held that more than a “mere substantial compliance” is necessary and have disagreed with the overall premise that the exact wording of the advisement is not critical. People v. Gontiz. Courts have the discretion to follow any one of the conflicting appellate opinions.

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