The information contained in this blog is general in nature and subject to change at any time. Under no circumstance should it be construed as legal advice.


Section 1016.5 of the California Penal Code protects  non-citizens from unknowingly subjecting themselves to harsh immigration consequences.  (NOTE: the advisement only requires the defendant be aware that removal, deportation, or exclusion are possible after a plea of guilty or no contest, and does not require anything more specific.)

Section 1016.5 calls for a conviction to be set aside when the defendant can show that “(1) he or she was not properly advised of possible immigration consequences as provided by the statute; (2) there exists, at the time of the motion, more than a remote possibility that the conviction will have one or more of the specified immigration consequences; and (3) he or she was prejudiced by the nonadvisement.”

(NOTE: The defendant cannot wait an unreasonable amount of time to bring the motion.  Moreover, if the defendant was made aware of the consequences in another way, such as by his or her attorney, then prong 1 is not met.)


In August of 2013, a new case was decided that has huge potential for 1016.5 motions.  In People v. Martinez, the California Supreme Court explained what a non-citizen must show in order to prove “prejudice.” (see prong 3, above.  The court in Martinez held that a defendant need only show that he or she would not have accepted a plea offer, had he or she known of the possible immigration consequences.  This is a major departure from the typical rule used in finding prejudice to vacate a plea, i.e., whether there is a reasonable probability that the defendant would have actually achieved a better outcome.

After Martinez, the focus is on the defendant, to see what he or she would have chosen, in light of the possible immigration consequences.  Although the strength of the prosecution’s case is one factor, the courts will now look heavily at the reasons the defendant would have had for not accepting the offer.  Defendants may now present evidence of the tremendous havoc removal takes on immigrant families to show that they would not have pled guilty, had they been properly advised.  Evidence of painful family separation and dangerous conditions in the country of origin are among the factors the courts will now look to.

Therefore, where a prior motion under 1016.5 may have been considered hopeless due to the strength of the prosecutions case, new hope exists where the defendant can show compelling reasons he or she would have rejected an offer that may have threatened his or her immigration status.


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