This is an excellent opinion. The writing is concise, the analysis is straightforward, resulting in an opinion that contains everything an attorney should understand about California Penal Code section 1016.5. It also reminds us of legal principles too easily forgotten with a primer on the distinction between the burden of proof and the standard of proof.
Mr. Asghedom was born in Eritrea and immigrated to the United States when he was twelve. In 1989, when Asghedom was 20, he was arrested following a police chase in which the police said they saw Asghedom discard a gun and a baggie of cocaine. The coke was of substantial mass (2.4g), but all in one package and found in the company of a coke pipe. Asghedom was high and his wallet light. He was charged, as to felonies, with possessing the coke for sale, with an enhancement for being armed with a gun.
The trial judge gave an indicated sentence of felony probation, at which time Asghedom pled guilty as charged and received a grant of felony probation, which he eventually completed.
Everything was fine for Asghedom until he went abroad and tried to reenter the U.S. in 2004. Due to his 1989 conviction, immigration proceedings were commenced, eventually resulting in Asghedom being locked up in an immigration jail in Alabama.
In 2013, Asghedom filed a Penal Code section 1016.5 motion. Section 1016.5, in pertinent part, states that upon motion of a defendant, the trial court shall vacate the judgment and permit the defendant to withdraw his plea if; [1] the defendant was not properly advised as to the immigration consequences of his conviction prior to entering his plea, [2] when the motion is made, there is more than a remote possibility the conviction will have one of the enumerated adverse immigration consequences, [3] he was prejudiced by the failure to advise, to wit, that if properly advised, he would not have pled, and, [4] he was reasonably diligent in bringing his motion.
There was no controversy as to [1] and [2]; no immigration advisement was actually given and Asghedom was now sitting in Alabama facing removal from the U.S. The trial judge denied the motion on the basis that Asghedom failed to show [3] prejudice, making no finding as to [4] diligence.
The Sixth District reverses, finding the trial judge abused his discretion. While admittedly Asghedom's affidavit stated that he would have "reconsidered" whether to plea, while he should have said "rejected" the plea, an examination of the record demonstrates that there was no rational possibility Asghedom would have pled guilty had he been advised of the immigration consequences.
The plea was open with the court indicating probation, meaning the indicated sentence was not an inducement and would have been imposed even after a guilty verdict had Asghedom taken the case to trial, meaning there was no advantage to pleading guilty. The immigration considerations of a 20 year-old from a conflict zone (Eritrean independence wasn't recognized until 1993) who had been in the U.S. from age 12 would certainly be paramount. Therefore no reason existed to support the trial court's finding that Asghedom failed to satisfy his burden to show, by a reasonable probability, that had he been told of the immigration consequences of his plea, he would have not pled guilty.
The case is remanded for the trial court to make a finding as to prong [4].
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