November 13, 2008 By Wallin & Klarich

People v. Akhile

For those considering filing a motion to vacate a plea based on Penal Code Section 1016.5, familiarity with this case is a must.court

In the above case, Appellant is a Native of Nigeria who entered the United States on a Tourist Visa and never left. In February of 1992, Appellant plead guilty to grand Theft and Embezzlement. The Trial Court sentenced him to two years state prison. Deportation proceeding began in 1993 and the Board of Immigration Appeals affirmed his deportation based on the 1992 conviction. Appellant argued that he did he was never aware of the immigration consequences of his plea.

Upon review, the record reflected that the Trial Court informed the Appellant of the immigration consequences at arraignment but not at the time of the plea. On appeal, the court vacated Petitioner’s plea on the basis that California Penal Code section 1016.5 requires that the Trial Court advise defendants of the adverse immigration consequences at the time of the plea.

Specifically, California Penal Code 1016.5 PC requires that, “Prior to acceptance of a plea of guilty or nolo contendere to any offense punishable as a crime under state law, except offenses designated as infractions under state law, the court shall administer the following advisement on the record to the defendant: If you are not a citizen, you are hereby advised that conviction of the offense for which you have been charged may have the consequences of deportation, exclusion from admission to the United States, or denial of naturalization pursuant to the laws of the United States.” 1

Why Is This Case Important?

In instances where a Defendant was convicted of a white collar crime and the Trial Court fails to advise him or her of the immigration consequences at the time of plea, there are very good grounds to have the plea vacated.

However, it’s important to keep in mind that although this is an important argument to make when filing motions pursuant to PC 1016.5 under the above rational, it’s critical that the Defendant satisfy all elements in the statute.

As the Court noted in Akhile:

To prevail on a motion to vacate under Penal Code Section 1016.5 a defendant must show the following:

  1. he or she was not properly advised of the 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 adverse immigration consequences
  3. he or she was prejudiced by the nonadvisement

Cal Pen. Code 1016.5

The Court was silent as to whether or not the failure to advise Appellant was prejudicial. They indicated that it’s up to the Trial Court on remand to determine whether or not prejudice actually existed. Nevertheless, satisfying the first element of PC 1016.5 is a critical step in vacating a Defendant’s when arguing in court. At Wallin & Klarich, our skilled and knowledgeable attorneys have been successfully defending our clients facing criminal charges for over 30 years. We can review the facts of your case to see if any of your rights were violated and help you obtain the best result possible.

With offices located in Los Angeles, Sherman Oaks, Torrance, Orange County, San Diego, Riverside, San Bernardino, Ventura, West Covina and Victorville, there is an experienced Wallin & Klarich criminal defense attorney available to help you no matter where you work or live.

Call us today at (888) 280-6839 for a free phone consultation. We will get through this together.

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