People v. Dejesus
250 Cal. Rptr. 3d 840
Cal. Ct. App. 5th2019Background
- Nicolas DeJesus, a Philippine-born lawful permanent resident, pleaded no contest in 2016 to assault with a firearm (Pen. Code § 245(a)(2)) in exchange for the high term (4 years); other counts/enhancements were dismissed.
- At the plea colloquy the court advised DeJesus (through an interpreter) of immigration consequences (deportation, exclusion, denial of naturalization); DeJesus denied coercion.
- Assault with a firearm is an aggravated felony under federal immigration law; ICE initiated removal proceedings about a year after the plea and took DeJesus into custody after he served his state term.
- In July 2018 DeJesus moved under Penal Code § 1473.7(a)(1) to vacate his plea, arguing counsel: refused to try the case, failed to investigate/video-review, and failed to pursue an immigration‑neutral disposition; the motion included declarations from DeJesus and his post‑conviction counsel but not from trial counsel.
- The trial court denied the motion for lack of prejudice and because DeJesus failed to show he would have rejected the plea if he had known the immigration consequences; the appellate court affirmed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Eligibility under § 1473.7: whether a person on parole is "no longer in criminal custody" and thus may move to vacate | DeJesus: statute's plain language does not exclude parolees; he was not "imprisoned or restrained" for purposes of relief | People: parolees remain in constructive custody and thus are ineligible under § 1473.7 | Held: parolees are within "criminal custody"; DeJesus likely on parole when he moved, so not eligible for § 1473.7 relief |
| Ineffective assistance / other prejudicial errors under § 1473.7 | DeJesus: trial counsel refused to try case, failed to review/investigate video and witnesses, and did not seek an immigration‑neutral plea — these errors damaged his ability to defend against immigration consequences | People: DeJesus offered no contemporaneous evidence (no trial counsel declaration, no prosecutor or expert testimony) to prove counsel erred or that an immigration‑neutral plea was likely | Held: DeJesus failed to prove counsel committed the alleged errors by a preponderance of the evidence |
| Prejudice — would DeJesus have rejected the plea if he had known deportation was certain? | DeJesus: would have gone to trial rather than accept a plea that led to deportation | People: contemporaneous record shows DeJesus’s stated concern was factual innocence and trial strategy, not immigration consequences; no evidence he would have rejected plea based on deportation | Held: No sufficient contemporaneous evidence that deportation would have been dispositive; DeJesus failed to show prejudice |
| Sufficiency of showing an immigration‑neutral alternative | DeJesus: trial counsel did not explore pleas to less‑immigration‑harmful offenses | People: no evidence identifying any immigration‑neutral disposition that prosecutor was likely to accept | Held: DeJesus did not identify an alternative plea that was reasonably likely to have been available; claim fails |
Key Cases Cited
- Strickland v. Washington, 466 U.S. 668 (ineffective assistance standard for prejudice and deficient performance)
- People v. Camacho, 32 Cal.App.5th 998 (statutory framework for § 1473.7 relief and burden to show prejudice)
- People v. Cruz‑Lopez, 27 Cal.App.5th 212 (interpretation that § 1473.7 is intended for those not in custody and discussion of constructive custody)
- People v. Villa, 45 Cal.4th 1063 (constructive custody doctrine—probation/parole as restraint for habeas purposes)
- Jae Lee v. United States, 582 U.S. (Supreme Court: use contemporaneous evidence to substantiate whether defendant would have rejected plea due to deportation)
- People v. Bautista, 115 Cal.App.4th 229 (defense obligation to explore immigration‑neutral dispositions and relevance to collateral relief)