Crimes of Moral Turpitude

(C)

Failure to Defend.  A California court has held that counsel also has a duty to defend the noncitizen against a plea that would have adverse immigration consequences.[90]  Thus, if the investigation reveals that a conviction of a certain charge will cause the defendant to be an aggravated felon, causing an immigration disaster, counsel has a duty to assist his or her client in attempting to obtain an alternative disposition that would avoid these disastrous consequences. 

A common example would be where the defendant is convicted of a theft offense and is facing one year or more in custody.  This offense is both a crime involving moral turpitude and (with a one-year sentence imposed) an aggravated felony.  Under Bautista, counsel has a duty to try to obtain an alternative disposition that would at least not be an aggravated felony, and preferably not even a crime of moral turpitude.  A sentence of 364 days, rather than a year, would keep the theft offense from becoming an aggravated felony.[91]  Even better, however, would be a plea to burglary (entry into a building for the purpose of committing theft or any felony), with a sentence of 364 days or, preferably, 180 days or less.  If the defendant has been admitted to the United States, this plea will avoid deportation as a noncitizen convicted of a crime involving moral turpitude.[92]  If the defendant is an illegal entrant, or wants to travel outside the United States, the plea to misdemeanor burglary with a sentence imposed of 180 days or less will keep him or her from being inadmissible to the United States, as long as s/he has committed only one crime, because of the Petty Offense Exception.  A plea to simple trespass, if possible, would avoid any immigration consequences.

Part of making a Bautista-like claim is the need to demonstrate prejudice, i.e., that it is reasonably likely that the court and/or prosecution would have been willing to agree upon request to an alternative immigration-safe disposition.  Luckily, in most cases, there are immigration-safe alternative pleas that would result in the same level of punishment, or even greater punishment.  For example, while a conviction of simple battery of a spouse will have a number of adverse immigration consequences, a plea to a violation of California Penal Code § 136.1(b), dissuading a witness, which is a strike under California’s three strikes laws, should have no immigration effect.  In such cases, it is likely that the court and/or prosecution would have been willing to cooperate in arranging a plea to a more serious offense.

Another benefit to a Bautista claim is that the violation occurred in the open, rather than in a private attorney-client conversation.  Defense counsel should have attempted to negotiate the safe disposition openly with the prosecution, and should have argued for a safe sentence during the sentence hearing.  Therefore, it is far easier to prove this claim than a mere failure to advise, or affirmative misadvice, which occurs in a private attorney-client conference.  Counsel’s error will be clear from the plea and/or sentencing transcripts.

Although the failure to defend argument is mainly applicable in those jurisdictions that also follow the Soriano rule, this rule also applies even where the affirmative-misadvice standard is followed.  Even if counsel advised the defendant correctly of the exact immigration consequences of the disposition (e.g., that a sentence of 365 days would result in mandatory deportation), counsel also has the duty to attempt to avoid that result by arguing for a shorter sentence.

[90] People v. Bautista, 115 Cal.App.4th 229 (2004).

[91] See INA § 101(a)(43)(G), 8 U.S.C. § 1101(a)(43)(G).

[92] See N. Tooby & J. Rollin, Safe Havens: How to Identify and Construct Non-Deportable Convictions § 9.33 (2005).