On Friday, August 21, 2009, there was a hearing in Santa Clara County regarding a withdrawal of a guilty plea for someone who is being deported as a criminal.
When I took the case, the first thing I did was to go down to the courthouse to get the ENTIRE file on this matter.
Because it is an old case, from 1997 and 1998, I wanted to be certain that the court had followed California law and advised my client that there would be immigration consequences if he plead guilty to the crime of sexually abusing a child.
My client had told me that he had NOT been advised of the immigration consequences of the plea. He stated that he had plead guilty because they would then let him out of jail so that he could feed his family. He said that he remembered that they had advised him that he would have to register as a sex offender, but he had NO IDEA how that would ruin his life.
Because I am VERY WARY of charges of sexual abuse where there is only one witness and there is NO physical evidence, I took his case. BTW, my client has his green card, so he was in this country legally.
The court files that I paid for were extremely confusing. The court was using a one page, dense, check the boxes form, for guilty pleas and sentencing hearings. The same form was used for everything. The form is impossible, even for legal professionals, to correctly interpret. I will attempt to put the image of these forms in a follow up blog.
In my client's case, it was unclear even when the guilty plea was taken. The court said the guilty plea was taken in November 1997. Homeland Security said the conviction (the same as a guilty plea) was in March 1998.
In my clients case, the form for the November 1997 hearing, which may have been where he plead guilty, had a check mark by the part of the form that said, "____ immig". The court form for March 1998 was NOT check marked on the part of the form that said, "_____immig".
California appellate courts have stated that the immigration advisement must be done is a particular way, by stating clearly ALL of the state law, California Penal Code section 1016.5. A clerk's notation is NOT enough evidence that the law was obeyed. Unfortunately, another appellate court allowed collateral evidence that a guilty plea was correctly taken, by having a judge testify that he had ALWAYS followed the law correctly.
When I got the DDA's (Deputy District Attorney) response to my motion to withdraw my client's guilty plea, I was surprised to see an attached police report, and an attached purported felony docket, which is presumably part of the court record in this case. I was NOT surprised to see declarations from a DDA and a judge stating that the DDA and the Judge had a habit of correctly giving the immigration advisement.
Police reports are inadmissible in California as hearsay upon hearsay. Additionally, the DDA seriously misrepresented the police report by saying that my client had touched the child's clothed breasts numerous times. The child finally agreed to tell the investigator about ONE TIME that my client touched her clothed breasts. That time was SIX MONTHS prior to the investigation. NO ONE explained to my client that the law says that illegal touching of breasts has to be done in a LEWD OR LASCIVIOUS manner. (Hugging your child is not sexual abuse.)
The DDA also included a 'felony docket' that had not been included in the court file I was given.
I made every effort to have my client present at the hearing in Santa Clara County. I filed a Writ of Habeas Corpus Ad Testificandum to have the Santa Clara County Court order Homeland Security to bring my client to the hearing. On a Friday, the Judge told me to file a brief on the matter. On the following Monday, the Judge denied my Writ. Additionally, the DDA told Homeland Security that it was unnecessary to bring my client to his hearing.
The DDA also included Declarations from another DDA and the judge who allegedly heard my client's guilty plea.
At the withdrawal of guilty plea hearing, I asked the judge to strike as inadmissible, the police report, the 'felony docket', and the Declarations. I stated that the police report and the Declarations were hearsay, and that the 'felony docket' lacked foundation as it was not kept in the clerk's file of my client's case.
It should be noted that the right to be present at a hearing to confront the witnesses against you, and the right to cross-examine witnesses, are rights which are protected by both the US and California constitutions.
Not only did I lose my motion for withdrawal of the guilty plea, but the judge allowed the hearsay and the 'felony docket' to be admitted.
AT THIS POINT EVERY ATTORNEY IN THE ENGLISH SPEAKING WORLD IS SAYING, "SAY, WHAT?"
(It could be that every attorney in the non-English speaking world is also appalled, but I do not trust translations, as I have seen too many translations of the Bible, each of which reads differently. I am hopeless at learning other languages, having failed to learn Latin, Spanish, French and Russian, in that order.)
IF YOU HAVE PRACTICED CRIMINAL LAW IN SANTA CLARA COUNTY, you can help by sending me transcripts of guilty pleas by non-citizens taken after October 1997. I do not think that the local courts actually gave warnings of immigration consequences until after 9/11/2001.
THIS INJUSTICE HAS TO STOP. WHEN A COURT FEELS FREE to deny a motion before the requested brief can even be filed, something is very seriously wrong.