California Legal Brief

The Rule of People v. Avena is that a defendant who went to trial may obtain relief under Penal Code section 1473.7 by showing a reasonable probability that they would have accepted an immigration-safe plea and that the prosecution and court would have accepted such a plea, under circumstances where intervening case law created immigration-safe plea options that were not available when counsel initially represented the defendant.

Appeal from order denying motion to vacate conviction in Superior Court, Riverside County.

Defendant Appellant was Jose Manuel Avena — a non-citizen convicted after jury trial of assault with intent to commit rape, attempted forcible rape, and false imprisonment who faced virtually certain deportation.

Plaintiff Respondent was The People — the prosecution that offered only immigration-unsafe plea bargains before trial.

The suit sounded in criminal law under Penal Code section 1473.7 (motion to vacate conviction due to prejudicial error regarding immigration consequences).

The key substantive facts leading to the suit were: Avena was charged in April 2015 with serious felonies that constituted aggravated felonies under federal immigration law. His public defender Roby discussed immigration issues but did not clearly advise that removal was virtually certain. Avena later retained Kennedy, who promised not to pressure him into plea bargains and never discussed immigration consequences. In October 2015, after Kennedy began representation, the Ninth Circuit decided Lynch, which invalidated the residual clause for "crimes of violence," making certain California crimes like burglary and sexual battery no longer aggravated felonies. This created potential immigration-safe plea options. The prosecution had offered a four-year prison sentence but required prison time, sex offender registration, and a "strike." Avena went to trial in 2017, was convicted, but received probation. He had extensive U.S. ties including a citizen wife and four U.S.-born children.

The procedural result leading to the Appeal: The trial court denied Avena's section 1473.7 motion, ruling that the statute did not apply to cases already final when relief was sought, that Roby had adequately advised about immigration consequences, that the prosecution would not have accepted alternative pleas, and that Avena would not have accepted any plea because he maintained innocence.

The key questions on Appeal: 1. Whether section 1473.7 applies to cases that were final before the motion was filed 2. Whether Avena meaningfully understood the immigration consequences of conviction 3. Whether there was a reasonable probability Avena would have chosen a different path if properly advised 4. Whether there was a reasonable probability an immigration-safe plea would have been accepted

The Appellate Court held that Avena established all elements for section 1473.7 relief because he did not meaningfully understand that removal was virtually certain, there was a reasonable probability he would have pursued an immigration-safe plea (burglary and sexual battery) that became available after Lynch if properly advised about the stakes, and there was a reasonable probability the prosecution and court would have accepted such a plea since it met all the prosecutor's stated requirements (prison time, sex offender registration, strike) while avoiding immigration consequences.

The case is inapplicable when defendants were clearly advised of certain removal consequences, when no immigration-safe plea alternatives exist or existed during the relevant time period, when defendants lack significant ties to the United States, or when the prosecution's requirements for any plea could not be satisfied by available immigration-safe alternatives.

The case leaves open the precise contours of what constitutes "meaningful understanding" of immigration consequences, how courts should weigh declarations of defendants against other evidence of their likely choices, and the specific showing required to establish that prosecutors would have accepted alternative plea bargains.