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    Immig FL Vacate

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    matt29nyc
    This document summarizes a California Court of Appeal case regarding a motion to vacate a plea under Penal Code section 1016.5. The court considered whether advice of immigration consequences provided at arraignment weeks before the plea, rather than prior to acceptance of the plea as required by the statute, was sufficient. The court reversed the trial court's denial of the motion to vacate, finding section 1016.5 requires the advice be provided during the taking of the plea. The case was remanded for the trial court to determine if the defendant was prejudiced by the premature advice and whether the motion was timely filed.

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    Immig FL Vacate

    Uploaded by

    matt29nyc
    7 views1 page
    This document summarizes a California Court of Appeal case regarding a motion to vacate a plea under Penal Code section 1016.5. The court considered whether advice of immigration consequences provided at arraignment weeks before the plea, rather than prior to acceptance of the plea as required by the statute, was sufficient. The court reversed the trial court's denial of the motion to vacate, finding section 1016.5 requires the advice be provided during the taking of the plea. The case was remanded for the trial court to determine if the defendant was prejudiced by the premature advice and whether the motion was timely filed.

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    Immig Fl Vacate

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    This document summarizes a California Court of Appeal case regarding a motion to vacate a plea under Penal Code section 1016.5. The court considered whether advice of immigration consequences provided at arraignment weeks before the plea, rather than prior to acceptance of the plea as required by the statute, was sufficient. The court reversed the trial court's denial of the motion to vacate, finding section 1016.5 requires the advice be provided during the taking of the plea. The case was remanded for the trial court to determine if the defendant was prejudiced by the premature advice and whether the motion was timely filed.

    Copyright:

    Attribution Non-Commercial (BY-NC)
    Download as DOCX, PDF, TXT or read online from Scribd
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    Download as docx, pdf, or txt
    7 views1 page

    Immig FL Vacate

    Uploaded by

    matt29nyc
    This document summarizes a California Court of Appeal case regarding a motion to vacate a plea under Penal Code section 1016.5. The court considered whether advice of immigration consequences provided at arraignment weeks before the plea, rather than prior to acceptance of the plea as required by the statute, was sufficient. The court reversed the trial court's denial of the motion to vacate, finding section 1016.5 requires the advice be provided during the taking of the plea. The case was remanded for the trial court to determine if the defendant was prejudiced by the premature advice and whether the motion was timely filed.

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    44 of 46 DOCUMENTS

    THE PEOPLE, Plaintiff and Respondent, v. FRED OMOIGHE AKHILE,


    Defendant and Appellant.
    A119729
    COURT OF APPEAL OF CALIFORNIA, FIRST APPELLATE DISTRICT,
    DIVISION FIVE
    2008 Cal. App. LEXIS 1583
    October 9, 2008, Filed
    PRIOR HISTORY: [*1]
    Superior Court of the County of Marin, No. CR028360,
    Michael B. Dufficy, Judge.
    COUNSEL: Sara E. Coppin and Robert B. Jobe for
    Defendant and Appellant.
    Edmund G. Brown, Jr., Attorney General, Dane R.
    Gillette, Chief Assistant Attorney General, Gerald A.
    Engler, Assistant Attorney General, Catherine A. Rivlin
    and Allen Yannow, Deputy Attorneys General for
    Plaintiff and Respondent.
    JUDGES: Opinion by Simons, J., with Jones, P. J., and Needham, J., concurring.
    OPINION BY: Simons
    OPINION
    SIMONS, J.--To ensure that noncitizens are aware of the immigration consequences before they enter a
    plea of guilty or no contest to a criminal charge, Penal Code section 1016.5, subdivision (a), 1 sets out a
    specific advisement for the trial court to provide "[p]rior to acceptance" of the plea. When the trial court
    fails to provide this advisement, the defendant is entitled to have the plea vacated, after making a showing
    that he or she faces an adverse immigration consequence due to the conviction and was prejudiced by the
    nonadvisement. The trial court denied appellant Fred Omoighe Akhile's section 1016.5 motion to vacate
    because the prosecution proved he had been advised of the immigration consequences at his arraignment
    several weeks before [*2] entering his plea. We reverse because we construe section 1016.5 to require that
    the advice be provided during the taking of the plea. We remand to permit the trial court to determine
    whether appellant has demonstrated he was prejudiced by receiving the advice prematurely and whether
    his motion was timely filed.

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