{"id":260,"date":"2026-03-26T12:00:00","date_gmt":"2026-03-26T12:00:00","guid":{"rendered":"https:\/\/california.shuster.info\/?p=260"},"modified":"2026-03-26T12:00:00","modified_gmt":"2026-03-26T12:00:00","slug":"people-v-avena-1473-7-immigration-safe-plea-aggravated-felony","status":"publish","type":"post","link":"https:\/\/california.shuster.info\/?p=260","title":{"rendered":"People v. Avena \u2014 Section 1473.7 motion granted because counsel did not negotiate immigration-safe plea after intervening change in law"},"content":{"rendered":"
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Case<\/dt>\n
People v. Avena<\/dd>\n
Court<\/dt>\n
4th District Court of Appeal<\/dd>\n
Date Decided<\/dt>\n
2026-03-26<\/dd>\n
Docket No.<\/dt>\n
E083900<\/dd>\n
Status<\/dt>\n
Reported \/ Citable<\/dd>\n
Topics<\/dt>\n
Penal Code section 1473.7, motion to vacate, immigration consequences, aggravated felony, crime of violence, Sessions v. Dimaya, Padilla v. Kentucky, immigration-safe plea<\/dd>\n<\/dl>\n<\/div>\n

Background<\/h2>\n

Jose Manuel Avena, who is not a U.S. citizen, was charged in 2015 with assault with intent to commit rape, attempted forcible rape, and false imprisonment. Assault with intent to commit rape is undisputedly an aggravated felony under federal immigration law and a conviction for it would make Avena’s removal virtually certain.<\/p>\n

While the case was pending, the U.S. Supreme Court’s decision in Sessions v. Dimaya invalidated the residual clause of the federal “crime of violence” definition. Earlier, the Ninth Circuit had held in United States v. Lynch that California first degree burglary (entry of a residence) was no longer categorically a crime of violence. Combined, those decisions opened the door to a plea bargain for first degree burglary and sexual battery that would not constitute an aggravated felony for immigration purposes.<\/p>\n

Avena’s public defender did not raise this possibility (and could not have raised the Lynch issue, which had not yet been decided). After he retained private counsel, his new lawyer also did not recognize or negotiate this immigration-safe plea. Avena went to trial and was convicted, leading to immigration consequences he claimed he had never been adequately advised about. Years later, after he was no longer in custody, he filed a motion under Penal Code section 1473.7 to vacate his conviction based on his attorneys’ failure to advise him about the immigration consequences and to pursue an immigration-safe plea. The trial court denied the motion. Avena appealed.<\/p>\n

The Court’s Holding<\/h2>\n

The Fourth District Court of Appeal, Division Two, reversed and ordered the trial court to grant the motion. The court held that even if Avena had been told he would be removed, that warning alone did not protect his ability to “defend against” adverse immigration consequences within the meaning of section 1473.7. Section 1473.7 covers two distinct kinds of prejudicial error: error that prevents a defendant from meaningfully understanding the immigration consequences of a conviction, and error that damages the defendant’s ability to defend against those consequences by negotiating an alternative outcome.<\/p>\n

Here, by the time Avena’s second attorney took over the case, the post-Sessions, post-Lynch landscape made an immigration-safe plea to first degree burglary and sexual battery feasible. The prosecutor had actually offered a plea deal and testified about the parameters that any acceptable plea would have to satisfy, all of which the contemplated immigration-safe plea would have met. Counsel’s failure to recognize or pursue that immigration-safe plea was a prejudicial error that damaged Avena’s ability to defend against certain removal.<\/p>\n

The court rejected the People’s arguments that Avena would have been removable even on a sexual battery conviction. The five- and ten-year limit on removability for crimes of moral turpitude meant that Avena, who entered the United States more than ten years before the offense, would not have been removable on that ground if convicted of the lesser offenses. The People’s argument that the prosecutor would not have agreed to a plea that did not include the “super strike” assault with intent to commit rape conviction was inconsistent with the record. The court concluded that there was a reasonable possibility Avena would have accepted such a plea and that the People and the court would have approved it.<\/p>\n

Key Takeaways<\/h2>\n