Prosecutors can no longer file charges directly against a minor in “adult” court. Only a juvenile court judge can determine whether a minor can be prosecuted and sentenced as an adult. The Judge must conduct a “fitness” or “transfer” hearing, taking into account various factor such as the minor’s age, maturity, criminal sophistication, and likelihood for rehabilitation. (People v. Vela (2018).)
Minors whose cases were unresolved or pending appeal when Prop. 57 was passed are still entitled to the protections of Prop. 57. The juvenile court must conduct a fitness hearing to determine whether such minors should be tried in adult court. (People v. Diaz (2018).)
Prop. 57 does not apply to a minor whose judgment was final. A judgment is final when the trial court imposes a state prison sentence and suspends execution of that sentence during a probationary period. (People v. Barboza (2018).)
Penal Code 1473.7 allows a person no longer imprisoned to vacate a conviction or a sentence. Undocumented person who are in danger of deportation may file a motion in order to clear their record of criminal convictions.
If the conviction is overturned, the criminal case starts from the beginning. Undocumented defendants will face the original criminal charges and will need to fight the case or enter a plea that does not have immigration consequences.
Reasons To Withdraw A Plea
Under Penal Code 1473.7, there are 2 reasons to withdraw a guilty plea:
If there was a prejudicial error during proceedings that damaged the person’s ability to meaningfully understand, defend, or knowingly accept the actual or potential adverse immigration consequences of a plea of guilty or nolo contendere; or
New evidence of innocence exists and requires the withdrawal of a plea.
Failure to Understand Immigration Consequences
If the prosecution opposes the Penal Code 1473.7 motion, they will need to provide evidence that the defendant understood the immigration consequences at the entry of plea. This evidence may include a signed waiver of constitutional rights, a probation or sentencing order, a transcript or recording of the entry of plea, and declarations or testimony from witnesses.
A plea entered after January 1, 2017 can be withdrawn due to ineffective assistance of counsel. To do so it must be shown:
That counsel’s performance was deficient in that it fell below an objective standard of reasonableness; and
That he or she was prejudiced by that deficient performance
A plea entered before January 1, 2017 can only be withdrawn if the defendant asks his or her attorney about the immigration consequences of a plea and is given incorrect immigration advice. (People v. Landaverde).
When To File A Motion Under Penal Code 1473.7
The motion cannot be filed until:
The party receives a notice to appear in immigration authorities that asserts the conviction or sentence as the basis for removal.
The date a removal order based on the conviction or sentence becomes final.
The motion shall be filed with reasonable diligence after the later of the above dates.
The motion must also be filed without undue delay from the date the moving party discovered or could have discovered the evidence that provides the reason for the withdrawal of the plea.
After Filing The Motion
The court clerk provides a hearing date when the motion is filed. At the hearing the Judge will decide whether or not to overturn the conviction. If the conviction is reversed, the defendant still faces criminal charges and will need to enter a plea or fight the case.
Entering An Immigration-Neutral Plea
In order to avoid deportation, a non-citizen defendant must enter a plea that does not have immigration consequences. One option is to plead to a charge or charges that are immigration-neutral but give the court and prosecution equivalent convictions and sentences.
On Friday July 8th, 2016, law enforcement ran a sting in Santa Barbara. Officers corresponded over the internet with individuals, who were arrested when they arrived at an agreed location. At least a dozen people were arrested and charged. The charges include disorderly conduct, a misdemeanor.
SB 966, introduced by Senator Holly Mitchell (D-Los Angeles), would repeal the three-year sentence enhancement for prior drug convictions. The enhancement is applied consecutively — three years for every prior conviction for possession for sale, sale or similar drug offense to any person currently convicted for a similar offense. Since realignment, this has resulted in hundreds being sentenced to county jails for more than five or even ten years.
The Failure of Drug Enhancements
These enhancements were originally intended to deter drug selling, and reduce the availability of controlled substances. As with other punitive drug war strategies, they are a proven failure — drugs are cheaper, stronger and more widely available than any time in our state’s history. These enhancements have the effect of sentencing thousands of people — mainly young men and women of color — to long periods of incarceration in overcrowded state prisons and county jails, destabilizing families and communities.
Furthermore, this failed approach has proven enormously expensive, robbing state and local budgets that should be spent on schools, health and social services, and policies that actually reduce drug use — drug treatment, after-school programs, and housing, among them.
The RISE Act will repeal costly and ineffective sentencing enhancements, reflecting the Legislature’s and voters’ consensus that we must divest from mass incarceration in order to invest in vitally needed public services.
Why do we need the RISE Act?
The RISE Act will free up taxpayer dollars for investment in cost-effective community-based programs instead of costly jail expansion. By repealing enhancements for prior drug convictions, SB 966 would reduce jail overcrowding and stop the rush to build and staff costly new jails.
Since 2007, California has spent $2.2 billion on county jail expansion – not including the costs borne by the counties for these construction projects, the increased staffing, or the debt service for these high-interest loans. These funds could be better invested in programs and services that meet community needs and improve public safety, including community-based mental health and substance use treatment programs, job programs, and affordable housing.
Governor Brown endorsed a measure for the 2016 ballot that will allow persons to be paroled after they complete their base sentence, regardless of enhancements. However, that measure only applies to persons sentenced to state prison, and will have no effect on jail overcrowding.
The Rise Act – SB 996
SB 966 would address extreme sentences. Enhancements result in sentences being far more severe than is just, sensible, or effective. Under current law, a person may face two to four years in jail for possessing drugs for sale under the base sentence. But if the person has two prior convictions for possession for sale, they would face an additional six years years in jail – for a total of ten years. As of 2014, there were more than 1,700 people in California jails sentenced to more than five years. The leading cause of these long sentences was non-violent drug sale offenses.
SB 966 would reduce racial disparities in the criminal justice system. Although rates of drug use and sales are comparable across racial lines, people of color are far more likely to be stopped, searched, arrested, prosecuted, convicted, and incarcerated for drug law violations than are whites. Research also shows that prosecutors are twice as likely to pursue a mandatory minimum sentence for Blacks as for whites charged with the same offense.
SB 966 would help restore balance in the judicial process. Prosecutors use enhancements as leverage to extract guilty pleas, even from the innocent. Prosecutors threaten to use enhancements to significantly increase the punishment defendants would face should they exercise their right to a trial. According to Human Rights Watch, “plea agreements have for all intents and purposes become an offer drug defendants cannot afford to refuse.”
SB 966 will stop the cruel punishment of persons suffering from a substance abuse disorder. People who suffer untreated substance abuse disorders often sell drugs to pay for the drugs that their illness compels them to consume. It is fundamentally unjust, as well as counterproductive, to put a sick person in jail to address behaviors better handled in a medical or treatment setting.
Sentencing Enhancements Harm Communities
Sentencing enhancements do not prevent or reduce drug sales and have destabilizing effects on families and communities. Research finds that the length of sentences does not provide any deterrent or significant incapacitation effect: longer sentences for drug offenses do not reduce recidivism, nor do they affect drug availability.
Most people who commit crimes are either unaware of penalties or do not think they will be caught. Research shows that people incarcerated for selling drugs are quickly replaced by other people.
However, incarceration can lead to more crime by destabilizing families and communities. Many people who return from incarceration face insurmountable barriers to finding jobs and housing and reintegrating into society. Family members of incarcerated people also struggle with overwhelming debt from court costs, visitation and telephone fees, and diminished family revenue. The longer the sentence, the more severe these problems.
Californians United for a Responsible Budget (co-sponsor)
Drug Policy Alliance (co-sponsor)
Ella Baker Center for Human Rights (co-sponsor)
A New PATH (Parents for Addiction Treatment and Healing)
A New Way of Life
ACLU of California
Alameda County Public Defender
Alliance for Boys and Men of Color
All of Us or None San Diego
American Friends Service Committee
Anti Recidivism Coalition
Any Positive Change, Inc.
Arts for Incarcerated Youth Network
Asian Americans Advancing Justice California
Asian American Criminal Trial Lawyers Association
Asian Pacific Environmental Network
Asian Prisoner Support Committee
Bay Area Black Worker Center
Bay Area Community Resource Workforce Development
Bend the Arc
California Association of Alcohol and Drug Program Executives
California Attorneys for Criminal Justice
California Coalition for Women Prisoners
California Immigrant Policy Center
California Prison Moratorium Project
California Public Defender Association
Californians for Safety and Justice
Causa Justa : Just Cause
Center for Health Justice
Center for Living and Learning
Center on Juvenile and Criminal Justice
Centro Legal De La Raza
Coalition for Humane Immigrant Rights of LA
Coleman Advocates for Children and Youth
Communities United Against Violence
Communities United for Restorative Youth Justice
Community Works: Project WHAT!
Contra Costa County Office of the Public Defenders
Contra Costa Supervisor John Giaoa
Critical Resistance – Los Angeles
East Bay Alliance for a Sustainable Economy
Essie Justice Group
Fathers & Families of San Joaquin
Friends Committee on Legislation
Further the Work
Harm Reduction Services
Healthy Communities Oakland
HIV Education and Prevention Project of Alameda
Holman United Methodist Church
Human Rights of the Incarcerated at Cal
Immigrant Legal Resource Center
Inland Congregations United for Change
Islamic Shura Council of Southern California
Justice Not Jails
Justice Policy Institute
L.A. Community Action Network
Law Enforcement Against Prohibition
Lawyers’ Committee for Civil Rights, SF.
Legal Services for Prisoners with Children
Marijuana Lifer Project
Motivating Individual Leadership for Public Advancement
Monterey Bay Central Labor Council
Mortgage Personnel Services
National Association of Social Workers, California Chapter
National Association of Social Workers, Women’s Council – CA Chapter
National Center for Youth Law
Needle Exchange Emergency Distribution – Berkeley
Office of Richmond Mayor Tom Butt
Orange County Needle Exchange Program
Parent Voices California
Prison Activist Resource Center
Prison Law Office
Prison Policy Initiative
Reentry Success Center
Resource Center for Nonviolence
Root & Rebound: Reentry Advocates
Riverside Temple Beth El
RYSE Youth Center
Safe Return Project
San Diego Organizing Project
San Francisco Public Defender’s Office
Santa Cruz County Community Coalition to Overcome Racism
November ballot measure proposed by Governor Jerry Brown seeks to keep children in juvenile court.
In 2000, California voters approved Proposition 21, the Gang Violence and Juvenile Crime Prevention Act of 1998, which significantly broadened the circumstances under which prosecutors could charge minors over the age of 14 in adult court.
Under Prop 21, prosecutors can file certain charges against a minor, such as first-degree murder or certain sexual offenses, directly in adult court.
Ironically, Prop 21 notes “a number of research studies indicate that juveniles who receive an adult court sanction tend to commit more crimes and return to prison more often than juveniles who are sent to juvenile facilities.”
A new bill on the November ballot seeks to reduce repeat offenses by diverting children back into the juvenile system.
Jessica Martinez, an associate attorney at Landheer Law Firm, is representing Mayra Ortega, a defendant in the “Operation Matador” case. In total, sixteen suspects are charged with street terrorism in connection with the gang M.S. 13. Above, Ms. Martinez can be seen beside her client at court.