What is the test for a motion to dismiss a criminal conviction brought by a defendant who failed to properly advise the appellant?

California, United States of America


The following excerpt is from People v. Jimenez, B238125 (Cal. App. 2012):

In order to prevail on his motion, however, appellant must show more than the fact of an inadequate advisement. In addition, he must show that "there exists, at the time of the motion, more than a remote possibility that the conviction will have one or more of the specified adverse immigration consequences," and that he "was prejudiced by the nonadvisement." (People v. Totari (2002) 28 Cal.4th 876, 884 (Totari).) With respect to the issue of prejudice, a defendant "must show that it is reasonably probable he would not have pleaded guilty or nolo contendere if properly advised." (Id. at p. 884.)

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