Opinion
B299598
05-24-2021
THE PEOPLE, Plaintiff and Respondent, v. ROBERTO ALEXIS LEPE MORAN, Defendant and Appellant.
Martin Lijtmaer for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Steven D. Matthews and Rama R. Maline, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Los Angeles County Super. Ct. No. VA142814) APPEAL from an order of the Superior Court of Los Angeles County, Michael A. Cowell, Judge. Reversed and remanded. Martin Lijtmaer for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Steven D. Matthews and Rama R. Maline, Deputy Attorneys General, for Plaintiff and Respondent.
____________________
Roberto Lepe Moran moved to vacate a conviction that is leading to his deportation. After an evidentiary hearing, the trial court denied Lepe Moran's motion. At this hearing, however, the court improperly dismissed evidence Lepe Moran had no interpreter at an important stage of the plea proceedings. The court also curtailed Lepe Moran's effort to demonstrate his criminal defense attorney, when deciding how to advise Lepe Moran about the prosecution's plea offer, knew too little immigration law to help Lepe Moran effectively defend against deportation. We cannot say these errors were harmless beyond a reasonable doubt. We reverse and remand for a further evidentiary hearing.
I
Lepe Moran moved to vacate his conviction under Penal Code section 1473.7 (section 1473.7). First, we present facts as alleged in the probation report and we recount Lepe Moran's challenge to them. Second, we describe the evidence supporting and opposing Lepe Moran's attack on his plea. Third, we describe the trial court's hearing on this section 1473.7 motion.
A
The probation report gave this account:
On September 10, 2016, at approximately 2126 hours, an officer from the Bell Police Department observed a vehicle (driven by defendant Roberto Alexis Lepe-Moran) fail to stop for a red light, with the defendant almost hitting three bicyclist[s] crossing the crosswalk, due to his unsafe speed. The officer followed the vehicle, in an attempt to stop/contact the defendant for the violation. The defendant ignored the officer's lights and sirens and engaged the officer in a pursuit. The defendant failed to stop for a second red light and was also driving recklessly, changing lanes and driving at a high rate of speed. The defendant entered a parking lot and placed pedestrians in danger with his reckless driving. The defendant damaged a vehicle in the parking lot (victim not identified in police report or felony complaint). The defendant drove out of the parking lot and drove on the wrong side of the road. The defendant subsequently approached a vehicle, turned in front of the vehicle, and sideswiped the vehicle (driven by victim Ruben Placencia). Bell police officers arrived shortly, thereafter. A passenger in the victim's vehicle (identified as Rosa G.) was injured. Victim Rosa G. complained of pain to head. (The felony complaint did not list the counts pertaining to the two victims.)
Officers approached the defendant's vehicle and detained the defendant. When officers asked the defendant as to why he failed to stop for them, the defendant replied, in Spanish, "because I don't have a license and just got a ticket a few weeks ago." During the inventory search of the defendant's vehicle, prior to being impounded, officers located a cylinder container with marijuana, located on the center cup holder. The defendant was transported to Bell police jail.
Lepe Moran objected to the probation report as hearsay. He claims video footage of the incident shows he "was driving at a low rate of speed only for about 100 feet on the wrong side of the street." He contends his conduct caused no injury and points to the absence of any injured person or witness at the restitution hearing. The minutes for this hearing say "there has been no response from the victim." Lepe Moran also maintains the original police reports recommended charges related to property damage and not injury to persons.
B
In October 2016, Lepe Moran pleaded no contest to two counts: fleeing a police officer and driving the wrong way, in violation of Vehicle Code section 2800.4, and felony hit and run, in violation of Vehicle Code section 20001. His public defender was Mr. Valentin Rada. Lepe Moran faced a possible total sentence of three years and eight months. The trial court imposed concurrent sentences of 16 months in prison and dismissed two misdemeanor counts.
Within a year of entering his plea, Lepe Moran filed a petition for writ of habeas corpus claiming attorney Rada was ineffective: Lepe Moran said Rada failed to investigate and to advise Lepe Moran accurately of the immigration consequences of the plea. Lepe Moran's petition also faulted Rada for failing to seek an immigration-neutral disposition. Lepe Moran made other claims as well.
After Lepe Moran completed his sentence, the federal government put him in deportation proceedings. Lepe Moran asserts he is imminently deportable because a violation of Vehicle Code section 2800.4 is a crime of moral turpitude under federal law. Under a federal statute, the federal government may deport people who, within five years of entering the United States, are convicted of a crime involving moral turpitude if a sentence of one year or longer may be imposed for that crime. (See 8 U.S.C. § 1227(a)(2)(A)(i).)
Lepe Moran's plea placed him in this category: his plea to violating Vehicle Code section 2800.4 triggered mandatory deportation, which he now is fighting.
As part of his habeas briefing, Lepe Moran provided his own declaration, declarations from his mother and a new immigration attorney, and letters from his community. The declarations claimed Lepe Moran had been legally in the United States as a result of his mother's U-Visa. The declarations further averred that, at the time of his plea, avoiding deportation and keeping his family together was the family's primary goal: Lepe Moran financially supported his close-knit family.
The declarations also said that, in the month between his arrest and plea, Lepe Moran had three public defenders. The court appointed his third lawyer, Rada, the day Lepe Moran pleaded no contest. Lepe Moran declares he told Rada staying in the United States was the most important thing for him. Lepe Moran's mother also told Rada that considering her son's immigration status was of the "utmost importance." Rada said Lepe Moran had to take the 16-month prison offer or else he would get up to five years in prison. Rada also said he was not an immigration lawyer, did not know if Lepe Moran would be deported, and could not say what would happen. Rada never discussed getting an immigration-neutral disposition, never asked Lepe Moran about his immigration status, and dismissed Lepe Moran's immigration paperwork as unimportant.
Lepe Moran "hardly speak[s] any English" and Rada's Spanish is poor, yet Rada did not use an interpreter to go over the plea form with Lepe Moran. The process took two or three minutes. Lepe Moran was confused the day he changed his plea. "There were a bunch of other defendants standing next to me that had nothing to do with my case. My lawyer was simultaneously representing everyone except one of the other defendants who had his own attorney. The judge was talking to all of us and I simply said 'yes' to his questions. I didn't understand what was going on and simply did and said what the other people said before me."
Lepe Moran swore he agreed to the plea only because he was scared and did not want to go to prison for a long time. He did not understand his plea's immigration implications. He declared: "Had I known that I could have fought my case and gotten a result that would have protected my immigration status, I would have chosen to fight the case."
The prosecution filed an informal response to Lepe Moran's habeas petition, and Lepe Moran filed a traverse.
The prosecution's response included a declaration from Rada. Rada has been a public defender for about two decades and represents hundreds of defendants each year. Rada spoke with Lepe Moran about "the charges against him, the strength of the case against him, and his possible defenses." Rada discussed all consequences of Lepe Moran's plea with him and advised him "his plea would make him eligible for deportation." Lepe Moran did not seem to be confused about the case or his plea form. Rada did not recall whether he used an interpreter when speaking with Lepe Moran and going over the form; but his practice is to use an interpreter if he doubts the client's comprehension or communication ability.
Rada also declared the prosecution offered a two-year sentence for Lepe Moran. Rada requested probation and highlighted Lepe Moran's youth, his lack of a criminal record, and the "minor" nature of the collision. Rada told the prosecutor Lepe Moran "had entered this country because his mother had been the victim of domestic abuse" and he "did not wish to be deported." The prosecution responded with a 16-month offer. Lepe Moran wanted to accept the offer to avoid a longer sentence; he never said his legal status was paramount. Rada did not recall the specific steps he took to research and investigate the likelihood of Lepe Moran being deported. Nor did he recall speaking with Lepe Moran's mother about immigration consequences.
The prosecution included Lepe Moran's plea form and the transcript of the plea hearing with its response. The form is titled "Felony Advisement of Rights, Waiver, and Plea Form." The form shows Lepe Moran's initials next to this warning: "I understand that if I am not a citizen of the United States, I must expect my plea of guilty or no contest will result in my deportation, exclusion from admission or reentry to the United States, and denial of naturalization and amnesty." Lepe Moran's and Rada's signatures appear on the form.
On this form, the Interpreter's Statement section is empty. There are underlined blanks for four types of fill-in information. The form asks the interpreter to write in the interpreter's name, to identify the interpreted language, and to give the date. The form also asks the interpreter to certify "that I truly translated this form to the defendant in the language indicated below. The defendant stated that he or she understood the contents of the form, and then initialed and signed the form." On Lepe Moran's form, these spaces contain no information or marks.
The transcript shows Lepe Moran entered his plea in court in a group of four other defendants. Rada represented two of these other defendants. The transcript shows a Spanish interpreter assisted Lepe Moran during the oral portions of the hearing. The prosecutor warned the defendants if they were not citizens and were pleading to "this felony, you're going to be deported from the country, excluded, denied reentry. You'll never get residency or citizenship in the United States. The immigration consequence is going to apply no matter what this form says or whatever your attorney may have told you here today." Like the other defendants, Lepe Moran answered "yes," he understood "the immigration consequence."
The court asked the group of defendants, "Do all five of you understand—it's a simple yes or no, all right—the charges you're facing, the maximum time your charges carry and the agreement in your case?"
Others in the group of defendants answered "yes." Lepe Moran sought to clarify: "I'm doing half of the 16 months; right?" Then he conferred with counsel off the record.
The trial court denied Lepe Moran's habeas petition, and Lepe Moran unsuccessfully pursued habeas relief in the appellate courts.
Lepe Moran later filed his section 1473.7 motion, arguing again that his lawyer made no effort to negotiate an immigration-neutral plea and caused him to accept a plea without understanding the immigration consequences. He incorporated his habeas briefing.
The prosecution did not file a response but orally opposed the motion at the hearing.
C
The trial court held an evidentiary hearing on June 6, 2019. There were two witnesses: Rada and Lepe Moran. Both testified in accord with their declarations. Lepe Moran used an interpreter at this hearing. He maintained Rada did not explain the immigration consequences of his plea and he did not understand them. Lepe Moran met Rada for the first time the day of his plea. They used an interpreter earlier in the day but not when Rada went over the plea form. Lepe Moran did not understand anything until another inmate told him where to put his initials. Rada never said the case was going to make Lepe Moran deportable. Lepe Moran remembered the prosecutor mentioning immigration consequences. But he did not know if the man was an immigration attorney, and he did not have time to think about what the prosecutor was saying. "[S]ince everybody was saying, yes, and then that's when, that's why I say, yes."
Rada did not recall representing Lepe Moran until Rada checked his file. Rada testified he discusses immigration status in every case but did not recall Lepe Moran's immigration status and did not have it in his file. His file did note Lepe Moran's mother acquired status as a domestic violence victim. Rada did not believe he consulted with an immigration attorney about potential consequences of Lepe Moran's plea. He knew Lepe Moran "will be deported" and "[h]e's eligible to be deported" if convicted of violating Vehicle Code section 2800.4. Rada advised Lepe Moran he "would be deportable," but did not say whether he provided this advice in Spanish. Rada did not remember explaining why Lepe Moran was deportable and did not recall whether he used an interpreter to go over the plea form with Lepe Moran.
Lepe Moran made two contentions Rada did not dispute: that Rada never investigated immigration-safe pleas, and that Rada never discussed immigration-safe pleas with Lepe Moran.
Lepe Moran's counsel questioned Rada about an email he sent to the prosecutor asking for a "bullet"—which Rada explained was a year or less in county jail. The email is not part of our record.
Lepe Moran's counsel then asked Rada, "When you sent this email did you understand that a bullet would protect him from deportation?"
The deputy district attorney objected on relevance grounds and then defended her objection, arguing: "the inquiry before the court is whether or not Mr. Rada advised the defendant that he would be deported"; Rada reached out for an immigration-safe offer and the People considered Lepe Moran's immigration consequences, but they were not interested in such an offer and were not "moved" by the consequences; and the People charged Lepe Moran with the appropriate charge and gave him the appropriate sentence.
Lepe Moran's counsel argued his question was "the fundamental question before the court" and it was critical to understand what Rada understood when negotiating with the prosecution. He also noted, "a state prison offense doesn't have to be deportable and that's the key."
The trial court sustained the objection. It reasoned: "obviously there was a discussion about deportation," Lepe Moran had little in the way of a defense, and Rada was "trying to get him the best possible deal he can reaching out to the People. The People say, no, state prison offense."
The trial court sustained additional relevance objections during Rada's testimony, including objections to questions asking, first, whether Rada recalled speaking to Lepe Moran's mother about her son's immigration status and, second, whether Rada solicited character letters.
Regarding the first issue, Lepe Moran's counsel argued understanding Lepe Moran's status was necessary to be able to advise him as to immigration consequences.
The trial court disagreed: "Defense counsel may have no idea as to what his client's status is and yet adequately and effectively advise him of the immigration consequences."
The trial court did not explain its ruling on the second issue. It did not acknowledge Lepe Moran's new immigration attorney has used character letters to negotiate immigration-neutral dispositions for other clients.
After the witnesses completed their testimony, counsel argued to the trial court. Lepe Moran's lawyer gave reasons why the court should grant his motion, including that Lepe Moran "signed the Tahl waiver without an interpreter present. That's evidence that can't be refuted based on the record . . . ." The prosecution argued as well, but did not speak about or explain the missing interpreter's signature on the plea form.
The trial court denied Lepe Moran's section 1473.7 motion. On the missing interpreter's signature issue, the court said:
"[T]he Tahl waiver form, it may not have the certification of the court interpreter; that proves the certification was not completed. It does not mean he did not have an interpreter. The transcript shows that he did have the assistance of an interpreter at the time that the plea was taken."
The trial court made no factual finding about whether an interpreter assisted Lepe Moran with the written plea waiver form.
The court ruled Lepe Moran "was adequately advised and adequately represented." The court made no express finding as to whether Lepe Moran would have rejected the prosecution's offer to pursue a different offer had he understood the immigration consequences or had Rada been better informed. The court found Rada's email showed he "did attempt to negotiate an immigration-favorable disposition and it was refused by the people."
Lepe Moran appealed.
II
Lepe Moran had a constitutional right to an interpreter's assistance when he considered and completed a plea waiver form written in a language he did not understand. We remand for a determination of whether an interpreter assisted Lepe Moran at this important stage of the process.
A
Our high court recently clarified the standard of review for claims, like Lepe Moran's, brought under section 1473.7, subdivision (a)(1): we independently review these rulings, according particular deference to trial court factual findings based on the court's own observations but not to findings arising only from a cold record. (People v. Vivar (May 3, 2021, S260270) ___ Cal.5th ___, ___ [2021 WL 1726827, at *5, 7 & fn. 4, 8, 12] (Vivar).)
We use this standard. We would reverse, however, under any standard. The trial court improperly discounted uncontradicted evidence Lepe Moran did not have an interpreter when reviewing his plea with counsel. Further, in this sort of section 1473.7 motion, defense lawyers' knowledge of immigration law and their tactical decisionmaking are relevant to deciding the merits. Denying Lepe Moran the ability to develop this record was an abuse of discretion as well as an error of law.
B
The missing interpreter information and signature on Lepe Moran's plea form is highly unusual. These omissions cause us great concern.
Lepe Moran swore:
Mr. Rada explains in his Declaration that I signed a waiver of rights form and that I understood it. I hardly speak any English. Mr. Rada's Spanish is poor. He told me to [sic] simply that the form needed to be signed to get the "deal" that he was pushing me to take. He did not go over the form and there was no Spanish interpreter. Between the time it took him for him to show me the form and sign it, it took no more than 2 or 3 minutes. I never understood the specific advisements on the form: I only understood that it was the way to get the deal that Mr. Rada advised was best for me.
The missing interpreter's signature supports Lepe Moran's claim "no Spanish interpreter" helped him understand and complete the form.
The trial court discounted this evidence and concluded the absence of an interpreter certification proved only that the certification was not completed, not that Lepe Moran lacked an interpreter. The court made no finding an interpreter was present when reviewing the form. Nor, in light of the evidence, could it have done so.
Lepe Moran had a right to "accurate and affirmative advice about the immigration consequences" of his plea from his attorney. (Pen. Code, § 1016.3, subd. (a).) The Constitution entitled him to an interpreter's assistance. (See Cal. Const., art. I, § 14 ["A person unable to understand English who is charged with a crime has a right to an interpreter throughout the proceedings."]; People v. Rodriguez (1986) 42 Cal.3d 1005, 1010 (Rodriguez) [interpreter necessary throughout the proceedings "so that a defendant can understand and fully participate in the proceedings when he is charged with a crime"].) Entering a plea to a felony is a critical stage of the proceedings. Considering and completing the written waiver form, if the trial court is using written forms instead of oral waivers, is an important part of this process.
Lepe Moran spoke Spanish at the arrest scene, swore he speaks hardly any English, and used an interpreter at other stages of the proceedings. The plea transcript shows an interpreter did assist Lepe Moran when he entered his oral plea. The waiver form, by contrast, has only blanks where it asks for interpreter information. Because this process included and relied upon written waivers, an interpreter was necessary to ensure Lepe Moran understood his plea and its consequences and knowingly and intelligently waived his rights.
The absence of an interpreter here is not harmless beyond a reasonable doubt. (See Rodriguez, supra, 42 Cal.3d at pp. 1010-1013 [outlining harmless error standard for violations of the right to an interpreter].) The plea form shows its purpose is to ensure defendants are advised regarding their plea and understand the consequences, including immigration consequences. Lepe Moran asserts one reason he did not grasp the immigration consequences of his plea was he did not have an interpreter for this process. In other words, Lepe Moran claims the absence of an interpreter actually affected his rights. (See id. at p. 1015 [absence of interpreter may be harmless where the proceedings were insubstantial or "concern matters which are not possibly prejudicial to the defendant, or because there is no allegation that the deprivation actually affected any of the defendant's rights"].)
We therefore remand for a further hearing on Lepe Moran's section 1473.7 motion. Specifically, we remand for a factual determination of whether Lepe Moran had an interpreter when reviewing and signing his plea form, which bears on one of Lepe Moran's claims of error under section 1473.7.
C
The trial court should not have barred questions concerning whether Lepe Moran's defense attorney knew immigration law and the client's status, what he discussed with the prosecution, what end he sought in negotiations, and what he advised the client. These questions were pertinent under Padilla v. Kentucky (2010) 559 U.S. 356 and California law. They related to Lepe Moran's claim of error and to the issue of prejudice under section 1473.7. (See People v. Bravo (2020) 58 Cal.App.5th 1161, 1184-1185 (conc. opn. of Raphael, J.) (Bravo), review granted Mar. 24, 2021, S266777); People v. Camacho (2019) 32 Cal.App.5th 998, 1009 [defendant's claim of error supported by former attorney's testimony he misunderstood the potential immigration consequences and did not explore alternatives to pleading to an aggravated felony]; People v. DeJesus (2019) 37 Cal.App.5th 1124, 1135-1136 [no prejudicial error where defendant failed to offer any evidence from which a reasonable fact finder could conclude his attorney failed to negotiate or consider an immigration-neutral disposition]; see also People v. Bautista (2004) 115 Cal.App.4th 229, 240 [defendants should be able to make informed decisions after meaningful consultation with counsel about pleas having different immigration consequences, and counsel's advice must be founded on adequate investigation of federal immigration law].)
Weeks ago, our Supreme Court clarified that a "prejudicial error" under section 1473.7 means "demonstrating a reasonable probability that the defendant would have rejected the plea if the defendant had correctly understood its actual or potential immigration consequences." (Vivar, supra, ___ Cal.5th at p. ___ [2021 WL 1726827, at *10].) Among the factors that are "particularly relevant" to the prejudice analysis is "whether the defendant had reason to believe an immigration-neutral negotiated disposition was possible." (Id. at p. *10.) Under this analysis, whether the defendant in fact "could have entered a plea avoiding mandatory deportation" matters. (Id. at p. *11.) But the trial court improperly truncated this inquiry here.
The trial court was obligated to allow Lepe Moran to develop a record about what Rada did and did not know and do. On that record, the court then had to judge as a matter of law whether Rada's work had failed Lepe Moran. The questions Lepe Moran posed to Rada were relevant.
In sustaining objections to the examination of Rada, the trial court focused on the strength of the evidence against Lepe Moran, as recited in the police report. Even strong evidence of guilt is not necessarily dispositive, as the Supreme Court of the United States ruled in Lee v. United States (2017) ___ U.S. ___ (Lee). Defendants' prospects of acquittal at trial may be grim, but defendants nevertheless may establish they would have gambled on long odds at trial rather than accept a plea that dictated deportation with certainty. (Id. at pp. 1965-1969.) Nor would strong evidence against Lepe Moran foreclose his additional claim of prejudice—which Lee did not reach (see id. at p. 1966, fn. 2)—that he would have rejected this plea and negotiated a different agreement had his counsel been informed about immigration law and relayed this information to him. (See Bravo, supra, 58 Cal.App.5th at p. 1184 (conc. opn. of Raphael, J.), review granted.)
An informed and correct advisement by defense counsel is the very foundation and starting point of the analysis. That was not the focus here.
The prosecution says there must be contemporaneous evidence to support a defendant's declaration that the immigration consequences were important to him. There is contemporaneous evidence. In Rada's file notes, he has written the source of defendant's mother's immigration status. This notation corroborates Lepe Moran's story that he and his mother told Rada that immigration consequences were paramount because his mother had her status as a victim of domestic violence. (See Vivar, supra, ___ Cal.5th at pp. ___, ___ [2021 WL 1726827, at *4, 10] [family members' lawful status and residency here are "contemporaneous objective facts" corroborating defendant's claimed concern about plea's immigration consequences].)
On the issue of prejudice, the trial court erroneously relied on arguments of a deputy district attorney who did not negotiate with Rada or take Lepe Moran's plea instead of evidence in concluding the prosecution rejected an immigration-neutral disposition for Lepe Moran. The record does not support this conclusion. We do not defer to attorney arguments. Nor does the record show the prosecution even considered such a disposition, consistent with its duty under Penal Code section 1016.3, subdivision (b). Instead, the record merely shows Rada sought a jail sentence under one year and mentioned Lepe Moran did not wish to be deported; then the prosecution insisted on a 16-month prison sentence. But as Lepe Moran correctly argues, the key here is the nature of the offense—whether it is one of moral turpitude—not the length of the sentence imposed. Lepe Moran argued the prosecution could have secured the same prison sentence through a similar charge of fleeing police (Vehicle Code section 2800.2) that would not mandate deportation. The trial judge imposed, and the prosecution agreed to, concurrent sentences; it is unclear what, if anything, mattered to the prosecution beyond a 16-month prison sentence (for example, the particular offenses charged or whether two felony convictions resulted). In short, it was relevant whether Rada considered Vehicle Code section 2800.2 or other immigration-neutral dispositions. It was also relevant whether Rada pursued these possibilities with the prosecution. (See Vivar, supra, ___ Cal.5th at p. ___ [2021 WL 1726827, at *10-11].) The section 1473.7 hearing was Lepe Moran's only chance to get this evidence.
While the record shows a prosecutor told Lepe Moran and four other defendants "you're going to be deported" shortly before the court accepted their pleas, this does not establish the prosecutor considered and rejected an immigration-neutral disposition for Lepe Moran during negotiations with Rada. Nor does it show Lepe Moran understood the immigration consequences of his options; indeed, Rada's supposed advice to Lepe Moran differed from this warning from an adversary.
The prosecutor's eleventh-hour warning is not dispositive of Lepe Moran's section 1473.7 claim. It did not negate prejudice. Nor did it supplant Rada's duty to advise Lepe Moran adequately and to assist him in defending against adverse immigration consequences. (See Pen. Code, § 1016.3, subd. (a); see also People v. Rodriguez (2021) 60 Cal.App.5th 995, 1002; People v. Ogunmowo (2018) 23 Cal.App.5th 67, 80.) The trial court improperly denied Lepe Moran his chance to explore how and whether Rada carried out this duty.
We have empathy for trial lawyers with heavy dockets, but from our glimpse into the plea negotiation process here it appears neither the defense nor the prosecution attorneys were expert in federal immigration law. The parties in their briefing for this appeal seem to have delved more deeply into immigration law than did the trial lawyers during plea negotiations. The intricacies of immigration law can offer opportunities for creative dispositions that respond to both sides' priorities. The prosecution here seemed to place emphasis on the length of the term of incarceration, while Lepe Moran claims to have placed an even higher priority on avoiding deportation. We cannot say beyond a reasonable doubt that it would have been impossible for well-informed and well-counseled parties to find common ground, once they understood the potential and the pitfalls of federal immigration law. If neither Rada nor Lepe Moran understood an immigration safe alternative to his plea was feasible—whether it be due to the absence of an interpreter, failure to consider other pleas, or unfamiliarity with immigration law—that would be prejudice.
Rada had a professional duty to attend to his client's wish to avoid deportation, while the prosecution had a statutory duty to consider any immigration-neutral proposal that an informed defense attorney might propose. The statute imposes a duty on the prosecution to consider an immigration-neutral disposition in the interests of justice.
We remand for a further hearing on these issues as well.
D
The parties' appellate briefing has focused on Lepe Moran's conviction for violating Vehicle Code section 2800.4, as the federal government and the Ninth Circuit determined this violation rendered Lepe Moran removable. (See Moran v. Barr (9th Cir. 2020) 960 F.3d 1158, 1160-1161, 1164.) In one sentence, the prosecution suggested Lepe Moran's second conviction—for felony hit and run in violation of Vehicle Code section 20001—moots this case, as it too is a crime of moral turpitude under federal law. Their brief cites a case that does not establish this contention, People v. Bautista (1990) 217 Cal.App.3d 1. At oral argument, the parties then discussed a more recent case, Conejo-Bravo v. Sessions (9th Cir. 2017) 875 F.3d 890.
Had this issue been raised below, the parties could have offered evidence on the subject—in particular, on whether Rada advised Lepe Moran regarding the immigration consequences of this conviction as well. Apparently federal authorities did not seek to deport Lepe Moran on the basis of the other conviction, so it seems there was no reason to bring it up.
Because the parties did not raise this issue at the trial court, we decline to address it now.
DISPOSITION
We reverse the order denying Lepe Moran's motion to vacate his conviction and remand for further proceedings consistent with this opinion.
WILEY, J. I concur:
STRATTON, J. BIGELOW, P. J., concurring in the judgment.
In light of the recently decided People v. Vivar (May 3, 2021, S260270) ___ Cal.5th ___ , I concur in the judgment remanding this case for further factfinding. I further note that on remand, nothing in the majority opinion precludes the trial court from considering the immigration consequences of all charges.
BIGELOW, P. J.