Opinion
F078633
02-26-2021
THE PEOPLE, Plaintiff and Respondent, v. SAMUEL DURAN, Defendant and Appellant.
Jyoti Meera Malik, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Michael P. Farrell, Assistant Attorney General, Julie A. Hokans and Clara M. Levers, 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. VCF303939B)
OPINION
APPEAL from an order of the Superior Court of Tulare County. Kathryn T. Montejano, Judge. Jyoti Meera Malik, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Michael P. Farrell, Assistant Attorney General, Julie A. Hokans and Clara M. Levers, Deputy Attorneys General, for Plaintiff and Respondent.
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In 2014, defendant Samuel Duran pled no contest to one count each of felony possession of marijuana for sale and felony cultivation of marijuana and admitted an allegation he was armed with a firearm during the commission of the offenses. In 2018, he filed a motion to vacate his convictions pursuant to Penal Code section 1473.7, on the ground that prejudicial error affected his "ability to meaningfully understand ... or knowingly accept" the adverse immigration consequences of his plea. The trial court denied the motion. His chief argument on appeal is the trial court abused its discretion by misapplying the law in ruling on the motion. We agree, and we reverse and remand for a rehearing on that basis. Duran also contends his counsel was ineffective for failing to advise him that he was pleading guilty to a crime that would result in his mandatory deportation, and also contends the trial court erred in not finding that he had proved by a preponderance of the evidence he was entitled to section 1473.7 relief. Since we reverse on the chief ground, we will not address counsel's performance or analyze the strength of the evidence.
Unlabeled statutory references are to the Penal Code.
BACKGROUND
I. Duran's plea and sentencing
On July 31, 2014, the Tulare County District Attorney filed a felony complaint charging 19-year-old Duran with one count of felony possession of marijuana for sale (Health & Saf. Code, § 11359) and one count of felony cultivation of marijuana (Health & Saf. Code, § 11358.) The complaint further alleged Duran was armed with a firearm during the commission of the offenses (§ 12022, subd. (a)(1).)
On November 10, 2014, Duran, accompanied by counsel, Albert Garcia, pled no contest to both counts and admitted the special allegation. Prior to Duran formally entering his no contest pleas at the hearing that day, the court read Duran the section 1016.5 advisement, which the court is required to administer prior to acceptance of a guilty or no contest plea to any state law crime. The advisement reads in full:
"If you are not a citizen, you are hereby advised that conviction of the offense for which you have been charged may have the consequences of deportation, exclusion from admission to the United States, or denial of
naturalization pursuant to the laws of the United States." (§ 1016.5, subd. (a).)
The court then asked Duran if he had consumed any drugs or alcohol or medication of any kind within the last 24 hours that would affect his ability to understand the proceedings that day, and Duran answered, "No." The court did not ask if Duran understood the section 1016.5 advisement.
The court told Duran of its indicated sentence: the court would impose a three-year prison sentence, but Duran would only have to serve one year in local custody and two additional years on community supervision. Duran acknowledged he understood that is what his sentence would be.
The court asked Duran if he "had enough time to speak with [his] attorney" and was "satisfied with [his] attorney's advice." Duran answered, "Yes," to both. The court then advised Duran of the constitutional rights he would be giving up by pleading guilty, and he acknowledged he understood these rights and agreed to give them up.
The court then asked Garcia: "Have you discussed with [Duran] his rights, defenses, and the possible consequences of his plea?" Garcia said, "I did." The court also asked: "Do you believe your client does understand his rights?" Garcia replied, "He does." The court finally asked: "Do you consent and concur in the change of plea and in all the representations made here in court by your client?" Garcia answered, "I do." The court proceeded to accept Duran's no contest pleas to the two charged counts and the arming allegation. Duran received his indicated sentence at a December 12, 2014, sentencing hearing. Duran was assisted by a Spanish language interpreter at all proceedings for his case.
When the court asked if he admitted the arming allegation, Duran responded "No contest."
In his opening brief on appeal, Duran asserts no "written plea form, setting forth the terms and consequences of the plea agreement," accompanied Duran's oral plea. In support of this assertion, Duran explains the clerk's transcript prepared and submitted to this court by the superior court clerk did not contain a written plea form. This prompted his appellate counsel to send a letter to the superior court appeals clerk stating the change of plea form is missing from the record and requesting the clerk provide copies of it to this court and the parties. In response, the superior court appeals clerk filed a declaration in this court stating she was unable to locate the referenced change of plea form after thoroughly searching the superior court's electronic case management system as well as the original court file. In his opening brief, Duran asserts this is proof that no change of plea form accompanied his oral plea.
II. Section 1203.4 relief
On January 4, 2017, Duran, represented by Richard Rumery, petitioned under section 1203.4 to have his felonies reduced to misdemeanors, to withdraw his plea, to have a plea of not guilty entered, and to have the court dismiss the action. On February 3, 2017, the court granted the unopposed petition and ordered the charges dismissed.
The "expungement" provided by section 1203.4 is limited. In a subsequent prosecution, "the prior conviction may be pleaded and proved and shall have the same effect as if probation had not been granted or the accusation or information dismissed." (§ 1203.4, subd. (a)(1).) The defendant must also disclose the conviction in certain contexts, such as when applying for public office or for licensure with a state or local agency. (Ibid.)
III. Section 1473.7 motion to vacate conviction
On November 2, 2018, Duran, again through Rumery, filed a motion for relief under section 1473.7, a new law that provided: "A person no longer imprisoned or restrained may prosecute a motion to vacate a conviction or sentence" that is "legally invalid due to a prejudicial error damaging the moving party's ability to meaningfully understand, defend against, or knowingly accept the actual or potential adverse immigration consequences of a plea of guilty or nolo contendere" (former § 1473.7, subd. (a)(1), added by Stats. 2016, ch. 739, § 1). The motion stated: "Mr. Duran is looking to reapply for his green card and the two misdemeanors are still on his record despite the granted expungement. Mr. Duran looks to have his conviction/sentence vacated for immigration purposes. Initially, Mr. Duran believed the expungement would resolve the immigration issues. It didn't."
The motion further averred: "Mr. Duran has held his lawful permanent green card status since 1996. When taking the no contest plea, Mr. Duran does not recall being advised by the court that his no contest plea could have 'potential adverse immigration consequences.' ... At the time of the no contest plea, Mr. Duran did not meaningfully understand that it could have 'potential adverse immigration consequences.' There was no understandable dialog with the court about this issue."
At the hearing on the motion, Rumery stated he mistakenly wrote 1996. He told the court Duran is 24 years old and has "had his green card for five years."
The motion additionally stated Duran "did not meaningfully understand that by accepting a no contest plea that his immigration status could be affected. Mr. Duran does not recall having any purposeful dialog with the trial court. Mr. Duran did not understand that his plea agreement could stop the renewal of his green card. Mr. Duran did not understand the plea could lead to his deportation. If a defendant failed to meaningfully understand the potential adverse immigration consequences then the defendant should be able to withdraw his/her plea or the conviction/sentence should be vacated. (People v. Superior Court (Giron) 1974 11 Cal.3d 793, 797—798.)"
The motion concluded by asserting that Duran is faced with the threat of deportation and therefore "needs to reapply for his green card this year" and that he intends to set an immigration hearing soon. The motion purported to be timely "because it foresees the problem that [Duran's] conviction could have on this renewal process."
None of the factual assertions in the motion were supported by citations to evidence. However, Duran submitted a declaration in support of the motion. His declaration stated in relevant part:
"3. When I hired Richard Rumery, he advised me that he was not an immigration attorney and that I should consult with an immigration attorney if I had concerns about my immigration status if I entered a no contest plea.
"4. When I entered a no contest plea to my charges, I did not meaningfully understand that my plea could affect my immigration status. There was no conscientious discussion with me and the court and the immigration consequences if I took a plea.
"5. On January 4, 2015, the Court suspended my sentence for two years, ordering me to spend 365 days in jail, to pay $140 fines/fees, to complete two years supervised probation and ordered me to register as a narcotic offender.
"6. During my time in jail, I successfully completed the Residential Substance Abuse Treatment (RSAT) program.
"7. After my release, I spent two years on supervised probation where I had no probation violations or other convictions.
"8. On February 3, 2017, the Court granted me Penal Code 1203.4 expungement relief to dismiss my charges.
"9. I will have an immigration hearing soon to reapply for Lawful Permanent Resident status and I am requesting the Court to vacate my convictions."
The prosecution did not object in writing to the motion but did object orally at the November 13, 2018, hearing on the motion. The prosecutor said: "[W]e'll just orally object to the dismissal. Based upon the review of the change of plea transcripts, it looks like defendant was advised of his consequences—immigration consequences at the time of the change of plea. [¶] Based upon that, we would object to the dismissal. It was already reduced and dismissed pursuant to 1203.4. [¶] ... So we feel that that was enough, and he was advised given the change of plea transcript, and we'll submit."
Rumery stated Duran is "scheduling a hearing with immigration" and his prior convictions "still show up" despite the section 1203.4 expungement, hence the need for the section 1473.7 motion. Rumery characterized the section 1473.7 motion as "kind of a procedural step" that Duran "has to take to be able to hopefully resolve his immigration issues."
In response, the court said the judge who took Duran's plea "stated exactly" the section 1016.5 advisement, and for that reason the court said its tentative decision was to deny the motion.
Rumery reiterated his belief this motion was a procedural step. The following colloquy ensued:
"MR. RUMERY: As the court knows, you know, people could stand in court and things get said in court but they don't understand 'em, and I did advise him that if he needed to understand the immigration consequences, he should consult with an immigration lawyer 'cause I'm not an immigration lawyer.
"THE COURT: Were you his attorney at these proceedings?
"MR. RUMERY: Yes, early on.
"THE COURT: It looks like Mr. Garcia was?
"MR. RUMERY: Garcia? I think early on he was, and I think I took over the case.
"THE COURT: Mr. Garcia was there for the plea.
"MR. RUMERY: Yeah, I wasn't, okay. I was there afterwards so—
"THE COURT: Well, this is a tentative. Would you like to continue this out for the People to file something?
"I mean, I understand that you're saying it's just procedural, but my concern is that it appears as though the letter of the law was followed.
"MR. RUMERY: Well, the letter of the law may be followed, but as you know, like I said, a lot of times people stand in court and things get told to them—
"THE COURT: I'm not prepared to make that finding.
"MR. RUMERY: —and that they don't understand it, and he said in his declaration he did not understand there would be any immigration consequences after he got his record expunged so—
"THE COURT: Okay.
"MR. RUMERY: And so like I said, this is a—I kinda see this as just a procedural step so that this person who's trying to be a citizen can hopefully become a citizen, that's all.
"THE COURT: Do the People see this as a procedural step?
"[THE PROSECUTOR]: No, because what it was, he got it dismissed with the 1203.4, and the letter of the law was followed when he took the plea. So I just ask that the court deny defendant's motion.
"THE COURT: That is what I'm saying: I'm not gonna change my tentative today. If either of you would like to provide some more briefing as to this, I will consider it. I know this is an area that's fairly new.
"MR. RUMERY: It's a brand new statute, just came on the books in 2017."
The court stated it would continue the hearing, and Rumery said he would prefer if the prosecution filed a written reply to his motion ahead of the continued hearing. The court asked if the prosecution would be prepared to do that and the following ensued:
"[THE PROSECUTOR]: I can't speak for [the prosecuting attorney in charge of the case]. Usually, it is our practice to respond in writing to these motions, and I prefer that so the court has something, but it's the People's position right now that everything was followed, the court followed the proper procedures. Defendant was advised, and the court should deny defendant's motion.
"MR RUMERY: The issue is not that proper procedures were filed really. That's not really the big issue. The big issue is even though they got expunged, it's still showing up on his record where it's affecting his immigration status.
"THE COURT: I think the issue—I'm gonna cut in for a second.
"MR. RUMERY: Yeah.
"THE COURT: I think the issue is whether or not he understood, and it appears to the court at first blush that he did, and because this is all new legislation, it would be helpful to the court to get a perspective from the People other than the fact that the language was followed 'cause there's no doubt that the language was—as provided in the new section was followed to the T by [the judge who took Duran's plea].
"MR. RUMERY: The way I read the statute, it's kind of subjective to the person who's affected by it in terms of whether or not—
"THE COURT: I don't disagree with that.
"MR. RUMERY: —they understood, and so it's our position that even though he might have been told by [the judge who took the plea], you know, it's probably through an interpreter.
"THE COURT: Do you want to continue this?
"[THE PROSECUTOR]: Yes, please."
The motion was continued to December 6, 2018. The prosecution did not file a written reply, and a new prosecutor appeared at the hearing. The prosecutor argued:
"[THE PROSECUTOR]: Essentially, the [prosecution's] argument is that he was advised of his immigration consequences in the plea transcript.
"Additionally, in his declaration, Mr. Duran represents that his attorney who did not explain this to him was Mr. Rumery, but the change of plea transcript represents that his attorney was Mr. Garcia, and there's no declaration regarding Mr. Garcia's advisement of Mr. Duran's rights.
"I don't think the court has any basis to conclude that Mr. Garcia was deficient in advising Mr. Duran, especially given the nature of the advisements given by the court and found that the court specifically asked—advised the defendant of immigration consequences and asked him if he had sufficient time to consult with his attorney, if he was satisfied with his attorney's advice.
"These are the exact things that Mr. Duran represented that he was satisfied with, and now he comes to say some other attorney didn't advise him properly, not the attorney who didn't—who actually represented him at the time of the change of plea.
"So on that basis, we're prepared to submit today.
"THE COURT: Okay. Mr. Rumery?"
Rumery began by mentioning that the judge who took Duran's plea administered the section 1016.5 advisement but did not specifically ask if Duran understood it and did not have a "dialogue" with Duran concerning immigration consequences. However, Rumery agreed with the court that the law does not require such a dialogue. Rumery further stated that section 1473.7 "indicates that if the client doesn't fully understand, you know, the consequences or—you know, or the ramifications, that that's the grounds to bring the motion, and I'm just saying, and he indicated in his declaration that there was no discussion about it really."
The court drew attention to the portion of the transcript of the plea hearing where Duran affirmed he had given his attorney all the information relevant to his case and had enough time to speak with Garcia. The court also mentioned Garcia's affirmation that he had discussed the "possible consequences" of Duran's plea with Duran as well as his affirmation that he believed Duran understood his rights.
The prosecutor was given an opportunity to respond to Rumery's argument:
"[THE PROSECUTOR]: First, I would disagree with Mr. Rumery the purpose of the statute. The purpose is to assist people who were not properly advised by either the court or their counsel as to immigration consequences.
"I think here the transcript is clear that Mr. Duran was; that people who were pleading back in 1995 when the law on advisement of immigration consequences was not so clear I think were the intended beneficiaries of this provision. It's not the court's job to help someone out in immigration court. It's the court's job to apply the statute and the requirements of the statute.
[¶] ... [¶]
"He hasn't satisfied the requirements of 1473.7 in this instance because he was advised, and his declaration is fatally flawed in the identity of the attorney he identifies.
"So perhaps at some later point, he might be able to provide better evidence, but at this point, he hasn't met the burden that's required under the statute.
"THE COURT: All right. It's my intent to deny the motion without prejudice based on what was just stated by [the prosecutor].
"If at some point in time there's additional evidence that would convince the court that he was improperly advised, I would consider it at that time. That's why I'm saying without prejudice, but today I'm denying the motion.
"MR. RUMERY: Okay. Well, it's basically stated in his declaration that he didn't understand—I see—I see that statute as being personal to the individual, you know, what did you understand, and he didn't understand there would be any immigration consequences with his plea.
"That's what he says in his declaration, and in terms of what counsel just was arguing, I think that's all irrelevant. His conviction was expunged so—and that's part of the court record.
"THE COURT: Okay. All right. Thank you."
The hearing thereupon concluded and Duran timely filed his notice of appeal on December 26, 2018.
An order denying a motion brought under section 1473.7 is appealable as an order after judgment affecting the substantial rights of the party. (§ 1473.7, subd. (f); § 1237, subd. (b).) However, Respondent contends the order appealed from is not appealable because it denied Duran's motion "without prejudice." He supports his argument by citing to just one case, People v. Superior Court (Gregory) (2005) 129 Cal.App.4th 324, which is from this court, and which he misreads. The obvious implication of Respondent's argument is that a trial court can perpetually preclude appellate review of any of its otherwise appealable orders by labeling it "without prejudice."
The trial court here reached the merits of the motion; it did not deny the motion on a procedural technicality without reaching the merits. The order is appealable, regardless of the trial court's characterization of it being "without prejudice." (In re Lauren P. (1996) 44 Cal.App.4th 763, 768; Steen v. Board of Civil Service Commrs. (1945) 26 Cal.2d 716, 727—728 [order denying petition for writ of mandate "without prejudice" was appealable]; United Teachers—L.A. v. Los Angeles Unified School Dist. (1994) 24 Cal.App.4th 1510, 1514—1515, fn. 3 [same]; Guenter v. Lomas & Nettleton Co. (1983) 140 Cal.App.3d 460, 465 [order denying class certification "without prejudice" was appealable].)
DISCUSSION
I. Law
In 2018, when Duran filed his motion under section 1473.7, that provision was thought to require a noncitizen criminal defendant to demonstrate that ineffective assistance of counsel was the cause of his failure to meaningfully understand the negative immigration consequences of his guilty (or no contest) plea. While Duran's appeal was pending, however, the Legislature amended section 1473.7 to clarify that a defendant can obtain relief under the statute without proving ineffective assistance of counsel.
This change in law is the most recent legislative manifestation of a long trend of increasing procedural safeguards for noncitizen criminal defendants, "based on decades of changes and advancements within the legislative, executive, and judicial branches of government, at both the state and federal levels." (People v. Mejia (2019) 36 Cal.App.5th 859, 866 (Mejia).)
A. Evolution
Initially, the law considered adverse immigration effects to be indirect or collateral consequences of a guilty plea, and thus did not require trial courts to advise defendants of those consequences before taking their pleas. (Mejia, supra, 36 Cal.App.5th at pp. 866-867.) But in 1977, the Legislature enacted section 1016.5 (added by Stats. 1977, ch. 1088, § 1, p. 3495) to require trial courts to advise criminal defendants as follows: "If you are not a citizen, you are hereby advised that conviction of the offense for which you have been charged may have the consequences of deportation, exclusion from admission to the United States, or denial of naturalization pursuant to the laws of the United States." (§ 1016.5, subd. (a), italics added.) Defense attorneys, however, were under no particular duty to discuss the potential adverse immigration consequences of pleading guilty with their clients, although an affirmative misrepresentation about immigration consequences could constitute ineffective assistance. (Mejia, at p. 867.) Unless a defendant actually inquired about immigration consequences, "[plea] counsel could generally rely on the court's immigration advisement." (Ibid.)
In 2010, in Padilla v Kentucky (2010) 559 U.S. 356 (Padilla), the United States Supreme Court concluded defense attorneys do have a duty to understand and accurately explain to their clients the immigration consequences of their guilty pleas. (Padilla, at pp. 367-368.) The court noted: "The landscape of federal immigration law has changed dramatically over the last 90 years. While once there was only a narrow class of deportable offenses ..., immigration reforms over time have expanded the class of deportable offenses .... The 'drastic measure' of deportation or removal ... is now virtually inevitable for a vast number of noncitizens convicted of crimes." (Id. at p. 360.) The court concluded that when "the terms of the relevant immigration statute are succinct, clear, and explicit in defining the [immigration] consequence [of the defendant's] conviction" (id. at p. 368), such that "the deportation consequence is truly clear ..., [plea counsel's] duty to give correct advice is equally clear." (Id. at p. 369.)
The duty to advise is more limited when the deportation consequences are unclear or uncertain, in which case "a criminal defense attorney need do no more than advise a noncitizen client that pending criminal charges may carry a risk of adverse immigration consequences." (Padilla, supra, 559 U.S. at p. 369, fn. omitted.)
A few years later, in People v. Martinez (2013) 57 Cal.4th 555 (Martinez), the California Supreme Court reiterated the gravity of immigration consequences: "That a defendant might reject a plea bargain because it would result in deportation, exclusion from admission to the United States, or denial of naturalization is beyond dispute. The Legislature so recognized when it enacted section 1016.5. [Citation.] This court has found that 'criminal convictions may have "dire consequences" under federal immigration law [citation] and that such consequences are "material matters" [citation] for noncitizen defendants faced with pleading decisions.' [Citation.] '[A] deported alien who cannot return "loses his job, his friends, his home, and maybe even his children, who must choose between their [parent] and their native country." ' [Citation.] Indeed, a defendant 'may view immigration consequences as the only ones that could affect his calculations regarding the advisability of pleading guilty to criminal charges' [citation], such as when the defendant has family residing legally in the United States. 'Thus, even before the Legislature expressly recognized the unfairness inherent in holding noncitizens to pleas they entered without knowing the consequent immigration risks [citation], we held that justice may require permitting one who pleads guilty "without knowledge of or reason to suspect [immigration] consequences" to withdraw the plea.' " (Id. at p. 563.)
Then, effective January 1, 2016, the Legislature codified and expanded Padilla by enacting sections 1016.2 and 1016.3 (added by Stats. 2015, ch. 705, §§ 1, 2). In section 1016.2, the Legislature declared its findings and noted: "Once in removal proceedings, a noncitizen may be transferred to any of over 200 immigration detention facilities across the country. Many criminal offenses trigger mandatory detention, so that the person may not request bond. In immigration proceedings, there is no court-appointed right to counsel and as a result, the majority of detained immigrants go unrepresented. Immigration judges often lack the power to consider whether the person should remain in the United States in light of equitable factors such as serious hardship to United States citizen family members, length of time living in the United States, or rehabilitation." (Id., subd. (f).) The Legislature recognized that "[t]he immigration consequences of criminal convictions have a particularly strong impact in California. One out of every four persons living in the state is foreign-born. One out of every two children lives in a household headed by at least one foreign-born person. The majority of these children are United States citizens. It is estimated that 50,000 parents of California United States citizen children were deported in a little over two years. Once a person is deported, especially after a criminal conviction, it is extremely unlikely that he or she ever is permitted to return." (Id., subd. (g).)
Section 1016.2, subdivision (h) provides: "It is the intent of the Legislature to codify Padilla v. Kentucky[, supra, 559 U.S. 356] and related California case law and to encourage the growth of such case law in furtherance of justice and the findings and declarations of this section." (Italics added.)
The Legislature also understood that immigration-neutral alternative pleas are often a viable option: "With an accurate understanding of immigration consequences, many noncitizen defendants are able to plead to a conviction and sentence that satisfy the prosecution and court, but that have no, or fewer, adverse immigration consequences than the original charge." (§ 1016.2, subd. (d).) "Defendants who are misadvised or not advised at all of the immigration consequences of criminal charges often suffer irreparable damage to their current or potential lawful immigration status, resulting in penalties such as mandatory detention, deportation, and permanent separation from close family. In some cases, these consequences could have been avoided had [plea] counsel provided informed advice and attempted to defend against such consequences." (Id., subd. (e).)
As a result of these findings, the Legislature imposed obligations on defense attorneys and prosecutors. Section 1016.3 requires criminal defense attorneys to "provide accurate and affirmative advice about the immigration consequences of a proposed disposition, and when consistent with the goals of and with the informed consent of the defendant, and consistent with professional standards, defend against those consequences." (§ 1016.3, subd. (a).) Prosecutors, "in the interests of justice, and in furtherance of the findings and declarations of Section 1016.2, shall consider the avoidance of adverse immigration consequences in the plea negotiation process as one factor in an effort to reach a just resolution." (Id., subd. (b).)
The next year, the Supreme Court acknowledged in People v. Patterson (2017) 2 Cal.5th 885 (Patterson) that Padilla requires—when mandatory deportation is a certain result of a guilty plea—that a criminal defense attorney must accurately advise the defendant of that consequence before he enters his plea. (Patterson, at p. 898.) Patterson concluded that "[t]he generic advisement under section 1016.5 is not designed, nor does it operate, as a substitute for such advice." (Ibid.) The court explained: "A defendant entering a guilty plea may be aware that some criminal convictions may have immigration consequences as a general matter, and yet be unaware that a conviction for a specific charged offense will render the defendant subject to mandatory removal. Thus, as we have previously noted in a different context, the standard section 1016.5 advisement that a criminal conviction 'may' have adverse immigration consequences 'cannot be taken as placing [the defendant] on notice that, owing to his particular circumstances, he faces an actual risk of suffering such.' [Citation.] And for many noncitizen defendants deciding whether to plead guilty, the 'actual risk' that the conviction will lead to deportation—as opposed to general awareness that a criminal conviction 'may' have adverse immigration consequences—will undoubtedly be a 'material matter[]' that may factor heavily in the decision whether to plead guilty." (Patterson, at pp. 895-896, italics added.)
The Patterson court noted: "[F]or noncitizens, '[t]here is a clear difference ... between facing possible deportation and facing certain deportation,' " and " '[w]arning of the possibility of a dire consequence is no substitute for warning of its virtual certainty. As Judge Robert L. Hinkle explained, "Well, I know every time that I get on an airplane that it could crash, but if you tell me it's going to crash, I'm not getting on." ' " (Patterson, supra, 2 Cal.5th at p. 896, italics added.)
B. Recent Developments
1. Section 1473.7
Effective January 1, 2017, the Legislature further expanded the safeguards for noncitizen criminal defendants by enacting section 1473.7 (added by Stats. 2016, ch. 739, § 1), the basis of the motion at issue in this case. The new law afforded a defendant who had pled guilty without understanding the immigration consequences of his conviction a chance to have that conviction vacated if he could show by a preponderance of the evidence that his conviction was "legally invalid due to a prejudicial error damaging [his] ability to meaningfully understand, defend against, or knowingly accept the actual or potential adverse immigration consequences of a plea of guilty or nolo contendere." (Former § 1473.7, subds. (a)(1), (e)(1).) "Courts routinely interpreted the new statute to mean that in order to vacate a conviction, a [defendant] had to prove an ineffective assistance of counsel ... claim under [the] well-established standards [of Strickland]," applying its definitions of error and prejudice. (Mejia, supra, 36 Cal.App.5th at p. 861; see People v. Camacho (2019) 32 Cal.App.5th 998, 1005 (Camacho); People v. Ogunmowo (2018) 23 Cal.App.5th 67, 75 (Ogunmowo) ["Ineffective assistance of counsel that damages a defendant's ability to meaningfully understand, defend against, or knowingly accept the actual or potential adverse immigration consequences of a guilty plea, if established by a preponderance of the evidence, is the type of error that entitles the defendant to relief under section 1473.7"].)
Strickland v. Washington (1984) 466 U.S. 668 (Strickland).
However, this interpretation was not what the Legislature had intended, and it recognized that even under the new statute, defendants who had been misadvised of immigration consequences were still losing their motions. (People v. Ruiz (2020) 49 Cal.App.5th 1061, 1067 (Ruiz).) To correct the misinterpretation, "[t]he Legislature passed Assembly Bill No. 2867 to 'provide clarification to the courts regarding Section 1473.7' to 'ensure uniformity throughout the state and efficiency in the statute's implementation.' (Assem. Bill No. 2867 (2017-2018 Reg. Sess.) ch. 825, § 1(b), p. 360.) It intended to change the law to give defendants a new right to prevail using an easier new standard to retroactively challenge invalid prior convictions." (Ibid.)
2. Section 1473.7's Amendment
The result was an amendment to section 1473.7 (as amended by Stats. 2018, ch. 825, § 2), which became effective January 1, 2019, while defendant's appeal was pending in this court. The amendment added the following sentence to section 1473.7, subdivision (a)(1): "A finding of legal invalidity may, but need not, include a finding of ineffective assistance of counsel." (Italics added.) The new clarification dispensed with the perceived requirement that courts must apply the Strickland standards of error and prejudice. (Camacho, supra, 32 Cal.App.5th at pp. 1005-1006.) Consequently, "the 2019 version of section 1473.7 authorizes a substantially different motion than the 2017 version." (Ruiz, supra, 49 Cal.App.5th at p. 1067.)
Because this amendment merely clarified existing law, it did not create a new law for retroactivity purposes. (See Camacho, supra, 32 Cal.App.5th at pp. 1006-1009.)
We note that the amendment to section 1473.7 also made various other changes to the statute, such as "substantially enlarg[ing] the time periods in which to bring these motions. (§ 1473.7, subd. (e)(1).)" (Ruiz, supra, 49 Cal.App.5th at p. 1067.)
a. Error
Now, to show error, a defendant need not show, as under Strickland, that his plea counsel committed error by providing deficient representation that fell below an objective standard of reasonableness under prevailing professional norms. (Camacho, supra, 32 Cal.App.5th at p. 1008.) Instead, he may show plea counsel's error without showing that counsel's representation fell below Strickland's standard, or he may simply show his own subjective error in not knowing or understanding his plea's actual or potential adverse immigration consequences. (Camacho, at pp. 1008-1009; Mejia, supra, 36 Cal.App.5th at p. 871.)
b. Prejudice
Furthermore, "[b]ecause the errors need not amount to a claim of ineffective assistance of counsel, it follows that courts are not limited to the Strickland test of prejudice, whether there was reasonable probability of a different [i.e., more favorable] outcome in the original proceedings absent the error." (Camacho, supra, 32 Cal.App.5th. at pp. 1009—1010.) Rather, a defendant need only show it is reasonably probable that had he understood the immigration consequences of his plea, he would not have pled but would instead have either tried to negotiate an immigration-safe alternative plea or gone to trial to defend against the charges. (See Lee v. United States (2017) 582 U.S. ___ [137 S.Ct. 1958, 1967] (Lee) [defendant "adequately demonstrated a reasonable probability that he would have rejected the plea had he known that it would lead to mandatory deportation"]; see also Martinez, supra, 57 Cal.4th at p. 567 ["To establish prejudice, defendant must show that he would not have entered into the plea bargain if properly advised—a decision that might be based either on the desire to go to trial or on the hope or expectation of negotiating a different bargain without immigration consequences"]; Mejia, supra, 36 Cal.App.5th at p. 862 [defendant may show that "had he understood the [plea's] consequences, it is reasonably probable he would have instead attempted to 'defend against' the charges"]; Mejia, at p. 871 [defendant may show "a reasonable probability that [he] would not have pleaded guilty—and would have risked going to trial (even if only to figuratively throw a 'Hail Mary')—had [he] known that the guilty plea would result in mandatory and dire immigration consequences"].)
Even before section 1473.7's amendment, courts had begun to recognize that prejudice could be shown by evidence of a defendant's significant ties to this country—in other words, evidence supporting the inference that the defendant would not have pled had he understood he would lose those ties as a consequence. In Lee, supra, 137 S.Ct. 1958, for example, the United States Supreme Court detailed the defendant's ties to this country and observed that a defendant's decision whether to accept a plea can involve considerations other than "the likelihood of success at trial." (Id. at p. 1966.) The decision "also involves assessing the respective consequences of a conviction after trial and by plea. [Citation.] When those consequences are, from the defendant's perspective, similarly dire, even the smallest chance of success at trial may look attractive." (Ibid.) "There is no reason to doubt the paramount importance [a defendant places] on avoiding deportation. Deportation is always 'a particularly severe penalty,' [citation], and we have 'recognized that "preserving the client's right to remain in the United States may be more important to the client than any potential jail sentence ...." ' " (Id. at p. 1968.)
In Lee, the defendant "had lived in the United States for nearly three decades, had established two businesses in Tennessee, and was the only family member in the United States who could care for his elderly parents—both naturalized American citizens." (Lee, supra, 137 S.Ct. at p. 1968.) Based on these ties, the defendant declared that "avoiding deportation was the determinative factor for him; deportation after some time in prison was not meaningfully different from deportation after somewhat less time. He ... would have rejected any plea leading to deportation—even if it shaved off prison time—in favor of throwing a 'Hail Mary' at trial." (Id. at p. 1967.)
The Lee court concluded the defendant's "claim that he would not have accepted a plea had he known it would lead to deportation [was] backed by substantial and uncontroverted evidence," and thus he had "demonstrated a 'reasonable probability that, but for [his plea] counsel's errors, he would not have pleaded guilty and would have insisted on going to trial.' " (Lee, supra, 137 S.Ct. at p. 1969.) The court reversed and remanded for further proceedings. (Ibid.)
The Lee court also stated: "We cannot agree that it would be irrational for a defendant in Lee's position to reject the plea offer in favor of trial. But for his attorney's incompetence, Lee would have known that accepting the plea agreement would certainly lead to deportation. Going to trial? Almost certainly. If deportation were the 'determinative issue' for an individual in plea discussions, as it was for Lee; if that individual had strong connections to this country and no other, as did Lee; and if the consequences of taking a chance at trial were not markedly harsher than pleading, as in this case, that 'almost' could make all the difference. Balanced against holding on to some chance of avoiding deportation was a year or two more of prison time. [Citation.] Not everyone in Lee's position would make the choice to reject the plea. But we cannot say it would be irrational to do so." (Lee, supra, 137 S.Ct. at pp. 1968-1969.) --------
In Ogunmowo, supra, 23 Cal.App.5th 67, the defendant supported his section 1473.7 motion with a declaration in which he averred: " 'I would have rejected the plea agreement had I known I could be subject to immigration sanctions. I moved my life 7,700 miles across the globe from Lagos, Nigeria to Los Angeles in 1980. I became a lawful permanent resident in 1988. I was not about to accept the possibility of deportation or inability to maintain my immigration status to be in the United States. I had already established my life in the United States.' He also stated: 'Important to me was the fact that my attorney told me I would not face any immigration consequences because of my status as a lawful permanent resident of the United States. I relied upon this incorrect information in deciding to plead guilty in this case.' [He] asserted he 'would have opted to go to trial if [he] knew that [his] decision to plead guilty would mean automatic deportation and no chance at ever being a [United States] citizen.' " (Ogunmowo, at p. 73.) On appeal, the court concluded the defendant had met his burden to establish prejudicial error by a preponderance of the evidence; the court reversed and directed the trial court to permit the defendant's plea to be withdrawn. (Id. at p. 81.)
3. Post-amendment Cases: Camacho and Mejia
The recent cases of Camacho and Mejia—which applied the post-amendment standards to pre-amendment motions—are instructive here. In Camacho, the defendant pled no contest in 2009 to possession of marijuana for sale. (Camacho, supra, 32 Cal.App.5th at pp. 1000-1001.) In his declaration supporting his 2017 section 1473.7 motion to vacate his conviction, the defendant stated he had been living in the United States since he was two years old, was married to a United States citizen, and had two young children. When he entered his plea, he "heard the judge say the conviction could lead to deportation," but he relied on his plea counsel's statement that "everything would be fine" if he pled. (Camacho, at p. 1001, italics added.)
At the hearing on his motion, the defendant testified he had not left the country since he arrived at age two and he had been married to his wife for 12 years. He said his plea counsel did not tell him the marijuana conviction "would subject him to mandatory deportation ... or ... would prevent him from ever becoming a legal permanent resident." (Camacho, supra, 32 Cal.App.5th at p. 1002, italics added.) His plea counsel testified he could not remember discussing immigration consequences with the defendant, but was sure he had mentioned that the conviction could subject him to deportation because counsel discussed immigration consequences with all his clients. (Ibid.) The trial court, however, denied the defendant's motion for failure to prove ineffective assistance of counsel. (Id. at pp. 1003-1004.)
While the defendant's appeal was pending, section 1473.7's amendment took effect. On appeal, the Camacho court reviewed the case for error under the amended law's definition—whether the defendant had demonstrated his own misunderstanding of the immigration consequences. (Camacho, supra, 32 Cal.App.5th at pp. 1008-1009.) The court concluded the defendant's declaration and testimony had demonstrated his "own error" in "not knowing that his plea would subject him to mandatory deportation and permanent exclusion from the United States." (Id. at p. 1009.) The defendant's claim that he misunderstood the consequences was "supported by his [plea counsel's] undisputed testimony that he told [the] defendant only that the charge could subject him to deportation." (Ibid.)
As for prejudice, the Camacho court concluded the defendant had demonstrated prejudice based on his strong ties to this country that supported an inference he "would never have entered the plea if he had known that it would render him deportable." (Camacho, supra, 32 Cal.App.5th at pp. 1011-1012.) The court reversed the trial court's order denying the defendant's motion and remanded with instructions to vacate the conviction. (Id. at pp. 1004, 1012.)
In Mejia, as in Camacho, the amendment to section 1473.7 took effect while the defendant's appeal was pending. The defendant had pled guilty to three drug offenses in 1994. (Mejia, supra, 36 Cal.App.5th at p. 863.) In his declaration supporting his 2017 section 1473.7 motion, he stated his plea counsel had never informed him of the immigration consequences of his plea, even though their conversations occurred through a Spanish language interpreter. The defendant came to the United States when he was 14 years old. (Id. at p. 863.) He had been living in the United States for eight years with his wife and infant son, his mother, and his six siblings. Only his father remained in Mexico, and he had recently died. (Id. at p. 864.) The defendant declared: " 'Had I known that the charges would result [i]n imminent deportation and would have precluded any defense to deportation, I would have chosen to fight the charges or try to negotiate a result that would not destroy my chances of staying in the United States. By this point, I had already spent 8 years in the United States and I already considered this country my home. I never would have simply accepted responsibility if I knew I'd be deported.' " (Id. at pp. 863-864, italics added.) As in Camacho, the trial court denied the motion because the defendant had not demonstrated ineffective assistance of counsel. (Mejia, at p. 865.)
On appeal, the Mejia court explained that the newly amended section 1473.7 allowed a noncitizen defendant to vacate a guilty plea if he " 'did not understand the true implications of the plea deal before accepting it' " and " 'suffered prejudice' " as a result of his misunderstanding. (Mejia, supra, 36 Cal.App.5th at pp. 865-866.) "The key to the statute is the mindset of the defendant and what he or she understood—or didn't understand—at the time the plea was taken, and not whether their attorney technically provided [ineffective assistance of counsel]." (Id. at p. 866, italics added.) Under the amendment, a defendant could obtain relief by demonstrating his " 'own error in ... not knowing that his plea would subject him to mandatory deportation and permanent exclusion from the United States,' " and the reasonable probability that he would not have pled if he had known. (Id. at p. 871.)
As in Camacho, the Mejia court reviewed the case under the new standards and concluded the defendant had shown he did not " 'meaningfully understand' " the mandatory deportation consequences of his conviction when he pled. (Mejia, supra, 36 Cal.App.5th at p. 872.) The defendant's initialing of the immigration advisement on the plea form did not change the court's conclusion; the subjective standard asked whether the defendant actually and meaningfully understood the immigration consequences. (Ibid.) As for prejudice, the court concluded the evidence of the defendant's strong ties to this country demonstrated a reasonable probability he would not have pled but would instead have risked going to trial. (Id. at pp. 872-873.) Thus, he had "affirmatively established a 'prejudicial error' within the meaning of section 1473.7, subdivision (a)(1)." (Id. at p. 873.)
The Mejia court explained: "In sum, we have taken into account section 1473.7 as amended, and have considered it within the broader context of the Legislature's implied and explicit intent regarding the treatment of noncitizen criminal defendants. Under that analytical framework, [the defendant] plainly established a reasonable probability that he would not have pleaded guilty and likely would have taken his chances at trial had he meaningfully understood the certain and dire immigration consequences of his 1994 guilty pleas." (Mejia, supra, 36 Cal.App.5th at p. 874.) The court reversed and remanded to allow the defendant to withdraw his pleas. (Ibid.)
II. Analysis
In this case, the trial court committed a prejudicial abuse of discretion by misapplying the law in ruling on Duran's motion. The court, at the continued hearing on the motion, stated it was denying Duran's motion for the reasons articulated by the prosecutor, which were that Duran had not shown the court or his counsel misadvised him regarding the immigration consequences of his plea. This implies the court was operating under the mistaken view that Duran was not entitled to section 1473.7 relief unless he could show his purported misunderstanding of the law was caused by someone else. However, Duran could obtain relief by demonstrating his " 'own error in ... not knowing that his plea would subject him to mandatory deportation and permanent exclusion from the United States,' " and the reasonable probability that he would not have pled had he known. (Mejia, supra, 36 Cal.App.5th at p. 871.) Moreover, as Respondent acknowledges, a section 1016.5 advisement is not a bar to section 1473.7 relief. (Patterson, supra, 2 Cal.5th at p. 895.) Additionally, the trial court did not make a finding that Duran had not established that he did not meaningfully understand the actual or potential immigration consequences of his plea, nor did the court say anything that could support an implied finding.
We will reverse the trial court's order and remand the matter for a rehearing on the merits of the motion, including consideration of the declaration and any testimony (subpoenaed, if necessary). (See Ruiz, 49 Cal.App.5th at p. 1070.) The trial court shall consider the matter in light of the 2019 amendment to section 1473.7 (Stats. 2018, ch. 825, § 2) and the case law interpreting it.
DISPOSITION
The trial court's order denying Duran's motion to vacate the conviction under section 1473.7 is reversed. The matter is remanded for a full rehearing on the merits of the motion.
SNAUFFER, J. WE CONCUR: FRANSON, Acting P.J. MEEHAN, J.