33 Cal.App.5th 530
Cal. Ct. App.2019Background
- Reyna Perez Hernandez, a lawful permanent resident since childhood and single mother of three U.S. citizen children, was arrested (Dec. 19, 2014) after police found small baggies of methamphetamine, a pipe, a digital scale, and a replica firearm in a car she was driving; she denied personal possession of the drugs.
- Hernandez pleaded guilty (July 2015) to Health & Safety Code § 11378 (possession of methamphetamine for sale) pursuant to a negotiated deal: three years formal probation with 90 days jail (she served 43 days).
- Hernandez signed a Tahl advisement form that included a generic statement that a conviction could have immigration consequences; she and trial counsel Michael Currier contend he did not specifically advise her that a § 11378 plea would result in mandatory deportation.
- Immediately after jail release, federal immigration authorities detained Hernandez; she refused to sign papers consenting to removal and spent eight months in immigration detention before release on bond.
- Hernandez petitioned for habeas, arguing ineffective assistance of counsel (failure to inquire about immigration status, advise of mandatory deportation, and pursue immigration-neutral pleas); the trial court denied the petition without an evidentiary hearing. The Court of Appeal granted relief, vacating the conviction and permitting withdrawal of the plea.
Issues
| Issue | Hernandez's Argument | Respondent's Argument | Held |
|---|---|---|---|
| Whether counsel was constitutionally ineffective for failing to advise that a §11378 plea carried mandatory deportation | Currier failed to advise her specifically of mandatory deportation; Padilla required such advice when immigration consequence is clear | No evidence counsel’s conduct prejudiced the plea; argued matter moot after later immigration developments | Held counsel was deficient under Padilla; record shows no specific advisement and counsel’s declaration did not rebut deficiency |
| Whether Hernandez suffered prejudice from counsel’s failure (i.e., would she have refused the plea) | She declared she would not have pleaded guilty if advised; contemporaneous conduct (refusal to sign removal forms, choosing detention to fight deportation) corroborates preference to remain in U.S. | Prosecutor asserted plea alternatives wouldn’t have been accepted given facts and strength of case | Held prejudice established: reasonable probability she would have rejected plea and insisted on trial or sought alternatives; contemporaneous evidence and weak record support claim |
| Whether plea alternatives should have been pursued (e.g., ‘‘pleading up’’ to avoid deportation) | Defense should have investigated and negotiated immigration-neutral alternatives (e.g., plea to §11379 nonspecified controlled substance or PC §32) | Prosecutor declared office would not have accepted such alternatives given case facts and practice | Court did not need to resolve deficiency on this point once Padilla violation and prejudice were shown, but noted alternatives existed and are recognized strategy |
Key Cases Cited
- Padilla v. Kentucky, 559 U.S. 356 (2010) (counsel must advise when deportation consequences are "succinct, clear, and explicit")
- Lee v. United States, 137 S. Ct. 1958 (2017) (prejudice analysis for pleas requires case-by-case consideration including contemporaneous evidence of defendant’s preferences)
- People v. Patterson, 2 Cal.5th 885 (2017) (state court on Padilla obligations and that generic court advisements do not substitute for counsel’s specific advice)
- Carafas v. LaVallee, 391 U.S. 234 (1968) (custody at filing satisfies habeas jurisdiction even if petitioner later released)
- In re Tahl, 1 Cal.3d 122 (1969) (standards for advising and accepting guilty pleas)
- People v. Espinoza, 27 Cal.App.5th 908 (2018) (attorney’s bare advisement that defendant "could be deported" constitutionally insufficient for offenses with clear deportation consequences)