In re Hernandez
244 Cal. Rptr. 3d 894
Cal. Ct. App. 5th2019Background
- Hernandez, a lawful permanent resident brought to the U.S. as a child, was arrested after methamphetamine was found in and around a car she drove; she had no significant criminal history and was sole caretaker of three U.S.-citizen children (one with serious health issues).
- Appointed counsel Michael Currier negotiated a plea: Hernandez pleaded guilty to Health & Safety Code § 11378 (possession for sale), received probation and 90-day jail condition (served 43 days), and signed a Tahl advisement form that generically referenced immigration consequences.
- Currier later declared he did not recall discussing Hernandez’s immigration status or whether § 11378 would affect it; Hernandez asserts he never advised her that the plea carried mandatory deportation.
- After serving county jail time, Hernandez was transferred to federal immigration custody, refused to sign deportation forms, spent eight months detained, then was released on bond and later filed habeas petitions alleging ineffective assistance of counsel.
- The trial court summarily denied habeas; the appellate court granted relief, finding counsel deficient under Padilla for failing to advise of the clear mandatory-deportation consequence and that Hernandez established prejudice and contemporaneous evidence she would have rejected the plea.
Issues
| Issue | Hernandez's Argument | State's Argument | Held |
|---|---|---|---|
| Whether counsel was deficient under the Sixth Amendment for failing to advise that pleading to § 11378 would cause mandatory deportation | Currier failed to ascertain her status or advise that § 11378 carried mandatory deportation; thus representation was objectively unreasonable | Trial court minutes suggested immigration advisement; State did not dispute that counsel’s specific advice is not shown in the record | Counsel rendered deficient performance under Padilla because § 11378 plainly carried mandatory deportation and there is no record counsel advised Hernandez of that specific consequence |
| Whether Hernandez showed prejudice from counsel’s failure to advise (i.e., she would not have pled) | Hernandez declared she would not have pled if told of deportation; contemporaneous conduct (refusing to sign deportation and choosing federal detention over immediate deportation) corroborates her intent | State argued case not moot and challenged sufficiency of evidence to show prejudice | Prejudice established: reasonable probability she would have rejected the plea and insisted on trial (contemporaneous evidence and circumstances supported credibility) |
| Whether counsel should have investigated/negotiated immigration-neutral alternatives (e.g., plead to § 11379 or accessory charge) | Counsel had duty to consider and attempt immigration-neutral pleas; such strategies are established and sometimes achievable | Prosecutor declared he would not have accepted such alternatives given the facts and office practice | Court did not need to decide deficiency on this ground after finding Padilla violation, but recognized alternatives existed per declarations; remand permits withdrawal of plea so alternatives remain available |
| Mootness of habeas relief given later immigration developments | Hernandez argued matter not moot because custody existed when petition filed and relief affects longstanding consequences | State noted Ninth Circuit decisions about § 11378 and deportability but said those rulings are non-precedential and the law remains that § 11378 carried mandatory deportation at plea time | Petition not moot; court reached merits and granted relief (conviction vacated, remand to allow plea withdrawal) |
Key Cases Cited
- Padilla v. Kentucky, 559 U.S. 356 (2010) (when deportation consequence is clear, counsel must give correct advice)
- Lee v. United States, 137 S. Ct. 1958 (2017) (prejudice in plea-with-immigration context judged case-by-case; contemporaneous evidence is important)
- Patterson v. California, 2 Cal.5th 885 (2017) (generic court advisement under Penal Code § 1016.5 does not substitute for counsel’s specific advice about immigration consequences)
- People v. Espinoza, 27 Cal.App.5th 908 (2018) (attorney’s bare warning that defendant "could be deported" for pleading to § 11378 was constitutionally insufficient)
- In re Tahl, 1 Cal.3d 122 (1969) (advisement and waiver form requirements for guilty pleas)