People v. Cruz-Lopez
237 Cal. Rptr. 3d 873
| Cal. Ct. App. 5th | 2018Background
- Appellant pleaded guilty on Jan 24, 2014 to felony aggravated assault (a strike) and separately to possession offenses; plea forms and on‑the‑record colloquy advised him of possible immigration consequences and he acknowledged understanding.
- Probation was imposed (ISS on assault) but later revoked and reinstated; subsequent arrests prompted new probation‑revocation proceedings.
- On Dec 15, 2015 appellant admitted allegations in a revocation motion and received an executed‑suspended (ESS) state prison term of three years (suspended), plus five years probation.
- Appellant claims trial counsel failed to advise him that the probation‑violation/ESS sentence would create aggravated‑felony immigration consequences making him removable and that counsel should have sought an ISS sentence instead.
- He moved under Pen. Code §1473.7 (filed Mar 30, 2017) to vacate the probation‑violation admission on ineffective‑assistance/immigration‑advice grounds; the trial court denied relief and this appeal followed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Applicability of §1473.7 to vacate a probation‑violation admission | §1473.7 permits vacatur when counsel’s failure to advise of immigration consequences prejudiced defendant | §1473.7 applies only to persons "no longer imprisoned or restrained" and to plea advisements, not probation revocation adjustments | Court: §1473.7 inapplicable—appellant was on probation (constructive restraint) when filing and the motion targets probation‑violation admission, which §1473.7 does not cover |
| Ineffective assistance for failing to advise that ESS would be an aggravated‑felony immigration consequence | Counsel failed to advise that the ESS sentence would convert prior conviction into an aggravated felony for immigration purposes, causing prejudice | Trial counsel advised of immigration consequences at plea; no duty to re‑admonish at probation revocation; record lacks objective corroboration of deficient advice; court would not have approved a more lenient ISS disposition | Court: No Strickland relief—no showing of deficient performance or prejudice; contemporaneous record contradicts plaintiff’s claim |
| Obligation to re‑advise immigration consequences at probation revocation | Plaintiff: court/counsel should have re‑explained immigration consequences before admitting violation | Defendant: No statutory or constitutional duty to re‑admonish in probation revocation; prior adequate advisals covered plea consequences | Court: No legal authority requires readvisal at revocation; prior advisements suffice |
| Prejudice standard met by claimed but‑for acceptance of different disposition | Plaintiff: but for bad advice he would have rejected ESS and pursued trial or sought ISS, avoiding aggravated‑felony effect | Defendant: Objective facts (prior record, prosecutor’s position, judge’s statements, defendant’s waiver of custody credits) show he would not have obtained a better result; no corroborating evidence of deficient advice | Court: Prejudice not established—no reasonable probability of better outcome and record shows defendant accepted best feasible deal |
Key Cases Cited
- Boykin v. Alabama, 395 U.S. 238 (U.S. 1969) (guilty‑plea waiver requirements)
- In re Tahl, 1 Cal.3d 122 (Cal. 1969) (standards for plea colloquy)
- Padilla v. Kentucky, 559 U.S. 356 (U.S. 2010) (counsel must advise on deportation consequences when advising guilty plea)
- Strickland v. Washington, 466 U.S. 668 (U.S. 1984) (two‑prong test for ineffective assistance)
- In re Alvernaz, 2 Cal.4th 924 (Cal. 1992) (need for objective corroboration of defendant’s post‑hoc claims about counsel’s advice)
- People v. Castaneda, 37 Cal.App.4th 1612 (Cal. Ct. App. 1995) (advice on immigration consequences and post‑conviction remedies)
- People v. Villa, 45 Cal.4th 1063 (Cal. 2009) (constructive custody includes probation/parole for habeas purposes)
- Lee v. United States, 137 S. Ct. 1958 (U.S. 2017) (evaluate contemporaneous evidence when assessing post‑plea claims)
- People v. Segura, 44 Cal.4th 921 (Cal. 2008) (court may decline relief when record shows no prejudice)
- People v. Vickers, 8 Cal.3d 451 (Cal. 1972) (due process protections in probation revocation)
- In re Osslo, 51 Cal.2d 371 (Cal. 1958) (probation as constructive custody)
- In re Jones, 57 Cal.2d 860 (Cal. 1962) (parole as constructive custody)
- People v. Soriano, 194 Cal.App.3d 1470 (Cal. Ct. App. 1987) (inadequate immigration advisal at plea)
- People v. Barocio, 216 Cal.App.3d 99 (Cal. Ct. App. 1989) (counsel’s admission of ignorance on immigration consequences can show ineffectiveness)
- In re Marquez, 1 Cal.4th 584 (Cal. 1992) (applying Strickland principles in California)