83 Cal.App.5th 698
Cal. Ct. App.2022Background
- In 1998 Miguel Lopez (then a lawful permanent resident) pleaded no contest to one count of second‑degree robbery (other counts dismissed); he received a two‑year sentence. The prosecutor warned generally that a conviction "may" have immigration consequences. Defense counsel did not advise Lopez that robbery was an aggravated felony mandating deportation and permanent exclusion.
- Lopez had no prior criminal history, was 22 at the plea, and had strong family, employment, and community ties in the U.S.; he believed his LPR status protected him from deportation.
- Lopez was actually deported in August 2016 after immigration authorities concluded his robbery conviction was an aggravated felony. He then sought immigration advice and learned the conviction made him permanently ineligible for lawful residence.
- Lopez filed a Penal Code §1473.7 motion in July 2021 to withdraw his plea and vacate his conviction, submitting a declaration and corroborating exhibits (family letters, employer letter, DHS notice). The superior court denied the motion on the ground of insufficient objective corroboration.
- The Court of Appeal reversed, holding Lopez showed prejudicial error under §1473.7: the generic advisement was inadequate, counsel failed to advise of the virtual certainty of deportation, and the uncontroverted evidence established a reasonable probability Lopez would have rejected the plea if properly advised.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Adequacy of generic immigration advisement at plea | Generic warning that plea "may" have immigration consequences was sufficient notice. | Generic warning was inadequate when immigration law made deportation virtually certain (robbery = aggravated felony). | Held: Generic advisement insufficient; when deportation is virtually certain counsel must advise of that consequence. |
| Whether counsel failed to advise of mandatory deportation | Counsel effectively participated in plea; no showing of counsel error affecting plea choice. | Counsel never asked about immigration status or informed Lopez robbery = aggravated felony causing mandatory deportation. | Held: Uncontroverted record supports that counsel did not advise; this damaged Lopez's ability to understand consequences. |
| Prejudice standard under §1473.7 — would defendant have rejected plea? | Lopez’s later silence and delay undermine claim he would have refused the plea. | Lopez’s youth, LPR status, family/employment ties, and corroborating documents show he would likely have rejected plea to avoid deportation. | Held: On the totality of circumstances, reasonable probability Lopez would have rejected the plea; prejudice established. |
| Need for contemporaneous corroboration (e.g., counsel or expert affidavit) | Require more objective corroboration such as plea counsel declaration or expert immigration opinion. | §1473.7 does not demand counsel or expert admissions; corroboration can come from family, employment, and immigration records. | Held: Lopez’s uncontroverted declarations and exhibits constituted adequate corroboration; no per se rule requiring counsel/expert affidavit. |
Key Cases Cited
- Padilla v. Kentucky, 559 U.S. 356 (2010) (counsel must inform noncitizen client when deportation is a clear consequence of plea)
- People v. Vivar, 11 Cal.5th 510 (2021) (§1473.7 standard; independent appellate review; prejudice = reasonable probability defendant would have rejected plea)
- People v. Patterson, 2 Cal.5th 885 (2017) (distinguishes general "may" advisement from advice when deportation is certain)
- People v. Martinez, 57 Cal.4th 555 (2013) (immigration consequences can be the most severe penalty; importance of accurate advice)
- Moncrieffe v. Holder, 569 U.S. 184 (2013) (classification of offenses can make removal virtually certain and bar relief)
- Strickland v. Washington, 466 U.S. 668 (1984) (ineffective assistance standard; §1473.7 relief need not prove Strickland deficiency)
- People v. Manzanilla, 80 Cal.App.5th 891 (2022) (interpretation of §1473.7; prejudicial error and corroboration discussion)
- People v. Camacho, 32 Cal.App.5th 998 (2019) (defendant ignorance and corroboration can establish prejudice under §1473.7)