43 Cal.App.5th 216
Cal. Ct. App.2019Background
- In 2002 Vivar (longtime U.S. resident, lawful status at time) pled guilty to possession of materials to manufacture methamphetamine under former Health & Safety Code §11383(c); plea form (Tahl) warned noncitizens of possible deportation and counsel signed that defendant understood consequences.
- Plea yielded suspended 2‑year sentence, three years probation, 365 days county jail with an RSAT recommendation; defendant expected RSAT and to reduce the conviction to a misdemeanor if he completed treatment.
- Shortly after plea an immigration hold prevented RSAT admission; INS served a notice to appear and Vivar was removed in 2003; he reentered in 2003 and later filed a Penal Code §1473.7 motion in 2018 to vacate the plea.
- Vivar claimed trial counsel (Jennifer D.) met him briefly, did not investigate or explain deportation risk, and failed to seek an immigration‑neutral plea; counsel’s contemporaneous notes and later emails contradicted parts of Vivar’s account and indicated he was warned RSAT would not control deportability.
- The trial court credited counsel’s account, found counsel had advised Vivar, and denied the §1473.7 motion; Vivar appealed.
Issues
| Issue | People’s Argument | Vivar’s Argument | Held |
|---|---|---|---|
| 1) Did trial counsel provide ineffective assistance by failing to advise Vivar the plea would result in deportation? | Counsel’s contemporaneous notes and emails show she warned Vivar generally about deportation as in the Tahl form and cautioned RSAT would not determine deportability. | Counsel failed to investigate or affirmatively explain the near‑certain deportation consequence and therefore was constitutionally deficient. | Court: Counsel’s performance was deficient under prevailing pre‑Padilla California norms (Soriano), because mere boilerplate warning was insufficient after a specific client question. |
| 2) Did counsel’s deficient performance prejudice Vivar under §1473.7 (i.e., reasonable probability he would not have pleaded)? | Vivar cannot show by contemporaneous evidence that he would have rejected the plea; records show he prioritized RSAT and rejected an immigration‑neutral offer, undermining prejudice. | Had he been properly advised he would have sought an immigration‑neutral plea even at the cost of harsher punishment. | Held: No prejudicial error—substantial evidence shows Vivar prioritized treatment and had rejected an immigration‑neutral plea, so it is not reasonably probable he would have refused the plea. |
| 3) Is the plea legally invalid under §1473.7 because RSAT admission/completion was impossible (immigration hold)? | The plea and minute order only reflected an RSAT recommendation, not a probation condition; even if impossible, that error did not undermine Vivar’s understanding of immigration consequences. | The plea contained an impossible condition (complete RSAT to avoid execution of sentence), making the plea illusory and legally invalid. | Held: No legal invalidity—either RSAT was a recommendation (what was imposed) or the condition was moot because admission (not completion) was required; the impossible condition did not prejudice his understanding of immigration consequences. |
| 4) Should the case be remanded for an evidentiary hearing to subpoena counsel? | No remand needed: trial court made credibility findings based on the record; further testimony would not change the prejudice analysis. | Remand appropriate to allow live testimony from Jennifer D. to resolve factual disputes. | Held: Denied remand—trial court adequately addressed credibility and contemporaneous evidence controls; additional hearing unnecessary. |
Key Cases Cited
- Padilla v. Kentucky, 559 U.S. 356 (counsel must inform client whether plea carries risk of deportation)
- Chaidez v. United States, 568 U.S. 342 (Padilla announced a new rule; convictions final before Padilla cannot benefit)
- In re Tahl, 1 Cal.3d 122 (state plea advisement form/constitutional advisals)
- People v. Soriano, 194 Cal.App.3d 1470 (counsel’s generic warning insufficient where defendant raised specific deportation question)
- Strickland v. Washington, 466 U.S. 668 (ineffective assistance standard: deficient performance and prejudice)
- People v. Martinez, 57 Cal.4th 555 (prejudice inquiry: reasonable probability defendant would not have pleaded if properly advised)
- People v. Patterson, 2 Cal.5th 885 (remand appropriate where trial court failed to meaningfully assess defendant’s proof of prejudice)
- People v. Camacho, 32 Cal.App.5th 998 (scope of §1473.7 relief; prejudicial error standard)
- People v. Mejia, 36 Cal.App.5th 859 (same; §1473.7 may provide relief for legally invalid pleas or prejudicial errors)