People v. Vivar
11 Cal.5th 510
| Cal. | 2021Background
- Defendant Robert Landeros Vivar: lawful permanent resident brought to the U.S. at age 6, lived ~40 years here, with U.S. citizen wife, children, grandchildren; minimal ties to Mexico.
- In 2002 Vivar was charged for taking Sudafed boxes; prosecutor offered a burglary plea (Pen. Code §459) that likely would not mandate deportation and a drug-precursor plea (Health & Saf. Code §11383, former (c)) that did.
- Vivar’s appointed counsel did not competently advise him of the immigration consequences; Vivar pleaded to the drug-precursor offense, received jail, and was deported months later.
- Vivar later reentered, obtained state expungement and coram nobis relief attempts without immigration benefit, and ultimately filed a Penal Code §1473.7 motion in 2018 to vacate his 2002 plea.
- The trial court denied relief; the Court of Appeal found ineffective assistance but no prejudice. The Attorney General ultimately conceded error on review.
- The California Supreme Court held the proper standard of appellate review for §1473.7 prejudice findings is independent review (with deference to credibility findings based on live testimony), found Vivar demonstrated prejudice, reversed, and remanded for entry of relief allowing withdrawal of the plea.
Issues
| Issue | Plaintiff's Argument (People / AG) | Defendant's Argument (Vivar) | Held |
|---|---|---|---|
| Standard of review for prejudice under Penal Code §1473.7(a)(1) | Deferential/abuse-of-discretion review or at least defer to trial-court factual findings | Independent review of mixed legal-factual questions (as in ineffective-assistance precedents) | Independent review applies; appellate court gives particular deference only to trial-court credibility findings based on live testimony, not cold-record rulings |
| What constitutes "prejudicial error" under §1473.7(a)(1) (i.e., how to show prejudice) | Prejudice should be evaluated with deference; defendant must show speculative benefit | Prejudice = reasonable probability defendant would not have pled if correctly advised of immigration consequences | Prejudice means a reasonable probability the defendant would have rejected the plea if properly informed; courts assess totality of circumstances (ties to U.S., importance of avoiding deportation, plea priorities, likelihood of immigration-neutral plea) |
| Whether plea-form's generic advisement cured counsel’s failure | Generic form advisement suffices to defeat claim | Generic, non-specific warnings ("may" result in deportation) do not cure failure to warn of mandatory deportation | Generic plea-form language did not negate prejudice where deportation was actually mandatory and defendant had strong U.S. ties |
| Application to Vivar: did he show prejudice and what remedy? | Court of Appeal: insufficient contemporaneous corroboration; no prejudice because Vivar prioritized treatment | Vivar: contemporaneous letters, family/military ties, and available immigration-neutral plea corroborate that he would have rejected the deportation-necessitating plea | Supreme Court: Vivar proved prejudice (reasonable probability he would have sought/accepted an immigration-neutral disposition); vacate and remand with directions to grant §1473.7 relief allowing plea withdrawal |
Key Cases Cited
- Padilla v. Kentucky, 559 U.S. 356 (U.S. 2010) (counsel must advise noncitizen defendants on deportation risk; deportation is often a critical part of plea calculus)
- Lee v. United States, 137 S. Ct. 1958 (U.S. 2017) (prejudice requires reasonable probability the defendant would have rejected a plea had they known it caused mandatory deportation)
- People v. Martinez, 57 Cal.4th 555 (Cal. 2013) (immigration consequences are an integral consideration and may be the most important in plea decisions)
- In re Resendiz, 25 Cal.4th 230 (Cal. 2001) (mixed law–fact claims about counsel advice reviewed independently; limits on deference to credibility findings)
- People v. Superior Court (Zamudio), 23 Cal.4th 183 (Cal. 2000) (prejudice measured by whether it is reasonably probable defendant would not have pleaded if properly advised of immigration consequences)
- People v. Patterson, 2 Cal.5th 885 (Cal. 2017) (ineffective-assistance prejudice standard requires reasonable probability defendant would not have pled)
- People v. Kim, 45 Cal.4th 1078 (Cal. 2009) (limits of coram nobis for mistakes of law concerning immigration consequences)
- People v. Villa, 45 Cal.4th 1063 (Cal. 2009) (habeas relief unavailable once sentence and custody are completed)