*1 S078879. Apr. 2001.] [No.
In re RANGEL RESENDIZ on Habeas Corpus. HUGO *5 Counsel under M. Sorman and Michelle C.
Cynthiа Rogers, by appointments Court; L. for Petitioner Hugo Rangel and Richard Waldron Supreme Resendiz. for Attorneys
Law of Norton and Norton California Tooby Tooby Offices Foundation, Justice, Central for Criminal California Rural Assistance Legal Center, and Humane Immigrant Rights American Resource Coalition for Amici Curiae on behalf of Petitioner Resource Center as Immigrant Legal Resendiz. Hugo Rangel Justice as Amicus for California for Criminal Attorneys
John Philipsborn Curiae on of Petitioner Resendiz. Hugo Rangel behalf General, Williamson Bill Attorneys George Daniel E. and Lungren Lockyer, Schons, General, Druliner, W. Gary and David P. Chief Assistant Attorneys Hernandez, General, Janelle M. Boustany, Esteban Assistant Attorney Beaumont, General, for Attorneys M. Deputy Gonzales Garrett Raquel of State California. Respondent Baldwin, Orloff, (Alameda),
Thomas District William M. Assist- Attorney J. Rubin, ant District H. District Attorney, Deputy Attorney, Jeff of the California District Association as Attorney’s Committee Appellate of Amicus Curiae on behalf of State California. Respondent Opinion
WERDEGAR, J. whether in decid presented petitioner, question offenses he now ing certain for which faces plead guilty deportation, received of ineffective assistance counsel in violation of the Sixth Amend I, ment to the United States Constitution or article section 15 of Califor nia Constitution. The in the answered affirmative. The Appeal General Attorney barring that we rule ineffective urges adopt categorical assistance claims based on advice concerning below,
of a As we conclude that affirmative misadvice guilty plea. explained on the regarding immigration circumstances consequences may, depending case, constitute ineffective Neverthe particular assistance сounsel. less, as we with the General that case agree Attorney petitioner in this failed carry his burden we reverse the demonstrating judgment of prejudice, the Court of Appeal.
Background The relevant facts are Petitioner largely Rangel Resen- undisputed. Hugo diz is a lawful permanent resident the United States. He has lived and worked in this for almost 25 country most his adult life. Petitioner years, has two children who are United States citizens.
In June of assisted trial counsel Leonard Basinger, petitioner pled guilty Orange County Court to for sale of Superior possession Code, cocaine (Health & Saf. marijuana 11359) and posses- §§ sion of a {id., (a)). usable amount of subd. On methamphetamine § *6 advice, Basinger’s also initialed and a form petitioner signed printed plea alia, “I a stating, inter understand that if I am not citizen of the United States the for the the conviction offense of charged may have consequence depor- tation, States, from to exclusion admission the United or denial of natural- ization to the laws of the United The signed States.” form contains pursuant “read, a also initialed that the has paragraph, by petitioner, stating signer understood, and each above initialed item and discussed them personally with . . . .” At the one of my attorney was six plea hearing, petitioner a defendants read their as “If are a naturalized rights you group, thusly: States, citizen of United the conviction could result in your your deportation or denial of time.” naturalization some later in point of and was placed sentence was
Imposition suspended, petitioner three on conditions that he serve 180 including for felony years probation sentence, he was taken into in After served his days jail jail. petitioner (INS) the States and Naturalizаtion Service United custody by Immigration under and to removal from the United States subject with charged being of con- 237(a)(2)(B)(i) (8 1227(a)(2)(B)(l) section U.S.C. § [conviction other than of for marijuana personal trolled substance offense possession use]) 237(a)(2)(A)(iii) (8 1227(a)(2)(A)(iii) and section U.S.C. § [conviction (INA) (8 and Act of “aggravated felony”]) Immigration Nationality admin- et authorities in Immigration placed U.S.C. seq.). petitioner § Lancaster, at Mira Loma California. istrative detention the facility a motion to Petitioner retained new counsel and filed court superior him, to the court to him convicting asking vacate judgment permit At the on his withdraw the on which it was based. hearing guilty plea motion, he faced testified when was with petitioner question (i.e., held a a certificate of whether to he card” guilty “green perma- plead therefore, was, a resident of the nent lawful residency) permanent status with his residency United States. Petitioner discussed his permanent counsel, that it concern about trial Petitioner told counsel Basinger. to that had motivated him to hire a lawyer. According his card keeping green that, him if he he would have “no guilty, counsel told petitioner, pled able with that he would not be to become immigration” problems except United States citizen. he not remember the court
Petitioner further testified that did saying he But after to him on these the time entered his plea. anything topics initials, form bearing signature agreed viewing plea petitioner had with his about the form. The form contains lawyer read spoken of a convic- advisement about general possible immigration consequences tion, courts are mandated to administer on couched in the roughly language 1016.5, (a) (hereafter section the record Penal Code section subdivision advisement, 1016.5(a)).1 After this reading 1016.5 and section printed peti- to “like it could stated he understood its use of the word mean “may” tioner 1016.5(a) or nolo conten provides “[p]rior acceptance to 1Section law, designated except offenses punishable dere offense as a crime under state law, following advisement on the record infractions under state the court shall administer citizen, you hereby conviction of the you If are not a are advised that defendant: [^] you charged may deportation, have the have been offense which States, pursuant to the laws denial of naturalization exclusion from admission to United or enacted, federal Owing changes 1016.5 was the United States.” made after section simply States” or generally refers to “removal from United law now *7 (See, e.g., [“Expedited removal of “deportation.” 8 U.S.C. §§ “removal” instead of felonies”], proceedings”].) The committing aggravated 1229a [“Removal aliens convicted of interchangeably, do we. the terms as parties and the courts below have used that he answered Petitioner also affirmed on cross-examination had happen.” the if he when asked him at the had the “yes” judge plea proceeding signed form and talked his about it. plea with lawyer that, time he his trial testified at the of the had told Finally, petitioner plea, he drug that was innocent of the him. to attorney charges According against that, him he after told if he did petitioner, pled nevertheless counsel guilty not, he be to in and that there “a lot of would sentenced five were years jail innocent If he in to had known he would fact be people going deported jail.” and, as a he would not have if to consequence, pled guilty permitted he withdraw his to face the guilty willing plea, possibility being retried sent for to the maximum period, years five prison possible four months. motion, stated,
In on the court “I don’t that ruling petitioner’s think” “all are for sale people being sale or of narcotics.” The deported possession concerns, (i.e., court that such concerns opined about the relative apparently, were, event, in certainty deportation not consequence plea) but, rather, dispositive, consideration was or important “whether [i.e., Mr. Resendiz knew he that if entered the plea it could deportation] The court it happen.” also stated did not credit testimony “when petitioner’s he the Court time says didn’t advise him at the he entered the of his plea rights or the [immigration] consequences,” noting petitioner signed and initialed the written form after it had been in interpreted Spanish, native petitioner’s The court denied language. motion vacate petitioner’s the judgment.
Petitioner filed for writ of habeas thereupon petition in corpus The Court of Appeal.2 issued order to show cause returnable Appeal (Pen. Code, before (b).) court. superior subd. § return, In the the district told counsel attorney acknowledged petitioner status, wanted to card but denied that received protect green petitioner ineffective assistance of counsel. The district also attorney acknowledged court, briefing Attorney 2In his to this petitioner’s original General refers to motion as Resendiz’s pleas”; petitioner plea.” “motion withdraw his calls it a “motion withdraw Attorney petitioner Both the petitioner’s General and on have elsewhere occasion referred to motion as Appeal petitionеr’s one “coram nobis.” Court of referred to “motion to fact, pleas.” superior withdraw his In minute court’s order denominates the motion as stated, judgment," one hearing “to vacate at the court on motion the “This is before judgment the Court a motion plea.” Fortunately, to vacate and to withdraw the despite degree terminology, parties agreed petitioner this confusion are made the procedural selecting corpus correct challenging choice in habeas as the vehicle for the denial (See generally Cal.App.4th his motion. v. Gallardo 980-983 [92 *8 the trial counsel does not remember discussing printed plea that petitioner’s Indeed, submitted the declaration form with the district attorney petitioner. counsel, recollection” of he has “no stating Basinger, independent specific is his “custom and interaction. declaration also states it Basinger’s such and to to to forms with his clients carefully explain habit” review is to effect the client’s likely noncitizen clients “that a guilty plea [sic] I also tell these clients that I make the assump- to become a citizen. ability non-citizen federal to always wanting tion that the government deport has a to I to them should assume they government policy felons. explain that he declaration states Finally, in their position.” Basinger’s deport people defense, an in criminal for attorney, years. has been specializing reiterated his to withdraw his guilty plea, Petitioner his traverse request of the and his when drug charges ignorance both his innocence reasserting Petitioner that was a certain nearly consequence. guilty deportation pleading had on the demonstrated he “a triable case” argued police reports thаt, and he had he known immigra- merits asserted drug charges, have, would have exercised his tion would guilty plea consequences to trial. right proceed have also that for his trial counsel to provided adequate
Petitioner argued would about of his immigration guilty plea advice the likely traverse, been burdensome. To his petitioner appended not have unduly document, “Notice to him with charges being subject INS Appear,” on two for been convicted grounds: having removal from United States substance, been con- having an a controlled involving offense victed of an “aggravated felony.” cause, court read into the on the order to show the superior
Before ruling and counsel for attorney record the filed district following stipulation and Petitioner hearing “In lieu of an evidentiary petitioner. witness, Leonard If called as a Defense Counsel as follows: stipulate Petitioner, client, that even he knew though would Basinger testify the immi- research or investigate an he did not immigrant, independently would result from Petitioner entering gration consequences seek immigration attorney Mr. also did contact plea. Basinger States. laws Immigration about the laws of United advice Act Reform and Immigrant Responsibility include the Illegal Immigration 30, 1996) (hereafter 110 Stat. 3009-546 No. 104-208 (Sept. of 1996 [Pub.L. Death Act of 1996 IIRAIRA)] and the Antiterrorism and Effective Penalty AEDPA)]. (hereafter It 1996) 110 Stat. 1214 No. 104-132 (Apr. [Pub.L. included of Leonard Dale Basinger, is further that the Declaration stipulated shall be admitted.” as Exhibit 1 to the Return *9 The court denied In so court petitioner’s doing, superior petition. stated, “I’m not even on whether or not there are deficiencies in ruling The that it did “not believe Mr. court also stated Basinger’s representation.” that it is insufficient and it falls below standard of reasonable- objective that,” for Defense in but more than ness Counsel this even County, important stated, the court “I don’t believe he could have done would have anything that it reasonably resulted or is that additional could probable anything done have would have resulted in a result that is more favorable to [peti- . .” . . tioner]
Petitioner then filed second habeas in the Court of petition corpus is our review here. The subject unani- Appeal Appeal writ, mously granted conviction vacating petitioner’s directing trial court to allow him to withdraw granted We review guilty pleas. General’s Attorney petition.
Discussion
Plea
are critical
bargaining
the criminal
pleading
stages
entitled,
at which a
process
defendant is
under both the Sixth Amendment to
I,
the federal Constitution and article
section 15
the California Constitu
tion, to
(In
(1992)
effective assistance
counsel.
re
legal
Alvernaz
924,
713,
Cal.4th
747];
830 P.2d
see
Hill
Cal.Rptr.2d
generally
[8
52,
366,
(1985)
369-371,
Lockhart
474 U.S.
57-59
S.Ct.
L.Ed.2d
[106
(Hill).) “It is well settled that where ineffective
203]
assistance of counsel
results
the defendant’s
decision
the defendant has suffered
plead guilty,
a constitutional violation
rise to a claim for
giving
relief from the guilty
Alvernaz,
934,
(In
Hill,
re
plea.”
56-60
S.Ct. at
citing
pp.
pp.
[106
369-371];
1441,
(1970)
McMann v. Richardson
397 U.S.
S.Ct.
(McMann).)3
To establish ineffective assistance of counsel under either the fed eral or state guarantee, a defendant must show that counsel’s representation fell below an standard of objective reasonableness under prevailing profes norms, i.e., sional and that counsel’s deficient performance prejudicial, that, reasonable exists but for probability counsel’s result failings, (Strickland would have been more favorable the defendant. v. Washington 2064-2065, 687-688 80 L.Ed.2d 674] (Strickland); Waidla 22 Cal.4th People v. P.2d Brown, (cone. 3That the Sixth proceedings оpn. Amendment does not cover civil & dis.
J., post, consequence. is noof Defendant’s Sixth Amendment claim directed to representation criminal defense proceedings. counsel’s in criminal General, court on out-of-state federal Attorney relying primarily decisions, us to bar to categorical announce urges immigration-based we decline to ineffective assistance claims. For reasons following impose Rather, such a bar. we hold affirmative misadvice regarding categorical ineffec- can in certain circumstances constitute immigration consequences tive counsel. do not a mere failure assistance of We address whether advise constitute assistance. could also ineffective
A. Is claim petitioner’s categorically barred? court an actual claim must judge “a ineffectiveness
Ordinarily, deciding the of on the facts of the challenged reasonableness counsel’s conduct case, (Strickland, of conduct.” viewed as the time counsel’s of particular 2066]; also 466 at S.Ct. at see Roe v. Flores- supra, p. U.S. 690 p. [104 145 (2000) 528 U.S. 478 L.Ed.2d Ortega 985] [120 rule that must file of defendant se counsel notice unless [rejecting per appeal as that ‘the holding instructs otherwise “inconsistent with Strickland’s per formance must be assistance was reasonable whether counsel’s inquiry General, however, ”].) The all the circumstances’ considering Attorney prof bases, which, may fers two on either of the General we implies, Attorney the the of of trial counsel’s evaluating avoid task specifically particulars in this case. performance
1. Section 1016.5 Brown her concur
The General does Justice Attorney argues, a section and that a trial court’s ring dissenting opinion, having provided dis. (cone. “should shield from collatеral attack” & 1016.5 advisement pleas Brown, J., of at based on We post, p. immigration consequences. opn. disagree. a
That defendants have to counsel when undertake they right 1016.5, in section sub evaluation and for negotiation provided specifically “ (b) (d) is not And that to counsel ‘is right divisions disputed. right ” (Strickland, at 686 supra, to the assistance of counsel.’ U.S. p. effective 2063], added.) that “it is the attorney, S.Ct. at italics We recognize p. client, to make an informed evaluation who particularly qualified Alvernaz, (In re Cal.4th at bargain.” supra, p. of proffered plea Thus, or not the court delivers sec faithfully whether advisements, can defendant be expected tion 1016.5’s mandated “[t]he law, the charges, applicable counsel’s evaluation rely independent Alvernaz, evidence, (In at of trial.” re and of the risks and outcome probable 933; Gallardo, fn. see supra, p. Cal.App.4th [as advice, “the 1016.5 arrow below gave only quiver court [defendant’s § was ineffective counsel and his habeas only remedy corpus”].)4 Amendment, the Sixth defendants are entitled so to rely Under demanded of attor “within expect representation range competence (McMann, in criminal S.Ct. at neys cases.” of a state statute existence courts deliver requiring specified advisement cannot defendants of these federal consti deprive (In Cal. By-Pass tutional re Sutter-Butte Assessment rights. “cannot, 536-537 P. a new [Legislature under guise creating 974] statutory remedy, litigant guaranteed deprive existing constitutionally Efforts to mine section right”].) 1016.5’s hints history Legislature (see, meant statute to foreclose some kinds of ineffectiveness claims Brown, J., 260-261) cone. & dis. e.g., are opn. post, pp. misplaced. What constitutes ineffective assistance of counsel is a of constitu question law, Thus, tional not of intent. that a defendant have received legislative may valid section 1016.5 advisements from does not court entail he has *11 received effective assistance of counsel in or to such evaluating responding advisements.5
The Attorney General’s a suggestion we construe section 1016.5 as bar to categorical immigration-based ineffective assistance claims “would defendants deny a prove for the incompetence prejudice] remedy [who Alvernaz, constitutional specific (In suffered” re deprivation Cal.4th viz., 936), the Sixth Amendment to effective right counsel. Any construction such might engender constitutional is be to infirmity (People avoided. v. Superior (Zamudio) (2000) Court 23 Cal.4th 199- (Zamudio); P.2d San Francisco Taxpayers 686] Assn. v. Board (1992) 2 Supervisors Cal.4th 581 Cal.Rptr.2d of 828 P.2d reason, contrary 4For this same suggestion argument, to People’s the at oral the intended, Legislature 1016.5, enacting cannot have when section pleading to burden defend (on pain claims) waiving subsequent ants of Sixth obligation Amendment an with to raise judge proceeding before the at the plea they might they concerns have about advice regarding from receive counsel the court’s section 1016.5 advisement. an Such intention statute, be Legislature’s would inconsistent with the provisions, in the same that courts allow for plea time additional and negotiations consideration if the advisement raises concerns 1016.5, (§ (b) (d)) provision subds. & and also with no plea its “at the time of the required (id., (d)). be legal defendant shall to disclose his or her status to the court” subd. 5Nor In re Ibarra Cal.Rptr. contrary. Cal.3d 277 P.2d the to 980] signed [guilty “a plea] competent That defendant who has a upon waiver form advice of his attorney has need by (id. little to hear a ritual of rights judge” recitation his a trial obviously imply contrary proposition, does not the that a defendant whom a court read to has proa forma advisement like the one profit compe mandated section 1016.5 cannot from legal raise, circumstances, tent advice about that or it may advisement concerns under the that particular defendant. moreover, that the drafters of 1016.5 intended section Nothing, suggests or either narrow defendants’ with their to shield attorneys to relationships advisers. If the scheme incompetent legal anything, statutory contemplates 1016.5, diminished, enhanced, (See (b) not a role for counsel. subds. § allow defendant additional time consider the shall to appropri- [“court (d) ateness “shall of plea light grant advisement”] [court of defendant a reasonable amount time with negotiate prosecuting or the defendant’s counsel was unaware of in the event defendant agency States, from to the United exclusion admission possibility deportation, conviction”].) or denial naturalization as a result of reasons, does For the section not bar claim.6 foregoing petitioner’s 1016.5 2. Collateral doctrine bar also we Attorney suggests categorically petition General
er’s ineffective assistance claim based on “collateral” consequence A defense erroneous giving criminal conviction. advice lawyer’s defendant about cannot violate the defend immigration consequences pleading counsel, ant’s reasons Attorney effective assistance right General, is not because knowledge immigration consequences prerequi site to a determination that the was entered voluntarily. (Giron) (1974) 11 “dire” (People
While potentially Superior *12 793, 596, 636]), consе- Cal.3d 523 P.2d Cal.Rptr. 798 [114 California, are, “con- jurisdictions including nevertheless in quences many (Zamudio, a criminal sidered conviction.” supra, ‘collateral’ consequences 42, 47, 198; (Fla. fn. 2000) 23 Cal.4th at but see Peart v. State 756 So.2d p. that, in of state criminal rule similar to 5 light procedural [implying 1016.5, collat- the court will no treat as longer immigration consequences § definitions eral].) of “direct” “collateral” We have not articulated precise have, context, Attorney this but courts as the General in some California out, that “does not called “collateral” of a any consequence points in a the offense involved follow’ from conviction of plea.” ‘inexorably 1352, 159]; Crosby (1992) Cal.Rptr.2d 3 1355 (People Cal.App.4th v. [5 accord, (1998) 630 Cal.Rptr.2d v. Moore 69 Cal.App.4th [81 Indeed, are 658].) of a conviction not “inexo- the deportation consequences rable,” the order of the “can be instituted only ‘upon in that deportation States, who retains (8 1227(a)) of United General’ U.S.C. Attorney § scope” review of claims be “no broader in than 6Whether review of section 1016.5 should Brown, J., (cone. post, p. question at not a need Boykin-Tahl opn. of is we claims & dis. Rather, case, claim. defendant’s making is not a section 1016.5 address in this defendant is on the Amendment. claim bottomed Sixth
243 (Zamudio, 204-205.)7 at not to such pp. discretion institute proceedings.” Nevertheless, reasons, that the “collateral” for the we conclude following does ineffec- nature of not foreclose immigration consequences petitioner’s tive assistance of counsel claim. First, the made clear that ineffective Supreme United States Court has “ case analysis noting ‘[attorney
assistance
errors
highly
specific,
infinite
(Hill,
474
at
come
....’”
U.S.
57-58
variety
supra,
pp.
[106
Strickland,
370],
at
S.Ct.
244 1446-1447, McMann, at 1448-1449]), at S.Ct. it 770-771 pp. pp. [90 due follow that limitation on courts’ every process does not jurisprudential (or without alteration to all of types should responsibilities applies apply) assistance of claims. ineffective counsel or reason General offers no we Attorney logical jurisprudential why
should truncate our examination of counsel’s Sixth Amendment responsibili- ties clients a invoking categorical to noncitizen by concept adopted Fifth and convenience in and Fourteenth Amendment delineating policy Nor binding due of trial courts. does any authority process responsibilities that reduction. require even before the court in Strickland contrary, high expressly
To in the effective the Sixth Amendment’s grounded assistance guarantee “pre- role in that counsel will fulfill the that the adversary sumption process (Strickland, 466 supra, Amendment envisions” U.S. at 688 S.Ct. at p. p. [104 2065]), courts ineffective assistance claims “shift of resolving recognized rudiments trial to the of in recent cases from the of the scrutiny quality counsel reflects shift from the general requirements representation by [that] clause ... to the the due of the Fourteenth Amendment more process (Krummacher to counsel.” specific right [Sixth Amendment] Gierloff 458, 461].) We point Or. 867 P.2d acknowledged [627 P.2d Pope Cal.3d Cal.Rptr. “ ” 1], A.L.R.4th there that the former ‘farсe or sham’ ineffectiveness stating held to right standard decisions which “originated competent derived from the due clause” “has been representation solely process that the (Id. recognize discredited.” now thoroughly “[C]ourts in the at trial constitutional grounded right competent representation the assistance of Accordingly, constitutionally counsel. right [Citation.] due can no be measured standard longer by process assistance adequate [(1963) 386 P.2d Ibarra 60 Cal.2d [People Cal.Rptr. v.] on the 487]], must be standard bottomed Sixth but instead determined I, article section 15 of the of the United Constitution and Amendment States omitted.) (Ibid., fn. California Constitution.” has never embraced collateral The United States Supreme in this In doctrine the General us case. urges adopt Attorney fact, holding parole Circuit Court Eighth on review Appeals’ direct of a guilty plea, a collateral than a consequence “is rather eligibility in order for the to be a defendant need be informed” which 368]), (Hill, considered voluntary doctrine, court, long- invoking instead itself applied “[t]he high *14 i.e.,] of a ‘whether for the validity guilty plea[, test standing determining
245 choice plea represents voluntary the alternative intelligent among ” (id. 369]). courses action to the defendant’ at S.Ct. open p. p. [106 Nor has the court ever high that ineffective assistance claims suggested based of erroneous advice giving ought categorically Rather, be barred. recognizing tremendous stakes involved in personal exclusion, admonished, the court has this area of the deportation “[i]n law, exile, as it involving of banishment or we do well to may equivalent eschew technicalities and fictions and to deal (Cos- instead with realities.” 120, 580, v. (1964) tello Service Immigration 376 U.S. S.Ct. 586- [84 587, 559].) 11 L.Ed.2d
Some cases the сollateral applying doctrine to bar consequences immigra tion-based ineffective assistance claims to draw legal from purport support 742, court’s high observation in v. Brady (1970) United States 1463, 1472, 747], 25 L.Ed.2d that a defendant must [90 be made “ ‘ ’” aware of the fully “direct aof consequences” before guilty plea be plea may considered under (U.S. the Fifth voluntary Amendment. v. 1211, (E.D.Va. 1995) 1208, 7; see, fn. U.S. v. F.Supp. Mora-Gomez e.g., (5th 354, 356; 1993) Banda Cir. 1 F.3d v. Del (D.C. U.S. Rosario Cir. however, 59.) 902 F.2d Brady, was not an ineffective assistance case. court there high held that of constitutional not rights only “[w]aivers must be but must voluntary be knowing, acts” v. United intelligent (Brady States, at p. 1469]), S.Ct. at that rule expressly deriving [90 from the constitutional guarantee of trial and the Fifth jury Amendment’s ban on self-incrimination. compelled As did not Brady consider the ineffective assistaúce of case, counsel issues before us in this it is no authority deciding them one or the other. v. way (1995) 11 (Trope Cal.4th Katz 259]; 902 P.2d Cal.Rptr.2d Gilbert People 1 Cal.3d 475, 482, fn. 7 462 P.2d Cal.Rptr.
The Attorney General cites our decision in Bar ella Cal.4th 267-272 975 P.2d for the proposition 37] “defendant does not have to know the collateral which follow constitutional,” in order plea for the to be plea but Barella also is There, we held inapposite. that “a unanimously defendant is not entitled to court, withdraw or set aside on the that the plea ground trial failed to accepting advise the defendant of a plea, limit on or good-time work-time (Id. credits available to the defendant.” In so holding, we noted that United States Court has ‘never Supreme held that the “[t]he United States Constitution State furnish a defendant with requires information about in order for parole eligibility the defendant’s of guilty ” (id. to be 267) and voluntary’ stated that conduct and work are credits “ ” ‘traditional “direct a because from consequences” plea’ they result
246 “ the defendant’s conduct after arrives at and do ‘follow prison ” Thus, (id. 270). from the at addressed the Barella inexorably plea’ p. role in as to assure that Boykin-Tahl9 court’s record so meeting requirements to a defendant’s is not counsel’s provide guilty plea voluntary, obligation assistance at “critical in the criminal as every stage process” effective Constitution, I, Amendment article and California by Sixth required court, Alvernaz, (In 15. re 2 The supra, section Cal.4th as p. high discussed, has these sets of nor does the obligations, never two equated we out to General offer reason should reach do Attorney why persuasive in this case. so
Defense counsel has far duties toward the defendant than clearly greater counsel, for has the court has a general Effective taking plea. example, conduct the case to a reasonable of counsel to duty enabling investigation (Strickland, how make informed decisions about best to the client. represent 2066-2067].)10 court 466 U.S. at S.Ct. at has no 691 supra, p. pp. [104 defendant, to “Counsel’s function is assist the and hence counsel duty. such the client a to avoid conflicts of interest.” duty loyalty, owes duty no (Strickland, at S.Ct. the court has such p. Again, 688 [104 duties. “From counsel’s function as assistant to the defendant derive the and to advocate the cause the more overarching duty defendant’s particular (ibid.)', to consult duties with defendant on decisions” important assistance, exclude such advo court’s function and duties quintessentially consultation. cacy and reasons, tie defense counsel’s Amendment foregoing
For
Sixth
courts,
duties to
constitutional minima the due
clause
process
requires
out,
advice
for erroneous
carving
conсerning
consequences,
counsel
with “reason
requirement
perform
exception
general
(Strickland,
under
466 U.S. at
ableness
norms”
prevailing professional
supra,
2065]),
S.Ct. at
would be illogical
counterproductive.
688
immi-
cases
doctrine to bar
A few
the collateral consequences
applying
that,
ineffective assistance
have
a concern
as
expressed
claims
gration-based
take the
on a long,
such claims “is to
first step
a matter
policy,
permit
5
23
9Boykin
U.S.
243 and footnote
Alabama
(for
process
voluntary
intelligent waiver
guilty plea,
requires
due
L.Ed.2d
valid
274]
right,
by jury,
against
self-incrimina
right
privilege
compulsory
to trial
confrontation
(same).
tion);
Cal.Rptr.
Tahl
On several
is far
than
“deportation
significant
more
other
[some]
such as
one’s driver’s license or
consequences,
losing
losing
[collateral]
Note,
(Fordham
to vote.”
right
supra, 16 Fordham Int’l L.J. at p.
omitted.)
fn.
nowhere outside
law
of the criminal
are the conse-
“Perhaps
for the
quences
(Wallace
(D.Mass. 1998)
individual so serious.”
v. Reno
104, 112.)
F.Supp.2d
that we decline to bar
Accordingly,
as collateral
ineffective assistance claims based on erroneous immigration consequences
advice
cannot determine the
plainly
result in another context. Ultimately,
claim,
case
presenting
ineffectiveness
“[i]n
performance inquiry
must be whether counsel’s assistance was reasonable
all the
considering
(Strickland,
circumstances.”
p.
1016.5,
enactment of
Finally,
Legislature’s
section
speci
mandating
cases,
fied immigration
in all
is a
warnings
plea
circumstance that distin
this case from
guishes
cases
other
of collateral conse
involving
types
mandate,
Under the
quences.
defendants
wish to
statutory
who
plead guilty
are entitled to receive from the court some advice
immigration
regarding
warning
thrеe
consequences—a general
immigration consequences
(See
advice,
occur.
In
“may”
1016.5(a).)
the court’s
evaluating
§
“[t]he
can
defendant
be
on counsel’s
evaluation of the
expected
rely
independent
law,
evidence,
and of the
charges, applicable
risks and
outcome
probable
Alvernaz,
(In
933.)
trial.”
re
supra, Cal.4th at ineffective
claim is
underlying
“The
interest
[defendant’s]
[an
assistance]
bargain,
his interest
before he
having,
judges
desirability
of facing
trial.”
general knowledge
legal
possible
flow,
will
748 F.2d at
That interest
(Wofford Wainwright, supra,
more from
than its
consequence’s
import
presumably,
particular
practical
or direct.
formal
collateral
con
categorization
Classifying
as “material
as collateral does not diminish their status
legal
sequences
circumstances” sur
may significantly
particular
principles
impact
*17
(Colo. 1987)
529.)
v.
746 P.2d
rounding
given plea. (People
Pozo
certain
that adverse
for
due
immigration consequences may
Accordingly,
be
should not preclude
collateral to
conviction
process purposes
petitioner’s
of the
standards to his ineffective assistance
Strickland
ordinary
application
on
misadvice.
alleged
claim based
reasons,
For the
we conclude that neither the existence of
foregoing
of immigration
section 1016.5 nor the collateral nature
consti-
an
se bar to
ineffective assistance of counsel claim based on
tutes
per
of a
counsel’s misadvice about the adverse immigration consequences
Therefore, we
in this case avoid “the
plea.
may
circumstance-specific
(Roe Flores-Ortega,
Strickland.”
inquiry
supra,
reasonableness
required by
Hill,
1035];
at
at
see alsо
Whether counsel performed competently, “reasonably] (Strickland, norms” under professional prevailing 2065]), law. Such a mixed of fact and question S.Ct. at p. presents review as are questions “generally subject independent predominantly are so when constitutional rights implicated”— questions law—especially ineffective, issue, “include the ultimate whether assistance was its and whether whether counsel’s was components, performance inadequate the defense.” v. Ledesma (People such inadequacy prejudiced P.2d Cal.3d Cal.Rptr.
Where, here, court has denied habeas relief superior corpus (viz., held the order to after show evidentiary hearing hearing ordered in first habeas and a cause response petitioner’s corpus petition) new thereafter to an court petition habeas is corpus presented appellate based conducted evidentiary in the upon transcript proceedings court, “the court not bound factual superior determina appellate but, rather, tions evaluates evidence and independently [made below] (In its makes own factual determinations.” re Wright Cal.App.3d 535].)11 Cal.Rptr. the Court Accordingly, Appeal entitled, now, as we are “an undertake of the record independent review to determine whether has established petitioner by preponderance [citation] substantial, credible evidence that his counsel’s performance [citation] *18 and, so, Alvernaz, deficient that (In if suffered re prejudice.” supra, [he] 944-945.) 2 Cal.4th at pp.
While our review record is and “we reach a independent may different on an conclusion examination of the evidence . . independent . (In 97, even where the is (1993) evidence re Hitchings 6 Cal.4th conflicting” 466]), 109 860 P.2d factual Cal.Rptr.2d any determinations made [24 record, below “are entitled to . great . . when weight supported with or particularly respect questions depending upon credibility (In witnesses heard and observed.” Wright, re 78 [superior supra, court] 801; Ledesma, see also 43 Cal.App.3d p. Cal.3d at supra, p. hand, 219.) On the other if “our difference of with the lower court opinion ... is not based of live such deference is credibility testimony, (In (1986) re Arias 42 Cal.3d inappropriate.” 695 Cal.Rptr. 664]; P.2d In see also re Hitchings, Petitioner and curiae us that amici to declare trial coun- strenuously urge sel’s about his performance advising was constitu- petitioner guilty plea tionally deficiеnt because counsel failed to simply investigate likely immigration We are not that the Sixth Amendment consequences. persuaded 11Upon receiving corpus petition, Appeal second petitioner’s habeas Court issued an to show received order cause returnable before itself and a formal return and traverse. The (People v. Duvall evidentiary required hearing court was not to conduct an additional any Cal.4th disputes 886 P.2d factual are 1252] [where “ record, already corpus petition shown in the trial ‘the merits of a habeas can be decided Hochberg ”]; In re evidentiary hearing’ Cal.Rptr. without Cal.3d 876 [87 681,471 nor, event, 1]) so. party request P.2d did either that it do counsel, advising on defense when pleading a blanket obligation
imposes defendants, or research immigra- immigration consequences to investigate event, failure case does not mere allege in this tion law. In any petitioner As previously so the squarely presented.12 to investigate, question noted, claim judge an actual ineffectiveness must “a court deciding facts of the particular conduct on the challenged reasonableness of counsel’s S.Ct. at U.S. at (Strickland, . . .” case . his trial counsel that establishing provided Petitioner urges following him with substandard representation. was a knew petitioner
1. Counsel noncitizen called, trial counsel if would Basinger, below that stipulated parties All concede that counsel an immigrant. he knew his client was testify his client was noncitizen. knew about immigration was concerned petitioner
2. Counsel knew that he deemed immigration to counsel in this case made plain Petitioner to the charges whether to plead guilty in deciding consequences important trial Indeed, told his conceded below petitioner him. the People against status. residency he wanted to his permanent counsel protect have “dire con- criminal convictions may We have long recognized (Giron), (People Superior law under federal sequences” *19 are “material 798) at and that such consequences 11 Cal.3d p. supra, defendants faced with 797) pleading for noncitizen (id. matters” at p. unfair- Thus, the recognized even before Legislature expressly decisions. knowing entered without noncitizens to they inherent in holding pleas ness 1016.5, (d), added Stats. (see by subd. risks immigration the consequent § 1977, 1088, 1, held 3495), may permitting we that justice require eh. p. § of or reason knowledge suspect “without [immi- one who guilty pleads Court v. (People Superior withdraw the plea. gration] consequences” to marijuana posses- of guilty plea at withdrawal (Giron), 798 p. [permitting 1016.5, section . . . shall (c) in this [“Nothing subd. see also charge]; sion § discretion, court, of its from the sound exercise inhibit a be deemed to a plea”].)13 a defendant to withdraw and vacating judgment permitting too, Court, is recognized “deportation has United States Supreme or exile.” (Fong of banishment and at measure times equivalent drastic of certain notice existence request judicially that we 12Accordingly, amici curiae’s is denied. reference works published 793, (Giron), supra, 11 People Superior v. Cal.3d recognition 13Our was within the trial court’s plea his the defendant to withdraw whether to allow decision
251 376, 374, Haw Tan v. Phelan (1948) 333 U.S. 10 S.Ct. 92 L.Ed. home, “To banish from and country family, adopted punish [noncitizens] ment of the most drastic kind whether done the time when were they (Lehmann v. Carson convicted or later.” 691 [77 1022, 1025, Black, (cone. J.).) 1 L.Ed.2d Petitioner has lived opn. 1122] who United in this most of his adult life and has two children are country States citizens. That discussed his status with residency petitioner permanent counsel, card, his not his desire to is therefore emphasizing green keep surprising.
3. Counsel’s
representations
affirmative
discussed,
that,
As
testified that counsel
told him
if he
petitioner
pled
he would have
guilty,
“no
with
that he would
problems
immigration” except
be
able to become a United
States citizen. Even
federal and
among
General,
cited
other courts
“the
is that an
Attorney
clear consensus
affirmative misstatement
constitute ineffective
regarding deportation may
Mora-Gomez,
(U.S.
v.
assistance.”
1212.)14
875
supra,
F.Supp.
p.
In the Court of
General
that for trial
Appeal,
Attorney
acknowledged
counsel to have assured
he
have no
would
if
petitioner
immigration problems
would have been
pled guilty
More
such
“irresponsible.”
importantly,
advice would have been mistaken. Controlled substance violations “are the
most
damning convictions in
Act.
Immigration
Nationality
There are
few
very
situations where a
to a
have a
plea
narcotics violation would not
discretion was not based on a determination that the failure of the court and
counsel
advise
defendant
deportation consequences
plea
judicial
of his
was neither
error nor ineffec
Brown, J.,
(Cf.
260.)
tive assistance of
opn.
post,
counsel.
cone. & dis.
Our decision
expressly
“governed by
may
Penal Code section
provides
which
that a
judgment
good
(Giron,
be withdrawn
supra,
before
and for
shown."
cause
Cal.3d at
(see
797),
No Sixth
claim was raised
consequently
Amendment
id. at
we had in
Giron no occasion to consider ineffective assistance.
785];
Huynh
14See also
v.
Cal.App.3d
Cal.Rptr.
(4th
1995)
Ostrander Green
Cir.
46 F.3d
point
overruled on another
in O’Dell v.
(4th
1214;
Rosario,
1996)
Netherland
Cir.
F.3d
page
U.S. v. Del
F.2d at
2;
333, 337;
(7th
George
(11th
footnote
Campbell
U.S.
Cir.
F.2d
United States v.
*20
764, 768-769;
1985)
(11th
1985)
Cir.
Downs-Morgan
778 F.2d
United
v.
States
Cir.
765 F.2d
1534, 1541;
(2d
703, 703-704;
1975)
United States v. Santelises
Cir.
509 F.2d
United States v.
(D.C.
1970)
1351, 1353-1354;
(D.Kan.
Briscoe
Cir.
432 F.2d
U.S. v. Corona-Maldonado
1171,
1999)
1173;
(E.D.Mich. 1987)
F.Supp.2d
Nagaro-Garbin
United States v.
586, 590;
Pozo,
527,
5;
F.Supp.
supra,
People
v.
P.2d
page
footnote
v. Ford
(1995)
270,
265, 268-269]; People
fatal and permanent immigration as an “alien convicted of a consequence” crime to’ controlled substances ‘relating and excludable.” deportable al., Convictions, et Cal. (Brady Criminal Law and Immigration Drug Admissions, Abuse, 3.1, 1.) Addiction and Trafficking, § to enactment of IIRAIRA and
Owing AEDPA in petitioner became to subject removal from the United expedited States upon pleading him, to the both charges against because involved controlled they substances and because is considered an drug trafficking “aggravated The felony.”15 only which institution of actual removal contingency at that was that be instituted proceedings point hung they order “upon (8 General” 1227(a)), U.S.C. which indeed Attorney [United States] § were. they
The General Attorney suggests about what his petitioner’s testimony counsel told him was “rebutted” counsel’s declaration it was his asserting custom and to tell clients the “is to practice government always wanting” noncitizen felons.16Trial deport counsel does not recall what he told actually that, believed, Petitioner even if petitioner. argues counsel’s declaration does that, contradict necessarily his evidence at some also counsel told point, him that a would in fact no specifically guilty plea generate problems.
The Court of found counsel’s characterization of his custom and Appeal habit “unpersuasive.” General contends the Court of Attorney Appeal deferential to the insufficiently trial court’s stated conclusion that counsel’s met “an standard of performance objective reasonableness for Defense Counsel in this the Court of County.” Although was not Appeal were, bound to court’s factual accept those superior findings, findings “ ” noted, entitled to previously ‘great where in- weight,’ particularly they Ledesma, volved assessment of witness credibility. (People Cal.3d at p. record, examined the
Having we are not able to determine with certainty whether counsel conformed to his custom and habit or whether purported 1101(a)(43)(B) 15Title (“aggravated felony” 8 United States Code sections includes “illicit substance”), trafficking 1227(a)(2)(A)(iii) (deportability “aggravated in a controlled offense), 1227(a)(2)(B)(i) felony”), (deportability (expedited for controlled substance removal,” removal). removal, exception An “cancellation of is not available lawful (8 1229b(b)(l)(C).) residents convicted of such offenses. U.S.C. § Attorney points petitioner hearing 16The General also out that at the on his motion indicated that, judgment proceeding, “yes” plea judge vacate the at the he had answered when the out, signed lawyer him asked if he had form and talked with his about it. As it turns *21 fact, mistaken; petitioner exchange. plea colloquy, the in included no such
253 incorrect, but with more customary warning specific, supplemented any however, not resolve those factual we need ques- advisement. Ultimately, misadvised affirmatively petitioner—and tions. Even that counsel assuming the of his ineffective thus has satisfiеd performance prong that petitioner at U.S. at 687-688 S.Ct. (Strickland, pp. assistance claim supra, pp. demonstrate must additionally prejudice, 2064-2065])—petitioner prevail this, conclude, do. and we he has failed to by performance?
C. Was counsel’s petitioner prejudiced deficient the The test for that is relevant in is well light preceding prejudice Hill, at established. In 58-59 supra, pages 370-371], United that a defendant the States Supreme explained pages demonstrates caused counsel’s by incompetent who guilty prejudice pled him to enter the that a reason performance advising plea by establishing that, able exists but for counsel’s he would not probability incompetence, instead, insisted, have have to trial. guilty would pled proceeding Alvernaz, 933-934; (Accord, In re see Cal.4th also supra, pp. Brown Cal.App.3d Cal.Rptr. that, had he
Petitioner avers if counsel informed him specifically be would as a he would not have his deported consequence pleas, out, and would have elected to be tried. As he we pled guilty points have that a noncitizen previously recognized residing defendant with family the United States view conse legally understandably may as the ones that could affect calculations the quences only regarding (Zamudio, to criminal advisability pleading guilty charges. supra, 206-207.) Cal.4th pp. however, us, General reminds asser Attorney rightly petitioner’s
tion he would not have if advice “must be pled guilty given competent (In Alvernaz, corroborated evidence.” re independently objective 938; (D.C. 836.) Cal.4th at see also U.S. v. Horne F.2d Cir. defendant, assistance, “In whether a with effective would determining offer, have factors to be rejected considered accepted plea] pertinent [or include: whether counsel communicated offer actually accurately defendant; advice, counsel; if between any, given by disparity terms of and the bargain proposed plea probable consequences trial, offer; as viewed at the time of whether proceeding defendant indicated he or she was amenable to bargain.” negotiating plea Alvernaz, (In re at p. not contended that his counsel commu
Petitioner has inaccurately nicated the substantial evidence offer. Nor has adduced People’s plea
254 have to that would might ultimately agreed suggesting prosecutor have allowed to avoid adverse While immigration consequences. petitioner also did not introduce evidence in this burden regard, prosecution remains to of the evidence his entitle- by petitioner’s prove preponderance (In ment to relief. re Johnson 18 Cal.4th [75 end, P.2d In the no guilty charged; charges petitioner pled were dropped. him,
Had had to trial on and petitioner proceeded drug charges against chosen to seek maximum faced a maxi- prosecution penalties, petitioner mum total The five and four months incarceration. punishment years reached the district burdened with him plea bargain petitioner attorney with of local incarceration and three only days years probation. choice, moreover, that would have faced at the time he was petitioner advised, to had whether even he been would not considering properly plead, between, hand, and, have been on the one being pleading deported other, on the to trial and While it is true that going avoiding deportation. trial would for have retained a theoretical insisting petitioner period that rendered him evading conviction possibility deportable excludable, it is true a conviction trial would have equally following him to the same subjected immigration consequences.
In or not a defendant has have determining whether who would pled guilty advice, insisted on to trial had he received proceeding competent appel- trial, late court also consider the outcome of to the extent may probable Hill, (Cf. be discerned. S.Ct. at may supra, 59p. pp. trial outcome relevant in from coun- assessing [probable prejudice 370-371] sel’s failure to discover evidence or affirmative de- exculpatory present accord, fense]; Roe v. 528 U.S. at S.Ct. at Flores-Ortega, supra, 1039].) Petitioner states that he has maintained his innocence consistently case,” he has a “triable but nothing asserts that the shows police report declaration or the other indicates how he might evidence offered have been able to avoid conviction or what defenses have might specific been available to him at trial. Nor did at the on the hearing petitioner explain exonerated him. order show cause how evidence have might record, fails, ulti- Based our examination of the entire petitioner upon us that it is he would have reasonably forgone mately, persuade probable in- favorable outcome he obtained and instead distinctly by pleading, trial, had him about the sisted on trial counsel misadvised proceeding Hill, (See U.S. guilty. supra, pleading Alvernaz, 370-371]; re S.Ct. at In Cal.4th 58-59 pp. pp.
Disposition *23 reasons, is
For the of the judgment Appeal foregoing reversed. J., Kennard, J., C. and concurred.
George,
MOSK, J., and Concurring Dissenting.— A
I concur in the lead set out in fully legal opinion’s anаlysis, parts B lead and the three part opinion prefatory paragraphs preceding A, ante, would, however, as far I (Lead 239-253.) as it goes. go opn., pp. farther. I believe Penal Code section 1016.5 an affirmative on duty imposes in counsel criminal case to of the client: “Are a United you inquire States citizen?” If answer counsel must advise the client of negative, immigration of a criminal conviction. nationality consequences Failure to do so constitutes a breach of under state law accurately duty given the legislative mandate of section 1016.5. C,
And I with in which the lead concludes strongly disagree part opinion ante, (Lead did not suffer et petitioner prejudice. opn., seq.) he has Unquestionably, of the evidence facts that proved by preponderance (In establish basis for relief re 20 Cal.4th Cudjo i.e., 66]), P.2d has established a reasonable prob- that, omission, (Hill but for his ability he would have to trial lawyer’s gone 366, 370-371, v. Lockhart (1985) 474 U.S. L.Ed.2d 58-59 203]; (4th Burket v. Angelone 189). Cir. 208 F.3d
Subjective reasons establish entitlement objective plainly petitioner’s to relief. first to reasons: recent
Turning In objective years, immigration of criminal convictions have on the cruel monstrously verged in their harshness of the crimes on which are compared many they imposed.
Petitioner has been ordered to court for appear deportation been convicted of an proceedings grounds having felony.” “aggravated (8 U.S.C. 1101(a)(43)(B), 1227(a)(2)(A)(iii).) §§ is a federal term art
“Aggravated felony” that covers broad variety crimes, of them It many minor. includes such misdemeanors relatively (8 as trivial 1101(a)(43)(F)), batteries U.S.C. for sale of a mari- possession (8 U.S.C. juana cigarette 1101(a)(43)(B)), and theft in a resulting one-year § these, (8 1101(a)(43)(G), (48)(B)). sentence U.S.C. All of even suspended § law, if misdemeanors under a state are aggravated felonies in federal (cid:127) concept. 3009-628, (110 statutes are retroactive 321(b), Stat. codi- § individual, fied 8 U.S.C. (a)(43)(U)), foil. so that an regardless § legal status and ties to the United States or of residence length here is liable for In removal. recent the federal years, has government sought deport:
—a born in who 34-year-old came to the United Germany States about 1, and who age pleaded misdemeanor a battery minor following 1990;1 in struggle
—a lawful resident from Guatemala permanent with two United States citizen children who resisted her husband as he in one of the engaged assaults he had inflicted periodic on her for years;2 —a Canadian who was her into him duped by boyfriend selling some controlled medications.3 prescription [Mary 1“In 1988 Anne pulled another quarrel Gehris] woman’s hair in a a over man. She misdemeanor, charged battery, with for that and for grabbing the woman around the neck, says which she she did not do. appeared No witnesses in court. On the advice of a defender, public pleaded guilty. she Georgia As is the practice, judge gave one-year her a sentence, suspended year’s probation. for a “She has not been in trouble since. She is married to a U.S. citizen and has a child, 14-year-old (Lewis, also a citizen.” Abroad Home: “This Me Has Got in Some Kind ” Whirlwind, (Jan. 2000).) N.Y. Times of Mary deportation Anne Gehris avoided Georgia when the Board of Pardons and Paroles (Lewis,
pardoned her Rays (Feb. in March 2000. Hope, Abroad at Home: N.Y. Times 2001).) years 2“Over complained several police assaulting she that her husband was her. In 1998, during June their disputes, Defending one of her husband sat on and hit her. [her] herself, she him. police, bit He called the who arrested her. charged hearing, Virginia judge “[She] was with domestic assault. In а urged 10-minute did, plead guilty lawyer. her to without When probation she sentenced her to six months’ days jail, to be suspended probation. if she finished the She did. She is now separated from her husband. morning “At 5 in the agents Immigration last Jan. 13 two and Naturalization Service came to deportation. Why? home and arrested her charging [her] for . cited document. . Immigration a section of calling deportation anyone the 1996 Act for convicted of ‘a crime ” (Lewis, (Dec. of domestic violence.’ Cruelty, Abroad at Home: The Mills N.Y. Times 1999); 1227(a)(2)(E)(i).) see 8 U.S.C. § Ford, immigration 3“Catherine judge, happen Caza asked the Rex J. what would to her 7-year-old daughter deported. American if she was “ ‘Ma’am,’ said, Judge Ford ‘some absolutely heart-wrenching. of these situations are I will you changed things tell that the law there are no waivers for these now. I’m not situation, your unsympathetic to . deported. but . . .’He ordered her in the Bristol laws: classes conducted language the results of these Among Massachusetts, for to be to Portugal about jail deported County, people in the States. of residence United minor crimes after decades relatively radio, (WBEZ Life, Immigration This American No. (Chevigny, episode removed 2000).) immigrants The more than 400 broadcast Oct. Chicago, “[tjhousands of (ibid.) immigrants alone are among from Bristol County act[4]: been tom from have harsh from the 1996 suffered [who] families, America, sent to countries where their after decades deported Some had committed know no one and do not speak language. they crimes; for trivial offenses serious others . . . were marked for deportation (Lewis, N.Y. Rays committed Abroad at Home: long ago.” Hope, Times.) law, court is Under current state of powerless (8 1229b(a)(3).) do U.S.C. anything except petitioner. deport § Neither could the state court have intervened at now that any point, recommendations have been abolished. judicial against (People deportation 290]; see Leung Cal.App.4th *25 183, 463, (Zamudio) (2000) 23 Cal.4th 206 Superior [96 P.2d 999
Because convictions render him inadmissible in petitioner’s drug future, States, he never be to return even to visit will allowed to United (8 1182(a)(2)(A)(i)(II), 1182(a)(2)(C)(i).) his U.S.C. family. §§ If Mexico to he enter an American Gulag refuses will accept petitioner, that few know to exist. The federal will him indefi- government imprison as it has countless nitely, other but imprisoned legally practically deportable Caza, Marie, Ontario, brought age “Ms. bom in Sault St. was to the United at the States 3, years. story unusually in She that it 1960. has lived here ever since: 37 Her has twists make by deportation harsh even the standards of cases. Florida, lives, taking pills by in amphetamine prescribed “In 1980 where she Ms. Caza was was, boyfriend, thought repeatedly a doctor. Her as she he asked her sell him of the to some 21, pills. finally policeman. and In She sold him he turned out to be an undercover Florida drug pleaded charge probation years. she and for five put 1981 to 3, 1982, drug Immigration deportable. “The offense made her On Feb. and Naturaliza- why deported. Service tion issued order show cause she should be “Ordinarily immigration presents judge I.N.S. such an order to an within weeks of issuing nothing years. against it. In this case the service did for 15 It filed the order Catherine 24, immigration Caza in court on Feb. 1997. delay eligible excruciating significance “The is of for Ms. Caza. In 1982 she was for what deportation, granted deportation could when would cause is called waiver of which be country years Changes hardship extreme to someone who had lived in this for seven or more. (Lewis, ineligible in law in made her and others like her for waiver.” Is,” 19, (Dec. 1997) A39.) Wаy It N.Y. Abroad Home: “That’s The Times (HRAIRA) Illegal Immigration Immigrant Responsibility and Act of 4The Reform 30, (Pub.L. 1996) (Sept. seq.). 110 Stat. et 104-208 3009-546 1,750 individuals. For undeportable some of the Mariel example, legatees evacuation from Cuba (Ros- have languished in federal indefinitely prisons (6th 2001) 711) ales-Garcia v. Holland Cir. 238 F.3d constitu- without tional and (Carrera-Valdez without accused of remedy, being crime. 1048; (7th 2000) Cir. Perryman 211 F.3d (9th but see Ma v. Reno Cir. cert, F.3d statute], 821-822 detention barred granted [such sub nom. Reno v. (2000) Kim Ho Ma S.Ct. 924 239], contra, Rosales-Garcia, L.Ed.2d Some linger prison fiction, era, under the in the legal approved depths McCarthy States, because were excludable from the they shores of the United legally here, do not exist here they even are though they they be detained may for the rest of their lives. (1953) (Shaughnessy U.S. Mezei 625, 630-632, 956]; 215-217 97 L.Ed. id. S.Ct. at pp. Black, 4,000 (dis. J.).)5 One estimate opn. finds some immigra- 631-632] tion detainees floating (Marrero, limbo of indefinite imprisonment. Home, Jacksonville, Fla., Nowhere to (Feb. Call 2001).) Times-Union Those are the reasons that objective claim for relief. support petitioner’s reasons confirm the Subjective merits of claim. The undis- petitioner’s evidence that puted corroborating he to risk in state willing years of a prison gain glimmer chance of conviction and escaping thereby children, avoiding has United deportation, States citizen establishes a reasonable that if he had known he would be probability banished, and deported, from chil- permanently involuntarily separated dren unless chose to move to Mexico they and abandon the privileges attendant (all in the United States living of his guilty plea), he would have elected to to trial. If “a defendant’s conclusion proceed *26 is success if not is induce remotely possible, likely, sufficient to many go (State (Ind. 1996) triаl” 1297), v. Van Cleave 674 N.E.2d how much situation, more that must be for someone in lifetime petitioner’s facing doubt, banishment from home Without a the family.6 foregoing burden—i.e., evidence meets the Hill it establishes a reasonable probability that, omission, but for his he would have to trial. lawyer’s gone Rosales-Garcia, Appeals, 5The Sixth necessary Circuit Court of found it to remind the government immigration federal that there are limits to the the atavism of laws. the “[W]hile government argues judicial plenary power immigration absolute deference to its over Congress it policies, may immigration is clear to this court that not authorize officials treat complete impunity. example, [Immigration excludable aliens with For the INS and Natural not, Constitution, may ization consistent with the execute an alien Service] excludable should prompt deportation. Congress it be unable to effect his It is also authorize evident cannot the infliction of alien physical upon torture excludable while he is detained in federal Holland, (Rosales-Garcia prison.” supra, 238 F.3d at attorney explained people thought 6As one in a radio interview: “I think that it’s time that deportation penalty every about for what it is. . . . almost like little death case time [I]t’s families, mothers, you you particularly do . . . see the the this the one. is about [W]hen would to the States and cultural ties United family Few with petitioner’s chance, the talons chance, slight escaping even a turn down that the likelihood of could great A conclude federal law. rational person the slight balanced against a California some five prison, spending years world, is a to the banishment avoiding developing chance of permanent 42, 50, fn. (Fla. v. State So.2d (See Peart gamble. worthwhile To Anstead, has so J.).) deny concluded. (conc. Obviously petitioner opn. Lockhart, of Hill v. reading accurate defying any him his choice is tragic, 52. C lead opinion. dissent with part I therefore respectfully respect be BROWN, J., I concurin the disposition Concurring Dissenting. has I write separately cause I failed to show agree petitioner prejudice. needs, that are the lead for reasons nobody because offers opinion protection costs on a method that will impose nowhere explained, through prohibitive are to cast a cloud going the administration of criminal If we justice. thousands—of we should guilty pleas, explain validity hundreds—perhaps concerns about entitle a defendant to accurate immigration multiple why when is satisfied with advisements waiver of constitutional express rights one. held,
As courts have incorrect information from throughout country counsel does not defendant who receives correct information prejudice need from the court. courts defendant received Reviewing only verify correct information before Resendiz received Penal pleading guilty. court, cannot Code section from the and thus show 1016.51 advisement prejudice.
I. Counsel Had No to Advise Duty We have never before held the to receive advice from right the United States guaranteed by defense counsel Sixth Amendment to *27 I, or 15 of The Sixth Constitution article section the California Constitution. the accused is limited its text: “In all criminal by prosecutions, Amendment of his defense.” to have assistance counsel for right... shall enjoy civil “The The amendment does not cover proceedings: protections provided ” the Sixth Amendment are confined ‘criminal by prosecutions.’ explicitly thing family.” (Chevigny, Life, supra, episode No. happen worst that can to a This American 170, Immigration.) 1Hereafter, statutory all are to the Penal Code unless otherwise indicated. references 260
(Austin 602, (1993) 2801, 2804, v. United States 608 125 [113 L.Ed.2d Counsel’s is thus measured performance that of against counsel, reasonably criminal defense competent not counsel specializing civil fields like immigration. (Wiley County v. San Diego 532, 672, Cal.4th P.2d Cal.Rptr.2d entitled to [79 983] [defendants ‘ “counsel acting “within the reasonably range demanded competence ’ ”].) in criminal cases” attorneys courts,
The vast
federal,
of other
state
majority
and
have also concluded
there is no Sixth Amendment
to receive advice
right
regarding
immigra
tion
of a
consequences
guilty plea,
the absence of advice cannot
constitute ineffective
(U.S.
assistance of
(1st
counsel.
v.
2000)
Cir.
Gonzalez
20, 25;
202 F.3d
(7th
333,
U.S. v.
1989)
337-338,
Cir.
George
F.2d
therein;
cases cited
(N.D.
State
863-864,
v. Dalman
520 N.W.2d
therein;
and cases cited
Com. v.
Frometa
In
(Giron) (1974)
Court
Superior
The Legislature to Giron responded section 1016.5. In enacting so doing, Legislature concern “about the expressed ‘many instances involv ing in which ‘a [noncitizen or nolo contendere defendants]’ entered without the defendant that a knowing cоnviction of such offense is ” grounds deportation.’ (People Superior (Zamudio) (2000) Cal.4th 686], 1016.5, P.2d quoting § “ ” (d).) subd. individuals,’ fairness to promote such accused ‘[T]o mandated a Legislature about specific warning conse possible deportation {Ibid.) quences.
The statute’s history discloses considered the Legislature advisement counsel, hint discuss the matter merely with but a complete conclusive of the information the provision defendant needed. Senator Alex Garcia, the author of Senate Bill No. bill is explained, primarily “[T]his to assure that designed lawful aliens ... are made aware of the fully Garcia, (Sen. letter to plea.” Governor Brown re: [their] *28 Sess.) 1977.) Committee Bill (1977-1978 Reg. Sept. Sen. No. 276 that a non- the bill’s was to “assure similarly explained purpose reports her criminal citizen defendant is fully apprised consequences [of Justice, of Sen. Bill No. 276 (Assem. analysis Com. on Crim. plea].” 1.) There is no (1977-1978 Sess.) amended Aug. Reg. or this full could be modified apprisal evidence Legislature contemplated off-the-record remarks. counsel’s impeached mere it defendants with The statute would be surplusage provided if The to notice of the advice that was mandated. already constitutionally right origin; collateral is deportation statutory possible consequence Sixth Amendment to the United States Constitution does not entitle defendant advice. The lead does suggest opinion otherwise.
II. Misadvice Counsel Harmless in Any Light Was from
Court’s Correct Advisement The lead notes a clear consensus nationwide that finds an “affir opinion mative misstatement constitute assist regarding ineffective deportation may (U.S. (E.D.Va. 1995) ance” of counsel. 875 F.Supp. Mora-Gomez 1212; ante, lead see 251 & fn. The cases cited are all opn., none distinguishable; involved advisement similar to the one judicial section 1016.5. The defendants in those cases were thus required by vulner misadvice, able to counsel’s as Resendiz was not.
The section 1016.5 advisement should shield from collateral attack. pleas the advisement to combat on the Legislature designed ignorance part defendants; information, a defendant must the correct but it have pleading Quesada (1991) does not matter from whom he receives it. (People (Quesada).) The Court of Cal.App.3d Cal.Rptr. Appeal 426] Quesada’s because he received the correct information from upheld counsel, (Id. even the court failed read advisement. though requisite 539.) Consistent the statute’s Quesada with with aware purpose, pleaded ness of potential consequences. observed, Quesada
theAs court the critical is whether the question defendant the correct information. He not entitled to received multiple As on-the-record of the court warnings subject. pronouncements (United more than the remarks of counsel States v. carry weight private (2d 921), Porrino Cir. 212 F.2d advisement ensures the judicial *29 intelligent, notwithstanding from contrary guidance counsel. Al- the lead though notes the opinion consensus that misadvice holding may advisement, constitute ineffective assistance absent judicial there is an even misadvice, clearer consensus holding even if it amounts to deficient representation under Strickland v. Washington 687 2052, 2064, 674], 80 L.Ed.2d is not where the court prejudicial the correct advice. provides
A. Most to our apposite Florida, review is decisional authority other state whose large noncitizen has careful consid- population prompted eration of this issue. Florida courts have concluded that the very purpose that state’s section 1016.5 is to analogue guarantee defendants receive correct advice regarding deportation, rather than have them on their depend counsel, criminal who bemay unfamiliar with law. So long Florida advisement, defendants receive judicial counsel’s misadvice cannot render the plea unknowing invalid.
In (Fla. State v. 1987) Ginebra 511 So.2d the Florida Supreme Giron, cited 11 Cal.3d a concluding defendant had no right advice from either the court or counsel concerning immigration conse- and thus a quences, defendant’s ignorance regarding possibility did not deportation (Ginebra, invalidate the 961-962.) plea. As Cali- pp. fornia forestalled the unfairness of Giron potential section by enacting 1016.5, Florida answered Ginebra (c)(viii) subsection by adding to rule 3.172 of the Florida (hereafter Rules of Criminal Procedure subsection (c)(viii)), which courts to inform requires defendants their could guilty pleas lead (See re (Fla. In Amendments deportation. 1988) to Florida Rules 992.) So.2d or absence presence of this advisement judicial now determines
whether counsel’s misadvice regarding will deportation vacating support Misadvice plea. an ineffective may assistance claim when the support court fails to advise the defendant. v. State (Dugart 1991) 578 (Fla.Dist.Ct.App. So.2d But an court advisement is adequate intended to clearly have effect. with the cases prophylactic “Starting espousing principle there is no to be right informed of the collateral of a which were plea, followed the 1988 amendment to the Rules of Criminal Procedure instructing judges advise defendant that could deportation citizen, result if the defendant is not a United States it is reasonable to conclude that the court intended to supreme аvoid vacating guilty pleas on the sole ground that may have been non-citizen defendant misinformed Otherwise, about aas collateral deportation consequence pleading guilty. (Bermudez v. State (c)(viii).” subsection adopting there was little reason for 657, 658, added.) Because So.2d italics (Fla.Dist.Ct.App. *30 defendant, claim denied the defendant’s court advised the properly Bermudez misstatement. based on counsel’s alleged of ineffective assistance B. from safeguard pleas
Federal courts likewise hold advisements judicial attack, harm arising the court’s advice cures any possible collateral because or to section 1016.5 counsel’s error. There is no federal from parallel affirmed that (c)(viii), but cases have analogous consistently subsection misadvice, it even if do not suffer from counsel’s defendants prejudice 668, U.S. under Strickland v. Washington, supra, amounts deficiency the court the correct information. where provides (9th 1994) In Cir. 23 F.3d the defendant U.S. Thornton pleaded chal- received a sentence of life guilty, imprisonment, subsequently counsel’s erroneous advice. The his lenged plea being product “[Ejven claim: if Thornton’s rejected Ninth Circuit Court of Appeals sentence,” and the didn’t realize the allowed a life attorney parties guidelines [citation], “the district advised him a life sentence was judge possible, counsel, erroneous, even if thus advice Thornton’s rendering any given by (Id. “a 1533-1534.) life Substitute non-prejudicial.” pp. “deportation” sentence,” same, and the instant is the while analysis deportation, except control the sentenc- is collateral not within the significant, consequence, court. ing (7th 1993)
Other circuits are in accord. In Barker v. U.S. Cir. 7 F.3d coun- defendant after misadvicе from guilty receiving pleaded allegedly found sel about sentence. The Seventh Circuit Court Appeals possible case, if the trial court’s “cured” harm. “In this even any advice possible advice from trial had led to attorney misunderstanding [the] [Barker’s] the trial of his such confusion was cured any by plea, court measures to confusion careful and appropriate dispel [which took] 633; (Id. on before the see also Mr. Barker’s plea accepted.” part (10th 1988) Worthen v. 842 F.2d Meachum Cir. disapproved other in Coleman v. 749-751 grounds Thompson 2546, 2564-2565, if Worthen’s attorney’s 115 L.Ed.2d [“even 640] his inferior mistaken advice about rendered alleged performance parole , not . . . Worthen was reasonably attorneys prejudiced expected incorrect”].) told him was advice that court specifically counsel (1) the defendant alleges The rule is the same even where not due to the the defendant the court’s advisement will apply informed defendant’s (rather particular circumstances than being wrong generally); counsel confirms he this misadvice. In provided Ramos v. Rogers (6th Cir. 170 F.3d Ramos’s collateral attack on his included plea affidavits from both himself and counsel describing off-the-record agree- ment that would have Ramos granted after he had served one probation year Counsel informed prison. Ramos the deal “would not be discussed on the record during thus plea” answer just “[Ramos should] [the court’s] “ made,” at the questions as if no deals had been and to ‘just go along ” (Id. with what asked judge 562-563.) me.’ The Sixth Circuit pp. claim, Court of Ramos’s Appeals rejected “the state trial noting court Ramos, asked ‘Do specifically able understand that you [rape] probation- *31 offense, are not you to receive going undеr circum- probation ” (Id. 565.) advisement, stances?’ this Recalling the Sixth express Circuit found no when court “prejudice informed specifically [Ramos] that his counsel’s advice was (Ibid.) incorrect.” The Ninth Circuit similarly the claim of rejected a defendant whose attorney advised him that allegedly if he he pleaded guilty would be for eligible in seven parole years, the court would announce there was no of possibility parole only benefit of the (Dennis v. public. (9th State People 1969) Cir. of California 414 F.2d 425.) The Dennis court refused to vacate plea, emphasiz- ing in which both counsel colloquy and the court described the sentence “ ” as being (Id. ‘without possibility 2.) fn. parole.’ Furthermore, the need not in a prevail contest to credibility protect attack; from collateral the rule is the plea same even where the trial and (1) misadvice; court appellate agree counsel provided (2) it amounted to (Warner (6th “ineffective assistance of counsel.” v. U.S. Cir. F.2d (Warner).)2 Trial counsel advised incorrectly Warner, who faced federal and state that the federal charges, district court could sentence concurrent to impose (Warner, Warner’s state sentence. at p. 1211.) The however, Sixth Circuit Court of found no Appeals prejudice, “ Warner, because the district court advised 1 am not in concerned any way with the State sentence .... I will a Federal sentence . . . impose [and] effect, that Federal sentence will into but in go no will that be shortened way ” or modified (Ibid.) State sentence.’ The Sixth Circuit also rejected court, Warner’s claim he lied to the off-the-record denying any promises made, had been on the instruction of counsel: if did “Even Warner deny advice, of a knowledge reliance on mistaken plea agreement [counsel’s] this does not amount to when the court informed him prejudice specifically that . . . advice (Id. 1212.) was incorrect.” at p.
Most the federal district court and tellingly, the circuit court did vacate Warner’s to the state because the plea state court never corrected charges Warner court 2The apparently phrase used the “ineffective assistance of counsel” to refer to Strickland’s first prong. The not inconsistent. federal “These . . . are findings counsel’s misadvice. sentences, the state be no concurrent court Warner that there would advised correct (Warner, F.2d at court did not.” presence where counsel’s misadvice justifies advice thus cases judicial distinguishes a from those where it does not. vacating plea
III. Quick Claim Review Only Review Instant Appellate Requires to Ensure the Court Advised Properly Transcript Defendant limited. For review of claims like Resendiz’s therefore be may Appellate valid, to be the record must reveal the defendant was informed be of his On-the-record advisement could deported consequence plea. sufficient. necessary—and it both the
On-the-record advisement serves a dual protects purpose; defendant and his v. Alabama U.S. (Boykin plea. 1709, 1712-1713, Tahl 23 L.Ed.2d In re 1 Cal.3d (Boykin); 274] on-the-record Boykin 460 P.2d Cal.Rptr. prescribed *32 a
advisement of defendant’s constitutional
the
rights
guarantee
plea
hand,
and
On the one
on-the-record advisement ensured
voluntary
knowing.
other,
defendants did not
out of
On the
the
ignorance.
plead guilty
“[w]hen
function,
he
a record
for
review
judge discharges
leaves
adequate
be
.
later
. and
the
collateral
may
sought.
spin-off
proceed-
forestalls
that seek tо
ings
murky
(Boykin,
memories.”
at
244
S.Ct. at
probe
p.
pp.
[89
omitted,
1712-1713],
added.)
fns.
italics
courts to examine
Boykin advised
defendants to ensure
understand the nature of the
the consti-
they
charges,
“
waived,
sentences,
tutional
and
rights
the
being
range
permissible
‘[i]f
”
these
(Id.
convictions are to be insulated from attack.’
fn. 7
p.
[89
1713],
(1968)
Commonwealthv. Rundle
Determining knowing plea “simple [] Allen 442 Cal.4th 981 P.2d Cal.Rptr.2d sufficient, Because on-the-record advisement is both and our necessary record of hear evaluation is minimal. Boykin-Tahl challenges “[T]he . . . told should demonstrate defendant was of his ing clearly rights that he . . . waived them. review affirmatively quick transcript [A] 442.) (Allen, be all that is may necessary.” Only sentencing hearing p. in those “unusual cases” where no will further advisement precedes (Ibid.) be investigation necessary.
Review of section 1016.5 claims be no broader in The should scope. for defendants to understand the collateral statutory preference possible of their consequences does not warrant pleas more zealous than protection the constitutional that defendants imperative understand their constitutional and the rights direct of their pleas. (People Ramirez Cal.App.4th 882].) The record reflects Resendiz received correct advice no regarding further deportation; review is war- (Cf. Allen, ranted. 442.) Cal.4th at
Conclusion Defendant, who was advised the court he could be deported confirmed he understood this now seeks to possibility, withdraw his plea based on his not he could be knowing To credit his claim deported. rewards for the disregard court and creates an incentive for mendacity. Defendant’s claim must fail because the court him with all provided entitled, information to which he was and аll the information the Legislature has deemed necessary intelligent plea. judicial advisement places a defendant on notice. He on the may, depending attaches to importance time, potential seek consequence, additional clarification and expert advice. But if his to the understanding contrary court’s “it warning, [is] imperative not stand mute during (Resta plea colloquy.” [defendant] v. State So.2d (Fla.Dist.Ct.App.
The lead
memories,”
opinion encourages “probfing] murky
contrary
Boykin (supra,
By enacting the Legislature responded appropriately to the effectively for unfairness to potential noncitizen defendants. The law was first of its kind and has as a served national model.3 Today’s opinion breath; criminal signals defendants that the court’s advice is wasted defendants court, may safely ignore pronouncement accept benefit of the bargain, ignorance after the fact. plead years Nothing 3Every state that prescribed specific has text adopted warning has section 1016.5’s (Conn. practically 16-713(a); verbatim Gen. 54-lj(a); Stat. D.C. § Code Hawaii Rev. § 802E-2; 29D; Stat. Mass. 2943.031(A); § Gen. Laws ch. § Ohio Rev. Code § Wash. 10.40.200(2)), Rev. Code legislative § and two states have adopted findings even ex 1016.5, (Hawaii 802E-1; pressed (d) in section subdivision Rev. Stat. Wash. Rev. Code § 10.40.200(1)). § in the I concur lead confusion. therefore opinion except created only. disposition Chin, J.,
Baxter, J., and concurred. Mosk, J., denied June 2001. for a rehearing Petitioner’s petition should be granted. that the was of opinion petition