In 2016, the Legislature created a new law, which became effective in January 2017, allowing a person who is no longer in custody to file a motion to vacate a conviction because: "The conviction or sentence is legally invalid due to a prejudicial error damaging the moving party's ability to meaningfully understand, defend against, or knowingly accept the actual or potential adverse immigration consequences of a plea of guilty or nolo contendere." ( Pen. Code, § 1473.7, subd. (a)(1), italics added.)
Courts routinely interpreted the new statute to mean that in order to vacate a conviction, a person had to prove an ineffective assistance of counsel (IAC) claim under well-established standards. ( Strickland v. Washington (1984)
In 1994, defendant Fernando Vargas Mejia pleaded guilty to three drug crimes; he is now facing adverse immigration consequences (mandatory deportation). In 2017, Mejia filed a section 1473.7 motion; the trial court denied the motion, finding Mejia did not prove an IAC claim. In 2018, Mejia filed a timely appeal. The Attorney General concedes the 2019 amendment to section 1473.7 is retroactive.
We hold that to establish a "prejudicial error" under sеction 1473.7, a person need only show by a preponderance of the evidence: 1) he did not "meaningfully understand" or "knowingly accept" the actual or potential adverse immigration consequences of the plea; and 2) had he understood the consequences, it is reasonably probable he would have instead attempted to "defend against" the charges.
We find that Mejia made such a showing. Thus, we reverse the trial court's order denying Mejia's section 1473.7 motion. On remand, we direct the court to allow Mejia to withdraw his 1994 guilty pleas.
I
FACTS AND PROCEDURAL HISTORY
On September 16, 1993, the prosecution filed a three-count felony complaint alleging that Mejia had: 1) sold or transported cocaine; 2) possessed cocaine base for purposes of sales; and 3) possessed cocaine for purposes of sales. ( Health & Saf. Code, §§ 11352, subd. (a), 11351.5, 11351.) On September 25, Mejia posted bail in the amount of $5,000.00.
On September 28, 1993, there was a preliminary hearing. A Santa Ana police officer testified that two weeks earlier he saw Mejia in a car with another person named Black. The officer spoke to Black, who told him that he and Mejia were both driving in separate cars when Black flagged down Mejia and "asked him for directions." Black asked Mejia if he could purchase a small amоunt of cocaine. Mejia sold Black $80 worth of cocaine. The officer found cocaine in Mejia's car. The officer opined that "a portion was possessed for sales and that a portion was possessed for personal use." Mejia told the officer this was the first time he had sold cocaine, but "he had planned to sell the additional portion of cocaine should the opportunity arise." The magistrate held Mejia to answer. The following month, the prosecution filed an information alleging the same three counts alleged in the complaint.
The Section 1473.3 Motion
On September 15, 2017, Mejia filed a section 1473.7 motion to vacate his 1994 drug convictions. Mejia attached a declaration to his motion.
Mejia averred, "I camе to the United States when I was 14 years old. I came because my mother had moved here and I wanted to be with her and the rest of my family who was already here. Aside from visiting my sick father, I have remained in the United States my entire life. This is my home and I consider the United States my country." Mejia stated, "I was never a drug dealer and always worked hard for a living. Although it was a very long time ago, I remember feeling 'set up' by a guy who I had just met for the first time who flagged me down from his vehicle. My interactions with this man directly led to my arrest." At the time of Mejia's arrest he was 22 years old, married, and had an infant son.
Mejia stated that after the preliminary hearing he hired a private attorney (now deceased). Mejia stated that the attorney "hardly spoke to me or asked me any questions about what happened. He would just appear in court and tell me that we would be coming back at a future date until ultimately, I pleaded guilty to the charges." Mejia averred, "I remember the day I pleaded guilty. Before signing the papers, my attorney told me that I had no choice but to take the deal. He said that there was cocaine in my car so I was guilty and that if I didn't accept the 120-day sentence, I would get many years in prison. He told [me] it was the best deal I would get."
Mejia stated that his attorney "never asked me about my immigration status even though it was clear I was not American because all our conversations occurred through a Spanish interpreter. He never explained to me that I would be imminently deportable if I accepted the charges. He told me to sign all of the boxes on a form and to just do what he told [me] to do once we were in court." Mejia averred that: "Had I known that the charges would result an imminent deportation and would have precluded any defense to deportation, I would have chosen to fight the charges or try to negotiate a result that would not destroy my chances of staying in the United States. By
The Hearing on the Motion
On November 3, 2017, the section 1473.7 motion came before the trial court. Mejia's counsel asked for a tentative ruling. The court indicated to counsel it would deny the motion: "I am not convinced your client would have turned down the plea bargain in this case had he been properly or adequately advised of immigration consequences, even if I were to assume that his attorney was deficient in that sense." (Italics added.) The court noted that Mejia "admitted to selling, and he was facing a maximum of six years and four months in prison." The court continued the matter to allow for additionаl briefing.
On February 2, 2018, the matter returned on the morning calendar. The court told Mejia's counsel "the supplemental information that you provided me is not sufficient to persuade me to deviate from my tentative." The court said, "I am not convinced that your client would have turned down this deal had he been properly advised of immigration consequences."
Mejia testified that he was 14 years old when he came to the United States from Mexico in 1986. Mejia said he came because his six siblings, his mother, and the rest of his family was living in the United States, only his father was still in Mexico. Mejia testified that he started working in his brother's paint shop three days after he arrived. When Mejia was arrested in 1993, he was 22 years old and married, he had an infant child, and a steady job. After he was arrested, Mejia said that he put some mоney together to pay for a bail bond; he planned to go visit his father who was sick in Mexico, but Mejia's father died shortly thereafter, so he no longer had any family ties to Mexico. Mejia said that he used the money to hire a private lawyer.
Later that same day, the trial court filed a 13-page order, denying the section 1473.7 motion. At the outset, the сourt stated that it was analyzing Mejia's claim "based on ineffective assistance of counsel. The question then becomes whether he has established such a claim by a preponderance of the evidence." After analyzing Mejia's section 1473.7 motion under well-established IAC standards ( Strickland ), the court concluded that Mejia "has failed to make a sufficient showing that he would have declined the plea and risked going to trial had he been more fully apprised of its immigration consequences." (Italics added.)
The Instant Appeal
In 2018, Mejia filed a timely appeal. Effective in 2019, while the matter was pending in this court, the Legislature amended the statute: "A finding of legal invalidity may, but need not, include a finding of ineffective assistance of counsel." ( § 1473.7, subd. (a)(1).) We invited the parties to file supplemental briefs. Both parties agree the Legislature's amendment is a clarification of existing law and therefore applies to nonfinal judgments, including this appeal. (See Carter v. California Dept. of Veterans Affairs (2006)
II
DISCUSSION
Mejia argues that section 1473.7 as amended allows a noncitizen defendant to vacate a guilty plea if he or she "did not understand the true implications
In order to resolve this matter, we need to interpret section 1473.7 as amended. Statutory interpretation is a question of law; our review is de novo. ( John v. Superior Court (2016)
A. Background and Context
The current rules and procedures regarding noncitizens-and their respective rights within the criminal justice system-are based on decades of changes and advancements within the legislative, executive, and judicial branches of government, at both the state and federal levels. Before interpreting and applying section 1473.7, it is helpful to briefly review some of those changes and advancements.
1. Before Padilla
In 1969, the California Supreme Court "recognized that a substantial portion-probably the vast majority-of criminal cases are disposed of through the process of plea bargaining." ( In re Tahl (1969)
Effective in 1977, the Legislature required courts to provide additional protections for noncitizen defendants: "Prior to acceptance of a plеa of guilty ... to any offense punishable as a crime under state law ... the court shall administer the following advisement on the record to the defendant: [¶] If you are not a citizen, you are hereby advised that conviction of the offense for which you have been charged may have the consequences of deportation, exclusion from admission to the United States, or denial of naturalization pursuant to the laws of the United States." (§ 1016.5, subd. (a).)
A defense attorney's "affirmative misrepresentation" about immigration consequences could, in some cases, constitute ineffective assistance. ( In re Resendiz (2001)
2. Padilla and Subsequent Advancements
In 2010, the United States Supreme Court recognized that: "The landscape of federal immigration law has changed dramatically over the last 90 years. While once there was only a narrow class of deportable offenses ..., immigration reforms over time have expanded the class of deportable offenses .... The 'drastic measure' of deportation or removal ... is now virtually inevitable for a vast number of noncitizens convicted of crimes." ( Padilla , supra ,
Effective January 1, 2016, the California Legislature enacted two new Penal Code sections, which codified and expanded the protections for noncitizen criminal defendants. (§§ 1016.2, 1016.3.) In section 1016.2, subdivision (c), the Legislature noted that: "In [ Padilla ], the United States Supreme Court
"Defendants who are misadvised or not advised at all of the immigration consequences of criminal charges often suffer irreparable damage to their current or potential lawful immigration status, resulting in penalties such as mandatory detention, deportation, and permanent separation from close family. In some cases, these consequences could have been avoided had counsel provided informed advice and attempted to defend against such consequences." (§ 1016.2, subd. (e).) "Once in removal proceedings, a noncitizen may be transferred to any of over 200 immigration detention facilities across the country. Many criminal offenses trigger mandatory detention, so that the person may not request bond. In immigration proceedings, there is no court-appointed right to counsel and as a result, the majority of detained immigrants go unrepresented. Immigration judges often lack the power to consider whether the person should remain in the United States in light of equitable factors such as serious hardship to United States citizen family members, length of time living in the United States, or rehabilitation." (§ 1016.2, subd. (f).)
"The immigration consequences of criminal convictions have a particularly strong impact in California. One out of every four persons living in the state is foreign-born. One out of every two children lives in a household headed by at least one foreign-born person. The majority of these children are United States citizens. It is estimated that 50,000 parents of California United States citizen children were deported in a little[
"Defense counsel shall provide accurate and affirmative advice about the immigration consequences of a proposed disposition, and when consistent with the goals of and with the informed consent of the defendant, and consistent with professional standards, defend against those consequences." (§ 1016.3, subd. (a).) "The prosecution, in the interеsts of justice, and in furtherance of ... Section 1016.2, shall consider the avoidance of adverse immigration consequences in the plea negotiation process as one factor in an effort to reach a just resolution." (§ 1016.3, subd. (b).)
Effective January 1, 2017, the Legislature further expanded the protections for noncitizen criminal defendants. The new statute provided, in relevant part: "A person no longer imprisoned ... may prosecute a motion to vacate a conviction ...: [¶] (1) ... [that] is legally invalid due to a prejudicial error damaging the moving party's ability to meaningfully understand, defend against, or knowingly accept the actual or potеntial adverse immigration consequences of a plea of guilty ...." ( § 1473.7, subd. (a).) Section 1473.7, subdivision (e)(1), which remains unchanged, provides: "The court shall grant the motion to vacate the conviction or sentence if the moving party establishes, by a preponderance of the evidence, the existence of any of the grounds for relief specified in subdivision (a)." (Italics added.)
After its enactment, California courts uniformly interpreted section 1473.7 under the existing and long-standing rules for constitutional IAC claims. (See, e.g., People v. Espinoza (2018)
Effective January 1, 2019, the Legislature amended section 1473.7, subdivision (a), to add: "(1) ... A finding of legal invalidity may, but need not, include a finding of ineffective assistance of counsel." In amending the statute, the Legislature noted "that a finding based on prejudicial error may, but need not, include a finding of ineffective assistance of counsel and that the only finding that the court is required to make ... is whether the conviction is legally invalid due to prejudicial error damaging the moving party's ability to meaningfully understand, defend against, or knowingly accept the actual or potentiаl adverse immigration consequences of a plea of guilty or nolo contendere." (Legis. Counsel's Dig., Assem. Bill No. 2867 (2017-2018 Reg. Sess.), italics added.) The Legislature's declared intent was "to provide clarification to the courts regarding Section 1473.7 of the Penal Code to ensure uniformity throughout the state and efficiency in the statute's implementation." (Ibid. )
At the time of the writing of this opinion, only one published opinion has interpreted section 1473.7 as recently amended. ( People v. Camacho (2019)
The Second District Court of Appeal disagreed. The court "remanded to the superior court with instructions to grant the motion and to vacate the conviction." ( Camacho , supra ,
As far as prejudice, Camacho held: "Because the errors need not amount to a claim of ineffective assistance of counsel, it follows that courts are not limited to the Strickland test of prejudice, ... [a] reasonable probability of a different outcome in the original proceedings absent the error." ( Camacho, supra ,
The Camacho court found "compelling" evidence of prejudice in the record from the trial court. Defendant "was brought to the United States over 30 years ago .... Defendant is, and at the time of his plea was, married to a United States citizen with an American citizen son, and now also an
C. Analysis and Application
We agree with the Second District Court of Appeal's analysis in Camacho,
While codifying the United States Supreme Court's holding in Padilla , supra ,
We also agree with the Camacho court as to the prejudice component of the amended statute. That is, a "prejudicial error" occurs under section 1473.7 when there is a reasonable probability that the person would not have pleaded guilty-and would have risked going to trial (even if only to figuratively throw a "Hail Mary")-had the person known that the guilty plea would result in mandatory and dire immigration consequences. (See Lee,
Here, Mejia's undisputed testimony at the evidentiary hearing established that he did not "meaningfully understand" or "knowingly accept" the mandatory deportation consequences when he pleaded guilty in 1994. (See § 1473.7, subd. (a).) Mejia said that he would have never pleadеd guilty had he known and understood "that this would harm me in the future." When ruling on the motion, the trial court made no express or implied credibility determinations on this point, as the denial was based solely on IAC considerations. That is, the court concluded-under the prevailing IAC standards at the time of the guilty pleas-that "there is no indication counsel gave ... affirmatively incorrect advice." (Italics added.) In short, Mejia plainly established his own "error" within the meaning of section 1473.7, subdivision (a).
As far as the prejudice component, there is contemporaneous evidence in the record to substantiate Mejia's claim that he would not have pleaded guilty had he known about the mandatory and dire immigration ramifications. Similar to Camacho , there is compelling evidence in the record that at the time of his guilty pleas, Mejia had been living in the United States for eight years, since he was 14 years old. At the time of his guilty pleas, Mejia's wife and infant son were living in the United States, as well as his mother and six siblings. Indeed, Mejia's only remaining family tie to Mexico was his father, who passed away just before Mejia entered his guilty pleas. Moreover, as the lower court acknowledged, there are some lingering questions about the strength of the underlying evidence: "The preliminary hearing transcript leaves several remaining uncertainties; that someone would 'flag down' a complete stranger by 'pointing his nose' and asking to purchase cocaine is unusual. Equally odd is that 'Black' would approach the officer and admit he had done so."
Another contemporaneous substantiation of prejudice is that unlike most guilty pleas, this was a "straight up" plea directly to the court rather than a negotiated disposition. Mejia was out on bail when he pleaded guilty to all
In short, if Mejia had meaningfully understood the mandatory immigration consequences of his guilty pleas in 1994 (permanent deportation), versus the potentiаl risks and rewards of going to trial, it is reasonably probable that he would not have pleaded guilty. Thus, Mejia has affirmatively established a "prejudicial error" within the meaning of section 1473.7, subdivision (a)(1).
Finally, we agree with the disposition in the Camacho opinion: "The appropriate remedy is to direct the trial court to grant the motion." ( Camacho,
The Attorney General concedes that Camacho,
The Attorney General's arguments are unpersuasive. The factual distinctions between this case and Camacho are relatively minor. The bottom line
In sum, we have taken into account section 1473.7 as amended, and have considered it within the broader context of the Legislature's implied and explicit intent regarding the treatment of noncitizen criminal defendants. Under that analytical framework, Mejia plainly established a reasonable probability that he would not have pleaded guilty and likely would have taken his chances at trial had he meaningfully understood the certain and dire immigration consequences of his 1994 guilty pleas.
III
DISPOSITION
The order is reversed and the matter is remanded to the trial court to allow Mejia to withdraw his 1994 guilty pleas.
WE CONCUR:
BEDSWORTH, ACTING P. J.
GOETHALS, J.
Notes
Further undesignated statutory references will be to the Penal Code.
It appears that the parties and the court were under the impression that Mejia's 1994 guilty pleas were the result of a "deal" or a plea bargain, rather than a plea to the court.
Padilla v. Kentucky (2010)
We will be referring to guilty pleas throughout this opinion, but the same principles apply to pleas of nolo contendere (no contest).
Mejia and his wife have two adult children that were born in the United States.