People v. VivarPeople v. Vivar
Case Information
*1 IN THE SUPREME COURT OF
CALIFORNIA THE PEOPLE,
Plaintiff and Respondent, v.
ROBERT LANDEROS VIVAR, Defendant and Appellant.
S260270
Fourth Appellate District, Division Two
E070926
Riverside County Superior Court
RIF101988
May 3, 2021
Justice Cuéllar authored the opinion of the Court, in which Justices Liu, Kruger, Groban, and Jenkins concurred.
Justice Corrigan filed a concurring and dissenting opinion, in which Chief Justice Cantil-Sakauye concurred.
S260270
The population of the United States includes millions of
immigrants who arrived as children, attended schools, and
found work here. (See
Dep’t of Homeland Security v. Regents of
the Univ. of California
(2020) ___ U.S. ___, ___ [
How thesе provisions apply to people like defendant Robert Landeros Vivar — who came to the United States at age six and lacked any meaningful ties to his country of birth is the problem we address in this case. Vivar was arrested in 2002 for attempting to steal Sudafed from a grocery store. Although he ’d spent four decades living in this country as a lawful permanent resident, he lacked American citizenship. What he nonetheless possessed were robust ties to the United States. His mother, wife, children, and grandchildren were all citizens. His son, who was serving in the United States Air Force, was about to be deployed to the Middle East.
Unfortunately, as the Court of Appeal held and the Attorney General concedes, Vivar was never properly advised about the immigration consequences of his plea options. He didn’t know , for example, that pleading guilty to violating Health and Safety Code section 11383, former subdivision (c), would necessarily subject him to mandatory deportation, while pleading guilty to violating Penal Code section 459 would not. Vivar took the former plea offer and rejected the latter. His mistake soon became manifest: within days, Vivar was subjected to an immigration hold, and a few months later he was deported.
After Vivar made his way back into the United States by crossing the border without inspection, he sought expungement of his drug conviction. He succeeded and then tried to securе further relief by way of a petition for writ of error coram nobis . Neither had any effect on his immigration status, however. He was again deported in 2013.
In 2018, Vivar filed a motion to vacate his 2002 conviction
under a recently enacted statute offering relief to those who had
already served their sentences. (
I.
In 1962, when Vivar was six years old, he and his family immigrated as lawful permanent residents from Mexico to the United States. He now has two children and six grandchildren. All are American citizens and all reside here in California, along with Vivar’s two siblings.
A.
Upon arrival, Vivar quickly adaptеd to life in the United States. Since early in his youth, his primary language has been English. In high school, he helped establish a Reserve Officers’ Training Corps program and hoped to serve his country in Vietnam like his older brother, Martin, but the war ended a few months after he graduated. Vivar instead began working at an airline and was soon promoted to a management position that required him to work a night shift at the airport and a day shift in the office. Limited to only a few hours of sleep a night, he turned to amphetamines to stay awake.
Vivar first entered — and successfully completed — a
residential drug treatment program in the late 1990s.
Unfortunately, he relapsed in 2001. The conviction under
review arose from his methamphetamine addiction. In
February 2002, he was caught trying to steal 12 boxes of
Sudafed from a grocery store in Corona. Vivar told the store’s
loss prevention officer — and later, the police — that he planned
to provide the Sudafed to someone who would manufacture
methamphetamine and, in turn, share some of the finished
product with him. The Riverside County District Attorney
charged Vivar with possessing methamphetamine precursors
with the intent to manufacture the drug (
B.
The District Attorney offered Vivar several plea options.
What happened next is in some dispute. Vivar recalls his
attorney conveying an offer of an unspecified felony plea with a
three-year sentence. He rejected that offer because of his
mistaken belief never corrected by his appointed attorney — that all felony convictions resulted in deportation and that the
opposite was true for misdemeanors. (Cf.
U.S. v. Graham
(3d
Cir. 1999)
Following those discussions, counsel relayed an offer for
Vivar to plead guilty to burglary (
Before entering his plea in March 2002, Vivar executed a form that required him to initial 17 separate paragraphs acknowledging that he understood the potential consequences of his plea. One paragraph stated, “If I am not a citizen of the United States, I understand that this conviction 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.” Another paragraph provided, “I have had an adequate time to discuss with my attorney (1) my constitutional rights, (2) the consequences of any guilty plea, and (3) any defenses I may have to the charges against me.”
Vivar’s counsel declined to submit a declaration in
connection with the hearing on the
C.
A few days after being sentenced, Vivar was informed that
he couldn’t be admitted to the recommended drug treatment
program “ ‘ due to an “ immigration hold. ” ’ ” (
Vivar
, , 43
Cal.App.5th at p. 221.) As he would ’ve known had he been
properly advised, his conviction activated a tripwire in
immigration law — it qualified as a controlled substance offense
as well as an aggravated felony. (See
Determined to rejoin and support his family — and unable
to find work in Mexico Vivar reentered the United States,
without inspection, in May 2003. In 2008, he successfully
obtained an order to expunge his conviction under Penal Code
section 1203.4. It took another three years for him to learn,
when he was again detained by immigration authorities, that
expungement did not mitigate the immigration consequences of
his plea. (See
Martinez
,
supra
,
Vivar filed a motion in January 2018 to vacate his
conviction under Penal Code
The Court of Appeal affirmed, but on different grounds.
Contrary to the trial court, the Court of Appeal determined that
defense counsel provided ineffective assistance. (
Vivar
, ,
We granted Vivar’s petition to review two rulings made by
the Court of Appeal: first, its conclusion that he suffered no
prejudice within the meaning of
II.
It took less than a month for Vivar to realize the dire
ramifications of his mistaken embrace of a felony drug
possession plea. What ensued in the 18 years that followed
underscores how much Vivar consistently valued his presence
on American soil, and hоw likely it is that — properly advised
he would have prioritized a resolution of his case allowing
him to stay in the country. Mere weeks after entering his plea,
when he learned that he was subject to an immigration hold and
thus ineligible for a residential drug treatment program, he sent
the sentencing judge a handwritten letter “to seek the court’s
mercy.” Vivar informed the court that he was “a legal resident
and ha[s] been f or the past 40 years”; that his mother and wife
were American citizens; that his children and grandchildren, all
born in Riverside County, were likewise citizens; and that his
oldest child and only son was in the United States military
awaiting deployment to the Middle East. He “fully accept[ed]”
responsibility for his actions but “would like to change my life
for good and become a productive member of society.” Two
months later, after he was transferred to a federal immigration
facility , he reiterated his willingness “to do whatever it takes to
once again be an asset to my community and not a liability” and
asked the court to reduce his conviction to a misdemeanor. (See
A few months later, in October 2002, Vivar asked that his case “be Re - opened” on due process grounds. The legal advice he received at the time of his plea never conveyed, Vivar insisted, that he was accepting responsibility for “an Aggravated Felony for Immigration purposes and thus would warrant Immediate Deportation.” Had he been so advised, he “would have never plead[ed] Guilty to this Charge.” He was deported a few months later.
In 2008, Vivar successfully moved to expunge his
conviction through another pro se filing. Only later did he learn
that expungement hadn’t erased or even mitigated the
immigration consequences of his plea. (See
Martinez
, , 57
Cal.4th at p. 560.) In 2012, a lawyer advised Vivar he could
obtain relief on grounds of ineffective assistance of counsel by
filing a petition for writ of error
coram nobis
. Vivar hired the
lawyer to file such a petition. Yet this filing, too, proved
fruitless: This court had already held, in 2009, that a
defendant’s ignorance of a plea’s immigration consequences or counsel’s failure to negotiate a different plea — constituted a
mistake of law and thus did not qualify as a ground for relief on
coram nobis
. (
People v. Kim
(2009)
But they are not beyond the reach of remedies recently
enacted by the Legislature. As Vivar was running out of options,
lawmakers considered the problem faced by Vivar and so many
others who were unaware of the immigration consequences
posed by a plea entered many years earlier. (See
Kim
,
supra
, 45
Cal.4th at p. 1107 [“the Legislature has been active in providing
statutory remedies when the existing remedies . . . have proven
ineffective”; “the Legislature remains free to enact further
statutory remed ies for those in defendant’s position”].) They did
so by enacting
The Court of Appeal determined that trial counsel failed
to advise Vivar of “the certain immigration consequences of his
plea. ” (
Vivar
, ,
A.
When a trial court grants or denies a motion to vacate a
conviction under
The Attorney General reversed course in the proceedings
before us. He no longer advocates the abuse of discretion
standard — even in the context of mere statutory error. Instead,
he urges us to apply the independent standard of review to
all
prejudice determinations under
Our case law has applied the independent review standard
— which accords substantial weight to the trial court’s
credibility findings in analogous circumstances. Whether
counsel’s advice regarding immigration was inadequate and
whether such inadequacy prejudiced the defense, while mixed
questions, are predominantly questions of law. (See
In re
Resendiz
(2001)
Nothing in
When the Legislature amended
The Court of Appeal posited that a different standard
should apply when the moving party relies on a mistake of law
under
Our embrace of the independent standard of review also
fits with how
So our embrace of independent review in this context is a
product of multiple factors with special relevance here: the
history of
“[U]nder independent review, an appellate court exercises
its independent judgment to determine whether the facts satisfy
the rule of law.” (
In re George T.
(2004)
Cal.App.5th at p. 950 [citing
Resendiz
and quoting
Ogunmowo
];
Olvera
,
supra
, 24 Cal.App.5th at p. 1116 [citing
Resendiz
and
Ogunmowo
].) What’s distinctive about substantial evidence
review is that adequately supported factual findings not only
merit deference, but are binding, on appeal. (See
People v.
Schultz
(2020) 10 Cal.5th 623, 647; cf.
In re Lewis
(2018) 4
Cal.5th 1185, 1191 [whil e courts “ ‘generally defer to the
referee’s factual findings,’ ” they “are not binding”].)
[7]
Our decision addresses only the independent standard of
review under
B.
The Legislature made relief available only to certain
immigrants who accepted pleas without understanding the
immigration-related consequences of such decisions. What
someone seeking to withdraw a plea under
In People v. Superior Court ( Zamudio ), supra , 23 Cal.4th 183, we considered what constituted prejudice when a trial court failed to advise a defendant of the plea’s potential immigration consequences as required by Penal Code section 1016.5. Prejudice in such circumstances depended on “ ‘ whether it is “reasonably probable” the defendant would not have pleaded guilty if properly advised.’ ” ( Zamudio , at p. 210.) The focus on “what the defendant would have done, not whether the defendant’s decision would have led to a more favorable result” derived from the fact that a defendant “ ‘may view immigration consequences as the only ones that could affect his calculations regarding the advisability of pleading guilty to criminal charges .’ ” ( Martinez , , 57 Cal.4th at pp. 562, 563.) A decision to reject a plea bargain, we explained, “might be based either on the desire to go to trial or on the hope or expectation of negotiating a different bargain without immigration consequences.” ( Id . at p. 567.) When a court weighs whether a defendant would have taken the latter path, it need not decide whether the prosecution would actually “have offered a different bargain” — rath er, the court should сonsider “evidence that would have caused the defendant to expect or hope a different bargain would or could have been negotiated.” ( Ibid ., italics added.)
We embraced a similar approach when deciding whether
a lawyer’s deficient advi sement on immigration consequences
amounts to prejudicial ineffective assistance of counsel. A
defendant in those circumstances must demonstrate a
reasonable probability that, but for counsel’s incompetence, the
defendant “ ‘would not have pled guilty.’ ” (
People v. Patterson
(2017)
So: showing prejudicial error under
The Court of Appeal found it “no t reasonably probable that [Vivar] would have rejected the plea but for his counsel’s failure to properly advise him.” ( Vivar , , 43 Cal.App.5th at p. 229.) Two premises supported its conclusion: (1) that “no contemporaneous evidence” corroborated Vivar’s claim that he wouldn’t have entered the plea had he known the plea would lead to his deportation ( id . at p. 230), and (2) that Vivar “prioritized drug treatmеnt over potential immigration -neutral pleas.” ( Id . at p. 229.) Neither premise, though, withstands scrutiny. What we find, reviewing the record independently, is that Vivar was prejudiced.
1
In a declaration submitted with his
Also revealing is the objective evidence of Vivar’s state of mind reflected in uncounseled letters he wrote to the court at or near the time of his plea. In his first letter, written just a month after his March 2002 plea, Vivar objected to his immigration hold and emphasized that “I am a legal resident and have been for the past 40 years”; noted that not only his wife and mother are citizens, but his children and grandchildren were all “born here in Riverside County”; and explained that his oldest child and only son was serving in the United States Air Force and awaiting deployment to the Middle East. He reiterated these concerns in another letter from federal immigration custody a month later , pleading that he be allowed to become “an asset to my community and not a liab ility.” Three months after that, Vivar said that counsel never advised him that his plea would result in his deportation and declared that “ [i]f I would have been made aware of these facts I would have never plead[ed] Guilty to this Charge.”
The Court of Appeal neglected to explain why these facts at or near the time of Vivar’s plea failed to provide adequate corroboration that he wouldn’t have pleaded guilty had he known it would result in his deportation. Indeed, the court ’s analysis failed to mention these facts at all. This was error. In our view, these objective and contemporaneous facts corroborate, in a most convincing way, the statement in Vivar’s declaration that he “ would never have pleaded guilty ” if his attorney had informed him of t he plea’s consequences . (See Camacho , 32 Cal.App.5th at pp. 1011 – 1012 [finding prejudice where the defendant was brought to the United States as a child, had lived here for over 30 years, and his spouse and children were citizens]; accord, Lee , , ___ U.S at p. ___ [137 S.Ct. at p. 1968] [finding prejudice where the defendant was brought to the United States as a child, had lived here for nearly 30 years, and his parents were citizens].)
2
What the record also shows — and neither the Court of
Appeal nor the Attorney General disputes is that Vivar could
have entered a plea avoiding mandatory deportation. Trial
counsel’s contemporaneous notes indicate the prosecution
offered a deal under which Vivar would plead guilty to a single
count of burglary (
Concluding otherwise, the Court of Appeal relied principally on the fact that Vivar rejected the burglary plea. The court pointed in particular to counsel’s notes , where she had written that Vivar “ ‘[w]ants help w/ [his] drug problem.’ ” ( Vivar , , 43 Cal.App.5th at p. 229.) Because Vivar “was offered and rejected a plea agreement that would have completely avoided any immigration consequences,” the court inferred “that immigration consequences were not defendant’s primary consideration in accepting or rejecting any plea offer, and that further advice on this front was not reasonably probable to change his decisionmaking.” ( Id . at pp. 229 – 230.)
The Court of Appeal’s inference fails to persuade . Vivar’s rejection of a potentially deportation-neutral plea can hardly serve as evidence that he didn’t care about immigration consequences when it is undisputed that Vivar was not properly advised and thus was ignorant — of the immigration consequences attached to his various plea options. So the fact that he unknowingly rejected an immigration-neutral option cannot, in itself, demonstrate that “immigration con sequences were not defendant’s primary consideration.” ( Vivar , supra , 43 Cal.App.5th at pp. 229 – 230.)
Even less supports the Court of Appeal’s contention that
Vivar “ prioritized drug treatment over potential immigration-
neutral pleas. ” (
Vivar
, ,
According to his declaration, Vivar told counsel that he was interested in a drug treatment program even if it was not required by the terms of his plea — and c ounsel’s notes corroborate his interest in such a program. Vivar, then, did not perceive a conflict or tradeoff between the goal of drug treatment and the goal of a deportation-neutral disposition. What stands out most clearly from the record is that he was never properly advised of the role his immigration status would play either in assessing the attractiveness of his plea options or in his eligibility for a drug treatment program. In fact, the record shows he was upset to learn, just a few days after his plea, that he was ineligible for the recommended treatment program precisely because of the plea’s impact on his immigration status. And it was scarcely a month after his plea, having heard no response from his lawyer, that he wrote a letter to the court seeking its help. Had he been properly advised, it’s reasonably probable Vivar would ’ve sought a disposition — like the burglary plea where he could remain in this country and undergo drug treatment. The Court of Appeal failed to explain why Vivar, if properly advised, w ould’ve viewed these goals as incompatible or why, if properly a dvised, he would’ve insisted on a strategy that prevented him from achieving either of his goals.
The Court of Appeal tried to buttress its conclusion that
Vivar suffered no prejudice by highlighting “a factual inference
the trial court was entitled to d raw” and then deferring to that
inference. (
Vivar
, ,
Finally, we conclude that the advisements in Vivar’s plea form did not mitigate the prejudice from counsel’s deficient immigration advice. What the plea form stated was that deportation was a possibility. ( Vivar , supra , 43 Cal.App.5th at p. 228.) The problem for Vivar, though, was that deportation in these circumstances was mandatory and when he accepted the plea deal, he remained unaware of that crucial fact. (See Patterson , supra , 2 Cal.5th at pp. 896, 898.) In light of Vivar’s extensive ties to the United States, the generic advisements in the plea form do not undermine our conclusion that he was prejudiced by counsel’s failure to inform him that his plea would result in his deportation. (See In re Hernandez (2019) 33 Cal.App.5th 530, 547 – 548; People v. Espinoza (2018) 27 Cal.App.5th 908, 916 – 917; Ogunmowo , supra , 23 Cal.App.5th at pp. 80 – 81.)
III.
Defendants who lack United States citizenship sometimes
face not only penal sanctions but also harsh immigration
consequences if convicted. Because of this, pleas accepted in the
shadow of deficient advice about the risks of deportation can
have “dire” repercussions. (
People v. Superior Court
(
Giron
),
,
The Court of Appeal failed to review the record
independently. Nor did it take into account the substantial
contemporaneous evidence at or near the time of Vivar’s plea
corroborating his claim that he wouldn’t have pleaded guilty if
he ’d known it would result in his deportation from his home of
40 years. We reverse the judgment and remand the case to the
Court of Appeal with directions that it remand the case to the
trial court for it to enter an order granting Vivar’s
CUÉLLAR, J.
We Concur:
LIU, J.
KRUGER, J.
GROBAN, J.
JENKINS, J.
S260270
Concurring and Dissenting Opinion by Justice Corrigan
I cоncur in the disposition and fully agree that defendant
Robert Landeros Vivar should be allowed to withdraw his plea
under Penal Code
However, I respectfully dissent from the majority’s
holding that a form of “independent review” typically applied in
habeas corpus proceedings should be applied in assessing a trial
court’s prejudice finding under
Corrigan, J., concurring and dissenting
based upon live testimony. (
Id.
at pp. 19 – 20.) Consequently, in
a great number of appeals challenging
This court granted review to resolve a conflict over the
standard of review governing prejudice findings under the
statute and to clarify what constitutes prejudice under
The Court of Appeal created a hybrid standard turning on
the asserted basis for relief. According to the appellate court, if
the
Corrigan, J., concurring and dissenting
by substantial evidence in the record, but [to] exercise . . .
independent
judgment
in deciding whether the
facts
demonstrate trial counsel’s deficient performance and resulting
prejudice to the defendant.’ ” (
Ibid.
) By contrast, the court held
that the denial of a
In my view, the majority opinion correctly rejects the
bifurcated approach adopted by the Court of Appeal. (Maj. opn.,
ante
, pp. 16 – 17.) Such an approach would afford undue
significance to a distinction the Legislature sought to erase. It
extended relief to
all
defendants when legal error prevented
meaningful understanding of immigration consequences,
regardless of whether the error constitutes ineffective
assistance of counsel. (
Id.
at p. 16; see
However, I part ways with the majority conclusion that
the trial court’s prejudice finding under
Corrigan, J., concurring and dissenting
My disagreement is not with applying independent review
to the trial court’s
ultimate legal ruling
but with adopting a form
of review that largely dispenses with the deference normally
afforded to a lower court’s
factual
findings. (See
People v.
Hernandez
(2008) 45 Cal.4th 295, 298 – 299;
People v. Alvarez
(1996) 14 Cal.4th 155, 182.) A substantial evidence inquiry
examines the record in the light most favorable to the judgment
and upholds a finding “if the record contains reasonable,
credible evidence of solid value upon which a reasonable trier of
fact
could
have relied in reaching the conclusion in question.
Once such evidence is found, the substantial evidence test is
satisfied. [Citation.] Even when there is . . . significant . . .
countervailing evidence, the testimony of a single witness that
satisfies the standard is sufficient to uphold the finding.” (
People v. Barnwell
(2007)
The standard of review described in the majority opinion
is not completely unheard of, but its extension to review of
statutory claims may well be.
3
The standard articulated by the
majority derives primarily from the lead opinion in
In re
Resendiz
(2001)
Corrigan, J., concurring and dissenting
an ineffective assistance of counsel clаim involving affirmative misadvice about the immigration consequences of a plea. ( Resendiz , at p. 235.) The claim was raised on habeas corpus. Accordingly, the lead opinion recited the standard applicable to review of factual findings in habeas corpus proceedings. ( Id. at p. 249.) Of course, in such a context the inquiry goes beyond the trial record to consider facts and assertions not before the original trial court. In such circumstances, a court considering a habeas petition is not simply reviewing the decisions made at the trial level. It is exercising its own authority based on its own review of new facts and claims. Those are two very different tasks. We should be hesitant here to uncritically apply a habeas corpus standard of review to appellate review of statutory claims.
The review of factual findings in habeas corpus matters
arises
from the procedural posture of those cases.
Constitutionally, the courts of review are granted original
jurisdiction to consider habeas corpus claims. (
Corrigan, J., concurring and dissenting
credible evidence (
ibid.
), they are not binding upon the court as
they would be under the substantial evidence standard. A court
may “ ‘ “reach a different conclusion on an independent
examination of the evidence produced at the [reference hearing]
even where the evidence is conflicting.” ’ ” (
Ibid
.) Further, no
deference is afforded to factual findings unless “ ‘based on the
credibility of live testimony.’ ” (
Resendiz
, , 25 Cal.4th at p.
249 (lead opn. of Werdegar, J.), citing
In re Arias
(1986) 42
Cal.3d 667, 695; accord,
In re Long
(2020)
When an appellate court exercises original jurisdiction in a habeas matter, it makes sense to give limited deference to the referee’s recommended findings. In keeping with its original jurisdiction, the reviewing court is the ultimate fact finder. The same review principles apply to a successive writ situation in which a petitioner files a new habeas corpus petition in the appellate court when the superior court has denied habeas corpus relief after an evidentiary hearing. ( In re Wright (1978) 78 Cal.App.3d 788, 801.) In such a case, the appellate court again exercises original jurisdiction.
The situation is different, however, when the matter
comes to the appellate court
as an appeal.
When the superior
court grants habeas corpus relief and the People appeal, the
Court of Appeal exercises its appellate jurisdiction over the
superior court rulings. (See
Corrigan, J., concurring and dissenting
questions of fact, just as with any other appeal. ( Id . at p. 1314.) In other words, it applies “ ‘ “basic principles of appellate review.” ’ ” ( In re Butler (2020) 55 Cal.App.5th 614, 648.) Findings of fact are accorded due deference under the substantial evidence standard, while questions of law are reviewed independently. ( Ibid .)
An appeal from a ruling under
“[A]ppellate court deference to the trial court’s resolution of fact issues is warranted by jurisdictional considerations and a recognition of the distinctive roles of trial and appellate courts: Trial courts decide questions of fact and appellate courts decide questions of law.” (Eisenberg et al., Cal. Practice Guide: Civil Appeals and Writs (The Rutter Group 2019) ¶ 8:42, p. 8-21.) Whether substantial evidence supports a judgment or ruling is a question of law reposing with the appellate court. ( Ibid. ) Further, as a general matter, because of the jurisdictional roles of the trial and appellate courts, deference to trial court credibility determinations is the same for both written declarations and oral testimony. ( Haraguchi v. Superior Court
Corrigan, J., concurring and dissenting
(2008)
The argument that the reviewing court is “ ‘in the same position’ ” as the trial court in assessing documentary evidence is inaccurate. (Maj. opn., ante , p. 20, quoting People v. Ogunmowo (2018) 23 Cal.App.5th 67, 79.) A reviewing court exercising appellate jurisdiction is not in the same position as the trial court. Their respective roles are different. The trial court decides questions of fact in the first instance. The reviewing court defers to those findings and only considers legal holdings de novo. By declining to give deference to the trial court’s findings when based on d ocumentary evidence, a reviewing court simply assumes for itself the role of fact finder. For this reason, we confirmed over a decade ago that even when “the trial court’s findings were based on declarations and other written evidence[, that fact] does not lessen the deference due those findings.” ( Haraguchi v. Superior Court , supra , 43 Cal.4th at p. 711, fn. 3.) Indeed, in clarifying that deferencе is owed “whether the trial court’s ruling is based on oral testimony or declarations,” this court has expr essly disapproved authority suggesting otherwise. ( Shamblin v. Brattain , , 44 Cal.3d at p. 479; see id . at p. 479, fn. 4.)
In its adoption of independent review like that described
in
Resendiz
, the majority opinion cites a number of factors,
includin g the “history of
Corrigan, J., concurring and dissenting
People v. Olvera
(2018)
The standard described in People v. Olvera and applied in People v. Tapia is not the standard advocated by the majority. The mаjority approach does not involve substantial evidence review of factual findings, even as applied to findings based on live testimony. According great weight to findings is not the same as being bound by findings supported by substantial evidence. A court applying the standard adopted by the majority
Corrigan, J., concurring and dissenting
is free to reach its own conclusions even when the evidence is conflicting and “ ‘great weight’ ” is afforded to c ertain findings. ( Resendiz , supra , 25 Cal.4th at p. 249 (lead opn. of Werdegar, J.).) Simply put, it is incorrect to say the independent review standard adopted by the majority was the “prevailing” one.
As further support for dispensing with deferential review
of factual findings, the majority cites “the interests at stake in a
The majority opinion asserts that “ ‘ “[i]ndependent review
is
not
the equivalent of de novo review. . . .” ’ ” (Maj. opn.,
ante
,
p. 19, quoting
People v. Jackson
, , 128 Cal.App.4th at
p. 1021.) Yet it does little to explain how, in practice, the
standards will differ as applied to
Corrigan, J., concurring and dissenting
observations” under independent review. (Maj. opn.,
ante
, p.
19.) But many
As the majority opinion notes, in this case the trial court did not even consider whether Mr. Vivar suffered prejudice, instead basing its ruling on the finding that his counsel did not provide ineffective assistance. (Maj. opn., ante , p. 8.) Simply put, the court made no express or implied factual findings with respect to prejudice. As a result, there is no finding to which to defer. To the extent the trial court might arguably have made findings bearing on prejudice, they would be easily dismissed.
The prejudice question turns on whether Mr. Vivar would
not have entered the plea had he been properly informed and
advised. This is a credibility question. The trial court found his
credibility wanting because, it determined, he “ ‘was more
willing to rely on his experiences than he was on his counsel’s
advice.’ ” (
People v. Vivar
, ,
Corrigan, J., concurring and dissenting
There was no evidence that counsel ever gave Mr. Vivar
advice regarding immigration. Indeed, there is no evidence
counsel understood the potential consequences herself or that
she had made it her “business to discover what impact his
negotiated sentence would have on his deportability.” (
People v.
Soriano
(1987)
CORRIGAN, J.
I Concur:
CANTIL-SAKAUYE, C. J.
See next page for addresses and telephone numbers for counsel who argued in Supreme Court.
Name of Opinion People v. Vivar
__________________________________________________________________ Procedural Posture (see XX below)
Original Appeal
Original Proceeding
Review Granted (published)
XX
Rehearing Granted
__________________________________________________________________ Opinion No. S260270
Date Filed: May 3, 2021
__________________________________________________________________ Court: Superior
County: Riverside
Judge: Bambi J. Moyer
__________________________________________________________________ Counsel:
Munger, Tolles & Olson, Joseph D. Lee, William Larsen and Dane P. Shikman for Defendant and Appellant.
Gibson, Dunn & Crutcher, Kahn A. Scolnick, Daniel R. Adler and Jason S. Kim for Alyssa Bell, Reuven Cohen, Ingrid V. Eagly, Gilbert Garcetti, Meline Mkrtichian, Ronald J. Nessim, Gabriel Pardo, Jennifer Resnik and David J. Sutton as Amici Curiae on behalf of Defendant and Appellant.
Jennifer L. Pasquarella, Eva L. Bitran; Vasudha Talla; and David Loy for ACLU Foundation of Southern California, ACLU Foundation of Northern California and ACLU Foundation of San Diego and Imperial Counties as Amici Curiae on behalf of Defendant and Appellant. O’Melveny & Myers and Catalina J. Ver gara for The Immigrant Legal Resource Center, Public Counsel, University of California Irvine Law Immigrant Rights Clinic, University of California Irvine Law Criminal *45 Justice Clinic, East Bay Community Law Center, Community Legal Services in East Palo Alto and University of California Davis Immigrant Rights Clinic as Amici Curiae on behalf of Defendant and Appellant.
Xavier Becerra, Attorney General, Michael J. Mongan, State Solicitor General, Lance E. Winters and Gerald A. Engler, Chief Assistant Attorneys General, Samuel P. Siegel, Deputy State Solicitor General, Julie L. Garland, Assistant Attorney General, Melissa Mandel and Adrian R. Contreras, Deputy Attorneys General, for Plaintiff and Respondent.
Counsel who argued in Supreme Court (not intended for publication with opinion):
Dane Shikman
31 Mullen Ave.
San Francisco, CA 94110
(415) 512-4092
Samuel P. Siegel
Deputy State Solicitor General
1300 I Street
Sacramento, CA 95814
(916) 210-6269
Notes
[1] Vivar says counsel informed him that the court could reduce the felony conviction to a misdemeanor and Vivar believed that this disposition carried no immigration consequences.
[2] According to Vivar’s immigration law expert, this conviction “trigge red the worst of all immigration consequences: mandatory deportation with a bar to almost all forms of immigration relief, and permanent ineligibility for U.S. citizenship.”
[3]
Because Justice Mosk concurred in Justice Werdegar’s
lead opinion in all respects relevant here (see
Resendiz
, ,
[4]
Because we adopt an independent standard of review for
all claims made under
[5]
Despite the passage of time, a trial court nonetheless
retains the discretion to conduct an evidentiary hearing to
resolve disputes of fact. (See
People v. Superior Court
(
Zamudio
)
(2000)
[6] The separate opinion correctly characterizes substantial evidence review as “deferential.” (Conc. & dis. opn. , post , at p. 10 .) But it doesn’t follow that every time a court extends deference to a trial court’s factual findings, it’s engaging in substantial evidence review. (See, e.g., Resendiz , supra , 25 Cal.4th at p. 249 (lead opn. of Werdegar, J.); Ogunmowo , supra , 23 Cal.App.5th at p. 76 [citing Resendiz ]; Tapia , , 26
[1] Further statutory references are to the Penal Code.
[2]
In this court, the Attorney General takes the position that
appellate courts should independently review rulings under
[3]
It should be noted that the majority explicitly limits its
holding to review under
[4] The “independent review” standard described in the majority opinion also is applied to cases raising First Amendment issues in which an appellate court is charged with ensuring that a ruling does not intrude on constitutional free
[5]
In
Tapia
, the trial judge who heard the