by David M. Reutter

The Supreme Court of California issued an order that set the standard of review for motions filed under Penal Code § 1473.7 (Motion to vacate conviction or sentence by person no longer imprisoned or restrained). It then reviewed the motion on appeal and found the movant showed prejudice in the failure to be counseled about the immigration consequences of a plea entered in 2002.

The Court’s opinion was issued in the review of a Court of Appeal’s affirmance of the denial of the § 1473.7 motion filed by Robert L. Vivar. He entered the U.S. with his family in 1962 at the age of six. His entire family and life were in the U.S., and he had no connections with Mexico. Despite spending over 40 years in the U.S., he never attained citizenship. His life changed after he relapsed and developed a methamphetamine addiction in 2001.

In February 2003, he was caught trying to steal 12 boxes of Sudafed from a grocery store in Corona. He told authorities that he planned to provide the Sudafed to someone who would manufacture methamphetamine and share some of the product with him. Vivar was charged with possessing methamphetamine precursors with intent to manufacture the drug as well as petty theft with a prior conviction.

Plea discussions resulted in an offer to plead guilty to burglary with a three-year prison sentence. Vivar rejected the offer because he mistakenly believed all felony convictions resulted in deportation while misdemeanors didn’t. See United States v. Graham, 169 F.3d 787 (3d Cir. 1999) (some misdemeanors can qualify as an aggravated felony under federal immigration law). Based upon that mistake, he requested counsel to secure a deal that could be reduced to a misdemeanor and include treatment for his drug problem. He rejected an offer to plead guilty to burglary with a low-level prison sentence that would have amounted to just a year in prison with good-conduct credits and avoidance of mandatory deportation. His rejection of the offer was based on his mistaken belief regarding the deportation consequences of felonies versus misdemeanors.

In March 2002, Vivar pleaded guilty to possessing methamphetamine precursors with intent to manufacture in exchange for a 365-day county jail sentence with a stipulation that the court recommending him to a drug treatment facility. He mistakenly believed this would allow him to receive treatment and avoid deportation once his conviction was reduced to a misdemeanor. Notably, his attorney never corrected Vivar’s misimpression about the respective immigration consequences of felonies and misdemeanors, nor did she advise him of the actual immigration consequences to pleading guilty to the drug charge or any other plea.

A few days after being sentenced, Vivar was told he could not attend the recommended drug treatment program “due to an immigration hold.” Had Vivar been properly advised, he would have known that what he pleaded guilty to acted as an immigration tripwire in immigration law because it qualified as a controlled substance offense as well as an aggravated felony.

Vivar then sent letters to his attorney and the court explaining that he has lived in the U.S. for 40 years, his entire family are U.S. citizens, his son is in the Air Force, and he would have never pleaded guilty if he had known he’d be subject to automatic deportation. Vivar was removed to Mexico in January 2003.

He reentered the U.S. without inspection in May 2003. He successfully obtained an order in 2008 to expunge his conviction. That order, however, did not mitigate his immigration consequences. He was again deported in 2013.

Because of persons like Vivar, who were unaware of the immigration consequences posed by a plea entered many years earlier, the California Legislature in 2015 enacted § 1473.7 to create a remedy for a person no longer imprisoned or restrained. It requires that a conviction or sentence “shall” be vacated upon the showing of “prejudicial error damaging the moving party’s ability to meaningfully understand, defend against, or knowingly accept the actual or potential adverse immigration consent of a plea of guilty or nolo contendere.”

In January 2018, Vivar filed a motion to vacate his conviction under § 1473.7. The trial court denied his motion, and he appealed.

The Court of Appeal determined that Vivar’s trial counsel failed to advise him of “the certain immigration consequences of his plea.” However, it ruled that he suffered no prejudice on account of the ineffective assistance of counsel.

The Supreme Court granted review. The Attorney General subsequently took a “fresh look” at the Court of Appeal’s decision and conceded that Vivar was prejudiced and thus entitled to relief. The Supreme Court explained that it retained the “case for decision to resolve a conflict in the Court of Appeal concerning the standard of review governing prejudice findings under section 1473.7, subdivision (a)(7) and to clarify more generally what demonstrates prejudice under that provision.”

The Court began its discussion by deciding what standard of review applies to prejudice determinations in § 1473.7 proceedings. The Attorney General initially advocated for an abuse of discretion standard but reversed course and advocated to apply the independent review standard (see, e.g., People v. DeJesus, 37 Cal.App.5th 1124 (2019)) to all prejudice determinations under § 1473.7 proceedings. The Court agreed.

The Court noted that immigration advice by counsel and whether such advice prejudiced the defense involve mixed questions of fact and law, but such scenarios “are predominately questions of law.” See In re Resendiz, 19 P.3d 1171 (Cal. 2001). Consequently, independent review is the proper standard, the Court determined. It explained that it’s the same standard of review for habeas claims and best aligns with the purpose of § 1473.7: “to offer relief to those persons who suffered ‘prejudicial error’ but are ‘no longer imprisoned or restrained’ and for that reason alone are unable to pursue relief on habeas corpus.” Legis. Counsel’s Dig., Assem. Bill No. 813 (2015-2016 Reg. Sess.).

“[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., 33 Cal.4th 620 (2004). The Court cautioned, however, that independent review “is not the equivalent of de novo review.” People v. Jackson, 128 Cal.App.4th 1009 (2005). The Court explained that “[w]here, as here, the facts derive entirely from written declarations and other documents, [ ] there is no reason to conclude the trial court has the special purchase on the question at issue [in contrast to situation where the credibility of witnesses is based on what the lower court heard and observed]; as a practical matter, ‘[t]he trial court and this court are in the same position in interpreting written declarations’ when reviewing a cold record in a section 1473.7 proceeding.” The Court instructed that it’s for the “appellate court to decide, based on its independent judgment, whether the facts establish prejudice under section 1473.7.”

Turning to the issue of what’s required for a showing of prejudicial error under § 1473.7, the Court reviewed and discussed relevant federal and state case law and announced: “showing prejudicial error under section 1473.7, subdivision (a)(1) means demonstrating a reasonable probability that the defendant would have rejected the plea if the defendant had correctly understood its actual or potential immigration consequences.” In making this determination, the Court instructed that the totality of the circumstances is to be considered, specifically including the defendant’s ties to the U.S.; importance placed on remaining in the U.S.; priorities in seeking a plea deal; and whether the defendant believed an immigration-neutral resolution was possible.”  

Applying the newly announced rules to the present case, the Court stated that an examination of the objective evidence led it to conclude that “Vivar would have considered his immigration status ‘the most important part’ of his decision to plead.” It pointed to his history in the U.S., that his entire family were U.S. citizens, and that he spoke Spanish “like an American.” The record also shows that he acted immediately after he learned of the immigration consequences of his plea to alert his attorney and the trial court that he would not have entered the plea had he known of those consequences.

The Court of Appeal committed error by failing to explain how these facts did not corroborate that Vivar would not have pleaded guilty had he known it would result in his deportation, the Court stated. Had Vivar been properly counseled about immigration consequences, “it’s reasonably probable he wouldn’t have entered the plea that triggered his deportation,” the Court stated. Thus, the Court ruled that he was prejudiced by trial counsel’s failure to inform him of the immigration consequences of the plea deal.

Accordingly, the Court reversed the Court of Appeal’s judgment and remanded with instructions to remand the matter to the trial court for entry of an order granting Vivar’s § 1473.7 motion to withdraw his plea. See: People v. Vivar, 485 P.3d 425 (Cal. 2021).

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