Santa Clara County Super. Ct. No. 156569 Marcel B. Poché Judge Ct.App. 6 H036687
Sara E. Coppin, under appointment by the Supreme Court, for Defendant and Appellant.
Law Offices of J.T. Philipsborn, John T. Philipsborn; California Supreme Court Clinic at UC Davis School of Law and Aimee Feinberg for California Attorneys for Criminal Justice as Amicus Curiae on behalf of Defendant and Appellant.
Law Offices of Michael K. Mehr and Michael K. Mehr for Immigrant Legal Resources Center and Asian Law Caucus as Amicus Curiae on behalf of Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gerald A. Engler, Assistant Attorney General, Stan Helfman, Sharon G. Birenbaum, Seth K. Shalit and Masha A. Dabiza, Deputy Attorneys General, for Plaintiff and Respondent.
Penal Code section 1016.5 requires that before accepting a plea of guilty or nolo contendere to any criminal offense, the trial court must advise the defendant that if he or she is not a United States citizen, conviction of the offense may result in deportation, exclusion from admission to the United States, or denial of naturalization pursuant to the laws of the United States. (Pen. Code, § 1016.5, subd. (a).) If the advisement was not given, and the defendant shows that conviction of the offense to which he or she pleaded guilty or nolo contendere may result in adverse immigration consequences, the court, on the defendant’s motion, is required to vacate the judgment and permit the defendant to withdraw his or her plea and enter a plea of not guilty. (Id., subd. (b).) Relief will be granted, however, only if the defendant establishes prejudice. (People v. Superior Court (Zamudio) (2000) 23 Cal.4th 183, 210 (Zamudio).) As we explained in Zamudio, prejudice is shown if the defendant establishes it was reasonably probable he or she would not have pleaded guilty if properly advised. (Ibid.)
We granted review to consider whether a court ruling on a motion to vacate pursuant to section 1016.5 may deny relief, for lack of prejudice, if it concludes the defendant would not have obtained a more favorable outcome had he or she chosen not to plead guilty or nolo contendere. We hold that because the question is what the defendant would have done, relief should be granted if the court, after considering evidence offered by the parties relevant to that question, determines the defendant would have chosen not to plead guilty or nolo contendere, even if the court also finds it not reasonably probable the defendant would thereby have obtained a more favorable outcome.
Having so concluded, we also consider whether, as defendant contends, the court ruling on the motion may consider a claim that the defendant would have rejected the existing plea bargain to attempt to negotiate a bargain that would not result in deportation, a denial of naturalization, or exclusion from admission to the United States, or if, as the Attorney General contends, relief is available only if the defendant would have rejected the plea bargain to go to trial. We hold relief is available if the defendant establishes he or she would have rejected the existing bargain to accept or attempt to negotiate another.
Because the trial court in this case denied relief on the ground there was no reasonable probability defendant would have obtained a more favorable result by rejecting the plea bargain, which is not the test for prejudice, we reverse the judgment of the Court of Appeal affirming the trial court’s order denying relief and direct it to remand the matter to the trial court to conduct further proceedings consistent with our opinion here.
Arresting officer Frank Estrada was the sole witness at the preliminary hearing. Estrada testified that on May 15, 1992, while undercover, he observed defendant Rodrigo Martinez Martinez hand another man a brown bindle of marijuana in return for what was later determined to be $8. Defendant, an 18-year-old citizen of Mexico, was on a bicycle when the transaction occurred, and was still on the bicycle when Estrada apprehended him approximately one hour later. Defendant had no money on his person. Estrada provided a detailed description of the person he had seen, stating he had no doubt defendant was that man. Defendant was charged with a single count of the sale or transportation of marijuana in violation of Health and Safety Code section 11360, subdivision (a).
Pursuant to the terms of a plea bargain, defendant pleaded guilty to the charged offense and received a sentence of formal probation for a period of three years, a probationary jail term of 111 days with 111 days’ credit for time served, and was ordered to pay a fine, register as a narcotics offender, and undergo counseling. The written minute order for the plea proceeding has boxes to be checked for the advisements given a pleading defendant, including a box explaining that a defendant has been advised that the conviction might lead to immigration consequences. Unlike other boxes appearing there, the box referring to the advisement of immigration consequences is not checked. There are no other existing records of the proceedings. We accordingly presume defendant did not receive the required advisement. (§ 1016.5, subd. (b) [“Absent a record that the court provided the advisement required by this section, the defendant shall be presumed not to have received the required advisement.”].)
Defendant successfully completed probation, and nothing in the record suggests he has since had any brushes with the law. He is now in a long-term marriage to a lawful permanent resident, has four minor children who are United States citizens and, due ...