Order Filed date September 11, 2013
Santa Clara County, Ct. No. 156569, Ct. App. 6 H036687 Judge Marcel B. Poché
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.
ORDER MODIFYING OPINION AND DENYING PETITION FOR REHEARING
The opinion herein, filed August 8, 2013, and appearing at 57 Cal.4th 555, is modified as follows:
On page 565 of 57 Cal.4th, delete the sentence reading: “Second, relief is available only to persons who are not otherwise deportable, that is, who have not since their conviction engaged in other conduct that would trigger immigration consequences.”
Also on page 565, immediately following the sentence deleted above, replace “Further” with “Second.”
This modification does not affect the judgment.
The petition for rehearing is denied.
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 ...