California Court of Appeals, Fourth District, Second Division
from the Superior Court of Riverside County No. RIF101988.
Bambi J. Moyer, Judge. Affirmed.
Munger, Tolles & Olson, Joseph D. Lee, William Larsen and
Dane 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. Early, Gilbert Garcetti, Meline Mkrtichian, Ronald J.
Nessim, Gabriel Pardo, Jennifer Resnik and David J. Sutton as
Amici Curiae on behalf of Defendant and Appellant.
Becerra, Attorney General, Gerald A. Engler, Chief Assistant
Attorney General, Julie L. Garland, Assistant Attorney
General, and Melissa Mandel and Adrian R. Contreras, Deputy
Attorneys General, for Plaintiff and Respondent.
RAMIREZ P. J.
and appellant, Robert Landeros Vivar, pled guilty to
possession of materials with the intent to manufacture
methamphetamine. (Health & Saf. Code, former §
11383, subd. (c).) Defendant was placed on probation for
three years, and as a condition of probation was to serve one
year in county jail. He also received a referral to the
Residential Substance Abuse Treatment (RSAT) program. Shortly
after his release, defendant was removed from the country as
a consequence of his plea. Over a decade later, defendant
filed a motion to vacate his conviction pursuant to Penal
Code section 1473.7. The trial court denied defendant's
appeal, defendant argues the trial court erred in denying his
motion to vacate his guilty plea because his trial counsel
was ineffective in failing to investigate and advise
defendant of the immigration consequences of his plea and for
failing to defend or mitigate the judgment. Defendant also
argues that his plea must be vacated because it was legally
invalid. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
immigrated from Mexico in 1962 when he was six years old. He
lived in the United States for 41 years until his removal in
2003. He does not speak Spanish natively. He has two United
States citizen children and six United States citizen
grandchildren residing in California. At the time of the
relevant offense, defendant had lawful immigration status.
became addicted to amphetamines in the mid-1990's.
Defendant entered RSAT and successfully completed drug
treatment in 1998 or 1999. However, he began using
amphetamines again in the fall of 2001.
the evening of February 16, 2002, defendant entered a grocery
store in Corona. A loss prevention employee in the store saw
defendant take 12 boxes of Sudafed and hide them in his
jacket. After defendant paid for other items and attempted to
leave, the employee detained him until police arrived. While
detained, defendant told the employee that he was going to
give the Sudafed to someone else, who was going to use the
Sudafed to manufacture methamphetamine. In exchange, this
person was to give defendant methamphetamine. Defendant
repeated this story when questioned by the police. The
responding officer then arrested defendant.
Riverside County District Attorney charged defendant by
complaint with possession of materials with the intent to
manufacture methamphetamine (Health & Saf. Code, former
§ 11383, subd. (c)) and petty theft with a prior
conviction (Pen. Code, § 666).
his charge, defendant was represented by Jennifer D. of the
Riverside County Public Defender's Office. On March 6,
2002, defendant pled guilty to possession of materials with
the intent to manufacture methamphetamine.
entering this plea, defendant signed a felony plea form. This
form required defendant to initial 17 separate paragraphs
acknowledging that he understood the potential consequences
of his plea. This included a paragraph stating: “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.” Defendant also initialed a paragraph
acknowledging: “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.” Jennifer D. also
signed the form, stating that she believed defendant
understood his rights and understood he was waiving those
rights, that defendant had had enough time to consult with
Jennifer D. before entering the plea, and that he understood
the consequences of the plea.
trial court accepted defendant's plea and incorporated
the “Advisement of Rights form.” As a result of
the plea agreement, the People dismissed the second count
against defendant. The trial court sentenced defendant to two
years, but suspended execution of this sentence and placed
defendant on probation for three years. As a condition of
probation, defendant was required to serve one year in county
jail. He was also recommended to RSAT, and the parties
stipulated that the suspended sentence would be executed if
defendant failed to complete the program after being admitted
was returned to custody after his plea. “After a few
days of waiting, ” defendant contacted the RSAT program
to inquire about when he would be admitted. Defendant was
informed that he could not be admitted to the RSAT program
“due to an ‘immigration hold.'”
Defendant sent ex parte letters to the trial court on April
7, 2002, July 13, 2002, and October 28, 2002, expressing
confusion about his sentence, requesting assistance to be
admitted to the RSAT program, and making other legally
improper requests to reduce his sentence and ameliorate its
16, 2002, the Immigration and Naturalization Service (INS)
sent defendant a notice to appear indicating that he was
subject to removal due to his conviction under former section
11383, subdivision (c) of the Health and Safety Code.
Defendant was deported seven months later, in January 2003.
Defendant re-entered the United States in May 2003.
January 3, 2018, defendant filed a motion to vacate his
conviction under section 1473.7. In support of this motion,
defendant submitted a declaration on his own behalf. In that
declaration, defendant noted that he only met with Jennifer
D. twice, each time for less than 10 minutes. According to
defendant, Jennifer D. “never asked about
[his] citizenship or immigration status, and...
never explained any of the actual immigration
consequences that would result from [his] conviction.”
Defendant said he affirmatively told Jennifer D. that he
“was very worried about possible deportation, ”
but that she “never discussed the immigration
consequences of [his] plea options.” (Underlining
omitted.) Defendant admitted he was under the mistaken
impression that he “could not be deported for a
misdemeanor, and... assumed that all felonies resulted in
deportation.” This misunderstanding led him to reject a
three-year prison sentence offer from the People; instead, he
requested that Jennifer D. attempt to obtain a plea deal
which included drug treatment and could be reduced to a
misdemeanor. Defendant claimed that Jennifer D. never
attempted to correct his mistaken understanding of the law.
He accepted the ultimate plea deal because he wanted to
participate in drug treatment and believed that if he
completed RSAT he would be able to reduce his conviction to a
misdemeanor and avoid immigration consequences. According to
defendant, if he had known his plea would make him deportable
he would not have entered it, and would have requested
Jennifer D. seek an immigration-neutral plea even if it came
with a harsher sentence.
this declaration, defendant also submitted correspondence
between his current counsel and Jennifer D., as well as
records from the Riverside County Public Defender's
Office regarding defendant's case. These records included
Jennifer D.'s handwritten notes. In the
correspondence between defendant's current counsel and
Jennifer D., Jennifer D. claimed that all her
“non-citizen clients were routinely advised that
deportation was a possible consequence of a felony
conviction, which is consistent with the language used in the
approved Tahl form....” Jennifer D. also
stated that “in addition to the Tahl
advisement, he was specifically cautioned that, in spite of
his experience on the prior [Health and Safety Code section]
11377 case... an RSAT term of sentencing on his new case
would NOT determine whether or not he would be deported on
the new offense, and that if he had any questions about that,
he should consult an immigration attorney for
D.'s contemporaneous notes corroborate this, stating
“[defendant] was fully advised of consequences of plea
to [Health and Safety Code section] 11383[, subdivision]
(c).” These notes also reveal that “[defendant]
declined alternative of pleading to [Penal Code section] 459
w/ LT state prison parol [sic].
Wants help w/ drug problem; RSAT.”
People opposed defendant's motion. The court held a
hearing on the motion. Prior to the on-the-record hearing,
the court held a chambers conference with the attorneys and
gave an oral tentative ruling. The court then heard argument
from both parties. During defendant's argument, the court
noted that there was some disagreement between
defendant's declaration and Jennifer D.'s e-mails.
Defendant's counsel stated that “if Your Honor has
factual concerns about that... it might make sense to
subpoena [Jennifer D.] to appear here and to testify about
her recollection.” However, defendant's counsel
then stated: “[I]f Your Honor is able to credit her
email, then I don't know it's necessary.”
Jennifer D. was not subpoenaed to appear.
hearing argument the court denied defendant's motion. In
coming to this conclusion, the court made the factual
determination that Jennifer D. did advise defendant exactly
as her e-mails claimed. The court also found the fact that
the final sentence included only a recommendation for RSAT,
rather than a referral, indicated that Jennifer D. was not
certain defendant would even be admitted to RSAT.
timely appealed this denial.
argues his motion to vacate should have been granted because
he was ineffectively assisted by his counsel, Jennifer D.
Specifically, defendant claims that Jennifer D.'s
assistance did not meet either the Sixth Amendment standard
for assistance of counsel nor the standard under section
1473.7 because she failed to advise defendant of the near
certainty that defendant's guilty plea would result in
his deportation and failed to defend against or mitigate the
immigration consequences of his plea. Defendant also argues
that even if his ...