California Court of Appeals, Fourth District, Second Division
[REVIEW GRANTED BY CAL. SUPREME COURT]
Cal.Rptr.3d 445] APPEAL from the Superior Court of Riverside
County. Bambi J. Moyer, Judge. Affirmed. (Super.Ct.No.
[Copyrighted Material Omitted]
Tolles & Olson, Joseph D. Lee, William Larsen and Dane
Shikman, Los Angeles, for Defendant and Appellant.
Dunn & Crutcher, Kahn A. Scolnick, Daniel R. Adler and Jason
S. Kim, Los Angeles, 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.
Cal.Rptr.3d 446] I. INTRODUCTION
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
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
Defendant 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
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.
Cal.Rptr.3d 447] The 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 to
Defendant 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 immigration
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 [256
Cal.Rptr.3d 448] 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 ...