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People v. Vivar

California Court of Appeals, Fourth District, Second Division

December 12, 2019

THE PEOPLE, Plaintiff and Respondent,
ROBERT LANDEROS VIVAR, Defendant and Appellant.

          APPEAL 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.

          Xavier 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.


         Defendant 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 motion.

         On 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.


         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 status.

         Defendant 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.

         During 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.

         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).[2]

         After 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.

         Before 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.

         The 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 it.[3]

         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 consequences.

         On May 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.

         On 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.

         Alongside 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.[4] 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[5] 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 clarification.”

         Jennifer 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[6] state prison parol [sic]. Wants help w/ drug problem; RSAT.”

         The 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.

         After 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.

         Defendant timely appealed this denial.


         Defendant 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 ...

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