People v. Barocio

• Decision Date: 29 November 1989
• Docket Number: No. F011040,F011040
• Citation: 264 Cal.Rptr. 573,216 Cal.App.3d 99
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Appellant, v. Pedro BAROCIO, Defendant and Respondent.

Page 573

264 Cal.Rptr. 573

216 Cal.App.3d 99

The PEOPLE, Plaintiff and Appellant, v. Pedro BAROCIO, Defendant and Respondent.

No. F011040.

Court of Appeal, Fifth District, California.

Nov. 29, 1989.

Review Denied Feb. 15, 1990.

John K. Van de Kamp, Atty. Gen., Steve White, Chief Asst. Atty. Gen., Arnold O. Overoye, Jane N. Kirkland and Edmund D. McMurray, Deputy Attys. Gen., Sacramento, for plaintiff and appellant.

Rusca & Bumanglag and George Bumanglag, Fresno, for defendant and respondent.

OPINION

FRANSON, Presiding Justice.

The issues presented by this appeal are whether counsel's failure to advise respondent of his right to request a recommendation against deportation (RAD) from the sentencing court pursuant to 8 United States Code section 1251(b)(2), where defendant was subject to deportation as a result of his conviction, rendered counsel's assistance constitutionally ineffective. And, if counsel was ineffective, what is the appropriate remedy?

We conclude counsel was ineffective, and the appropriate remedy is to vacate respondent's sentence and remand the matter for resentencing. On remand respondent should decide whether to request a RAD.

PROCEDURAL HISTORY

Pedro Barocio (respondent) was charged in eight counts with sexual activity with his 13-year-old half-sister. He pleaded guilty to one count of lewd and lascivious conduct with a child (Pen.Code, § 288, subd. (a)) and one count of incest (Pen.Code, § 285.) ¹ Before he pleaded, he was advised pursuant to section 1016.5 that his plea could result in deportation or exclusion from the United States. ² Respondent was sentenced to prison. When he was paroled, the Immigration and Naturalization Service (INS) initiated deportation proceedings pursuant to 8 United States Code section 1251(a)(4). ³ Respondent petitioned for a writ of habeas corpus contending his trial counsel was ineffective because counsel was unaware of the RAD procedure (8 U.S.C.A. § 1251(b)(2)), ⁴ and failed to advise Barocio of its availability or seek a RAD from the sentencing judge. The trial court, relying on People v. Soriano (1987) 194 Cal.App.3d 1470, 240 Cal.Rptr. 328, granted the petition and set aside respondent's plea. The People appeal that order.

DISCUSSION

I. Did counsel render ineffective assistance by not advising respondent adequately of his rights pursuant to section 1016.5 and 8 United States Code section 1251?

Ineffective Assistance Standard of Proof

Both the federal and state Constitutions give a criminal defendant the right to assistance of counsel. (U.S. Const., 6th Amend.; Cal. Const., art. I, § 15.) The right to counsel entitles a defendant to effective counsel. (Strickland v. Washington (1984) 466 U.S. 668, 686, 104 S.Ct. 2052, 2063, 80 L.Ed.2d 674.) Specifically, it entitles him to " 'the reasonably competent assistance of an attorney acting as his diligent conscientious advocate.' [Citations.]" (People v. Ledesma (1987) 43 Cal.3d 171, 215, 233 Cal.Rptr. 404, 729 P.2d 839.)

"Under this standard a defendant may 'reasonably expect that before counsel undertakes to act at all he will make a rational and informed decision on strategy and tactics founded on adequate investigation and preparation.' [Citation.]" (People v. Soriano, supra, 194 Cal.App.3d at p. 1479, 240 Cal.Rptr. 328.)

Was Counsel's Performance Deficient?

To prevail on his claim of ineffective assistance of counsel, respondent must demonstrate (1) counsel's performance was deficient, and (2) he was prejudiced by the deficiency. (Strickland v. Washington, supra, 466 U.S. at p. 687, 104 S.Ct. at p. 2064; People v. Fosselman (1983) 33 Cal.3d 572, 583-584, 189 Cal.Rptr. 855, 659 P.2d 1144.)

Respondent claimed he received ineffective assistance of counsel because counsel failed to advise and represent him properly in regards to his rights under section 1016.5 and 8 United States Code section 1251. Specifically, counsel failed to advise him of his deportation remedy under 8 United States Code section 1251(b)(2) and failed to request a RAD on his behalf. Respondent argued to the trial court he was entitled to advisement on the federal statute to meet the purposes of section 1016.5.

The trial court concluded respondent was not advised adequately by counsel of his rights under section 1016.5 and 8 United States Code section 1251. The Attorney General contends there is no evidence to support the finding respondent was not adequately advised of his rights under section 1016.5, and California case law does not require defense counsel to advise clients of the availability of a RAD under federal law.

A. Pursuant to Section 1016.5

Under section 1016.5, subdivision (a), before accepting a plea of guilty, the court must advise a defendant that his conviction may result in his deportation or have other immigration consequences. The purpose of the advisement is set out in subdivision (d) of the section:

"The Legislature finds and declares that in many instances involving an individual who is not a citizen of the United States charged with an offense punishable as a crime under state law, a plea of guilty ... is entered without the defendant knowing that a conviction of such offense is grounds for deportation, exclusion from admission to the United States, or denial of naturalization pursuant to the laws of the United States. Therefore, it is the intent of the Legislature in enacting this section to promote fairness to such accused individuals by requiring in such cases that acceptance of a guilty plea ... be preceded by an appropriate warning of the special consequences for such a defendant which may result from the plea. It is also the intent of the Legislature that the court in such cases shall grant the defendant a reasonable amount of time to negotiate with the prosecuting agency in the event the defendant or the defendant's counsel was unaware of the possibility of deportation...."

The critical issue under section 1016.5 is whether a defendant has been advised that his guilty plea may have immigration consequences. The exact language of the warning is not crucial. (People v. Soriano, supra, 194 Cal.App.3d 1470, 1475, 240 Cal.Rptr. 328.) Respondent does not claim he was not advised or was misadvised regarding the immigration consequences of his plea. The record shows the court adequately advised respondent under section 1016.5, respondent requested and received a week to think about the plea and its consequences, and defense counsel discussed the offer twice with respondent before he entered his plea. Accordingly, there is no evidence to support the court's finding respondent was not adequately advised of his rights under section 1016.5.

Respondent submits he should have been advised of the availability of a RAD hearing under the auspices of section 1016.5. Respondent's argument is not supported by the language of section 1016.5 or its expressed purpose. It does not follow that because a defendant must be advised his guilty plea may result in deportation, he also must be advised of remedies available to avoid deportation. Consequently, section 1016.5 does not impose a duty on defense counsel to advise a defendant of the availability of RAD procedures.

B. Pursuant to People v. Soriano

Respondent also contends he was entitled to a RAD advisement and hearing under People v. Soriano, supra, 194 Cal.App.3d 1470, 240 Cal.Rptr. 328. Soriano held a defendant received ineffective assistance of counsel where counsel provided only a pro forma warning that defendant's guilty plea could have immigration consequences without researching the specific consequences of his plea, i.e., absent a recommendation from the sentencing court against deportation, defendant's guilty plea made him deportable.

Soriano pleaded guilty in exchange for a recommendation from the district attorney that he receive a sentence of four years suspended, be placed on three years probation and serve one year in county jail. When Soriano completed his jail term, the INS initiated deportation proceedings against him under the Immigration and Nationality Act (8 U.S.C.A. § 1251(a)(4)). As a result of his conviction, Soriano was deportable as an alien who " 'is convicted of a crime involving moral turpitude committed within five years after entry and either sentenced to confinement or confined therefor in a prison or corrective institution, for a year or more....' " (194 Cal.App.3d at pp. 1473-1474, 240 Cal.Rptr. 328.)

Soriano filed a petition for habeas corpus and asked to withdraw his guilty plea. He contended his counsel rendered ineffective assistance because she neglected to inform him adequately of the immigration consequences of his guilty plea. Soriano's declaration in support of his petition stated his attorney had assured him he would not be deported. Based on these assurances, he entered his guilty plea. Had he known he was exposing himself to deportation by pleading guilty, he would not have entered a plea. He would first have sought a disposition which would not render him deportable. (194 Cal.App.3d at p. 1478, 240 Cal.Rptr. 328.) Further, counsel's failure to research federal immigration law resulted in her failing to either negotiate a plea which would not have subjected him to deportation or to request a RAD from the sentencing judge which would have prevented his deportation for the offense. (Ibid.)

To bolster his ineffectiveness claim, Soriano argued that under federal law and case authority he would not have been subject to deportation if his sentence was modified in two minor respects. The court sentenced Soriano and suspended the sentence which rendered him "confined" within the meaning of United States Code section 1251(a)(4). The court also sentenced him to a year in jail. Had the court instead suspended imposition of the sentence and sentenced Soriano to one day less than a year, Soriano would not be deportable under the statute. (8 U.S.C.A. § 1251(a)(4); Mariam v. United States (D.C.App.1978) 385 A.2d...