People v. Lopez

• Decision Date: 14 July 2021
• Docket Number: G059146
• Citation: 280 Cal.Rptr.3d 865,66 Cal.App.5th 561
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Sigifredo Zendejas LOPEZ, Defendant and Appellant.

66 Cal.App.5th 561

280 Cal.Rptr.3d 865

The PEOPLE, Plaintiff and Respondent,

v.Sigifredo Zendejas LOPEZ, Defendant and Appellant.

G059146

Court of Appeal, Fourth District, Division 3, California.

Filed July 14, 2021

Robert L. Hernandez, Woodland Hills, under appointment by the Court of Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Eric A. Swenson, Allison V. Acosta and Kathryn Kirschbaum, Deputy Attorneys General, for Plaintiff and Respondent.

OPINION

MOORE, ACTING P. J.

Since 2016, criminal defense attorneys in California have had a statutory duty to "provide accurate and affirmative advice" about potentially adverse immigration consequences of any plea agreement. ( Pen. Code, § 1016.3, subd. (a).)¹ Further, when consistent with the defendant's goals and relevant professional standards, defense attorneys have a duty to "defend against those consequences." (Ibid. )

Section 1016.3, along with its companion statutes, have changed the law in California with respect to counsel's role. It is no longer necessary for a defendant to clear the high bar of ineffective assistance of counsel in order to establish his or her defense attorney did not meet the relevant standard. Further, what was once adequate advice may no longer meet the statutory requirements of section 1016.3. Such is the case here.

Defendant Sigifredo Zendejas Lopez (Lopez)² brought a motion pursuant to section 1018 to vacate his 2019 guilty plea on three felony counts, one of which would lead to almost certain deportation under federal law. Lopez, who was a lawful permanent resident of the United States at the time of his conviction, argued his retained trial counsel failed to provide accurate and affirmative advice about the immigration consequences of the proposed plea. ( § 1016.3, subd. (a).) Lopez's trial counsel testified at the hearing on the motion that he was not aware of the specific immigration consequences of the individual charges Lopez was facing. Therefore, he could not have provided accurate and affirmative advice as to the consequences of a guilty plea to any particular count.

Moreover, trial counsel testified that he tried to negotiate a plea bargain to one misdemeanor count, which was rejected by the prosecution. Had he known the immigration consequences of the specific felony counts, however, there is at least some possibility that he could have negotiated an immigration-neutral plea offer the prosecution was more likely to accept. But as he admitted, he did not know those consequences. Accordingly, he could not adequately attempt to defend against the immigration consequences Lopez was facing, despite knowing Lopez's immigration status. ( § 1016.2, subd. (b).)

Lopez was prejudiced by this course of events. He submitted evidence that he would have taken his chances at trial if he had known and fully understood the immigration consequences of the plea agreement trial counsel negotiated. Because Lopez was not accurately and affirmatively advised, and because there was not an effort to negotiate an acceptable plea bargain with the relevant immigration consequences in mind, we reverse the trial court's order denying the motion to withdraw Lopez's guilty plea in the interests of justice. ( § 1018.)

IFACTS

Underlying Case and Guilty Plea

On April 30, 2015, an Orange County deputy sheriff pulled over Lopez while he was driving his truck. When Lopez could not produce his driver's license, he was asked to step out of the vehicle. According to the deputy, Lopez gave consent for a search, and under the front cup holders, he found a bag that contained half a gram of crystal methamphetamine. In the truck's bed, he found a loaded 12-gauge shotgun. Lopez, according to the deputy, admitted the drugs and shotgun belonged to him. After the deputy administered warnings pursuant to Miranda v. Arizona (1966) 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, Lopez stated the methamphetamine was for his own use. The deputy later determined the shotgun had been reported stolen.

Approximately two weeks later, on May 13, 2015, the deputy again encountered Lopez's car, which was parked at the time. The deputy approached Lopez and asked if there was anything illegal in the vehicle. According to the deputy, Lopez said he might have some marijuana, and the deputy requested consent to search, which Lopez gave. Between the cup holders and the center console, the deputy found a black pouch with a black piece of plastic tied off on one end and a digital scale. The scale's weight plate had a white crystalline residue on it. Inside the black pouch, he found 16 grams of methamphetamine. Lopez allegedly told the deputy that he had not used methamphetamine since their last encounter on April 30. In the deputy's opinion, the amount of drugs found and Lopez's statement that he no longer used methamphetamine led him to believe the methamphetamine was possessed for sale. The deputy was aware that Lopez's statement that he no longer used methamphetamine contradicted his statement from April 30 that he did use the drug.

On November 8, 2016, Lopez was detained on a charge of being in possession of a controlled substance.³

In February 2019, the Orange County District Attorney (district attorney) filed an information charging Lopez with the following offenses: possession of a controlled substance with a firearm on April 30, 2015 ( Health & Saf. Code, § 11370.1, subd. (a), count one); carrying a loaded, stolen firearm in public on April 30, 2015 ( § 25850, subds. (a), (c)(2), count two); possession of a controlled substance for sale on May 13, 2015 ( Health & Saf. Code, § 11378, count three); and 4) possession of a controlled substance on November 8, 2016 ( Health & Saf. Code, § 11377, subd. (a), count four). Counts one through three were felonies and count four was a misdemeanor.

Lopez entered a not guilty plea. At the time, he was a lawful permanent resident of the United States and had been so since 1996.

On July 31, 2019, Lopez entered into a plea agreement with the prosecution. He pleaded guilty to the three felony counts, and the misdemeanor count was dismissed by the prosecutor. Lopez initialed and signed the eight-page Orange County "Advisement and Waiver of Rights for A Felony Guilty Plea" (capitalization omitted; the Tahl form).⁴

The Tahl form included the following statement: "Immigration consequences : I understand if I am not a citizen of the United States, the plea or my conviction for the offense(s) charged will have the consequence of deportation, exclusion from admission to the United States, and denial of naturalization pursuant to the laws of the United States."

Lopez's trial counsel signed the following statement, in relevant part: "I have explained to defendant each of the rights set forth on this form. I have discussed the charges and the facts with the defendant. I have studied the possible defenses to the charges and discussed those possible defenses with defendant. I have discussed the possible sentence ranges with defendant. I have advised defendant of immigration consequences and have complied with the requirements of California Penal Code § 1016.3(a)."

At the July 2019 hearing, the court held up the Tahl form and asked Lopez if he recognized it. The court also asked if Lopez had read the entire form, reviewed it with his attorney, understood it, and initialed and signed it. Lopez replied: "Yes, I do."

After reviewing Lopez's other rights, the court stated: "[I]f you're not a citizen of the United States, your plea will have immigration consequences, such as the denial of naturalization, the exclusion from admission into the United States, or even deportation." Lopez replied: "Yes."

The court suspended sentence and placed Lopez on probation for five years with various terms and conditions. One of the terms was 270 days in jail, but imposition of that time was stayed until October 2019.

In September 2019, Lopez was charged with two additional offenses in separate cases, including possession of a controlled substance ( Health & Saf. Code, § 11377, subd. (a) ), and receiving stolen property ( § 496, subd. (a) ).

In October 2019, Lopez was taken into custody by Immigration and Customs Enforcement (ICE). He was informed that he was at a high risk of deportation because one of his convictions involved drug sales. He was served with a notice that stated he was subject to removal based on his convictions for counts one and three, the two controlled substance felonies.

Section 1018 Motion

In January 2020, Lopez filed a motion pursuant to section 1018 to withdraw his plea on the grounds that he had not been properly advised of the immigration consequences of the plea agreement. His accompanying declaration stated that he had paid trial counsel $20,000 to represent him in the underlying case.

At the time he pleaded guilty, Lopez stated, "I did not know that criminal convictions in this case would carry any immigration consequences for me. This is because my defense attorney ... did not tell me how my pleas would guarantee my detention and deportation by [ICE]. Specifically, he did not explain that ICE could put me in an immigration detention facility and that just one conviction involving a controlled substance meant that I would have no way to get out on bond to keep working and stay with my family, or that I could be in custody for years while I fight my deportation. He also did not tell me that any conviction for a controlled substance makes [a permanent resident] deportable from the U.S.... He also did not give me any other options, including any that would avoid deportation."

Lopez also stated that he had told his attorney that around March 2018, he had renewed his permanent resident status and was afraid of deportation. He and his girlfriend, who was expecting a child at the time, "made it very clear that we did not want me to get deported."

The case, Lopez...