People v. Rodriguez
| Decision Date | 30 August 2021 |
| Docket Number | A159679 |
| Citation | 68 Cal.App.5th 301,283 Cal.Rptr.3d 413 |
| Parties | The PEOPLE, Plaintiff and Respondent, v. Vanessa S. RODRIGUEZ, Defendant and Appellant. |
| Court | California Court of Appeals Court of Appeals |
L. Richard Braucher, Richmond, under appointment by the Court of Appeal, for Defendant and Appellant.
Xavier Becerra and Rob Bonta, Attorneys General, Lance E. Winters, Chief Assistant Attorney General, Jeffrey M. Laurence, Assistant Attorney General, Eric D. Share and Katie L. Stowe, Deputy Attorneys General, for Plaintiff and Respondent.
Vanessa S. Rodriguez appeals from the trial court's denial of her 2020 motion under Penal Code section 1473.71 to vacate her 2005 conviction for felony possession for sale of a controlled substance, methamphetamine, in violation of Health and Safety Code section 11378.2 Section 1473.7 permits individuals who are no longer in custody to move to vacate a conviction or sentence on the ground it is "legally invalid due to prejudicial error damaging the moving party's ability to meaningfully understand, defend against, or knowingly accept the actual or potential adverse immigration consequences of" the plea. ( § 1473.7, subd. (a)(1).) At the time Rodriguez filed her motion, she had been detained by federal authorities and was facing mandatory deportation to her country of birth, Mexico, because of that conviction. She has since been deported.3
In 2005, Rodriguez pleaded no contest to the charge of possession for sale in violation of Health and Safety Code section 11378 () as part of a negotiated disposition of a multi-count case against her and was placed on probation. She brought her motion soon after she was detained by federal authorities. She submitted a declaration of her own and a declaration of the supervising attorney of the law office that represented her in 2005, stating that her possession for sale conviction was legally invalid because in 2005 a prejudicial error damaged her ability to meaningfully understand the actual or potential adverse immigration consequences of her no contest plea. The declarations further stated that, but for this error, it was reasonably probable she would not have entered the plea. She stated that she had come to the United States when she was an infant and had lived in this country ever since, and that her family, including her two young children, her parents and her five sisters, all live in the United States. The trial court rejected her motion on the grounds that she appeared to be on probation in another case, which it held would bar her motion under the terms of section 1473.7, and that in any event she failed to show there was a reasonable probability that she would not have entered her no contest plea if she had been fully informed of its adverse immigration consequences.
We review this case under the guidance recently provided by our Supreme Court in People v. Vivar (2021) 11 Cal.5th 510, 278 Cal.Rptr.3d 2, 485 P.3d 425 ( Vivar ), which directs appellate courts to independently review lower court rulings on section 1473.7 motions that are based entirely on documentary evidence. We conclude the trial court erred in rejecting Rodriguez's motion. Rodriguez was no longer in custody in the underlying case, and her probation status in a wholly separate case did not bar her motion. Further, she showed it was reasonably probable that she would not have entered her no contest plea if she had known its adverse immigration consequences. That she was not advised of these consequences by her attorney and was not aware of them is corroborated by the supervising attorney's declaration based on his review of Rodriguez's 2005 case file. That this failure to advise was prejudicial is apparent because of Rodriguez's undisputed, deep, lifelong connections to this country, the dire consequences of her plea and the likelihood that she would have fought harder to avoid these consequences if she had known of them. It is at least as probable that she would have not entered her no contest plea as that she would have. We therefore reverse.
Rodriguez filed her motion in Napa County Superior Court in January 2020 (2020 motion) with three supporting declarations. As we detail further in the Discussion section, Rodriguez was 22 years old in 2005 and had previously committed a few relatively minor offenses that did not involve drugs. In her 2020 declaration, she stated that her life and her family had been entirely in the United States since she was a year old; that she was not informed of, and did not know, the actual or potential adverse immigration consequences of her 2005 no contest plea to the possession for sale charge and that she would not have entered it if she had known them. A supervising attorney of the law office that represented Rodriguez in 2005 declared that Rodriguez's 2005 case file contained extensive notes by her attorney but did not indicate her attorney ever looked into, or advised Rodriguez about, the possible immigration consequences of Rodriguez's plea. Rodriguez's 2020 attorney declared that the adverse immigration consequences of her possession for sale conviction, which, as an "aggravated felony" under federal law, rendered her deportable from, and unable to gain readmission to, the United States.
The People opposed Rodriguez's motion, contending she did not establish that prejudicial error damaged her ability to understand the adverse immigration consequences of her no contest plea for multiple reasons.
After reviewing these briefs and hearing argument, the trial court denied Rodriguez's motion. The court ruled that Rodriguez's existing formal probation status in an unrelated case made her ineligible to move under section 1473.7. The court also concluded that Rodriguez did not show prejudicial error, since she failed to prove ineffective assistance of counsel and likely would have pleaded no contest no matter what her knowledge in light of the overwhelming evidence of her guilt.
Rodriguez subsequently filed a timely notice of appeal.5
The Legislature enacted section 1473.7 in 2016. We briefly lay out the historical circumstances giving rise to its enactment.
For many years, adverse immigration consequences of guilty pleas were considered indirect or collateral matters and, thus, trial courts were not required to advise defendants of them. ( People v. Mejia (2019) 36 Cal.App.5th 859, 866-867, 248 Cal.Rptr.3d 819 ( Mejia ).) In 1977, the Legislature enacted section 1016.5 (added by Stats. 1977, ch. 1088, § 1 ), which requires trial courts to advise criminal defendants, "If you are not a citizen, you are hereby advised that conviction of the offense for which you have been charged 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." ( § 1016.5, subd. (a).) Defense attorneys, however, were still under no particular duty to discuss these potential adverse immigration consequences with their clients, although an affirmative misrepresentation about them could constitute ineffective assistance. ( Mejia , at p. 867, 248 Cal.Rptr.3d 819.) Thus, unless a defendant actually inquired about immigration consequences, "counsel could generally rely on the court's immigration advisement." ( Ibid . )
In 2010, the United States Supreme Court issued Padilla v. Kentucky (2010) 559 U.S. 356, 130 S.Ct. 1473, 176 L.Ed.2d 284 ( Padilla ). It held that an attorney is constitutionally ineffective under the Sixth Amendment if he or she fails to advise a client-defendant of the actual or potential adverse immigration consequences of pleading guilty to a criminal charge. In 2015, the California Legislature enacted section 1016.3, which essentially codified the holding of Padilla by requiring defense counsel to "provide accurate and affirmative advice about the immigration consequences of a proposed disposition" and, when consistent with the defendant's informed consent and with professional standards, "defend against those consequences." (2015 Stats., ch. 705, § 2, eff. Jan. 1, 2016.)
In the meanwhile, however, the Supreme Court, in Chaidez v. United States (2013) 568 U.S. 342, 133 S.Ct. 1103, 185 L.Ed.2d 149, had held Padilla is not retroactive. Thus, Padilla does not provide grounds for vacating a conviction that was final prior to 2010 by a defendant who was not properly advised by counsel of the actual or potential adverse immigration consequences of a guilty or no contest plea.
In 2016, the California Legislature adopted section 1473.7, effective January 1, 2017. Section 1473.7, subdivision (a) as originally written "creat[ed] a mechanism to allow individuals who are no longer imprisoned to move to vacate a conviction or sentence on the ground that ‘[t]he conviction or sentence is legally invalid due to prejudicial error damaging the moving party's ability to meaningfully understand, defend against, or knowingly accept the actual or potential adverse immigration consequences of a plea of guilty or nolo contendere.’ " ( People v. Rodriguez (2021) 60 Cal.App.5th 995, 1002, 275 Cal.Rptr.3d 258 ( Rodriguez ), quoting former section 1473.7, subd. (a)(1) ; Stats. 2016, ch. 739, § 1.) Former section 1473.7, subdivision (e)(1) provided (and continues to provide), "The court shall grant the motion to vacate the conviction or sentence if the moving party establishes, by a preponderance of the evidence, the existence of any of the grounds for relief specified in subdivision (a)." (Stats. 2016, ch. 739, § 1 ; § 1473.7, subd. (e)(1).) Further, "If the court grants the motion to vacate a conviction or sentence obtained through a plea of guilty or nolo contendere, the court shall allow the moving party to withdraw the plea." (Stats. 2016, ch. 739, § 1 ; §...
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