People v. Vivar

• Decision Date: 03 May 2021
• Docket Number: S260270
• Citation: 485 P.3d 425,278 Cal.Rptr.3d 2,11 Cal.5th 510
• Court: California Supreme Court
• Parties: The PEOPLE, Plaintiff and Respondent, v. Robert Landeros VIVAR, Defendant and Appellant.

11 Cal.5th 510

485 P.3d 425

278 Cal.Rptr.3d 2

The PEOPLE, Plaintiff and Respondent,

v.Robert Landeros VIVAR, Defendant and Appellant.

S260270

Supreme Court of California.

May 3, 2021

Munger, Tolles & Olson, Joseph D. Lee, Los Angeles, William Larsen and Dane P. Shikman, San Francisco, for Defendant and Appellant.

Gibson, Dunn & Crutcher, Kahn A. Scolnick, Daniel R. Adler and Jason S. Kim, Los Angeles, for Alyssa Bell, Reuven Cohen, Ingrid V. Eagly, Gilbert Garcetti, Meline Mkrtichian, Pasadena, Ronald J. Nessim, Los Angeles, Gabriel Pardo, Jennifer Resnik, Los Angeles, and David J. Sutton, Garden City, NY, as Amici Curiae on behalf of Defendant and Appellant.

Jennifer L. Pasquarella, Eva L. Bitran, Los Angeles; Vasudha Talla, New York, NY; and David Loy, Oxnard, for ACLU Foundation of Southern California, ACLU Foundation of Northern California and ACLU Foundation of San Diego and Imperial Counties as Amici Curiae on behalf of Defendant and Appellant.

O'Melveny & Myers and Catalina J. Vergara, Los Angeles, for The Immigrant Legal Resource Center, Public Counsel, University of California Irvine Law Immigrant Rights Clinic, University of California Irvine Law Criminal Justice Clinic, East Bay Community Law Center, Community Legal Services in East Palo Alto and University of California Davis Immigrant Rights Clinic as Amici Curiae on behalf of Defendant and Appellant.

Xavier Becerra, Attorney General, Michael J. Mongan, State Solicitor General, Lance E. Winters and Gerald A. Engler, Chief Assistant Attorneys General, Samuel P. Siegel, Deputy State Solicitor General, Julie L. Garland, Assistant Attorney General, Melissa Mandel and Adrian R. Contreras, Deputy Attorneys General, for Plaintiff and Respondent.

Opinion of the Court by Cuéllar, J.

The population of the United States includes millions of immigrants who arrived as children, attended schools, and found work here. (See Dep't of Homeland Security v. Regents of the Univ. of California (2020) ––– U.S. ––––, , 207 L.Ed.2d 353 (conc. & dis. opn. of Kavanaugh, J.).) Whether they become citizens or not, these immigrants’ ties to our country are evident not only in their work and schooling, but in how they've formed attachments and families of their own. In contrast, what ties they once had to their country of birth — from which they may lack even memories — often slip away. So when long-standing noncitizen residents of this country are accused of committing a crime, the most devastating consequence may not be a prison sentence, but their removal and exclusion from the United States. (See People v. Martinez (2013) 57 Cal.4th 555, 563, 160 Cal.Rptr.3d 37, 304 P.3d 529 ( Martinez ).) Because the prospect of deportation "is an integral part," and often even "the most important part," of a noncitizen defendant's calculus in responding to certain criminal charges ( Padilla v. Kentucky (2010) 559 U.S. 356, 364, 130 S.Ct. 1473, 176 L.Ed.2d 284 ( Padilla )), both the Legislature and the courts have sought to ensure these defendants receive clear and accurate advice about the impact of criminal convictions on their immigration status, along with effective remedies when such advice is deficient. (E.g., Pen. Code, §§ 1016.2 et seq., 1473.7 ; Lee v. United States (2017) ––– U.S. ––––, , 198 L.Ed.2d 476 ( Lee ); Padilla , at p. 360, 130 S.Ct. 1473 ; Martinez , at p. 559, 160 Cal.Rptr.3d 37, 304 P.3d 529 ; People v. Superior Court (Giron ) (1974) 11 Cal.3d 793, 798, 114 Cal.Rptr. 596, 523 P.2d 636.)

How these provisions apply to people like defendant Robert Landeros Vivar — who came to the United States at age six and lacked any meaningful ties to his country of birth — is the problem we address in this case. Vivar was arrested in 2002 for attempting to steal Sudafed

from a grocery store. Although he'd spent four decades living in this country as a lawful permanent resident, he lacked American citizenship. What he nonetheless possessed were robust ties to the United States. His mother, wife, children, and grandchildren were all citizens. His son, who was serving in the United States Air Force, was about to be deployed to the Middle East.

Unfortunately, as the Court of Appeal held and the Attorney General concedes, Vivar was never properly advised about the immigration consequences of his plea options. He didn't know, for example, that pleading guilty to violating Health and Safety Code section 11383, former subdivision (c), would necessarily subject him to mandatory deportation, while pleading guilty to violating Penal Code section 459 would not. Vivar took the former plea offer and rejected the latter. His mistake soon became manifest: within days, Vivar was subjected to an immigration hold, and a few months later he was deported.

After Vivar made his way back into the United States by crossing the border without inspection, he sought expungement of his drug conviction. He succeeded and then tried to secure further relief by way of a petition for writ of error coram nobis . Neither had any effect on his immigration status, however. He was again deported in 2013.

In 2018, Vivar filed a motion to vacate his 2002 conviction under a recently enacted statute offering relief to those who had already served their sentences. ( Pen. Code, § 1473.7 ( section 1473.7 ).) A successful section 1473.7 motion requires a showing, by a preponderance of the evidence, of a prejudicial error that affected the defendant's ability to meaningfully understand the actual or potential immigration consequences of a plea. (Id ., subds. (a)(1), (e)(1).) The Court of Appeal concluded that while counsel had failed to offer Vivar competent advice about immigration consequences in 2002, Vivar failed to demonstrate any prejudice from the error. ( People v. Vivar (2019) 43 Cal.App.5th 216, 225–231, 256 Cal.Rptr.3d 443 ( Vivar ).) Based on an independent review of the record, we disagree. Vivar has demonstrated a reasonable probability that if he had been properly advised by counsel about the immigration consequences of his plea, he wouldn't have pleaded guilty to an offense subjecting him to mandatory deportation. We therefore reverse the judgment of the Court of Appeal.

I.

In 1962, when Vivar was six years old, he and his family immigrated as lawful permanent residents from Mexico to the United States. He now has two children and six grandchildren. All are American citizens and all reside here in California, along with Vivar's two siblings.

A.

Upon arrival, Vivar quickly adapted to life in the United States. Since early in his youth, his primary language has been English. In high school, he helped establish a Reserve Officers’ Training Corps program and hoped to serve his country in Vietnam like his older brother, Martin, but the war ended a few months after he graduated. Vivar instead began working at an airline and was soon promoted to a management position that required him to work a night shift at the airport and a day shift in the office. Limited to only a few hours of sleep a night, he turned to amphetamines to stay awake.

Vivar first entered — and successfully completed — a residential drug treatment program in the late 1990s. Unfortunately, he relapsed in 2001. The conviction under review arose from his methamphetamine addiction. In February 2002, he was caught trying to steal 12 boxes of Sudafed

from a grocery store in Corona. Vivar told the store's loss prevention officer — and later, the police — that he planned to provide the Sudafed to someone who would manufacture methamphetamine and, in turn, share some of the finished product with him. The Riverside County District Attorney charged Vivar with possessing methamphetamine precursors with the intent to manufacture the drug ( Health & Saf. Code, § 11383, former subd. (c); see id ., § 11383.5, subd. (c)) as well as petty theft with a prior conviction ( Pen. Code, § 666 ).

B.

The District Attorney offered Vivar several plea options. What happened next is in some dispute. Vivar recalls his attorney conveying an offer of an unspecified felony plea with a three-year sentence. He rejected that offer because of his mistaken belief — never corrected by his appointed attorney — that all felony convictions resulted in deportation and that the opposite was true for misdemeanors. (Cf. U.S. v. Graham (3d Cir. 1999) 169 F.3d 787, 792 [some misdemeanors can qualify as an aggravated felony under federal immigration law].) Based on this mistake, he asked counsel to secure a plea deal that could eventually be reduced to a misdemeanor. He also informed her he had a drug problem and wanted treatment, even if not required by the plea offer.

Following those discussions, counsel relayed an offer for Vivar to plead guilty to burglary ( Pen. Code, § 459 ) with a low-term prison sentence. With good-conduct credits, he could've served just a year in prison and avoided mandatory deportation. (See Pen. Code, §§ 461, former subd. (a), 2933, subd. (a).) According to Vivar, though, counsel never advised him about the immigration-related benefits of this plea, nor did she correct his misimpression about the respective immigration consequences of felonies and misdemeanors. Unaware the burglary plea offer could be deportation-neutral, he rejected it. He pleaded guilty instead to possessing methamphetamine precursors with intent to manufacture in exchange for an agreed-on 365-day county jail sentence — with a stipulation that the court would recommend admission to a residential drug treatment facility — and that a low-term, two-year prison sentence would be imposed only if he failed to complete the treatment program. Vivar mistakenly believed this disposition would allow him both to get treatment and, once the conviction was reduced to a misdemeanor, avoid deportation.¹

Before entering his plea in March 2002, Vivar executed a form that required him to initial 17 separate paragraphs acknowledging that he understood the potential consequences of his plea. One paragraph stated, "If I am not a citizen of...