In re Resendiz

105 Cal.Rptr.2d 431

25 Cal.4th 230

19 P.3d 1171

In re Hugo Rangel RESENDIZ, on Habeas Corpus.

No. S078879.

Supreme Court of California.

April 2, 2001.

Rehearing Denied June 13, 2001.

Cynthia M. Sorman, San Diego, and Michelle C. Rogers, under appointments by the Supreme Court; and Richard L. Waldron, Anaheim Hills, for Petitioner Hugo Rangel Resendiz.

Law Offices of Norton Tooby and Norton Tooby, Oakland, for California Attorneys for Criminal Justice, California Rural Legal Assistance Foundation, Central American Resource Center, Coalition for Humane Immigrant Rights and Immigrant Legal Resource Center as Amici Curiae on behalf of Petitioner Hugo Rangel Resendiz.

John Philipsborn, San Francisco, for California Attorneys for Criminal Justice as Amicus Curiae on behalf of Petitioner Hugo Rangel Resendiz.

Daniel E. Lungren and Bill Lockyer, Attorneys General, George Williamson and David P. Druliner, Chief Assistant Attorneys General, Gary W. Schons, Assistant Attorney General, Esteban Hernandez, Janelle M. Boustany, Raquel M. Gonzales and Garrett Beaumont, Deputy Attorneys General, for Respondent State of California.

Thomas J. Orloff, District Attorney (Alameda), William M. Baldwin, Assistant District Attorney, and Jeff H. Rubin, Deputy District Attorney, for Appellate Committee of the California District Attorney's Association as Amicus Curiae on behalf of Respondent State of California.

WERDEGAR, J.

The question presented is whether petitioner, in deciding to plead guilty to certain offenses for which he now faces deportation, received ineffective assistance of counsel in violation of the Sixth Amendment to the United States Constitution or article I, section 15 of the California Constitution. The Court of Appeal answered in the affirmative. The Attorney General urges that we adopt a categorical rule barring ineffective assistance claims based on advice concerning the immigration consequences of a guilty plea. As explained below, we conclude that affirmative misadvice regarding immigration consequences may, depending on the circumstances of the particular case, constitute ineffective assistance of counsel. Nevertheless, as we agree with the Attorney General that petitioner in this case failed to carry his burden of demonstrating prejudice, we reverse the judgment of the Court of Appeal.

BACKGROUND

The relevant facts are largely undisputed. Petitioner Hugo Rangel Resendiz is a lawful permanent resident of the United States. He has lived and worked in this country for almost 25 years, most of his adult life. Petitioner has two children who are United States citizens.

In June of 1997, assisted by trial counsel Leonard Basinger, petitioner pled guilty in Orange County Superior Court to possession for sale of cocaine and marijuana (Health & Saf.Code, §§ 11351, 11359) and possession of a usable amount of methamphetamine (id., § 11377, subd. (a)). On Basinger's advice, petitioner also initialed and signed a printed plea form stating, inter alia, "I understand that if I am not a citizen of the United States the conviction for the offense charged may have the consequence of deportation, exclusion from admission to the United States, or denial of naturalization pursuant to the laws of the United States." The signed form contains a paragraph, also initialed by petitioner, stating that the signer has "read, understood, and personally initialed each item above and discussed them with my attorney...." At the plea hearing, petitioner was one of six defendants read their rights as a group, thusly: "If you are not a naturalized citizen of the United States, your conviction could result in your deportation or denial of naturalization at some later point in time."

Imposition of sentence was suspended, and petitioner was placed on felony probation for three years on conditions including that he serve 180 days in jail. After petitioner served his jail sentence, he was taken into custody by the United States Immigration and Naturalization Service (INS) and charged with being subject to removal from the United States under section 237(a)(2)(B)© (8 U.S.C. § 1227(a)(2)(B)(i) [conviction of controlled substance offense other than possession of marijuana for personal use]) and section 237(a)(2)(A)(iii) (8 U.S.C. § 1227(a)(2)(A)(iii) [conviction of "aggravated felony"]) of the Immigration and Nationality Act (INA) (8 U.S.C. § 1101 et seq.). Immigration authorities placed petitioner in administrative detention at the Mira Loma facility in Lancaster, California.

Petitioner retained new counsel and filed in the superior court a motion to vacate the judgment convicting him, asking the court to permit him to withdraw the guilty plea on which it was based. At the hearing on his motion, petitioner testified that when he was faced with the question of whether to plead guilty he held a "green card" (i.e., a certificate of permanent residency) and was, therefore, a lawful permanent resident of the United States. Petitioner discussed his permanent residency status with his trial counsel, Basinger. Petitioner told counsel that it was concern about keeping his green card that had motivated him to hire a lawyer. According to petitioner, counsel told him that, if he pled guilty, he would have "no problems with immigration" except that he would not be able to become a United States citizen. Petitioner further testified that he did not remember the court saying anything to him on these topics at the time he entered his plea. But after viewing the plea form bearing his signature and initials, petitioner agreed he had read and spoken with his lawyer about the form. The form contains a general advisement about possible immigration consequences of a conviction, couched roughly in the language courts are mandated to administer on the record by Penal Code section 1016.5, subdivision (a) (hereafter section 1016.5 and section 1016.5(a)).¹ After reading this printed advisement, petitioner stated he understood its use of the word "may" to mean "like it could happen." Petitioner also affirmed on cross-examination that he had answered "yes" when the judge asked him at the plea proceeding if he had signed the plea form and talked with his lawyer about it.

Finally, petitioner testified that, at the time of the plea, he had told his trial attorney that he was innocent of the drug charges against him. According to petitioner, he nevertheless pled guilty after counsel told him that, if he did not, he would be sentenced to five years in jail and that there were "a lot of innocent people going to jail." If he had known he would in fact be deported as a consequence, he would not have pled guilty and, if permitted to withdraw his guilty plea, he was willing to face the possibility of being retried and sent to prison for the maximum possible period, five years and four months.

In ruling on petitioner's motion, the court stated, "I don't think" that "all people are being deported for possession for sale or sale of narcotics." The court opined that such concerns (i.e., concerns, apparently, about the relative certainty of deportation as a consequence of the plea) were, in any event, not dispositive, but, rather, that the important consideration was "whether or not Mr. Resendiz knew that if he entered the plea that it [i.e., deportation] could happen." The court also stated it did not credit petitioner's testimony "when he says the Court didn't advise him at the time he entered the plea of his rights or the [immigration] consequences," noting petitioner signed and initialed the written plea form after it had been interpreted in Spanish, petitioner's native language. The court denied petitioner's motion to vacate the judgment.

Petitioner thereupon filed a petition for writ of habeas corpus in the Court of Appeal.² The Court of Appeal issued an order to show cause returnable before the superior court. (Pen.Code, § 1508, subd. (b).)

In the return, the district attorney acknowledged petitioner told counsel he wanted to protect his green card status, but denied that petitioner received ineffective assistance of counsel. The district attorney also acknowledged that petitioner's trial counsel does not remember discussing the printed plea form with petitioner. Indeed, the district attorney submitted the declaration of counsel, Basinger, stating he has "no independent specific recollection" of any such interaction. Basinger's declaration also states it is his "custom and habit" to review plea forms carefully with his clients and to explain to noncitizen clients "that a guilty plea is likely to effect [sic] the client's ability to become a citizen. I also tell these clients that I make the assumption that the federal government is always wanting to deport non-citizen felons. I explain to them they should assume the government has a policy to deport people in their position." Finally, Basinger's declaration states that he has been an attorney, specializing in criminal defense, for 18 years.

Petitioner in his traverse reiterated his request to withdraw his guilty plea, reasserting both his innocence of the drug charges and his ignorance when pleading guilty that deportation was a nearly certain consequence. Petitioner argued that the police reports demonstrated he had "a triable case" on the merits of the drug charges, and he asserted that, had he known the immigration consequences a guilty plea would have, he would have exercised his right to proceed to trial.

Petitioner also argued that for his trial counsel to have provided adequate advice about the likely immigration consequences of his guilty plea would not have been unduly burdensome. To his traverse, petitioner appended the INS document, a "Notice to Appear," that charges him with being subject to removal from the United States on two grounds: for having been convicted of an offense involving a controlled substance, and for having been convicted of an "aggravated felony."

Before ruling on the order to show...