People v. Manzanilla

80 Cal.App.5th 891

295 Cal.Rptr.3d 836

The PEOPLE, Plaintiff and Respondent,

v.Carlos Renan MANZANILLA, Defendant and Appellant.

B313557

Court of Appeal, Second District, Division 8, California.

Filed June 13, 2022

As Modified July 22, 2022

Immigrant Defenders Law Center, Caitlin E. Anderson and Hannah K. Comstock, Los Angeles, for Defendant and Appellant.

Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Senior Assistant Attorney General, Steven D. Matthews and Stephanie A. Miyoshi, Deputy Attorneys General, for Plaintiff and Respondent.

HARUTUNIAN, J.^*

Carlos Renan Manzanilla moved to vacate a 2014 felony conviction under California Penal Code section 273.5,¹ which, with his sentence of 365 days’ county jail, is an aggravated felony under immigration law and subjects him to mandatory deportation. Manzanilla claimed three legal errors: That defense counsel failed to advise him that his nolo contendere plea meant mandatory deportation; that defense counsel failed to defend against the immigration consequences of his charge by seeking an immigration-safe plea, such as a one-day reduction in his sentence; and that he did not understand that he faced mandatory deportation when he entered his plea.

The trial court denied Manzanilla's motion on all three claims of legal error. It also rejected the parties’ agreement to allow Manzanilla to vacate his conviction and enter an immigration-safe plea to a misdemeanor. Manzanilla appealed.

We reverse on all grounds. Manzanilla's defense counsel did not specifically advise him that he would be subject to mandatory deportation. Defense counsel also failed to adequately defend because she did not consider the immigration consequences in plea bargaining, as evidenced by, among other things, her failure to counter the prosecution's initial offer of 365 days’ jail with 364 days’ jail, which would have prevented Manzanilla from having an aggravated felony conviction. Finally, there is contemporaneous, objective evidence that Manzanilla did not subjectively understand that his plea would subject him to mandatory deportation. Manzanilla has shown prejudice from these errors by a preponderance of the evidence, including under the factors emphasized by our Supreme Court's recent decision in People v. Vivar (2021) 11 Cal.5th 510, 278 Cal.Rptr.3d 2, 485 P.3d 425 ( Vivar ).

We reverse and remand with instructions to grant the motion to vacate.

FACTUAL AND PROCEDURAL BACKGROUND

I. 2014 Felony Conviction

On August 19, 2014, the People filled a felony complaint against Manzanilla, charging him with one count of injuring a cohabitant resulting in a traumatic condition under section 273.5, subdivision (a), for having injured his girlfriend, Kellie Warner.

According to the probation officer's report, while inebriated, Manzanilla became angry with Warner for allegedly driving his car without his consent. Manzanilla choked Warner, causing her to lose consciousness. When she woke up, Manzanilla hit her on her face and upper torso. Warner escaped and called the police. When the police arrived, they observed injuries on Warner. She was treated by paramedics at the scene after she refused to go to the hospital. Manzanilla was arrested.

In a subsequent interview with police, Warner said that during this incident, Manzanilla also pulled a knife on her, cut her forehead, threated to kill her, and left her on the bathroom floor soaked in her own urine. Warner reported that Manzanilla had previously stabbed her, requiring surgery, and had been abusive "for a long time."

After being represented by a different attorney at arraignment, Manzanilla was represented by a new public defender (counsel). Counsel's defense file from 2014 has three entries for Manzanilla: Her evaluation of his case on August 26, a meeting with him on August 27, and plea negotiations and a plea hearing on September 3.

As the trial court summarized, counsel's pre-plea notes "had nothing to do with immigration." The August 26 entry reflects the section 273.5, subdivision (a) charge, possible unalleged charges, and ways to impeach Warner. The August 27 entry records counsel's first meeting with Manzanilla, where counsel explained her role, what Manzanilla should expect at the preliminary hearing, her defense plan, and possible unalleged charges. In her subsequent recollection of this meeting, counsel did not recall learning Manzanilla was a legal permanent resident nor discussing anything about the immigration consequences of his charge or potential charges.² Counsel's third meeting with Manzanilla took place on September 3 at the preliminary hearing court's "lock up." This was the only day that counsel engaged in plea negotiations, and she does not remember raising Manzanilla's immigration status during them.

The People offered Manzanilla a plea to a felony section 273.5, subdivision (a) conviction with 365 days’ jail, five years’ probation, domestic violence classes, and a protective order. Manzanilla initially rejected this offer, telling counsel that he wanted less jail time and release on his own recognizance before sentencing. Counsel countered with the same terms, except for requesting jail time of six and then nine months. The People denied both counteroffers. Manzanilla then accepted the initial offer of 365 days’ jail, along with the other terms.

Counsel's notes from the September 3 plea negotiations reflect the prosecution's offer, her counteroffers and reasons for them, and then the prosecution's denial of those offers and Manzanilla's acceptance of the initial offer. Then the notes state that counsel advised Manzanilla on the criminal rights he was waiving by taking the plea and his acceptance of those waivers. Finally, counsel wrote: "Adv. Imm. Consequences. [Defendant] LPR. Adv. Plea will [change]³ his status. Advised [Defendant] he will have an immig. hrg." Counsel's notes then say that Manzanilla "understands" and "says as long as hearing is in U.S., he's fine." Counsel's subsequently memory is that she told him "there would be a hearing and he would lose his LPR status. Mr. Manzanilla said that as long as the hearing is in the U.S., he's fine. His focus at that hearing date was to get out of jail as quickly as possible." Counsel later recalled that she learned Manzanilla was a legal permanent resident "when Mr. Manzanilla told me as we went over the immigration consequences. I documented that in his file." Manzanilla recalls counsel asking about his immigration status in the order reflected in her notes: After he told her he would take the plea offer.

During the plea colloquy on September 3, the preliminary hearing court asked Manzanilla whether he understood his rights and informed him of the consequences of his plea, but did not mention immigration consequences. The court told Manzanilla that his plea was to a "felony conviction, which means you cannot own or possess a firearm for the remainder of your life. If you violate probation, you're looking at up to four years in state prison." The court informed Manzanilla that if he went to prison, then he could be on parole for up to three years. It also advised Manzanilla that he might owe fines between $300 and $400, and that his plea was to a "priorable offense," so it could be used as an enhancement to any subsequent criminal convictions. Manzanilla then waived his rights on the record. In Manzanilla's Felony Advisement of Rights, Waiver, and Plea Form, he initialed next to the words, "Immigration Consequences – I understand that if I am not a citizen of the United States, I must expect my plea of guilty or no contest will result in my deportation ...."

The court ended the preliminary hearing by setting sentencing for September 24, 2017.

II. Initial Attempt to Revoke Plea in September 2014

Shortly after entering his plea on September 3, Manzanilla sent the court a letter requesting to retract his plea. The letter is not in the record, but at the September 24, 2014 sentencing hearing the court stated that it had received Manzanilla's letter. The court said that it understood that Manzanilla wanted to withdraw his plea because he wanted a misdemeanor and he "wanted to withdraw his plea based on the fact that he might be deported." Counsel's notes from the hearing also state that Manzanilla "says in letter he wants to [withdraw] plea [because] this conviction will affect his LPR status [and] wants misd[emeanor.]" Counsel's notes further state that she had advised Manzanilla of the "imm[igration] conseq[uences] at the last court date and we had in depth discussion re:[Defendant's] LPR status." Counsel's notes say that she asked Manzanilla if the reason he knew about the immigration consequences of his plea was because she told him, and he nodded yes.

The sentencing court warned Manzanilla that if he were successful in withdrawing his plea, the prosecution "might take a more aggressive approach." The court also reminded Manzanilla that he signed a felony advisement form that informed him of the immigration consequences of his plea. The court then engaged in the following exchange with Manzanilla:

"Understanding all of that do you still wish to go forward with this deal?" Manzanilla replied, "Yes. Does that mean automatically I'm not a permanent resident anymore?" The court stated, "It means you will be deported, denied naturalization and excluded from admission. Yes." Manzanilla replied, "So I will be deported?" The court said, "Yes. So do you still want to move forward with the deal?" Manzanilla replied, "If I'm going to be deported, no." The court responded, "I want to know, do you want to go forward with the deal?" and Manzanilla said, "No." The court asked again, "And you want to withdraw it?" and Manzanilla said, "Yes." And the court then clarified, "Based on the immigration consequences?" to which Manzanilla replied, "Yes."

The court then turned to counsel and stated that Manzanilla's motion should "technically" be heard by...