Opinion
[REVIEW GRANTED BY CAL. SUPREME COURT]
[Reprinted without change in the January 2001 Review Granted Opinions Pamphlet to permit tracking pending review and disposition by the Supreme Court.]
Superior Court of Orange County, No. 97CF1436, Steven L. Perk, Judge. COUNSEL
Richard L. Waldron for Petitioner.
Daniel E. Lungren and Bill Lockyer, Attorneys General, George Williamson, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Raquel M. Gonzalez and Garrett Beaumont, Deputy Attorneys General, for Respondent.
OPINION
CROSBY, J.
Petitioner Hugo Rangel Resendiz pleaded guilty to felony drug offenses and served a six-month jail sentence. As a direct consequence he is now scheduled to be deported and permanently barred from reentering the United States. Because he received ineffective assistance of counsel, we direct the trial court to set aside the pleas.
Resendiz orally acknowledged understanding certain rights and consequences of his guilty pleas, including the fact that if he were not a citizen the "conviction could result in [his] deportation or denial of naturalization at some later point in time." (Italics added.) He also executed a plea waiver form which advised him that "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." (Italics added.)
, subdivision (a): "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." (Italics added.) Although we do not resolve this case on the obsolete use of the subjunctive and conditional tenses in the written and oral admonishments petitioner received in the superior court, there seems little doubt that future cases will be so affected if the changes in federal law are not reflected in the warnings given in the trial courts. (See, e.g., Decker v. Department of Motor Vehicles (1972) 6 Cal.3d 903[101 Cal.Rptr. 387, 495 P.2d 1307] [particularly footnote 2 at page 906].) We also suggest, in light of the change in federal law, that the Legislature reconsider the following language from Penal Code section 1016.5
Resendiz was released to the custody of the Immigration and Naturalization Service (INS) after serving his jail sentence. He retained new counsel, posted a bond pending deportation, and made an unsuccessful motion to withdraw his pleas in superior court. A petition for habeascorpus relief followed in this court, and we issued an order to show cause returnable in the trial court. The judge denied relief, and the instant petition followed. We issued a second order to show cause and received a formal return and traverse.
Declarations from Resendiz and trial counsel provide the evidentiary landscape. Petitioner is a citizen of Mexico. He is a legal resident who has lived in this country for nearly 25 years, and he has 2 dependent minor children who are United States citizens. Resendiz claims he first learned of the immigration consequences of his pleas only after serving his sentence when he was released to the INS. He purports to have only a vague memory of immigration concerns being mentioned in the court proceedings. He also insists he told his attorney he wanted to protect his green card status and the attorney told him it was not a problem. Resendiz declares he is innocent and that if he had been aware the pleas would result in deportation, he would not have pleaded guilty. He wishes to vacate the pleas and exercise his right to a jury trial.
Trial counsel, Leonard Basinger, admits he has no independent recollection of the plea proceedings. He declares, however, that it is his "custom and habit ... to carefully go over each item in the Tahl form with [his] clients. With respect to clients who are non-citizens, it is [his] custom and habit to explain that a guilty plea is likely to effect [sic] the client's ability to become a citizen. [He also tells] these clients that [he makes] the assumption that the federal government is always wanting to deport non-citizen felons. [He explains] to them they should assume the government has a policy to deport people in their position ...."
Basinger begins his declaration as follows: "I am an attorney licensed to practice in the State of California. I have been an attorney for 18 years and have specialize [sic] in criminal defense for the past 18 years ...." He fails to mention, though, that he was convicted of a felony involving theft in a scheme that victimized his clients and law partners and was disbarred for a substantial part of "the past 18 years." (See In re Basinger (1988) 45 Cal.3d 1348 [249 Cal.Rptr. 110, 756 P.2d 833].) In other words, part of the time Basinger was "specializing" involved the study of criminal law from the wrong side of prison bars. One would think an attorney with this history would have at least learned to take some care with documents sworn under penalty of perjury—then again, maybe not.
In addition to Basinger's declaration, the parties stipulated that in lieu of an evidentiary hearing he "would testify that even though he knew Petitioner, his client, was an immigrant, he did not independently research or investigate the immigration consequences that would result from Petitioner entering a guilty plea. Mr. Basinger also did not contact an immigration attorney to seek advice about the immigration laws of the United States. Immigration laws include the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 and the Antiterrorism and Effective Death Penalty Act of 1996."
The trial judge who took the pleas refused the motion to withdraw them and also denied Resendiz's request for habeas relief based on the claim he was denied the effective assistance of counsel. The judge did not identify any deficiencies in Basinger's representation and announced he did "not believe it is insufficient and that it falls below an objective standard of reasonableness for Defense Counsel in this County, but even more important than that even suppose Mr. Basinger's conduct did fall below that, [he didn't] believe anything he could have done would have resulted or that it is reasonably probable that anything additional he could have done would have resulted in a result that is more favorable to Mr. Resendiz in light of the charges against him and the evidence as [he knew] it to be in this case." The court's conclusions reflect a misunderstanding of the controlling test for evaluating counsel's performance.
Resendiz had to demonstrate his lawyer's efforts were deficient on an objective standard of reasonableness and it is reasonably probable that competent representation would have yielded a better result. (Strickland v. Washington (1984) 466 U.S. 668, 687-688, 694 [104 S.Ct. 2052, 2064-2065, 2068, 80 L.Ed.2d 674].) Hill v. Lockhart (1985) 474 U.S. 52[106 S.Ct. 366, 88 L.Ed.2d 203] applied the two-part Strickland test to similar facts. The court explained, "In the context of guilty pleas, the first half of the Strickland v. Washington test is nothing more than a restatement of the standard of attorney competence already set forth in Tollett v. Henderson [(1973) 411 U.S. 258 [93 S.Ct. 1602, 36 L.Ed.2d 235]] and McMann v. Richardson [(1970) 397 U.S.759 [90 S.Ct. 1441, 25 L.Ed.2d 763]]. The second, or 'prejudice,' requirement, on the other hand, focuses on whether counsel's constitutionally ineffective performance affected the outcome of the plea process. In other words, in order to satisfy the 'prejudice' requirement, the defendant must show that there is a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial." (Hill v. Lockhart, supra, 474 U.S. at pp. 58-59 [106 S.Ct. at p. 370].)
Hill's request for relief fell on deaf ears because he never alleged that, but for counsel's incorrect advice, he would have pleaded not guilty and gone to trial. Resendiz, however, specifically avers that had counsel informed him he would be deported as a consequence of the guilty pleas, he would not have changed his plea to guilty and would have elected to be tried. The court's evaluation that his chances at trial were slim was beside the point. The prejudice was the loss of the trial itself, notwithstanding the probability, or even the "certainty," of conviction. Resendiz carried his burden of proof as to prejudice on the second part of Strickland test.
We therefore focus on the first: Did Basinger's representation fall below an objective standard of reasonableness? We think so.
It is clear the consequences of petitioner's guilty pleas dramatically changed with the enactment of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 and the Antiterrorism and Effective Death Penalty Act of 1996. The legislative changes mandate deportation and permanent exclusion for the drug offenses Resendiz admitted, although the Tahl form he executed failed to adequately warn him of this. (See, e.g., section 240A(b) of the new act (8 U.S.C. section 1182(a) (2) (A)).) Deportation was only a possibility, not a requirement before those legislative changes. Basinger was obviously unaware of them and, per counsel's stipulation, admittedly did nothing to research the immigration consequences, although he knew Resendiz was an alien.
The Attorney General argues Basinger's representation was more than adequate because his custom and habit included advising drug and narcotics defendants they should assume deportation would follow conviction. We think Basinger's characterization of his own custom and habit is unpersuasive (see, e.g., fn. 2, ante). And he reports no independent recollection of what, if anything, he told Resendiz concerning the consequences of his guilty pleas. There is virtually nothing then to rebut petitioner's memory of an entirely inadequate advisement. Resendiz was concerned about his green card status; Basinger told him it was not a problem. That directly contradicts the claimed custom and habit of telling clients they should expect to be deported. Had Basinger followed that custom and habit here, Resendiz would not have been surprised when the INS ordered his deportation. Instead, he quickly hired new counsel and sought to withdraw his pleas.
People v. Soriano (1987) 194 Cal.App.3d 1470[240 Cal.Rptr. 328, 65 A.L.R.4th 705] is instructive. There, too, defense counsel failed to research the immigration consequences of a guilty plea. Soriano was warned by counsel and the court that he could be deported. But his attorney was completely unaware of the possibility of avoiding deportation by varying the terms of the plea bargain. Her failure to properly research the law and adequately advise Soriano was deficient under the Strickland test. (Id. at p. 1482.)
The court noted Soriano "received only a pro forma caution from his attorney about the deportation consequences of his guilty plea. Furthermore, whatever advice his counsel did give him was not founded on adequate investigation of federal immigration law." (People v. Soriano, supra, 194 Cal.App.3d at p. 1482.) The same is true here.
The record from the evidentiary hearing below establishes Basinger failed to render effective assistance of counsel. The petition for writ of habeas corpus is granted. Petitioner's judgment of conviction is vacated, and the court is directed to allow him to withdraw his guilty pleas.
Upon return of the remittitur, the clerk of this court is directed to forward a copy of this opinion to the State Bar pursuant to Business and Professions Code section 6086.7, subdivision (b) with reference to this and the previous footnote.
Sills, P. J., and Scoville, J., concurred.
Retired Presiding Justice of the Court of Appeal, Fourth District, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.