Opinion
B228481 B232194
09-12-2011
THE PEOPLE, Plaintiff and Respondent, v. GOREN TATARIAN, Defendant and Appellant. In re GOREN TATARIAN, on Habeas Corpus.
Heather J. Manolakas, under appointment by the Court of Appeal, for Defendant, Appellant and Petitioner. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Lawrence M. Daniels and Colleen M. Tiedemann, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Los Angeles County Super. Ct. No. KA088837)
APPEAL from a judgment of the Superior Court of Los Angeles County, Thomas Falls, Judge. ORIGINAL PROCEEDING; petition for writ of habeas corpus. Appeal dismissed; order to show cause issued.
Heather J. Manolakas, under appointment by the Court of Appeal, for Defendant, Appellant and Petitioner.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Lawrence M. Daniels and Colleen M. Tiedemann, Deputy Attorneys General, for Plaintiff and Respondent.
INTRODUCTION
Defendant Goren Tatarian (Tatarian) appeals from an order denying his motion to vacate his conviction entered after Tatarian pled no contest to one count of possession of marijuana for sale (Health & Saf. Code, § 11359) as part of a plea agreement. On appeal, Tatarian contends that the trial court erred in denying his motion to set aside his no contest plea based on ineffective assistance of counsel. Tatarian's petition for a writ of habeas corpus, which we have ordered considered together with the appeal, is based on the same claim and asserts that his trial counsel was ineffective because he failed to advise him of the deportation consequences of the plea agreement as required under Padilla v. Kentucky (2010) 559 U.S. _____ [130 S.Ct. 1473, 176 L.Ed.2d 284]. We dismiss the appeal but issue an order to show cause returnable before the Superior Court for an evidentiary hearing into Tatarian's claim of ineffective assistance of counsel.
FACTUAL AND PROCEDURAL BACKGROUND
A. The Arrest and Conviction
On November 12, 2009, detectives arrived at a home in Pomona to serve a search warrant and found that several of the rooms were being used to grow marijuana. They also found other equipment used to cultivate marijuana. Tatarian was found and arrested in the master bedroom. Tatarian told detectives that he had been staying at the home for the past several days but that the plants belonged to his brother. He was only there because his brother worried a friend might break into the house and steal the plants.
Tatarian was charged with one count of cultivating marijuana (Health & Saf. Code, § 11358; count 1) and one count of possession of marijuana for sale (id., § 11359; count 2). On January 12, 2009, on advice of counsel, Tatarian pled no contest to count 2 in exchange for a suspended three-year sentence and three years of formal probation, and count 1 was dismissed. Judgment was entered the same day. B. The Motions to Withdraw Guilty Plea and to Vacate No Contest Plea
On May 11, 2010, prior to his release, a deportation hold was placed on Tatarian. The sole basis for the deportation hold was the conviction on count 2, which qualified as an "aggravated felony" under section 1227(a)(2)(A)(iii) of title 8 of the United States Code. On May 14, Tatarian filed a motion to withdraw his guilty plea. On July 16, Tatarian filed a motion to vacate his no contest plea. In support of both of these motions, Tatarian presented the following evidence:
1. Tatarian's Declaration
Tatarian stated that he "had absolutely no hand in the cultivating, growing or selling" of the marijuana. Tatarian was referred to criminal defense attorney, Levik Yarian (Yarian). During the initial consultation, Tatarian claims that he shared with Yarian his "concerns about not being a citizen." Yarian "did not warn [him] of the immigration consequences" of the plea. Yarian did not tell him he was pleading no contest to an aggravated felony but instead told him that "[he] was not deportable." Yarian told Tatarian that it was "'[h]ighly [u]nlikely' that [he] would be deported" and that Tatarian "had no need to worry, . . . [Yarian] would help [him] straighten everything out." Yarian "did not advise [him] to contact an immigration lawyer regarding [his] plea nor did he ask the court for more time for [Tatarian] to do so." Tatarian asserted that had he known that by taking the plea he would be admitting a mandatory deportation offense, he "would not have plead [sic] but rather go[ne] to trial and prove [his] innocence."
2. Declarations of Ardemis Tatarian (Ardemis) and Matilda
Nazarian (Nazarian)
Tatarian also submitted the declarations of his mother, Ardemis, and his then-fiance Nazarian. Both declarations substantially corroborated Tatarian's claims. Ardemis and Nazarian stated that they were present during the interactions between Yarian and Tatarian. Yarian told Tatarian "he would serve maximum 36 days (20%) and he will [then] be released." Tatarian told them that the main reason he "accepted the plea was based on [Yarian's] assurance that he would not serve more than 36 days in jail." Yarian "never mentioned the word aggravated felony to [Tatarian] during his representation" or that Tatarian was "subject to deportation." Rather, when Tatarian asked Yarian about "possible immigration issues," Yarian responded, "Highly unlikely."
Even after the deportation hold, Yarian still confidently represented to Ardemis and Nazarian that Tatarian's offense "was not an aggravated felony and by no means deportable" and that "he would challenge any attorney that would claim otherwise." Yarian referred them to an immigration attorney he personally knew. They spoke with the immigration attorney, who informed Yarian that in fact it was a deportable offense. Again, Yarian reassured them that Tatarian "would only be interviewed by I.C.E. and then they would release him." He insisted Tatarian "would not be deported." When Ardemis called Yarian about the motion to vacate, Yarian refused her request to write a declaration on behalf of Tatarian. C. The Trial Court's Ruling
The trial court found that at the preliminary hearing, Tatarian and Yarian "engaged in a lengthy discussion about a disposition" and "spent a considerable amount of time discussing the case together." Tatarian, "with the assistance of his attorney, filled out a plea form [and pled no contest] to count two." Further, the prosecutor informed Tatarian that his plea "will result in [his] being deported from the United States, denied re-entry, naturalization and amnesty." When the trial judge asked Tatarian if he understood the consequences, Tatarian responded, "I do."
As to the declarations submitted in support of the motions, the court initially struck Tatarian's declaration because the People did "not waive the right to cross-examine" Tatarian, who was in federal custody at the time awaiting his deportation hearing. Therefore, the court concluded, that without Tatarian's declaration, he "failed to produce any evidence to support his motion." The trial court did not consider the declarations of Ardemis or Nazarian in reaching its decision. The court then stated that even assuming Tatarian's declaration was admissible, it "lack[ed] credibility" and therefore, he "failed to show by clear and convincing evidence that his plea was taken as a result of mistake, ignorance, inadvertence, fraud, duress, or any other factor overcoming his exercise of free judgment."
As to Tatarian's claim that he was not adequately informed about the immigration consequences, the trial court found that the immigration consequences "were discussed . . . in open court three separate times with [Tatarian]. Moreover, both the written plea form and [the prosecution] informed [Tatarian] that his plea will result in deportation." "Additionally, the Court further [found] that based on [Tatarian's] numerous prior convictions, [Tatarian] was well aware of the adverse immigration consequences of pleading to the charges against him before he filled out the plea form in this case, and his claims that he was misled are disingenuous." Therefore, the court concluded that Tatarian was properly and adequately advised of the immigration consequences.
Further, the trial court found that "[t]here [was] nothing on the record that demonstrate[d] to the Court that [Yarian] was incompetent or that his performance on this case fell below acceptable standards." There was no evidence, other than the declarations presented by Tatarian, as to the conversations between Tatarian and Yarian. The trial court therefore denied Tatarian's motions.
Tatarian filed a notice of appeal under Penal Code section 1237, subdivision (b), "as an order after judgment affecting his substantial rights." Tatarian did not request a certificate of probable cause.
Unless otherwise indicated, all further statutory references are to the Penal Code.
DISCUSSION
A. On Appeal
On appeal, Tatarian claims that the trial court abused its discretion in denying his motion to set aside his no contest plea based on Yarian's failure to advise him adequately of the consequences of entering the plea. We first deal with the People's motion to dismiss the appeal for failure to obtain a certificate of probable cause under section 1237.5, subdivision (b). Tatarian argues that he is appealing the order denying his motion to vacate his conviction "as an order after judgment affecting his substantial rights," and "[t]he requirement of a certificate of probable cause does not apply to an appeal from the . . . motion to vacate the judgment." We disagree.
'"It is settled that the right of appeal is statutory and that a judgment or order is not appealable unless expressly made so by statute.'" (People v. Mazurette (2001) 24 Cal.4th 789, 792.) Section 1237.5 provides that "[n]o appeal shall be taken by the defendant from a judgment of conviction upon a plea of guilty or nolo contendere . . . except where . . . [¶] . . . [¶] (b) [t]he trial court has executed and filed a certificate of probable cause . . . ." Section 1237.5, subdivision (b), "does not limit the scope of review of the denial of a motion to withdraw a plea of guilty when that error is properly before the court on appeal. It merely sets forth a procedure for precluding frivolous appeals by requiring the defendant to set forth grounds for appeal and, if he does so, by requiring the trial court to rule on the issue of probable cause." (People v. Ribero (1971) 4 Cal.3d 55, 62.) Before its enactment, "the mere filing of a notice of appeal required preparation of a record and, in many cases, appointment of counsel; only after expenditure of those resources would an appellate court determine whether the appeal raised nonfrivolous issues that fell within the narrow bounds of cognizability. Section 1237.5[, subdivision (b),] was intended to remedy the unnecessary expenditure of judicial resources by preventing the prosecution of frivolous appeals challenging convictions on a plea of guilty." (People v. Hoffard (1995) 10 Cal.4th 1170, 1179.)
Tatarian claims that his appeal is most analogous to a subsequent appeal based on a section 1016.5 motion to vacate. "Section 1016.5, subdivision (a), requires that: 'Prior to acceptance of a plea of guilty or nolo contendere to any offense punishable as a crime under state law, except offenses designated as infractions under state law, the court shall administer the following advisement on the record to the defendant: [¶] []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.'" (People v. Totari (2002) 28 Cal.4th 876, 880-881.) As a remedy for a court's failure to advise a defendant of possible immigration consequences, "section 1016.5 provides that, 'on defendant's motion,' the court 'shall vacate the judgment and permit the defendant to withdraw the plea of guilty or nolo contendere, and enter a plea of not guilty.'" (People v. Superior Court (Zamudio) (2000) 23 Cal.4th 183, 193.)
In support of this argument, Tatarian cites People v. Totari, supra, 28 Cal.4th 876. In Totari, the defendant moved to vacate his guilty plea based on his claim that the trial court had failed to adequately inform him of the potential immigration consequences of his plea, as required by section 1016.5. (Totari, supra, at p. 879.) Prior to appealing the court's denial of his motion, the defendant obtained a certificate of probable cause. (Id. at p. 880.) The Court of Appeal dismissed defendant's appeal as taken from a nonappealable order. (Ibid.)
The Supreme Court addressed the question whether an order denying a motion to vacate pursuant to section 1016.5 is an appealable order. (People v. Totari, supra, 28 Cal.4th at p. 880.) The court noted that a section 1016.5 motion is "a statutory postjudgment motion to vacate." (Totari, supra, at p. 886.) "[T]he Legislature has established specific requirements for a motion to vacate under section 1016.5. Once the Legislature has . . . afford[ed a] defendant a means to obtain relief by way of a statutory postjudgment motion to vacate, the 'no second appeal' rule loses its urgency and a denial order qualifies as an 'order made after judgment, affecting the substantial rights of the party.'" (Totari, supra, at pp. 886-887.) However, where there is a nonstatutory motion to vacate, the "'no second appeal' rule [citation] serves as a procedural device to discourage defendants from raising any postjudgment claim that could have been raised before imposition of judgment or by way of direct appeal from the original judgment." (Id. at p. 886.) Therefore, the court concluded that a denial to vacate a postjudgment motion pursuant to section 1016.5 is an appealable order. The court, however, did not reach the issue of whether a defendant must obtain a certificate of probable cause prior to appealing.
Since then, the state's high court has resolved that issue. In People v. Johnson (2009) 47 Cal.4th 668, the defendant entered a no contest plea and subsequently moved to change his plea based upon ineffective assistance of counsel occurring prior to sentencing. (Id. at p. 673.) The trial court held a hearing where the defendant and his prior attorney presented testimony. (Id. at p. 674.) The trial court denied the defendant's motion. (Ibid.) Defendant filed a notice of appeal challenging the validity of the plea and requested a certificate of probable cause. (Id. at pp. 674-675.) The basis of his request was that the trial court abused its discretion when it denied his motion to withdraw his plea on grounds that he had not waived his fundamental rights "'knowingly, intelligently, or voluntarily.'" (Id. at p. 675.) The trial court denied defendant's request, making his notice of appeal "'not operative.'" (Ibid.) Defendant then filed an amended notice of appeal, changing the language to read that the "appeal is based on the sentence and other matters occurring after the plea and does not challenge the validity of the plea'"; defendant did not request a new certificate of probable cause. (Ibid., italics added.) The appellate court dismissed his appeal for failure to obtain a certificate of probable cause under section 1237.5. (Ibid.)
The Supreme Court noted that there are two recognized exceptions to section 1237.5, subdivision (b)'s requirement of a certificate of probable cause. "First, a defendant may appeal from a ruling involving a search and seizure issue without obtaining a certificate, because an appeal from such a ruling explicitly is authorized by section 1538.5 . . . . [Citation.] Second, a defendant is 'not required to comply with the provisions of section 1237.5 where . . . he is not attempting to challenge the validity of his plea of guilty but is asserting only that errors occurred in the subsequent adversary hearings conducted by the trial court for the purpose of determining the degree of the crime and the penalty to be imposed.'" (People v. Johnson, supra, 47 Cal.4th at p. 677.) In qualifying the second exception, the court added that "[e]ven when a defendant purports to challenge only the sentence imposed, a certificate of probable cause is required if the challenge goes to an aspect of the sentence to which the defendant agreed as an integral part of a plea agreement." Such a challenge "'is, in substance, a challenge to the validity of the plea . . . . '" (Id. at pp. 678-769.)
The court noted that the "historical and policy reasons that have caused us to conclude that, despite section 1237.5's broad language, the Legislature did not intend to require a certificate for appeals arising out of alleged errors in sentencing proceedings, [these conclusions] are inapplicable to appeals based upon alleged defects in the proceedings conducted on a motion to withdraw a guilty or no contest plea." (People v. Johnson, supra, 47 Cal.4th at pp. 681-682.) Therefore, "[a] defendant must obtain a certificate of probable cause in order to appeal from the denial of a motion to withdraw a guilty plea, even though such a motion involves a proceeding that occurs after the guilty plea." A "contrary holding would 'invite such motions [to withdraw the plea] as a matter of course, and would be wholly contrary to the purpose of section 1237.5.'" (Johnson, supra, at p. 679.)
The extent of Johnson's holding was recently examined in People v. Placencia (2011) 194 Cal.App.4th 489, decided by Division Six of this District. In Placencia, the defendant pled no contest to the charges against him. Prior to entering into a plea agreement, the defendant signed and initialed the immigration consequences portion of the advisement of rights form and his attorney declared on the form that he had fully explained those consequences to the defendant. (Id. at p. 492.) The defendant was sentenced and subsequently filed a motion to vacate the judgment based on the trial court's failure to adequately advise him of the immigration consequences of his plea per section 1016.5. (Placencia, supra, at p. 492.) After holding a plea hearing, the trial court denied his motion, and the defendant requested a certificate of probable cause. (Id. at pp. 492-493.) The trial court denied the request, and this court dismissed the appeal. (Id. at p. 493.) Defendant was allowed to amend the notice of appeal, and he then stated "that the appeal was from denial of his section 1016.5 motion to vacate the judgment." (Placencia, supra, at p. 493.)
The defendant did not request a new certificate of probable cause; instead, he argued that a certificate was not necessary because "his motion was made after the judgment and pursuant to statutory authorization." (People v. Placencia, supra, 194 Cal.App.4th at p. 493.) The court discussed Totari and found that Totari stood for the proposition "that an order denying a motion brought under section 1016.5, subdivision (b) is appealable as an '". . . order made after judgment, affecting the substantial rights of the party" [citation].'" However, Totari "did not consider whether a certificate of probable cause was required for the appeal," since the defendant had obtained a certificate of probable cause. (Placencia, supra, at pp. 493-494.) The court noted that although an appeal of "a denial of a section 1016.5 motion is technically from an 'order made after judgment'" within the meaning of section 1237, subdivision (b), as stated in Johnson, "and not 'from a judgment of conviction upon a plea' of guilty or nolo contendere" under section 1237, subdivision (a), it still amounts to a "claimed failure by the trial court to advise the defendant of the immigration consequences of a plea of guilty or nolo contendere which necessarily precedes the entry of the plea and affects the validity of the plea." (Placencia, supra, at p. 494.) Therefore, the Placencia court held that a certificate of probable cause is required before an appeal based on section 1016.5 is heard. (Placencia, supra, at p. 494.)
Thus, even assuming we accept Tatarian's analogy that, like a denial of a section 1016.5 motion to vacate a judgment, a motion to vacate based on ineffective assistance of counsel in advising defendant prior to plea is technically from an "order made after judgment" (§ 1237, subd. (b)), this analogy fails to support the conclusion that a certificate of probable cause is not required. When, as here, a motion to vacate is nonstatutory, the "no second appeal rule" applies. (People v. Totari, supra, 28 Cal.4th at pp. 886-887.) As in Placencia, Tatarian's motion to vacate his plea of no contest follows a claimed error by his trial attorney to advise him adequately of the deportation consequences of entering into a plea agreement, "which necessarily precedes the entry of the plea and affects the validity of the plea." (People v. Placencia, supra, 194 Cal.App.4th at p. 494.) Tatarian himself acknowledged that his appeal is a direct challenge to the validity of his plea in his notice of appeal, which, under Placencia, requires a certificate of probable cause.
Tatarian's contention seems to be based solely on the timing of his appeal. However, section 1237.5 "should be applied in a strict manner." (People v. Mendez (1999) 19 Cal.4th 1084, 1098.) Even when such a motion involves a "proceeding that occurs after the guilty plea" (People v. Johnson, supra, 47 Cal.4th at p. 679), "courts must look to the substance of the appeal: 'the crucial issue is what the defendant is challenging, not the time or manner in which the challenge is made.'" (People v. Panizzon (1996) 13 Cal.4th 68, 76.) If a defendant could get around section 1237.5's requirements by simply renaming his or her motion, the purpose of section 1237.5 would be undermined.
We conclude that a certificate of probable cause is required where a defendant appeals from an order denying a motion to vacate a judgment based on issues affecting the validity of the plea, such as ineffective assistance of counsel claims. "To hold otherwise would be to invite such motions as a matter of course, and would be wholly contrary to the purpose of section 1237.5." (People v. Ribero, supra, 4 Cal.3d at pp. 63-64.)
Inasmuch as Tatarian failed to obtain a certificate of probable cause, his appeal must be dismissed. (People v. Mendez, supra, 19 Cal.4th at p. 1104.) B. On Habeas Corpus
In his petition for a writ of habeas corpus, Tatarian claims that Yarian provided him with ineffective assistance of counsel because the attorney failed to advise him adequately of the deportation consequences of entering into the plea agreement as required by Padilla v. Kentucky, supra, 130 S.Ct. 1473. Specifically, Tatarian claims that Yarian did not tell him that he was pleading no contest to an "aggravated felony," the result of which was mandatory deportation. Rather, Yarian misrepresented that it was "highly unlikely" that Tatarian would be deported. The People respond that even if Tatarian's claims are true, that Yarian failed to adequately advise him, the petition should nonetheless be dismissed because Tatarian has not suffered prejudice as a result.
The United States Supreme Court has long recognized that "'the right to counsel is the right to the effective assistance of counsel.'" (Strickland v. Washington (1984) 466 U.S. 668, 686 [104 S.Ct. 2052, 80 L.Ed.2d 674].) It is not sufficient that "a person who happens to be a lawyer is present at trial alongside the accused," rather counsel must play "the role necessary to ensure that the trial is fair" for the accused. (Id. at p. 685.)
Initially, the burden is on the petitioner to demonstrate he or she has been deprived of effective assistance of counsel. (People v. Bautista (2004) 115 Cal.App.4th 229, 238.) "First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense." (Strickland v. Washington, supra, 466 U.S. at p. 687.) The test for prejudice is whether "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." (Id. at p. 694.)
In Padilla v. Kentucky, supra, 130 S.Ct. 1473, the court expanded on what an attorney must do to satisfy the "reasonably effective assistance" standard when advising a client of the immigration consequence of a plea. In Padilla, the defendant claimed "that his counsel not only failed to advise him of this consequence prior to his entering the plea, but also told him that he '"did not have to worry about immigration status since he had been in the country so long."'" (Id. at p. 1478.) The defendant pled guilty to transportation of a large amount of marijuana, which qualified as an "aggravated felony" under section 1227(a)(2)(B)(i) of title 8 of the United States Code. (Padilla, supra, 130 S.Ct. at pp. 1477-1478, fn. 1.) Padilla relied on his counsel's erroneous advice when he pled guilty to the drug charges that made his deportation virtually mandatory. He claimed that he would have insisted on going to trial if he had not received incorrect advice from his attorney. (Id. at p. 1478.) The Supreme Court of Kentucky denied defendant's claim because, in its view, "the Sixth Amendment's guarantee of effective assistance of counsel does not protect a criminal defendant from erroneous advice about deportation because it is merely a 'collateral' consequence of his conviction." (Ibid.) It held that "neither counsel's failure to advise petitioner about the possibility of removal, nor counsel's incorrect advice, could provide a basis for relief." (Ibid.)
Up until that time, Strickland's standard for effective assistance of counsel was met so long as defense counsel advised a defendant about "direct consequences of a criminal conviction." (Padilla, supra, 130 S.Ct. at p. 1487, conc. opn. of Alito, J.) In Padilla, the court rejected the distinction between direct and collateral consequences, because it recognized that "deportation is a particularly severe 'penalty,'" and found that because of its close connection "as a consequence of a criminal conviction" that distinction is "ill-suited to evaluating a Strickland claim concerning the specific risk of deportation." (Id. at pp. 1481-1482.) In light of "recent changes in our immigration law [that] have made removal nearly an automatic result for a broad class of noncitizen offenders" (id. at p. 1481) and the recognition that "'"[p]reserving the client's right to remain in the United States may be more important to the client than any potential jail sentence,"'" the court held that "[w]hen the law is not succinct and straightforward . . . , a criminal defense attorney need do no more than advise a noncitizen client that pending criminal charges may carry a risk of adverse immigration consequences. But when the deportation consequence is truly clear, as it was in this case, the duty to give correct advice is equally clear." (Id. at p. 1483, fn. omitted.) This duty applies to both "affirmative misadvice" and complete omission. (Id. at p. 1484.)
Like the defendant in Padilla, assuming Tatarian's allegations are true, he has sufficiently alleged that his trial attorney was constitutionally deficient for failing to adequately advise him of the deportation consequences of his plea. The law provides that "[a]ny alien who is convicted of an aggravated felony at any time after admission is deportable." (8 U.S.C. § 1227(a)(2)(A)(iii).) An "aggravated felony" includes the "illicit trafficking in a controlled substance . . . , including a drug trafficking crime." (8 U.S.C. § 101(a)(43)(B).) Tatarian pled to possession of marijuana for sale; this is "trafficking in a controlled substance." The relevant immigration statutes are "succinct, clear, and explicit in defining the removal consequence" of Tatarian's conviction. (Padilla, supra, 130 S.Ct. at p. 1483.) Rather than provide false assurance that his conviction would likely not result in deportation, Yarian was required to provide Tatarian with correct advice about the possible immigration consequences resulting from his plea. (Id. at p. 1483.) Yarian was not relieved of this duty by the advisements of the court and prosecution. (See In re Resendiz (2001) 25 Cal.4th 230, 241-242, abrogated on another ground in Padilla, supra, at p. 1484.)
As to the second prong of the Strickland test, Tatarian claims that he has been prejudiced by Yarian's deficiency because he would have opted to go to trial if he had been made aware of the deportation consequences. The People argue that even accepting Tatarian's claim as true, he was nonetheless advised of the deportation consequences by the trial court and the prosecution. Both Tatarian and Yarian also signed an advisement of rights form that informs a defendant of the immigration consequences of the plea. The People assert that this proves Tatarian was not prejudiced by Yarian's deficiency. Whether a defendant had some knowledge of possible immigration consequences is a factor a court may consider in assessing prejudice.
The record here does not contain a declaration by Yarian as to what he did, or did not, tell Tatarian regarding the immigration consequences of his plea. Where, as here, the appeal raises factual issues that are not easily determined from the record, the question whether the trial attorney failed to provide effective counsel is most "'appropriately decided in a habeas corpus proceeding.'" (People v. Johnson, supra, 47 Cal.4th at p. 684.) "In habeas corpus proceedings, there is an opportunity in an evidentiary hearing to have trial counsel fully describe his or her reasons for acting or failing to act in the manner complained of." (People v. Pope (1979) 23 Cal.3d 412, 426, disapproved on another ground in People v. Berryman (1993) 6 Cal.4th 1048, 1081, fn. 10, overruled on another ground in People v. Hill (1998) 17 Cal.4th 800, 823, fn. 1.)
Whether Tatarian is entitled to relief will depend on whether he can demonstrate that his trial attorney actually failed or misrepresented the immigration consequences and that he was actually prejudiced by the deficiency. Both prongs depend on factual findings and appellate courts are not in the best position to decide such factual issues. (People v. Totari, supra, 28 Cal.4th at p. 886.) The most appropriate means of resolving this matter is to have the trial court hold an evidentiary hearing. (People v. Pope, supra, 23 Cal.3d at p. 426.)
DISPOSITION
The appeal is dismissed. We issue an order to show cause before the trial court as to whether Tatarian is entitled to habeas corpus relief.
JACKSON, J. We concur:
WOODS, Acting P. J.
ZELON, J.