PEOPLE v. MARTINEZ

Appellant’s Opening Brief on the Merits

Cal.June 11, 2012

IN THE SUPREME COURTOFTHESTATE OF CALIFORNIA PEOPLE OF THESTATE OF CALIFORNIA, Plaintiff and Respondent, VS. RODRIGO MARTINEZ MARTINEZ, Defendant and Appellant. APPELLANT’S OPENING BRIEF ON THE MERITS A an ~ ae Ly fom 7 ~ (fw! fy ff fe ifp os i Ne Ae a S199495 Ct. Ap. No. H036687 Santa Clara County Super. Ct. No. 156569 Fibe od JUN 11 2012 ee ien iene LP Ligep ect, OY any Frederick tOnirich Clerk Weapury SARA E. COPPIN (State Bar. No. 245952) By appointment of the Supreme Court 11075 Treehenge Lane Auburn, CA 95602 (530) 401-6891 (phone) Counsel for Appellant TABLE OF CONTENTS ISSUE PRESENTED FOR REVIEW ou...ccccccccccssssesesssesssscsesescecscsescessessesenes It SUMMARY OF ARGUMENT uu... ccccccccscsccscscsescevscetsescevsvssacsvscsssvsvevesecs | STATEMENTOF THE CASE u.....ceccccscscscsesesessssesesscsceceeusacssecscavevsvesseveeeen 4 SUMMARYOF THE PERTINENT FACTS uuiicccccccccessessscscsscssssscsceseeeeses 6 ARGUMENT oo. ccceccceccessescsesesseesestssesescseseesvsssscsessatasssasesasatavacatsererssessssasenees 7 L IN THE CONTEXT OF MOTIONS TO VACATE PURSUANT TO PENAL CODESECTION 1016.5, THIS COURT SHOULD ADOPT THE PREJUDICE TEST SET FORTHIN THE U.S. SUPREME COURT’SDECISION IN PADILLA V. KENTUCKY WHICH WEIGHS WHETHER IT WOULD HAVE BEEN RATIONAL UNDER THE CIRCUMSTANCESFOR THE DEFENDANT TO REJECT THE PLEA OFFER HAD HE BEEN PROPERLY WARNED. 00.0... cccccccscsesesssssesesscscaceracssssscstscseresevaresesene 7 A. Legislative History and Statutory Requirements of Penal Code section 1016.5 oo. cccccccssessssscsssstseseecscssestecseesesseseeseees 7 B. The History of the Relevant Legal Standards for Assessing Prejudice in U.S. Supreme Court and California JUPISPLUGENCE oesee ccecsceceecscssestscecestscareuescsssevsesevataseessesees 10 C. Because A Success-At-Trial Approach Is Particularly IIl- Equipped To Assess Whether or Not a Defendant Would Have Accepted or Rejected a Plea Offer When the Errorin Question Involves a Failure to Warn About Immigration Consequences, This Court Must Establish A More Effective Test for Assessing Prejudice ..........ccceeccccescsescsesessecesesesesees 15 I. The possibility of obtaining an immigration-neutral plea is a relevant factor in determining whether a properly-warned defendant would haverejected the initial plea offer, and therefore must be considered by courts assessing prejudice in the context of section LOL6.5 MOONS. woe eeeceseesccesssssessersceetsccatsesscsssees 19 2, When courts do consider the possible outcome ofa trial in the prejudice analysis for section 1016.5 motions, they must recognizethatthe risk calculation for non-citizens seeking to avoid immigration problemswill be altered by knowledge that a plea offer will trigger immigration consequences. .........ccccc000. 24 II. THE COURT OF APPEAL AND THE SUPERIOR COURT MISAPPLIED THE TEST FOR ASSESSING PREJUDICE IN THIS CASE AND REVERSALIS REQUIRED. eecccccccscccsessesees 26 A. Applying the Standard Set Forth in Padilla, the Courts Below Should Have Concludedthat the Trial Court’s Failure to Advise Appellant Pursuant to Section 1016.5 Prejudiced Appellant. oo... ccceeccesessscsesessscscsecsssessscsesuseeseserstavatsvseseseses 27 1. An immigration-neutral alternative plea was reasonably attainable in appellant’s case, had he known to ask for it; thus it would have beenrational for appellantto reject the initial plea offer in favor of further negotiations. .........ccccccssssssssecssecereeecseseseeee, 28 2. The advantage ofthe plea offer was notso great as comparedto the harm ofthe immigration consequences, norhis defense to the charges so weak, that it would have beenirrational for appellant to have rejected the plea offer and goneto trial. oo... 32 B. Had the Courts Below Properly Applied the Test For Prejudice Set Forth in Zamudio, They Would Have Concluded that Appellant Was Prejudiced by the Lack of Section 1016.5 Advisements. .......cccccccesesessesseesessecsseseoeees 35 CONCLUSIONoo.ceccceceesssssesesesssescssscscsesscavsesessusssasstsrsasssscsvaveveneeeces 39 TABLE OF AUTHORITIES Federal Cases Delgadillo v. Carmichael (1947) 332 US. 388 occ ccecetsteeesscesesececscscecsesevscatscsessrevavecsesstatsesesenesees 16 Lafler v. Cooper (2012) 132 S.Ct. 1376 eecseeceeessessecsessscscssscscesscasssscsestevsevarsssasenensens 20 Hill v. Lockhart (1985) ATA US. 52 cece ccccetcecesesesesesesesesesessssssescssvevsveverseatavsteaesaeseeses passim INS v. St. Cyr (2001) 533 U.S. 289iccccccscscsscesesscssccesessssstessussssvasssecessvaseseeesescecceeses 17 Missouri v. Frye (2012) —US.132 S.Ct 1399cccceecstscsteeersces 13, 19, 20 Padilla v. Kentucky (2010) 559 U.S. — 130 S.Ct. 1473 cocccececccccecesesseseesvecsessesereeceese passim Roe v. Flores-Ortega (2000) S28 U.S. 470 coc ceccecceesesssscsessesesesvscssssssasaseesessesavsssssevavssscevavevesvevees 12 Ruiz-Vidal v. Gonzales (9th Cir. 2007) AT3 F.3d 1072 eeececcecetsccsseseesesssccscescsvsssatesssessssseassevscesevecsees 29, 37 Strickland v. Washintgon (1984) 466 U.S. 668 ieccccccecscsessssscssscsscascassacesssssatsessecscseees 10, 12, 13, 32 Tokatly v. Ashcroft (9th Cir. 2004) BTL P.3BG 613 ciccseseesstseeessssscssscscsessssssesecsstsasavavscsevavavessvesees 30 United States v. Kwan (9th Cir. 2005) AO7 P.3d L005 ee ecceccsccccscscscessessseesestarserscssstsacstavstestecvesseeesecees 22 Vartelas v. Holder (2012) — US.132 S.Ct. 1479, 1492 iiceseseeesseeeseeees 21,22 California State Cases In re Resendiz (2001) 25 Cal.4th 230 occccccccscsecscsssscssscesescsscsssssvsevecevsveneatecaesasses passim People v. Bautista (2004) LTS Cal.App.4th 229 ooccccsescseesesscsssssestsssssevevsassseeseeee 23,29 People v. Castro-Vasquez (2007) 148 CalApp.4th 1240 oocccsccscsssecsesesseestetssssesesseeeess passim People v. Kim (2009) AS Cal.4th 1078 oocccccsesccscscsecesscessecsssscevavecssesasatsssecassasseseaseees 8 People v. Superior Court (Zamudio) (2000) 23 Cal.4th 183. oocececeesesssscscseescscecstssesessecacaceseasasseasseseacs passim People v. Totari (2002) 28 Cal.4th 876 occcccscsescsesscscsesevscsecssscsesevavavsssesessesesssessavevsveveses 9 People v. Walker (1991) 54 Cal.3d 1013 oe ccceesesssecsescsssescsesessesssesvevsvstsvsesseausvsceceesevevees 14 People v. West (1970) 3 Cal.3d 595 iccccecesessssseesecscsessesccscssseusesseessstertassessnsesaveeesvesesaes 30 California Codes Health & Saf. Code § 11352, subd. (a) vooceecececccccsccsecssseseseeceeveveceecees passim Health & Saf. Code § 11357, subd. (C) cocciccccscscssescssescssecsecessstessessecscece. 25 Health & Saf. Code § 11360, subd. (a) ooccccecccccccscsccccssescsesccetececeecees passim Health & Saf. Code § 11376 voccccecccccsccssssessseseecseseevststsesesssveteteseceeceseee. 31 Health & Saf. Code § LISS] ooccceccicscsscnseessesssescsessssscesssseaveseesecenecees 31 Health & Saf. Code § 11590 wocccccccccsessssesesecsessstatstsesesessscssesteceveeesees 31 Penal Code § 1016.5 oie eeccecssescesescssssscscsescsvssevecsvessssssacavevscssesvevenee passim Penal Code § 1016.5, subd. (b) ooccccccecsscscscesessestststsresssesessessectecevecseees 8 Penal Code § 1016.5, subd. (d) oo.ccccceccceescescscssssesessssssssseseseeeceseeceeces 7,19 California Rules ofCourt California Rules of Court, Rule 4.414(b)(5) occccccccccscccscsssscessceseeecceseceeee, 22 California Rules of Court, Rule 4.414(b)(6) ccccccccccccccsesssesesesesesecceecececes, 22 United States Code 8 U.S.C. § 1182, subd. (a)(2(A)()ID o.cccceeccescececeessseeeeeeees 25, 28 BULS.C. § 1255. ieee ciccsccscsesesssesssestsseceecstssesesecstsssesertssssesetttecseseeseeteeess 28 8 U.S.C. § 1326, subd. (b)(2) occeceeceeccescececssecessceceessceesessceusessseseees 25 Other Sources Dept. ofJustice, Bureau ofJustice Statistics, Sourcebook ofCriminal Justice Statistics Online, Table 5.22.2009 wecccceeeecseees 19 Dept. ofJustice, Bureau ofJustice Statistics, Felony Sentences in State Courts, 2006—Statistical Tables, p. 1 (NCJ226846, rev. Nov. 2010) wooseeeeseeeee 19 Los Angeles County Dist. Atty’s off. Special Directive 03-04, Collateral Consequences (Sept. 25, 2003) ........ 23 Santa Clara County Dist. Atty. JeffRosen Memorandum:Collateral Consequences (Sept. 14, 2011) occcccccccsssscscescscescssseseses 23, 36 IN THE SUPREME COURTOF THE STATE OF CALIFORNIA PEOPLE OF THE STATE OF S199495 CALIFORNIA, Plaintiff and Respondent, Ct. Ap. No. H036687 VS. Santa Clara County RODRIGO MARTINEZ Super. Ct. No. 156569 MARTINEZ, Defendant and Appellant. APPELLANT’S OPENING BRIEF ON THE MERITS ISSUE PRESENTED FOR REVIEW In the context of a motion to vacate pursuant to Penal Code section 1016.5, should courts assessing whether a defendant was prejudiced by the lack of immigration advisements be required to consider, in addition to the defendant’s prospects at trial, evidence that, had the defendant been properly warned, he or she could have obtained an immigration-neutral disposition, or that he or she would havepreferred to risk the outcome ofa trial over a certainty of deportation? SUMMARY OF ARGUMENT [In the context of a Penal Code section 1016.5 motion to vacate based on the trial court’s failure to deliver warnings about immigration consequences ofa plea, this Court has previously held that “the sentencing court must determine whetherthe error prejudiced the defendant, i.e., whetherit is ‘reasonably probable’ the defendant would not have pleaded guilty if properly advised.” People v. Superior Court (Zamudio) (2000) 23 Cal.4th 183.210. Following that decision, the Court of Appeal for the Second District held that to show prejudice, a defendant wasnot required to demonstrate a probability of a favorable outcomeattrial, but that a likelihood of successat trial may be one factor to consider in assessing whether a defendant would have rejected a plea offer. (People v. Castro- Vasquez (2007) 148 Cal.App.4th 1240.) In Padilla v. Kentucky (2010) ——sU.S.__, 130 S.Ct. 1473 (Padilla), the United States Supreme Court recognizedthat “[p]reserving a client’s right to remain in the United States may be more importantto the client than any potential jail sentence,” and that “informed consideration of possible deportation can only benefit both the State and non-citizen defendants during the plea-bargaining process.” (/d. at p. 1483, 1486.) The Court established a standard for assessing prejudice in cases where a defendantpleads guilty without having been advised about the immigration consequencesof his plea which asks whether “a decision to reject the plea bargain would havebeenrational under the circumstances.” (/d.atp. 1485.) The High Court’s position is very much in accord with the California Legislature’s intent in enacting Penal Code section 1016.5, which wasto “promote fairness” for non-citizen defendants. (Penal Code § 1016.5, subd. (d).) Accordingly, the Legislature included a requirement that such N defendants be given “a reasonable amountoftimeto negotiate with the prosecuting agencyin the event the defendant or the defendant's counsel was unaware”ofthe immigration consequencesofa plea. (/bid.) Because plea negotiations that take immigration consequencesinto accountare favored by both the Legislature and the U.S. Supreme Court, California courts should focus not on the likelihood ofsuccessat trial when assessing prejudice in the context of section 1016.5 motion, but rather on whetherrejecting the plea offer would have beenrational under the defendant’s circumstances as whole. Such circumstances will necessarily include the likelihood ofnegotiating an immigration-neutral disposition, the impact of immigration consequences on a non-citizen defendant’s risk assessmentof proceedingwith trial, and the strength ofany possible defenses versus the strength of the prosecution’s case. Appellant respectfully urges the Court to adoptthe clear standard for assessing prejudice set forth in Padilla in order to provide guidance and secure uniformity among the lower courts. The decisions below failed to conductthe properinquiry into whether it was reasonably probable that appellant would haverejected the plea offer if properly advised. Because they focus exclusively on the likelihood of successattrial, and fail to give due consideration to other factors which would have influenced appellant’s decision whetherto plead guilty, the decisions below arein conflict with People v. Castro-Vasquez, supra, 148 Cal.App.4th 1240, and the Legislative intent behind 1016.5. Therefore. the decisions below must reversed. STATEMENT OF THE CASE On July 28, 1992, appellant, Rodrigo Martinez-Martinez, pled guilty to a violation of Health and Safety Code section 11360, subdivision (a), transportation of marijuana. Appellant was neither counseled by his attorney, nor advised bythe court at the changeofplea hearing, that there wasthe possibility of adverse immigration consequencesas a result of his plea. (1 CT 28, 44-45.) On the court’s minute order, a box to be checked if a defendant was properly warned by the Court of the immigration consequencesofhis plea, is unchecked. (1 CT 28.) On January 21, 2011, appellant, through counsel, filed a motion to vacate his 1992 conviction pursuant to Penal Code section 1016.5. (1 CT 38.) On February 17, 2011, the Honorable Marc Pochéofthe Superior Court of Santa Clara County issued a written order denying the motion. (1 CT 91-92.) The court held that appellant wasentitled to a rebuttable presumptionthat he had not been properly advisedby the trial court regarding the possibility of immigration consequencespriorto his plea. (1 CT 91.) The court further held that appellant had established that his 1992 conviction does indeed have immigration consequencesfor him. (/d.) However, the court foundit “highly improbable”that appellant would have been able to negotiate a plea that would not have had adverse immigration consequences. (1 CT’ 92.) Second, the court held that it was “unlikely” that appellant would have been foundnot guilty by a jury, had he elected to exercise his trial rights rather than plead guilty. (/d.) Based on these two findings, the court held that appellant had not established that thetrial court’s failure to warn him about the immigration consequencesofhis plea had prejudiced him in any way, and denied the motionto vacate. (Id.) On March 10, 2011 appellant filed a notice of appeal and a certificate ofprobable cause was issued on March 11, 2011. (1 CT 95-96.) On December9, 2011 the Court of Appeal, Sixth District, quoting the decision of the Superior Court at length, affirmed. (Typed Opn., pp. 3-4.) The Court of Appeal’s ownanalysis ofthe prejudice issue consisted ofthe following paragraph: Weagree with thetrial court that the appellant’s claim that he would have plead [sic] to a “greater offense,” sale of unspecified controlled substance under Health and Safety Code section 11352, subdivision (a) is entirely speculative and it beggars the imagination to suppose that he would have agreed to go to state prison for a term ofthree, four or five years had he known of the immigration consequences. The distinct problem with appellant’s appeal is his inability to demonstrate prejudice. He says only that had he been aware of the immigration consequences of his plea, he would not have entered it and instead gone tojury trial. The jury trial would not have taken long. The observation of a hand to hand sale together with the money and the purchaser would not have offered anydifficulty to a jury. (Typed. Opn., p. 3.) On January 19, 2012, appellant filed a petition for review of the decision of the Court of Appeal. This Court granted review on March 21, 2012. SUMMARYOF THE PERTINENT FACTS Appellant is a native and citizen of Mexico who has lived continuously in the United States since 1991 (1 CT 44.) He is married to Maria Escobedo, a lawful permanentresident of the United States, and has four United States citizen children, ages 13, 12, 10, and 5 years old. (/d.) The following facts are taken from the preliminary hearing held on June 5, 1992. (1 CT 1 et seq.) On or about May 15, 1992, an undercover officer observed appellant exchanging a brownbindle for money with an individual identified as Mr. Ryan. (1 CT 7.) Ryan was subsequently detained and foundto be in possession of a brownbindle containing a useable amount of marijuana. (1 CT 8-9.) About an hourlater, the officer saw appellant riding on his bicycle and arrested him. (1 CT 9, 10.) Appellant did not have any moneyor drugsin his possession when he was arrested. (1 CT 10-11.) The trial court found sufficient cause to hold appellant to answer on the charge of transportation or sale of marijuanain violation of Health and Safety Code section 11360, subdivision (a), and appellant subsequently pled guilty as charged. (1 CT 17, 21-22, 28.) On May 15, 2008, having long ago successfully completed the terms of his probation, Mr. Martinez applied for and was granted a record 6 clearance pursuant to Penal Code section 1203.4 by the Superior Court of Santa Clara County. (1 CT 37.) In 2008. Mr. Martinez applied for lawful permanentresidentstatus with United States Citizenship and Immigration Services (“USCIS”), using a family-based visa petition filed by his wife’s father. (1 CT 44.) However, his application for lawful permanentresident status was denied, and removal proceedings were initiated against him on October 27, 2009. (/d.; see also | CT 81.) ARGUMENT I IN THE CONTEXT OF MOTIONS TO VACATE PURSUANT TO PENAL CODESECTION 1016.5, THIS COURT SHOULD ADOPT THE PREJUDICE TEST SET FORTHIN THE USS. SUPREME COURT’S DECISION IN PADILLA V. KENTUCKY WHICH WEIGHS WHETHER IT WOULD HAVE BEEN RATIONAL UNDER THE CIRCUMSTANCES FOR THE DEFENDANT TO REJECT THE PLEA OFFER HAD HE BEEN PROPERLY WARNED. A. Legislative History and Statutory Requirements of Penal Codesection 1016.5 In 1977, the Legislature recognized that“in many instances involving an individual whois nota citizen of the United States charged with an offense punishable as a crime understate law, a plea ofguilty or nolo contendere is entered without the defendant knowingthat a conviction of such offense is grounds for deportation, exclusion from admissionto the United States, or denial of naturalization pursuant to the laws of the United States.” (Pen. Code § 1016.5 subd. (d) (West, 1977).) In enacting section 1016.5, the Legislature demonstrated concern that “those who plead guilty or no contest to criminal charges are aware ofthe immigration consequencesoftheir pleas.” (People v. Kim (2009) 45 Cal.4th 1078, 1107.) Accordingly, with the express intent to “promote fairness to such accusedindividuals,” the Legislature enacted Penal Code section 1016.5, whichrequires that acceptance of a guilty plea or plea of nolo contendere be preceded by a warningthat the plea could have the consequences of “deportation, exclusion from admission to the United States, or denial of naturalization pursuant to the laws of the United States.” (Pen. Code § 1016.5, subd. (d), (a).) Additionally, the Legislature directed courts to “grant the defendant a reasonable amountoftime to negotiate with the prosecuting agency in the event the defendant or the defendant’s counsel was unawareofthe possibility of deportation, exclusion from admission to the United States, or denial of naturalization as a result of conviction.” (Pen. Code § 1016.5 subd.(d).) Penal Code section 1016.5 further creates a remedy for defendants whowere not so advised, by requiring vacatur where the defendant can showthat the conviction may have one or more of the enumerated consequences. (Pen. Code § 1016.5, subd. (b).) To prevail on a motion to vacate under section 1016.5, a defendant must establish that (1) he or she was not properly advised of the immigration consequences as provided by the statute; (2) there exists, at the time of the motion, more than a remote possibility that the conviction will have one or more of the specified adverse immigration consequences; and (3) he or she wasprejudiced by the nonadvisement. (People v. Totari (2002) 28 Cal.4th 876, 884.) Appellant urges the Court to adopt the samestandard for assessing prejudice in the context ofsection 1016.5 motions that the U.S. Supreme Court employed in Padilla v. Kentucky, supra, 130 8.Ct. 1473. Padilla involved a claim ofineffective assistance of counsel, in which the attorney erred byfailing to advise a defendant about immigration consequencesthat would be triggered by accepting a plea. (Padilla v. Kentucky, supra, 130 S.Ct. at p. 1485.) This Court recognized a similar duty of counsel in Jn re Resendiz (2001) 25 Cal.4th 230, abrogated by Padilla v. Kentucky, supra, 130 S. Ct. 1473. Although,in California, ineffective assistance of counsel claims are broughtvia petitions for writ of habeas corpus as opposedto statutory motions to vacate, California courts have recognized that the prejudice inquiries for ineffective assistance of counsel claims and section 1016.5 motions are the same. (See People v. Castro- Vasquez, supra, 148 Cal.App.4th at p. 1245-1246, citing In re Resendiz, supra, 25 Cal.4th 230, an ineffective assistance ofcounselcase, for the purposesof analyzing prejudice in the context of a Penal Code section 1016.5 motion.) Therefore, a discussion of prejudice standards from cases involving ineffective assistance ofcounselclaimsis apposite. H H 9 B. The History of the Relevant Legal Standardsfor Assessing Prejudice in U.S. Supreme Court and California Jurisprudence. The evolution of the methodology for assessing prejudice in ineffective assistance of counsel claims begins with the two U.S. Supreme Court decisions, Strickland v. Washington (1984) 466 U.S. 668 (Strickland) and Hill v. Lockhart (1985) 474 U.S. 52 (Hill). In Strickland, the Court discussed the prejudice analysis in a situation where attorney errors had occurred in the sentencing phase ofa capital murdertrial. (Strickland, supra, 466 U.S.at p. 695.) In that case, the Court considered and rejected the prejudice test used for motions for a new trial based on newly discovered evidence, which requires defendants to proveit is more likely than not that the new evidence would havealtered the outcomeofthe case. The Court concluded that such an “outcome-determinative standard” would not be appropriate as a prejudicetest in ineffective assistance of counsel claims. (/d. at p. 693.) As the Court explained: Even whenthe specified attorney error results in the omission of certain evidence, the newly discovered evidence standardis not an apt source from which to draw a prejudice standard for ineffectiveness claims. The high standard for newly discovered evidence claims presupposes thatall the essential elements of a presumptively accurate and fair proceeding were present in the proceeding whoseresult is challenged. An ineffective assistance claim asserts the absence of one of the crucial assurancesthat the result of the proceedingis reliable, so finality concerns are somewhat weakerand the appropriate standard ofprejudice should be somewhatlower. The result of a proceeding can be rendered unreliable, and hence the proceedingitself unfair, even if the errors of counsel cannot 10 be shown by a preponderance of the evidence to have determined the outcome. (/d. at p. 694, internalcitations omitted.) Therefore, the Court held that in cases whereattorneyerrorrises to the level ofineffectiveness, “[t]he defendant must show that there is a reasonable probability that, but for counsel’s unprofessionalerrors, the result of the proceeding would have been different.” (/bid.) A reasonable probability is a probability sufficient to undermine confidence in the outcome. (/bid.) A yearlater, in Hil/, the Court considered the test for prejudice where the attorney error impacted the plea-bargaining process specifically. (Hill v. Lockhart, supra, 474 U.S.at p. 58.) The Court stated that the test in such circumstances should “focus on whether counsel’s constitutionally ineffective performance affected the outcomeofthe plea process.” (/d. at p. 59.) In Hill, the Court did two things that were significant to the assessment of prejudice. First, the Court again used the lower “reasonable probability” standard as opposed to the higher “morelikely than not” standard. ([bid.) Second, the Court acknowledged that because the attorney’s error took place during the plea bargaining stage, the appropriate question wasnot whether the outcomeofa trial was affected by the ineffectiveness, but rather whether the defendant’s decision to plead guilty was affected: “[T]o satisfy the ‘prejudice’ requirement, the defendant must show that there is a 11 reasonable probability that, but for counsel’s errors, he would not have pleaded guilty and would have insisted on goingtotrial.” (/bid.) Then, in 2010 the U.S. Supreme Court addressed how courts should determine prejudice specifically in the context of a guilty plea entered into without competent advice about immigration consequences. (Padilla, supra, 130 S.Ct. at p. 1485.) Adopting a similar standard to that of Strickland and Hill, Padilla makes clear that the prejudice inquiry should be whethera rational person would haverejected a particular plea, not whether a hypothetical trial outcome would haveledto a better result than the plea. (/bid.) “To obtainrelief on this type ofclaim, a petitioner must convince the court that a decision to reject the plea bargain would have beenrational under the circumstances.” (/bid.) The Padilla court did not alter the burden of prooffor defendants bringing ineffectiveness claims by framing the question in terms of whether it would have been “rational under the circumstances”to reject a plea offer. (Padilla, supra, 130 S.Ct. at p. 1485.) In endorsing a rationalness inquiry, the Court cited its decision in Roev. Flores-Ortega (2000) 528 U.S. 470, 480, which employs the same reasonableprobability standard used in Hill. (See Padilla, supra, 130 S.Ct. at p. 1485.) However, by directing courts to inquire into whether a defendant’s decision to reject a plea would have been “rational underthe circumstances,” the Padilla Court makesclearthatall of the factors which go into a defendant’s decision to plead guilty — rather than 12 simply a likelihood ofsuccessat trial — are relevant in assessing whetherit is reasonably probable he would not have pled guilty of properly advised. Even morerecently, the U.S. Supreme Court addressed the prejudice prong ofStrickland, and expressly rejected a success-at-trial approach to assessing prejudice. (See Missouri v. Frye (2012) =US.__, 132 S. Ct. 1399.) In that case, defense counsel failed to communicate formal plea offers to the defendant, the offers lapsed, and defendantultimately pled to a less favorable disposition than the original offers. (/d. at p. 1405.) The Court recognized that the context of the error was important when assessing prejudice, and held that where error involved a lost opportunity for a better plea offer, a defendant could demonstrate prejudice without stating that he would have gonetotrial had he received correct advice. (/d. at p. 1409- 1410.) This holding recognizes that, in the context of attorney errors made during the plea bargaining stage of a proceeding, a defendant may not have been limited to either accepting the disputed plea offer or goingtotrial, as the holding in Hi// might suggest. As the Frye Court noted, “Hill does not. .. provide the sole means for demonstrating prejudice arising from the deficient performance ofcounsel during plea negotiations.” (/bid.; citing Hill v. Lockhart, supra, 474 U.S. at 59.) This Court has long held that when challenging a plea based on misadvisement or omission of collateral consequences, a defendant must demonstrate that it is reasonably probable he would not have entered his plea had he knownofthe consequence. (People v. Walker (1991) 54 Cal.3d 1013. 1023.) In People v. Superior Court (Zamudio), supra, 23 Cal.4th at p. 198, this Court specifically held that the same standard applies to motions brought pursuant to Penal Code section 1016.5. In In re Resendiz, this Court presented the prejudice question in effective assistance of counsel claims as being whetheror not the defendant would haverejected the original plea offer and proceededto trial. In Resendiz, the defendant brought a habeaspetition challenging his plea based on the fact that his attorney had given him incorrect advice about immigration consequences. (In re Resendiz, supra, 25 Cal.4th at p. 254.) This Court held that “[iJn determining whether or not a defendant whohas pled guilty would have insisted on proceedingto trial had he received competent advice, an appellate court also may consider the probable outcomeof anytrial, to the extent that may be discerned.” (Ibid., emphasis added.) Notsurprisingly, Resendiz has been interpreted by lower courts to mean that a defendant’s chancesattrial are relevant to the prejudice inquiry, but demonstrating a likelihood of successat trial is not required to prove prejudice. (See People v. Castro-Vasquez, supra, 148 Cal.App.4th at p. 1245 [“[T]he probable outcomeofa trial [is] one factor a court could consider in assessing the likelihood that a defendant would have rejected a plea offer.”|; Peoplev. Akhile (2008) 167 Cal.App.4th 558, 565 [a defendant “need not demonstrate a likelihood he would have obtained a more favorable result at 14 trial”].) Since Resendiz, this Court has not addressed the question of howto assess prejudice in cases where a plea was entered without proper advice about immigration consequences. B. Because A Success-At-Trial Approach Is Particularly IIl- Equipped To Assess Whether or Not a Defendant Would Have Accepted or Rejected a Plea Offer When the Error in Question Involves a Failure to Warn About Immigration Consequences, This Court Must Establish A MoreEffective Test for Assessing Prejudice. In the context of motions to vacate pursuant to Penal Codesection 1016.5, this Court should employ a similar legal frameworkto that ofthe U.S. Supreme Court’s decision in Padilla. Although Padilla shifts the focus of the prejudice test — specifically in cases where a defendant pled guilty without being advised of immigration consequencesofthe plea — away from a hypotheticaltrial outcome, to whether it would have been rational for a properly advised defendantto reject the plea bargain,it is not a significant departure from the rule articulated in Resendiz. (Padilla, supra, 1308. Ct. at p. 1485; Resendiz, supra, 25 Cal.4th at p. 254.) Essentially, Resendiz holds that the propertest for prejudice is whetherit is reasonably probable that a defendant would have rejected the plea offer had he been properly advised. (/bid.) But Resendiz also presumesthat a defendant’s rejection of theinitial plea offer will automatically lead totrial, and specifically mentions the probable outcomeofa trial as a relevant factor in assessing whether a defendant would have rejected the initial plea 15 offer. (/bid.) While the likelihood of successat trial would certainly be a consideration for any defendant during plea bargaining, focusing on a hypothetical trial outcomeis particularly unhelpful in assessing prejudice where the error involvesa failure to advise the defendant about immigration consequencesprior to a guilty plea. Because the standardset forth in - Padilla requires courts to consider a non-citizen defendant’s circumstances as a whole whenassessing prejudice, it will be more effective at ascertaining whetherit is reasonably probable that a defendant would not have pled guilty of properly advised. This Court has long recognizedthat “a noncitizen defendant with family residing legally in the United States understandably may view immigration consequencesas the only ones that could affect his calculations regarding the advisability ofpleading guilty to criminal charges.” (In re Resendiz, supra, 25 Cal.4th at p. 253, citing Zamudio, supra, 23 Cal.4th at pp. 206-207, emphasis added.) The consequence of deportation is particularly severe, becauseit is “the equivalent of banishmentor exile.” (Delgadillo v. Carmichael (1947) 332 U.S. 388, 390-391.) In Padilla, the Court declared that “as a matter of federal law, deportationis an integral part — indeed, sometimes the most important part ~ of the penalty that may be imposed on noncitizen defendants who plead guilty to specified crimes.” (Padilla v. Kentucky, supra, 130 S.Ct. at p. 1479, emphasis added.) Accordingly, “[p]reserving a client’s right to 16 remain in the United States mav be more importantto the client than any potentialjail sentence.” (Id. at p. 1483, citing INS v. St. Cyr (2001) 533 U.S. 289, 323. emphasis added.) In light of the especially harmful nature of immigration consequences, understanding how deportation, exclusion from admission, or denial of naturalization mightbe triggered by a particular plea offer will undoubtedly go into a properly advised defendant’s decision of whetheror not to accept that offer. However, whetheror not a defendant knows about these consequenceshas absolutely no impact ona possible trial outcome, becauseit will havenoaffect on thetrier offact’s ability to find guilt beyond a reasonable doubt. A court’s failure to warn about immigration consequences before a plea will not impact the strength of the prosecution’s evidence or of any possible defenses. Consequently, proving prejudice flowing froma failure to warn will be impossible if the court is focused exclusively on whether the defendant would have prevailed attrial. Simply put, if probability of successattrial is the main factor considered by courts assessing prejudice in the section 1016.5 context — where advice about collateral consequencesis specifically at issue — defendants will almost never be able to demonstrate prejudice. Fundamentally, a success-at-trial approachis not the most effective meansof assessing whetheror not a defendant would have accepted or rejected a particular plea offer, becauseit ignores the fact that the initial 17 rejection ofa plea does not alwayslead to trial. Moreover, focusing on the likelihood of successattrial doeslittle to illuminate what a properly warned defendant may have done, if the court does notalso factor in the existence of possible defenses, or the impact that knowledge of immigration consequences might have on a non-citizen defendant’s decision to take a case to trial. The reality is, if.a properly warned defendantrejects an initial plea offer based on a desire to avoid severe collateral consequenceslike deportation, there are two possible outcomes: 1) he could attemptto re- negotiate a plea agreement with the prosecutor, or a post-plea sentence with the judge, that avoids the consequence;or 2) after incorporating the collateral consequenceinto his risk assessment, he could elect to take his chancesattrial. Because a success-at-trial approach to assessing prejudice in the section 1016.5 context fails to address the complexreality of how a properly warned defendant would respondtoa pleaoffer that triggers severe immigration consequences, it should be expandedto a broader approachthat looks at whethera rational person would reject such a plea offer under the circumstances. // // // // 18 l. Thepossibility of obtaining an immigration-neutral plea is a relevant factor in determining whether a properly-warned defendant would haverejected the initial plea offer, and therefore must be considered by courts assessing prejudice in the context of section 1016.5 motions. Courts determining whether it would have been rational underthe circumstances for a properly warned defendant to haverejected an initial plea offer because of immigration consequences must considerthe reasonable probability that the defendant could have negotiated an immigration-neutral plea or sentence that would have avoided those consequences. The reality is that when a defendantrejects an initial plea offer becauseit carries immigration consequences,further plea negotiation is an equally, if not morelikely alternative to trial. Recentstatistics cited by the U.S. Supreme Court show that ninety-seven percent offederal convictions and ninety-four percent ofstate convictions are the result of guilty pleas. (See Missouri v. Frye, supra, 132 S. Ct. at p. 1407, citing Dept. of Justice, Bureau of Justice Statistics, Sourcebook of Criminal Justice Statistics Online, Table 5.22.2009'; Dept. of Justice, Bureau of Justice Statistics, S. Rosenmerkel, M. Durose, & D. Farole, Felony Sentences in State Courts, 2006-Statistical Tables, p. 1 (NCJ226846,rev. ' Found at [as of March 1, 2012]. 19 Nov. 2010)°; Padilla, supra,130 S.Ct. at p. 1485-1486 [recognizing pleas account for nearly 95% ofall criminal convictions].) Ours “is for the most part a system ofpleas, not a system oftrials.” (Lafler v. Cooper (2012) 132 S. Ct. 1376, 1381, citing Missouri v. Frye, supra, 132 S. Ct. at p. 1407.) Plea bargaining “is not some adjunct to the criminal justice system;it is the criminaljustice system.” (Missouri v. Frye, supra, 132 S. Ct. at p. 1407, citing Scott & Stuntz, Plea Bargaining as Contract, 101 Yale L. J. 1909, 1912 (1992), emphasisin original.) Penal Codesection 1016.5 acknowledges the great importance of plea bargaining, specifically directing trial courts to allow defendants made aware of immigration consequences “a reasonable amountoftime to negotiate with the prosecuting agency.” (Pen. Code § 1016.5, subd. (d), emphasis added.) There would be no point in allowing properly advised defendants timeto negotiate if their choice was simply between accepting a plea offer with severe immigration consequencesor proceedingtotrial. The Legislature’s reference to negotiation therefore presumesthat defendants may have a third choice, by way of negotiated disposition,that avoids immigration consequences without goingto trial. In Padilla v. Kentucky, the U.S. Supreme Court also looks favorably on plea negotiations that take immigration consequencesinto account, > Foundat [as of Mar. 1, 2012]. noting they are a way to achieve positive outcomesfor both non-citizen defendants and prosecutors. [I]nformed consideration of possible deportation can only benefit both the State and noncitizen defendants during the plea-bargaining process. By bringing deportation consequences into this process, the defense and prosecution may well be able to reach agreements that better satisfy the interests of both parties. As in this case, a criminal episode may provide the basis for multiple charges, of which only a subset mandate deportation following conviction. Counsel who possess the most rudimentary understanding of the deportation consequencesofa particular criminal offense may be able to plea bargain creatively with the prosecutor in order to craft a conviction and sentence that reduce the likelihood of deportation, as by avoiding a conviction for an offense that automatically triggers the removal consequence. At the same time, the threat of deportation may provide the defendant with a powerful incentive to plead guilty to an offense that does not mandate that penalty in exchange for a dismissal of a charge that does. (Padilla v. Kentucky, supra, 130 S.Ct. at p. 1486.) Understanding that “negotiation ofa plea bargain is a critical phase oflitigation,” the reasonable probability of obtaining an immigration- neutral plea bargain must factor into the test for prejudice in the context of section 1016.5 motions. (Padilla v. Kentucky, supra, 130 S. Ct. at p. 1486.) Recent U.S. Supreme Court case law support this. In Vartelas v. Holder (2012) US. __, 132 S.Ct. 1479, 1492, fn. 10, the U.S. Supreme Court again recognized the role that creative plea bargaining plays in avoiding immigration consequences. Specifically, the Court commentedthat, “[a]rmed with knowledge that a guilty plea would preclude travel abroad, 2] aliens like Vartelas might endeavorto negotiate a plea to a nonexcludable offense—in Vartelas* case, e.g., possession of counterfeit securities—or exercise a rightto trial.” (/bid.) Although the Court doesnot expressly cite Padilla, the language in the footnote indicates the Court felt it was reasonably probable that Vartelas could have negotiated an alternative disposition, and could potentially establish prejudice by demonstratingthat he would haverejected the original offer and soughtthis alternative plea to avoid adverse immigration consequences. (/bid., see also United States v. Kwan(9th Cir. 2005) 407 F.3d 1005, 1017 opinion amended on reh’g,03- 50315, 2005 WL 1692492 (9th Cir. July 21, 2005) and abrogated on other grounds by Padilla v. Kentucky, supra, 130 S. Ct. 1473 [in federal criminal proceeding, lost opportunity to “renegotiate plea agreement” to avoid immigration consequencesresulted in prejudice to defendant such that vacatur of conviction was proper].) That the collateral consequences of convictions should be taken into accountin criminal proceedings is not new to California. The California Rules of Court provide guidance as to what criteria should be considered when deciding whetherto grant probation, and include the affect of imprisonment on the defendant and the impactofcollateral consequences from a felony conviction. (California Rules of Court, Rule Rule 4.414(b)(5) and (6).) California courts have held that defendants may be able to demonstrate prejudice in ineffectiveness cases wheretheir attorney fails to 22 attempt to negotiate an alternative plea that avoids immigration consequences. (See People v. Bautista (2004) 115 Cal.App.4th 229, 240.) Both the Los Angeles County and Santa Clara County District Attorney’s Offices have explicit policies encouraging consideration ofcollateral consequences during plea bargaining. (See Los Angeles County Dist. Atty’s off. Special Directive 03-04, Collateral Consequences (Sept. 25, 2003)’; Santa Clara County Dist. Atty. Jeff Rosen Memorandum:Collateral Consequences (Sept. 14, 2011)’.) In direct response to the U.S. Supreme Court’s decision in Padilla, the Santa Clara County District Attorney’s Office instituted a new policy to encourage prosecutors to take immigration consequencesinto account when negotiating plea bargains. Intrinsic to the Padilla decision is the constitutionality of considering collateral consequences when crafting a settlement. In other words, the court ruled that it was IAC for a defense counselto fail to advise and negotiate on behalf of his client for an immigration neutral outcome. Logically essential to this holding is the view that such negotiations would be legal andproper. (/d. at p. 3, emphasis added.) Given that plea negotiations which in part aim to avoid severe collateral consequences such as deportation are favored by law and even incorporated into explicit policy by prosecutors,it is * Found at [as of June 7, 2012]. * Found at [as of June 7, 2012]; hereinafter cited as Santa Clara County Dist. Atty. Jeff Rosen Memorandum:Collateral Consequences. 23 imperative that courts considering motions pursuantto section 1016.5 acknowledgethelikelihood ofobtaining an immigration-neutral plea when assessing prejudice. 2. Whencourts do consider the possible outcome of a trial in the prejudice analysis for section 1016.5 motions, they must recognize that the risk calculation for non-citizens seeking to avoid immigration problemswill be altered by knowledge that a plea offer will trigger immigration consequences. As discussed in Section I B, supra, this Court has long recognized that “a noncitizen defendant with family residing legally in the United States understandably may view immigration consequencesas the only ones that could affect his calculations regarding the advisability ofpleading guilty to criminal charges.” (In re Resendiz, supra, 25 Cal.4th at p. 253, citing Zamudio, supra, 23 Cal.4th at pp. 206-207, emphasis added.) Likewise, the U.S. Supreme Court has declaredthat “as a matter of federal law, deportation is an integral part — indeed, sometimes the most important part — of the penalty that may be imposed on noncitizen defendants who plead guilty to specified crimes.” (Padilla v. Kentucky, supra, 130 S.Ct. at p. 1479, emphasis added.) If courts assessing prejudice in the context ofa section 1016.5 motion truly aim to discern what a rational person would have done under the circumstancesif he had been properly warned, they must acknowledge the truth of the proposition central to the holding in Padilla; that the 24 severity ofthe collateral consequenceis often far greater than the direct penal consequencesofthe offense. (Padilla, supra, 130 S.Ct. at pp. 1481, 1483.) As an example, a misdemeanordrug conviction, which might result in a short county jail sentence, fines, or just probation, will render a non- citizen deportable and permanently inadmissible.’ In such cases even the maximum punishmentafter trial would be significantly less onerous than the certain immigration consequences that would betriggered by a plea. A defendant who knowsa pleawill result severe immigration consequences mayrationally calculate that the risk of a longer term of imprisonmentafter conviction attrial does not outweigh the hardship of deportation. Additionally, courts must recognize that a properly-warned defendantwill be encouraged to develop defenses to the charges that may have been previously overlooked or not seriously considered. This, too, wouldfactor into a defendant’s risk calculation of whetherto reject an immigration- averse plea offer and proceedtotrial. ° In California, a conviction for simple possession of more than 28.5 grams of marijuanais punishable by a county jail sentence of no more than six months ora fine of no more than $500, or both. (Health and Saf. Code § 11357, subd. (c).) However, under federal immigration law, possession of more than 30 gramsof marijuana renders non-citizens, including lawful permanentresidents, deportable. (8 U.S.C. § 1227, subd. (a)(2)(B)(i).) Possession of any amount of marijuana will render a non-citizen inadmissible from the United States. (8 U.S.C. § 1182, subd. (a)(2)(A)DUD.) 25 While it might not be “rational” for a U.S. citizen defendantto reject a particular plea offer, given the risk of an increased sentenceat trial, under certain circumstances it may be entirely rational for a non-citizen defendant to do so. Therefore, in order to conduct the proper prejudice analysis courts must consider how the severity of the immigration consequences would affect a defendant’s risk calculation about proceedingtotrial. li. THE COURT OF APPEAL AND THE SUPERIOR COURT MISAPPLIED THE TEST FOR ASSESSING PREJUDICE IN THIS CASE AND REVERSALIS REQUIRED. Appellant challenges the assessmentof prejudice in the decision below, wherein the Court of Appeal and the Superior Court accorded undue significance to what they concluded were appellant’s slim chances of an acquittal at trial. Addressing appellant’s argument that he would have rejected the plea and gonetotrial, the Court of Appeal focused exclusively on what a hypothetical jury would have done: “[t]he jury would not have taken long. The observation of a handto handsale together with the money and the purchaser would not have offered any difficulty to a jury.” (Typed Opn., p. 3.) As to appellant’s argument that he would have be willing to plead up to a violation of Health and Safety Code section 11352, the Court of Appeal dismissed it out of hand, saying such a claim “beggars the imagination” because appellant would have had to agree to a state prison sentence in order to obtain an immigration-neutral plea. (Typed Opn.,p. 3.) The focus on likelihood of successat trial and outright dismissal of the possibility of further plea negotiation are not in accord with the concemsexpressed by the California Legislature in Penal Code section 1016.5, or the United States Supreme Court in Padilla v. Kentucky, supra, 130 S.Ct. 1473. Moreover, the decisions below are in conflict with current California law regarding the appropriate test ofprejudice in such cases, which holds thatproving a likelihood ofsuccessat trial was not required to demonstrate to determine ofit is reasonably probable that a defendant would not have pled guilty if properly advised. (People v. Castro-Vasquez, supra, 148 Cal.App.4th 1240.) Under the prejudice standard set forth in Padilla, or under current California law, the decisions below are erroneous and must be reversed. A. Applying the Standard Set Forth in Padilla, the Courts Below Should Have Concluded that the Trial Court’s Failure to Advise Appellant Pursuant to Section 1016.5 Prejudiced Appellant, and Reversal Is Required. Hadthe courts below applied the U.S. Supreme Court’s prejudice test from Padilla, they would have sought to determine whether“a decision to reject the plea bargain would have been rational under the circumstances” if appellant been properly advised by the trial court pursuant to Penal Codesection 1016.5. (Padilla, supra, 130 S.Ct. at p. 1485.) As argued in Section I, supra, the factors that courts should consider in determining whether ornot it would have beenrational under the 27 circumstances for a defendantto reject a plea offer. are: 1) the possibility of obtaining and immigration-neutral disposition and 2) how knowledge of immigration consequences would impact the non-citizen defendant’s assessmentofthe risks oftrial, including the strength ofany possible defenses to the charge as well as the relative advantage of the plea measured against the harm of immigration consequences. 1. An immigration-neutral alternative plea was reasonably attainable in appellant’s case, had he knownto ask for it; thus it would have been rational for appellant to reject the initial plea offer in favor of further negotiations. Appellant’s plea rendered him deportable, permanently inadmissible, and ineligible for relief from removal despite his marriage to a lawful permanentresident andthe births of his U.S. citizen children.® (1 CT 44.) Had he been warned about the immigration consequencesprior to entering his plea, appellant would have “insisted on a plea agreement that would have spared [him] from such immigration damage.” (1 CT 45.) One © Under federal immigration law, a violation of Health and Safety Code section 11360, subdivision (a) constitutes a “violation of... any law or regulation of a State, the United States, or a foreign country relating to a controlled substance (as defined in section 802 oftitle 21 [ofthe U.S. Code]).” (8 U.S.C. § 1182, subd. (a)(2)(A)G)C).) As such,it renders appellant removable under 8 U.S.C. section 1182, subdivision (a)(2)(A)(UD, and ineligible for adjustment of status under 8 U.S.C. section 1255. Moreover, if appellant reenters the United States unlawfully after having been deported, he will be subject to criminal prosecution and imprisonmentfor up to 20 years. (8 U.S.C. § 1326, subd. (b)(2).) alternative would have been to “plead up”to a moreserious offensethat would have been immigration-neutral. (See People v. Bautista, supra, 115 Cal.App.4th 229, 240.) Appellant was originally charged with one count of a violation of Health and Safety Code section 11360, subdivision(a), transportation of marijuana. (1 CT 24.) Had he been properly advised about immigration consequences, he could have offeredto plead to the nominally more serious offense of violating Health and Safety Code section 11352, subdivision(a). Health and Safety Code section 11352, subdivision (a), exposes the defendantto state prison sentencesof “three, four, or five years,” as opposed to the “two, three or four years” a defendantis exposed to under Health and Safety Code section 11360, subdivision (a). However, where a defendantpleadsto the plain statutory language of Health and Safety Code section 11352, subdivision (a), wherein the type ofdrug is not specified, the resulting conviction cannot be considered an offense relating to a controlled substance “as specified in section 802oftitle 21” of the United States Code (also cited as “Section 102 of the Controlled Substances Act” (“CSA”)). Asthe Ninth Circuit explained in Ruiz-Vidal v. Gonzales (9th Cir. 2007) 473 F.3d 1072, 1078, “California law regulates the possession and sale of numerous substancesthat are not similarly regulated by the [CSA],” and a “controlled substance” as specified in the California Health and Safety Codeis not necessarily “included within the federal ambit of Section 29 102 of the [CSA].” Therefore, the Ninth Circuit held that where an alien has a California conviction for an offense relating to a “controlled substance,” but the substance is not specifically named, the record of conviction will fail to “establish unequivocally that the particular substance which[the alien] was convicted of possessing . . . is a controlled substance as defined in section 102 of the [CSA].” (Ud. at p. 1079.) The conviction therefore cannot form the basis of an order of removalor a denial of immigration relief. (/d.; see also Tokatly v. Ashcroft (9th Cir. 2004) 371 F.3d 613, 620.) Accordingly, had the trial court properly advised appellant pursuant to Penal Code section 1016.5, he could have offered to “plead up” to the more serious offense under Health and Safety Code section 11352, subdivision (a), and avoid the disastrous immigration consequences he now faces. This alternative plea would have been attainable during the original proceedings becauseit is “reasonably related” to the charged offense, satisfying the concern that “the defendant’s record, while not a completely accurate portrayal of his criminal history, will not be grossly misleading and thus will not likely result in inappropriate correctional treatmentor police suspicion.” (People v. West (1970) 3 Cal.3d 595, 613.) Under both sections 11360 and 11352, any person who“transports, imports into this state, sells, furnishes, administers, or gives away, or offers to transport, import into this state, sell, furnish, administer, or give away, or attempts to 30 import into this state or transport”a listed controlled substanceis guilty ofa felony. (Health and Saf. Code §§ 11352, subd. (a); 11360, subd. (a).) Moreover, both statutes involve controlled substances in the state of California, and permit a sentencing court to impose narcotics offender registration, drug treatment, and mandatory testing as part of appellant’s probation, thereby fulfilling the state’s interest in reducing drug crime recidivism. (See Health and Saf. Code §§ 11376 (drug counseling); 11551 (drug testing as condition of probation); 11590 (narcotics offender registration). Giventhe severity of the immigration consequencestriggered by appellant’s plea, appellant’s willingness to risk a greater custodial sentence with a plea to a violation of section 11352 is completely rational. Because appellant’s original sentence wasprobation with 111 daysin jail, despite a possible maximum offouryearsin prison,it is highly unlikely that the prosecution would haveinsisted on a vastly greater sentence in exchange for an immigration-neutral plea. In fact, what “beggars the imagination” (typed opn., p. 3.), is why such grossly disparate treatment would be expected. Thereis no reason to presume, as the decision below does,that had appellantpled up to section 11352 to avoid immigration consequences, the court would have imposed a vastly greater custodial sentence, where the facts of appellant’s criminal conduct remain unchanged. In fact, it is extremely likely that if appellant had pled up to a violation ofsection 31 11352(a), the court would have agreed to the same disposition imposed in this case — probation with a moderate county jail sentence Under Strickland v. Washintgon, supra, 466 U.S. 668, 695, this Court must consider the issue of prejudice in the abstract without regard to “unusual propensities toward harshness or leniency” on the part of a particular decision maker. In Hill v. Lockhart, supra, 474 U.S. 52, the Court cited Strickland for the proposition that an assessmentof prejudice should be based upon a “reasonable decision maker.” The decision below presupposes an unreasonable decision maker would insist on a prison term in exchange for appellant’s plead up to an immigration-neutral charge, despite the initial offer of a no-prison sentence, and is therefore erroneous as a matter oflaw. 2. The advantageof the plea offer was not so great as compared to the harm of the immigration consequences, nor his defense to the charges so weak, that it would have been irrationalfor appellant to have rejected the plea offer and gone to trial. Despite all the weight of authority from this Court and the U.S. Supreme Court about how immigration consequenceaffect a non-citizen defendant’s decision whetherto plead guilty or go totrial, the Court of Appealin this case failed to acknowledge that, had appellant been properly warned pursuantto section 1016.5, his risk calculation about goingtotrial would have been altered. (Typed. Opn.at p. 3.) In appellant's case, the immigration consequencesofhis 1992 plea of guilty are exceptionally severe: He has been rendered deportable as a result of his conviction. and once deported, will be permanently inadmissible from the United States. When hepled guilty in 1992,his conviction madeit impossible for him to ever obtain lawful immigrant status in the United States, even after his marriageto a legal resident or the births of his U.S.citizen children. (1 CT 44.) In light of the extreme hardshipthat will result from the immigration consequencestriggered by appellant’s plea, it would have been entirely rational for him to reject the plea had he been properly advised pursuant to Penal Code section 1016.5. Appellant faced a maximum penalty faced of“two, three, or four years”had he been convictedattrial. (Health and Saf. Code § 11360, subd. (a).) However,in light ofthe fact that appellant was actually sentenced to a mere | 11 days in jail and three years of probation, it is reasonable to infer that something less than the maximum sentenceof4 years would have been imposed by the court after conviction attrial. (1 CT 92.) Moreover, appellant waived his constitutional rights to plead not guilty, to a jury ofhis peers, to a speedy andpublictrial, against self-incrimination, to produce witnesses and evidenceon his behalf, to confront his accuser, and to cross examine witnesses against him. Appellant’s waiver ofhistrial rights is no trivial matter, given that appellant had a reasonable defenseto the charges. t a d G e Despite the Court of Appeal’s assertions to the contrary, the case against appellant was far from iron-clad. The record clearly demonstrates that there were weaknesses in the prosecution’s case sufficient to persuade a properly warned defendant to chooseto gototrial if an immigration-neutral plea could not be reached. As appellant’s trial counsel pointed out: This is essentially a one-witness case involving the officer who saw whathe perceived to be an apparent hand-to-hand. . . drug transaction. He detained the alleged buyer in that transaction allowing the seller to carry on on his bicycle who — with whom helost visual observation for then nearly an hour. When he arrested [appellant] some one hour later and some .68 miles away, he searched [appellant] and found no indicia of any kind of drug sales and no money on him as well. (1 RT 7.) Eventhe District Attorney acknowledged that there were “weaknesses”in the prosecution’s case that could lead to an acquittal. (1 RT 9.) There can be no doubt that appellant would have given particular consideration to the weaknesses in the prosecution’s case against him had he knownthe plea offer would trigger disastrous immigration consequences. The decisions below failed to give due consideration to all of the factors appellant, had he been properly advised, would have weighedin his decision to accept or reject the plea offer. Had the Court of Appeal and the Superior Court properly applied the prejudice standard from Padilla, they would have concluded that it would have been “rational under the 34 circumstances” for appellant to have rejected the plea offer. (Padilla, supra, 130 S.Ct. 1485.) B. Had the Courts Below Properly Applied the Test For Prejudice Set Forth in Zamudio, They Would Have Concluded that Appellant Was Prejudiced by the Lack of Section 1016.5 Advisements. Under current California law, the court’s task is to determineifit is “reasonably probable the defendant would not have pleaded guilty if properly advised.” (Zamudio, supra, 23 Cal.4th at p. 210.) The Court of Appeal’s decision, which focuses narrowly and exclusively on appellant’s chances of an acquittalattrial, fails in any way to addressthecritical question: how would appellant have respondedto theinitial plea offer if properly warned? Despite the severity of the immigration consequencesfor this appellant, his knowledge about them would not have changed the strength of the evidence against him. However, appellant’s knowledge of the consequencesofthe plea offer during theinitial proceedings would most certainly have altered his personalrisk calculation about going totrial, and motivated him to continue plea negotiations with the prosecution in hopesof securing an immigration-neutral disposition. (1 CT 45.) Had the courts below properly applied the prejudice standardset forth in Zamudio, including giving due consideration to the special circumstances ofa non- citizen defendant, they would necessarily have concluded thatit is 35 reasonably probable appellant would haverejected this plea offer had he been properlyadvised. First, as argued, in Section I, C, supra, the support for plea bargaining in which both the prosecution and the defendant take immigration consequences into account is overwhelming. As the District Attorney for Santa Clara County wrote: “a dominant paradigm has emerged — prosecutors should consider both collateral and direct consequencesof a settlement in order to discharge our highest duty to pursue justice.” (Santa Clara County Dist. Atty. Jeff Rosen Memorandum:Collateral Consequences.) The official policy of the Santa Clara County District Attorney’s office is to take collateral consequences such as deportation into account wheninsuring that justice is done: The highest duty of the prosecutor is to ensure that both the charges and ensuing punishment fit the crime. Collateral consequencesare the inevitable product of criminal behavior. It is not generally the duty of a prosecutor to mitigate the collateral consequences to a defendant of his or her crime. However, in those cases where the collateral consequences are significantly greater than the punishment for the crime itself, it is incumbent upon the prosecutor to consider and, if appropriate, take reasonable steps to mitigate those collateral consequences . . . In those cases where a prosecutor mitigates either a charge or sentence in order to ensure a just resolution, the prosecutor should ensure that the totality of the resolution remains equitable with that offered to other similarly situated defendants. In other words, the facts of each case must be carefully evaluated to ensure equality andjustice. (/bid.) Therefore, in weighing the reasonable probability that a properly warmed defendant would reject an initial plea offer if it would lead to 36 onerous immigration consequences, courts must recognize that in such cases further plea bargaining can and shouldbe pursued. In the instant case, the Court of Appeal erred whenit presumed an unreasonable outcome from further plea negotiations had appellant been properly warned about immigration consequencesandrejected the initial plea offer. Appellant argued that there was a reasonable probability that the prosecutor would have accepted a “plea up” from the original count of Health and Safety Code section 11360, subdivision (a), to the more serious offense under section 11352, subdivision (a). As explained in Section II, A, 1, supra, Health and Safety Code section 11352, where the drug is not named, cannotbe considered a controlled substance offense underfederal law, and does nottrigger immigration consequences. (See Ruiz-Vidalv. Gonzales, supra,473 F.3d at p. 1078.) However, even though appellant’s actual sentence wasonly 111 days in county jail, the Court of Appeal presumedthat to avoid immigration consequences, the prosecutoror the court would have demandeda prison sentenceof“three, four or five years.” (Typed. Opn., p. 3.) Such an outcome would not only be unjust and unreasonable,it is also improbable in light ofthe overwhelming recognition that justice is best served when plea negotiations take immigration consequences into account. Second, the Court of Appeal focused on howajury would weigh the evidence against appellant, without any regard whatsoever for how 37 appellant's decision-making process during plea bargaining might be affected by the knowledgethat a plea to Health and Safety Code section 11360, subdivision (a) would guarantee his permanent banishment from the United States. (Typed Opn., p. 3.) A prejudice analysis focused on success at trial, to the exclusion ofall other factors, is in conflict with current California law, which does not require defendants to prove a likelihood of successat trial. (People v. Castro-Vasquez, supra, 148 Cal. App. 4th 1240.) More importantly, such an analysis completely bypasses the actual inquiry required by Zamudio, which is whetherit is “reasonably probable the defendant would not have pleaded guilty if properly advised.” (Zamudio, supra, 23 Cal.4th at p. 210.) Asargued in Section II, A, 2, supra, objective evidence indicates that the case against appellant was not unbeatable. The District Attorney acknowledged there were weaknessesthat could have led to an acquittal. (1 RT 9.) Under California law, appellant was not required to prove he would have prevailed in a jury trial. (People v. Castro-Vasquez, supra, 148 Cal. App. 4th 1240.) Thus, appellant need not prove that the prosecution’s case against him was unwinnable, but rather that the weakness in the prosecution’s case demonstrate that it is reasonably probable defendant would havepreferred his chancesattrial over a plea offer guaranteed to result in his deportation. Because the decisions below overlookedthis factor, it follows that they misapplied the standard for assessing prejudice under California law. As demonstrated above, a proper assessment would have concluded that appellant was prejudiced by the trial court’s lack of advisements pursuant to Penal Code 1016.5, and reversal is required. CONCLUSION The standard for assessing prejudice established by the U.S. Supreme Court in Padilla, which requires courts to determineif it would have beenrational underthe circumstances for a properly advised defendant to reject the plea offer, is the best method for determining whetherit is reasonably probablethat a defendant would not havepled guilty if properly advised. Although the Padilla standard in no waylessens a defendant’s burden of proofin the context of section 1016.5 motions,it clarifies for lower courts that the prejudice analysis must focus on how a non-citizen defendant’s circumstanceswill affect his decision-making process during plea negotiations. Such circumstancesnecessarily include the availability of immigration-neutral alternative pleas, the relative harm of the immigration consequencesversusthe benefit of the proffered plea, and strength of the prosecution’s case versus any available defenses to the charge. However, regardless of whether the Court chooses to adopt the language ofPadilla, it should reverse the decisions below, whichfailed to properly addressall of the factors appellant would have considered in deciding whetherornotto accept the proffered plea, had he been properly 39 warned pursuantto Penal Codesection 1016.5. Forall the reasons described herein, the Court should reverse the decision of the Court of Appeal. with instructions that the Superior Court grant appellant's motion to vacate his conviction pursuant to Penal Code section 1016.5. Dated: June 8, 2012 Respectfullysu Sara E. Cophin-—~ Attorney for Defendant and Appellant RODRIGO MARTINEZ MARTINEZ 40 CERTIFICATION OF WORD COUNT Pursuant to California Rules of Court, rule 8.520(c)(1), I hereby certify the number of words in Appellant’s Opening Briefis 9,459 based on the calculation of the computer program usedto preparethis brief. The applicable word-countlimit is 14,000. asDated: June 8, 2012 iL Sara E. Coppi“ 41 DECLARATION OF SERVICE Re: People v. Rodrigo Martinez-Martinez No. H036687 I, Sara E. Coppin, declare that I am over 18 years of age, employed in the County of San Francisco, and not a party to the within action; my business addressis 11075 Treehenge Lane, Auburn, CA 95602, I am a memberofthe bar ofthis court. On June 8, 2012, I served the within APPELLANT’S OPENING BRIEF ON THE MERITS on each of the following, by placing true copies thereof in envelopes addressed respectively as follows, and sending via United States Postal Service: Attorney General 455 Golden Gate Ave Room 11000 San Francisco, CA 94102 District Attorney Santa Clara County 70 West Hedding Street, West Wing San Jose, CA 95110 Sixth District Appellate Project 100 N Winchester Blvd., Suite 310 Santa Clara, CA 95050 Rodrigo Martinez-Martinez c/o Enrique Ramirez 825 Van Ness Ave., Ste 304 San Francisco, CA 94109 Santa Clara County Superior Court 191 N. First Street San Jose, CA 95113 Sixth District Court of Appeal 333 West Santa Clara Street, Ste.1060 San Jose, CA 95113 I declare under penalty of perjury that the foregoing is true and correct. Executed on June 8, 2012, at Auburn, California. — SARAoO