The California Court of Appeal, Fourth Appellate District, has issued a decision addressing the grounds for pre-Padilla ineffective assistance of counsel claims, but also recognizing that a Sixth Amendment violation is not required to meet the standard for a vacatur under section 1473.7 of the California Penal Code (CPC). “Nevertheless, prior to Padilla, it remained an open question in California whether defense counsel had an affirmative duty to advise about immigration consequences of a plea. Earlier cases provide limited guidance on what types of advice or lack thereof rose to the level of ineffective assistance under California law prior to Padilla. While it is clear that affirmative misadvice satisfies the performance prong of an ineffective assistance claim, it is less clear whether a failure to provide comprehensive advice might qualify.”
In the instant case, it was undisputed that some conversations about immigration consequences took place between the defendant and his counsel, and that the defense counsel merely reiterated the warnings of possible immigration consequences from the Tahl form, the counsel’s performance was deficient.
However, the court determined that the counsel’s error was not prejudicial. “Defendant did not satisfy this burden here. The record contains sufficient evidence to conclude that defendant prioritized drug treatment over potential immigration-neutral pleas, and therefore it is not reasonably probable that he would have rejected the plea but for his counsel’s failure to properly advise him.” The court noted that the defendant had rejected an offer to an immigration-neutral disposition under section 459 of the CPC.
“We agree with Camacho and Mejia’s conclusion that prevailing under section 1473.7 does not require a defendant to prove a violation of his constitutional rights, and only requires contemporaneous evidence demonstrating a reasonable probability that but for the alleged error defendant would not have entered a guilty plea. However, we disagree that these cases counsel a different result here.” “[E]ven under an expansive reading of Camacho and Mejia we still conclude that defendant failed to meet his burden to show that there is a reasonable probability that but for the error defendant would not have entered his plea.”
The full text of People v. Vivar can be found here:
http://sos.metnews.com/sos.cgi?1219//E070926