People v. Vivar

IN THE SUPREME COURT OF
CALIFORNIA
THE PEOPLE,
Plaintiff and Respondent,
v.
ROBERT LANDEROS VIVAR,
Defendant and Appellant.
S260270
Fourth Appellate District, Division Two
E070926
Riverside County Superior Court
RIF101988
May 3, 2021
Justice Cuéllar authored the opinion of the Court, in which
Justices Liu, Kruger, Groban, and Jenkins concurred.
Justice Corrigan filed a concurring and dissenting opinion, in
which Chief Justice Cantil-Sakauye concurred.
PEOPLE v. VIVAR
S260270
Opinion of the Court by Cuéllar, J.
The population of the United States includes millions of
immigrants who arrived as children, attended schools, and
found work here. (See Dep’t of Homeland Security v. Regents of
the Univ. of California (2020) ___ U.S. ___, ___ [140 S.Ct. 1891,
1932] (conc. & dis. opn. of Kavanaugh, J.).) Whether they
become citizens or not, these immigrants’ ties to our country are
evident not only in their work and schooling, but in how they’ve
formed attachments and families of their own. In contrast, what
ties they once had to their country of birth — from which they
may lack even memories — often slip away. So when long-
standing noncitizen residents of this country are accused of
committing a crime, the most devastating consequence may not
be a prison sentence, but their removal and exclusion from the
United States. (See People v. Martinez (2013) 57 Cal.4th 555,
563 (Martinez).) Because the prospect of deportation “is an
integral part,” and often even “the most important part,” of a
noncitizen defendant’s calculus in responding to certain
criminal charges (Padilla v. Kentucky (2010) 559 U.S. 356, 364
(Padilla)), both the Legislature and the courts have sought to
ensure these defendants receive clear and accurate advice about
the impact of criminal convictions on their immigration status,
along with effective remedies when such advice is deficient.
(E.g., Pen. Code, §§ 1016.2 et seq., 1473.7; Lee v. United States
(2017) ___ U.S. ___ [137 S.Ct. 1958] (Lee); Padilla, at p. 360;
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Opinion of the Court by Cuéllar, J.
Martinez, at p. 559; People v. Superior Court (Giron) (1974) 11
Cal.3d 793, 798.)
How these provisions apply to people like defendant
Robert Landeros Vivar — who came to the United States at age
six and lacked any meaningful ties to his country of birth — is
the problem we address in this case. Vivar was arrested in 2002
for attempting to steal Sudafed from a grocery store. Although
he’d spent four decades living in this country as a lawful
permanent resident, he lacked American citizenship. What he
nonetheless possessed were robust ties to the United States. His
mother, wife, children, and grandchildren were all citizens. His
son, who was serving in the United States Air Force, was about
to be deployed to the Middle East.
Unfortunately, as the Court of Appeal held and the
Attorney General concedes, Vivar was never properly advised
about the immigration consequences of his plea options. He
didn’t know, for example, that pleading guilty to violating
Health and Safety Code section 11383, former subdivision (c),
would necessarily subject him to mandatory deportation, while
pleading guilty to violating Penal Code section 459 would not.
Vivar took the former plea offer and rejected the latter. His
mistake soon became manifest: within days, Vivar was
subjected to an immigration hold, and a few months later he was
deported.
After Vivar made his way back into the United States by
crossing the border without inspection, he sought expungement
of his drug conviction. He succeeded and then tried to secure
further relief by way of a petition for writ of error coram nobis.
Neither had any effect on his immigration status, however. He
was again deported in 2013.
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In 2018, Vivar filed a motion to vacate his 2002 conviction
under a recently enacted statute offering relief to those who had
already served their sentences. (Pen. Code, § 1473.7 (section
1473.7).) A successful section 1473.7 motion requires a showing,
by a preponderance of the evidence, of a prejudicial error that
affected the defendant’s ability to meaningfully understand the
actual or potential immigration consequences of a plea. (Id.,
subds. (a)(1), (e)(1).) The Court of Appeal concluded that while
counsel had failed to offer Vivar competent advice about
immigration consequences in 2002, Vivar failed to demonstrate
any prejudice from the error. (People v. Vivar (2019) 43
Cal.App.5th 216, 225–231 (Vivar).) Based on an independent
review of the record, we disagree. Vivar has demonstrated a
reasonable probability that if he had been properly advised by
counsel about the immigration consequences of his plea, he
wouldn’t have pleaded guilty to an offense subjecting him to
mandatory deportation. We therefore reverse the judgment of
the Court of Appeal.
I.
In 1962, when Vivar was six years old, he and his family
immigrated as lawful permanent residents from Mexico to the
United States. He now has two children and six grandchildren.
All are American citizens and all reside here in California, along
with Vivar’s two siblings.
A.
Upon arrival, Vivar quickly adapted to life in the United
States. Since early in his youth, his primary language has been
English. In high school, he helped establish a Reserve Officers’
Training Corps program and hoped to serve his country in
Vietnam like his older brother, Martin, but the war ended a few
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Opinion of the Court by Cuéllar, J.
months after he graduated. Vivar instead began working at an
airline and was soon promoted to a management position that
required him to work a night shift at the airport and a day shift
in the office. Limited to only a few hours of sleep a night, he
turned to amphetamines to stay awake.
Vivar first entered — and successfully completed — a
residential drug treatment program in the late 1990s.
Unfortunately, he relapsed in 2001. The conviction under
review arose from his methamphetamine addiction. In
February 2002, he was caught trying to steal 12 boxes of
Sudafed from a grocery store in Corona. Vivar told the store’s
loss prevention officer — and later, the police — that he planned
to provide the Sudafed to someone who would manufacture
methamphetamine and, in turn, share some of the finished
product with him. The Riverside County District Attorney
charged Vivar with possessing methamphetamine precursors
with the intent to manufacture the drug (Health & Saf. Code,
§ 11383, former subd. (c); see id., § 11383.5, subd. (c)) as well as
petty theft with a prior conviction (Pen. Code, § 666).
B.
The District Attorney offered Vivar several plea options.
What happened next is in some dispute. Vivar recalls his
attorney conveying an offer of an unspecified felony plea with a
three-year sentence. He rejected that offer because of his
mistaken belief — never corrected by his appointed attorney —
that all felony convictions resulted in deportation and that the
opposite was true for misdemeanors. (Cf. U.S. v. Graham (3d
Cir. 1999) 169 F.3d 787, 792 [some misdemeanors can qualify as
an aggravated felony under federal immigration law].) Based
on this mistake, he asked counsel to secure a plea deal that could
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Opinion of the Court by Cuéllar, J.
eventually be reduced to a misdemeanor. He also informed her
he had a drug problem and wanted treatment, even if not
required by the plea offer.
Following those discussions, counsel relayed an offer for
Vivar to plead guilty to burglary (Pen. Code, § 459) with a low-
term prison sentence. With good-conduct credits, he could’ve
served just a year in prison and avoided mandatory deportation.
(See Pen. Code, §§ 461, former subd. (a), 2933, subd. (a).)
According to Vivar, though, counsel never advised him about the
immigration-related benefits of this plea, nor did she correct his
misimpression about the respective immigration consequences
of felonies and misdemeanors. Unaware the burglary plea offer
could be deportation-neutral, he rejected it. He pleaded guilty
instead to possessing methamphetamine precursors with intent
to manufacture in exchange for an agreed-on 365-day county jail
sentence — with a stipulation that the court would recommend
admission to a residential drug treatment facility — and that a
low-term, two-year prison sentence would be imposed only if he
failed to complete the treatment program. Vivar mistakenly
believed this disposition would allow him both to get treatment
and, once the conviction was reduced to a misdemeanor, avoid
deportation.1
Before entering his plea in March 2002, Vivar executed a
form that required him to initial 17 separate paragraphs
acknowledging that he understood the potential consequences of
his plea. One paragraph stated, “If I am not a citizen of the
1
Vivar says counsel informed him that the court could
reduce the felony conviction to a misdemeanor — and Vivar
believed that this disposition carried no immigration
consequences.
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Opinion of the Court by Cuéllar, J.
United States, I understand that this conviction 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.” Another paragraph provided, “I have had
an adequate time to discuss with my attorney (1) my
constitutional rights, (2) the consequences of any guilty plea,
and (3) any defenses I may have to the charges against me.”
Vivar’s counsel declined to submit a declaration in
connection with the hearing on the section 1473.7 motion. Her
recollection was presented to the court instead through unsworn
email correspondence and her handwritten notes. Counsel
stated that while she didn’t specifically remember Vivar’s case,
her “standard practice” at the time was to “advise non-citizen
clients of the potential for immigration consequences” of their
convictions and that she “routinely followed that practice.”
After reviewing her notes from the plea negotiations, counsel
indicated that she was “confident that Mr. Vivar was ‘fully
advised’ of the consequences of the plea,” which under the
circumstances of the case “would have included the standard
advisement of possible deportation.” She also stated that she
“believe[d]” she “specifically cautioned” Vivar “that, in spite of
his experience” in a prior criminal proceeding, residential
treatment “would NOT determine whether or not he would be
deported on the new offense,” and that if Vivar had any
questions “he should consult an immigration attorney for
clarification.” What she did not advise him was whether his
understanding of felonies, misdemeanors, and immigration law
was correct. Nor did she advise him as to the actual
immigration consequences of a plea to the drug charge or any
other plea.
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Opinion of the Court by Cuéllar, J.
C.
A few days after being sentenced, Vivar was informed that
he couldn’t be admitted to the recommended drug treatment
program “ ‘due to an “immigration hold.” ’ ” (Vivar, supra, 43
Cal.App.5th at p. 221.) As he would’ve known had he been
properly advised, his conviction activated a tripwire in
immigration law — it qualified as a controlled substance offense
as well as an aggravated felony. (See 8 U.S.C. §§ 1101(a)(43)(B),
1227(a)(2)(A), 1227(a)(2)(B).)2 Vivar promptly sent a series of
letters to the court expressing confusion about the situation and
requesting assistance with admission to the drug treatment
program. (Vivar, at p. 221.) In those letters, he explained that
he had been a legal resident for the past 40 years, that his family
members were United States citizens, and that his son was
currently serving in the United States Air Force and awaiting
deployment to the Middle East. He made plain that “[i]f I would
have been made aware of these facts I would never have
plead[ed] Guilty to this Charge.” In the meantime, federal
immigration authorities notified Vivar that he was subject to
removal because of his recent criminal conviction and, in
January 2003, deported him. (Vivar, at p. 221.)
Determined to rejoin and support his family — and unable
to find work in Mexico — Vivar reentered the United States,
without inspection, in May 2003. In 2008, he successfully
obtained an order to expunge his conviction under Penal Code
2
According to Vivar’s immigration law expert, this
conviction “triggered the worst of all immigration consequences:
mandatory deportation with a bar to almost all forms of
immigration relief, and permanent ineligibility for U.S.
citizenship.”
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Opinion of the Court by Cuéllar, J.
section 1203.4. It took another three years for him to learn,
when he was again detained by immigration authorities, that
expungement did not mitigate the immigration consequences of
his plea. (See Martinez, supra, 57 Cal.4th at p. 560.) Vivar then
filed a petition for writ of error coram nobis, which was denied.
In March 2013, he was again deported and has been living in
Tijuana, Mexico ever since. There, he works full-time at a call
center and founded a nonprofit organization to help deported
mothers of United States citizen children as well as deported
mothers of children lawfully residing in the United States under
the Deferred Action for Childhood Arrivals program. He has
also been volunteering with organizations to support deported
United States veterans. If this conviction can be vacated, Vivar
— who has remained drug-free since 2002 — may be able to seek
reentry to the United States and be reunited with his family.
Vivar filed a motion in January 2018 to vacate his
conviction under Penal Code section 1473.7 — the motion under
review here. He asserted, among other things, that he would
never have pleaded guilty to violating Health and Safety Code
section 11383, former subdivision (c), if counsel had informed
him it would result in his deportation. The trial court denied
the motion, reasoning (1) that counsel made no affirmative
misadvisement, and (2) that “nonadvisement” of immigration
consequences didn’t qualify as ineffective assistance under
United States Supreme Court precedent. The trial court didn’t
consider whether Vivar suffered prejudice from counsel’s failure
to provide adequate advice.
The Court of Appeal affirmed, but on different grounds.
Contrary to the trial court, the Court of Appeal determined that
defense counsel provided ineffective assistance. (Vivar, supra,
43 Cal.App.5th at p. 228.) At a minimum, the court reasoned,
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Opinion of the Court by Cuéllar, J.
Vivar had asked “a specific question about deportation” (ibid.),
a question that “required an attorney to research and apprise
their client of the immigration consequences of a plea” (id. at
p. 227). To warn merely “ ‘that his plea might have immigration
consequences,’ ” in circumstances where the consequences were
“certain,” was “constitutionally deficient.” (Id. at p. 228.) What
barred relief here, in the Court of Appeal’s view, was Vivar’s
failure to demonstrate prejudice — in this context, a reasonable
probability that he wouldn’t have entered the same plea if he
had been properly advised. (Id. at p. 229.) The court reasoned
that Vivar’s main priority seemed to be drug treatment, not
immigration consequences, and asserted that this was
corroborated by counsel’s contemporaneous notes, by Vivar’s
rejection of the immigration-neutral burglary plea, and by the
trial court’s finding that Vivar was “ ‘was more willing to rely on
his experiences than he was on his counsel’s advice.’ ” (Id. at
p. 230.) Despite the decades Vivar spent in this country, his
family members’ American citizenship, and his prompt objection
to the federal immigration hold, the Court of Appeal insisted
there was “no contemporaneous evidence in the record” to
corroborate Vivar’s claim that he would’ve preferred an
immigration-neutral disposition. (Ibid.)
We granted Vivar’s petition to review two rulings made by
the Court of Appeal: first, its conclusion that he suffered no
prejudice within the meaning of section 1473.7, subdivision
(a)(1); and second, its conclusion that appellate courts must
review deferentially factual findings made by the trial court
concerning prejudice under section 1473.7, even if those findings
are based on a cold record consisting solely of documentary
evidence. Because no one sought review to challenge the Court
of Appeal’s finding that Vivar’s counsel was ineffective, we
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Opinion of the Court by Cuéllar, J.
assume for purposes of this proceeding that counsel failed to
properly advise Vivar about the immigration consequences of
his plea or of the plea offers he rejected. After we granted review
— and after receiving a 30-day extension to file his brief on the
merits — the Attorney General has undertaken a “fresh look” at
the Court of Appeal’s analysis and now concedes that the Court
of Appeal erred in applying a deferential standard of review to
the trial court’s prejudice findings. He further concedes that,
under independent review, Vivar has demonstrated prejudice
and is entitled to relief. We have retained the case for decision
to resolve a conflict in the Court of Appeal concerning the
standard of review governing prejudice findings under section
1473.7, subdivision (a)(1) and to clarify more generally what
demonstrates prejudice under that provision. (See People v.
Maya (2020) 9 Cal.5th 239, 241.)
II.
It took less than a month for Vivar to realize the dire
ramifications of his mistaken embrace of a felony drug
possession plea. What ensued in the 18 years that followed
underscores how much Vivar consistently valued his presence
on American soil, and how likely it is that — properly advised
— he would have prioritized a resolution of his case allowing
him to stay in the country. Mere weeks after entering his plea,
when he learned that he was subject to an immigration hold and
thus ineligible for a residential drug treatment program, he sent
the sentencing judge a handwritten letter “to seek the court’s
mercy.” Vivar informed the court that he was “a legal resident
and ha[s] been for the past 40 years”; that his mother and wife
were American citizens; that his children and grandchildren, all
born in Riverside County, were likewise citizens; and that his
oldest child and only son was in the United States military
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Opinion of the Court by Cuéllar, J.
awaiting deployment to the Middle East. He “fully accept[ed]”
responsibility for his actions but “would like to change my life
for good and become a productive member of society.” Two
months later, after he was transferred to a federal immigration
facility, he reiterated his willingness “to do whatever it takes to
once again be an asset to my community and not a liability” and
asked the court to reduce his conviction to a misdemeanor. (See
Pen. Code, § 17, subd. (b).)
A few months later, in October 2002, Vivar asked that his
case “be Re-opened” on due process grounds. The legal advice
he received at the time of his plea never conveyed, Vivar
insisted, that he was accepting responsibility for “an Aggravated
Felony for Immigration purposes and thus would warrant
Immediate Deportation.” Had he been so advised, he “would
have never plead[ed] Guilty to this Charge.” He was deported a
few months later.
In 2008, Vivar successfully moved to expunge his
conviction through another pro se filing. Only later did he learn
that expungement hadn’t erased or even mitigated the
immigration consequences of his plea. (See Martinez, supra, 57
Cal.4th at p. 560.) In 2012, a lawyer advised Vivar he could
obtain relief on grounds of ineffective assistance of counsel by
filing a petition for writ of error coram nobis. Vivar hired the
lawyer to file such a petition. Yet this filing, too, proved
fruitless: This court had already held, in 2009, that a
defendant’s ignorance of a plea’s immigration consequences —
or counsel’s failure to negotiate a different plea — constituted a
mistake of law and thus did not qualify as a ground for relief on
coram nobis. (People v. Kim (2009) 45 Cal.4th 1078, 1102–1104
(Kim).) In a companion case, we also held that persons in federal
immigration custody after completing their state sentences, as
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Opinion of the Court by Cuéllar, J.
well as any probation or parole period, are no longer in state
custody. (People v. Villa (2009) 45 Cal.4th 1063.) So their state
convictions are beyond the reach of habeas corpus.
But they are not beyond the reach of remedies recently
enacted by the Legislature. As Vivar was running out of options,
lawmakers considered the problem faced by Vivar and so many
others who were unaware of the immigration consequences
posed by a plea entered many years earlier. (See Kim, supra, 45
Cal.4th at p. 1107 [“the Legislature has been active in providing
statutory remedies when the existing remedies . . . have proven
ineffective”; “the Legislature remains free to enact further
statutory remedies for those in defendant’s position”].) They did
so by enacting section 1473.7, which “create[d] an explicit right
for a person no longer imprisoned or restrained.” (Legis.
Counsel’s Dig., Assem. Bill No. 813 (2015–2016 Reg. Sess.).)
Under this new provision, a court “shall” vacate a conviction or
sentence upon a showing, by a preponderance of the evidence, of
“prejudicial error damaging the moving party’s ability to
meaningfully understand, defend against, or knowingly accept
the actual or potential adverse immigration consequences of a
plea of guilty or nolo contendere.” (§ 1473.7, subds. (e)(1), (a)(1).)
A finding of prejudicial error under this provision may, but need
not, be based on ineffective assistance of counsel. (Id., subd.
(a)(1).) If the motion is meritorious, “the court shall allow the
moving party to withdraw the plea.” (Id., subd. (e)(3).)
The Court of Appeal determined that trial counsel failed
to advise Vivar of “the certain immigration consequences of his
plea.” (Vivar, supra, 43 Cal.App.5th at p. 228.) This rendered
counsel’s representation “constitutionally deficient.” (Ibid.)
Because no party challenged this finding — and the question of
counsel’s deficient performance falls outside the issues
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Opinion of the Court by Cuéllar, J.
presented for review — we accept it as true for purposes of this
proceeding. We review only the Court of Appeal’s finding that
Vivar suffered no prejudice on account of counsel’s error. In
examining that finding, we consider first what is the applicable
standard of review. Then we apply that standard to the record
here. Reviewing the record independently, we conclude Vivar
was prejudiced within the meaning of section 1473.7,
subdivision (a)(1).
A.
When a trial court grants or denies a motion to vacate a
conviction under section 1473.7, the parties can appeal.
(§ 1473.7, subd. (f).) Both parties acknowledge, though, that the
standard for reviewing such orders is “unsettled.” (People v.
Rodriguez (2019) 38 Cal.App.5th 971, 977.) In the Court of
Appeal, the Attorney General analogized section 1473.7 motions
to other statutes authorizing withdrawal of a plea — despite
their different wording (see, e.g., Pen. Code, § 1018 [a trial court
“may” permit a defendant to withdraw a plea “for a good cause
shown”]) — and argued that denial of the motion should be
reviewed deferentially for abuse of discretion. (See, e.g.,
Rodriguez, at p. 977.) Vivar disagreed, making the case that his
prejudice claim raised a mixed question of law and fact that
should be reviewed independently. (See, e.g., People v. DeJesus
(2019) 37 Cal.App.5th 1124, 1133.) Unsatisfied with these two
possibilities, the Court of Appeal proposed yet another option: a
complicated framework in which the standard of review
governing a trial court’s section 1473.7 prejudice ruling would
vary depending on the basis of the claimed error. Under this
option, the trial court’s ruling would be reviewed independently
where the prejudicial error consists of constitutionally
ineffective assistance of counsel but would be reviewed for abuse
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Opinion of the Court by Cuéllar, J.
of discretion where the claim rests merely on “ ‘statutory
error.’ ” (Vivar, supra, 43 Cal.App.5th at p. 224.)
The Attorney General reversed course in the proceedings
before us. He no longer advocates the abuse of discretion
standard — even in the context of mere statutory error. Instead,
he urges us to apply the independent standard of review to all
prejudice determinations under section 1473.7, subdivision
(a)(1). Although we are not “bound” to accept a party’s
concession on a question of law (Desny v. Wilder (1956) 46 Cal.2d
715, 729), after careful review we accept the Attorney General’s
concession. (See In re McKinney (1968) 70 Cal.2d 8, 14.)
Our case law has applied the independent review standard
— which accords substantial weight to the trial court’s
credibility findings — in analogous circumstances. Whether
counsel’s advice regarding immigration was inadequate and
whether such inadequacy prejudiced the defense, while mixed
questions, are predominantly questions of law. (See In re
Resendiz (2001) 25 Cal.4th 230, 248–249 (Resendiz) (lead opn. of
Werdegar, J.).)3 Accordingly, we review such rulings
independently (Resendiz, at p. 248), and rightly so, given the
profound and substantial consequences of a prejudicial
misadvisement on a defendant’s life. (Cf. People v. Ault (2004)
33 Cal.4th 1250, 1265 (Ault) [“the proper review standard is
influenced in part by the importance of the legal rights or
interests at stake”]; id. at p. 1266 [“another important
consideration in determining the appropriate standard of review
3
Because Justice Mosk concurred in Justice Werdegar’s
lead opinion in all respects relevant here (see Resendiz, supra,25 Cal.4th at p. 255 (conc. & dis. opn. of Mosk, J.)), we cite only
to the lead opinion.
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Opinion of the Court by Cuéllar, J.
is the consequences of an erroneous determination in the
particular case”].)
Nothing in section 1473.7, subdivision (a)(1) or elsewhere
gives us a reason to deviate from this template. Indeed, prior to
section 1473.7’s amendment in 2018 — which clarified that the
“legal invalidity” of a conviction or sentence “may, but need not,
include a finding of ineffective assistance of counsel” (§ 1473.7,
subd. (a)(1); Stats. 2018, ch. 825, § 2) — our courts had
“uniformly assumed” that relief was available only to those who
had demonstrated constitutionally ineffective assistance (People
v. Camacho (2019) 32 Cal.App.5th 998, 1005 (Camacho)). And
to the extent those courts considered the question, they applied
a standard of independent review to such claims. (See, e.g.,
People v. Ogunmowo (2018) 23 Cal.App.5th 67, 75–76
(Ogunmowo); accord, People v. Tapia (2018) 26 Cal.App.5th 942,
950 (Tapia) [following Ogunmowo]; People v. Olvera (2018) 24
Cal.App.5th 1112, 1115–1116 (Olvera) [same].) A standard of
independent review — the same standard governing our review
of these claims on habeas corpus — is most consistent with
section 1473.7’s purpose: to offer relief to those persons who
suffered “prejudicial error” but are “no longer imprisoned or
restrained” and for that reason alone are unable to pursue relief
on habeas corpus. (Legis. Counsel’s Dig., Assem. Bill No. 813
(2015–2016 Reg. Sess.).)
When the Legislature amended section 1473.7 in 2018,
nowhere did it “signal an intent to supersede” the standard of
review the Court of Appeal had already articulated (In re W.B.
(2012) 55 Cal.4th 30, 57; see, e.g., Ogunmowo, supra, 23
Cal.App.5th at pp. 75–76), nor did it propose that appellate
courts adopt a more deferential standard of review. To the
contrary: the Legislature explicitly stated its intended purpose
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was to make relief more broadly available to deserving
defendants, given the critical interests at stake. (See Assem.
Com. on Public Safety, Analysis of Assem. Bill No. 2867 (2017–
2018 Reg. Sess.) as amended Apr. 5, 2018, pp. 2, 4 [this bill helps
achieve the original goal of “creating a process for individuals to
erase the catastrophic consequences . . . that can attach to even
very old criminal convictions” by “clearing up minor
discrepancies that have arisen since implementation”].) The
2018 amendment expanded the category of defendants who
could obtain relief by eliminating any requirement that the
defendant establish ineffective assistance of counsel. An
uncodified section of the 2018 amendment declared that the
expanded language in subdivision (a)(1) provided “clarification
to the courts regarding Section 1473.7 of the Penal Code to
ensure uniformity throughout the state and efficiency in the
statute’s implementation.” (Stats. 2018, ch. 825, § 1, subd. (b),
italics added.) Moreover, the Legislature instructed courts to
interpret section 1473.7 “consistent with the findings and
declarations made in section 1016.2 of the Penal Code” (Stats.
2018, ch. 825, § 1, subd. (c)) — which in turn articulated a
purpose “to codify . . . related California case law and to
encourage the growth of such case law in furtherance of justice”
(Pen. Code, § 1016.2, subd. (h), italics added). Under these
particular circumstances — where legislators expressed keen
awareness of how section 1473.7 was being implemented and
viewed the 2018 amendment as a clarification and codification
of existing law — we see no reason to disturb the prevailing
independent standard of review.
The Court of Appeal posited that a different standard
should apply when the moving party relies on a mistake of law
under section 1473.7, subdivision (a)(1) that does not rise to the
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level of ineffective assistance of counsel. (See Vivar, supra, 43
Cal.App.5th at p. 224.) But that approach would cut against the
Legislature’s stated goals of codifying existing law and ensuring
uniformity. (Stats. 2018, ch. 825, § 1, subd. (b).) What’s more,
it would endow with determinative significance the precise
distinction — whether the asserted error constituted ineffective
assistance of counsel — that the Legislature sought to erase by
amending section 1473.7, subdivision (a)(1) to provide that “[a]
finding of legal invalidity may, but need not, include a finding of
ineffective assistance of counsel.” Overburdened trial courts
might well choose to consider only whether there was
“prejudicial error” damaging the moving party’s ability to
understand actual or potential immigration consequences
without deciding whether such an error actually rose to the level
of constitutionally deficient performance. (§ 1473.7, subd.
(a)(1).) Or courts may fail to make the latter finding simply
because of the happenstance that no party provided trial counsel
with “timely advance notice of the motion hearing,” which is a
prerequisite to “a specific finding of ineffective assistance of
counsel.” (Id., subd. (g).) It would make little sense to make the
standard of review hinge on these trivial choices.4 (See People
v. Bravo, supra, 58 Cal.App.5th at p. 1180 (conc. opn. of Raphael,
J.).)
Our embrace of the independent standard of review also
fits with how section 1473.7 motions generally arise. Only
4
Because we adopt an independent standard of review for
all claims made under section 1473.7, subdivision (a)(1), we
disapprove People v. Bravo (2020) 58 Cal.App.5th 1161, 1167,
People v. Jung (2020) 59 Cal.App.5th 842, 853, and People v.
Rodriguez (2019) 38 Cal.App.5th 971, 977 to the extent they are
inconsistent with this opinion.
17
PEOPLE v. VIVAR
Opinion of the Court by Cuéllar, J.
defendants who have already completed their sentences may
even seek relief under section 1473.7. So these motions — as
the separate opinion acknowledges — are ordinarily brought
many years after the plea. (Compare Pen. Code, § 1018
[allowing a plea to be withdrawn only “before judgment or
within six months . . . if entry of judgment is suspended”].)
Vivar, for example, brought his motion nearly 16 years after
entering his plea. Years later, the judge adjudicating the
resulting motion may never have participated in any of the
underlying proceedings and must rely entirely on a cold record.
(Cf. Haraguchi v. Superior Court (2008) 43 Cal.4th 706, 711, fn.
3; see id. at p. 713 [motions to recuse the prosecutor are
reviewed for abuse of discretion because trial courts “are in a
better position than appellate courts to . . . evaluate the
consequences of a potential conflict in light of the entirety of a
case, a case they inevitably will be more familiar with than the
appellate courts”].)5 Indeed, that’s what happened here: the
judge hearing the section 1473.7 motion had no firsthand
familiarity with the circumstances surrounding Vivar’s plea.
So our embrace of independent review in this context is a
product of multiple factors with special relevance here: the
history of section 1473.7, the interests at stake in a section
1473.7 motion, the type of evidence on which a section 1473.7
ruling is likely to be based, and the relative competence of trial
courts and appellate courts to assess that evidence. (See Ault,
supra, 33 Cal.4th at pp. 1260–1261, 1265–1266.) The fact that
5
Despite the passage of time, a trial court nonetheless
retains the discretion to conduct an evidentiary hearing to
resolve disputes of fact. (See People v. Superior Court (Zamudio)
(2000) 23 Cal.4th 183, 201.)
18
PEOPLE v. VIVAR
Opinion of the Court by Cuéllar, J.
the motion is reviewed by way of appeal does not necessarily
dictate a particular standard of review. (See id. at pp. 1266–
1267.)
“[U]nder independent review, an appellate court exercises
its independent judgment to determine whether the facts satisfy
the rule of law.” (In re George T. (2004) 33 Cal.4th 620, 634.)
When courts engage in independent review, they should be
mindful that “ ‘[i]ndependent review is not the equivalent of de
novo review . . . .’ ” (People v. Jackson (2005) 128 Cal.App.4th
1009, 1021.) An appellate court may not simply second-guess
factual findings that are based on the trial court’s own
observations. (See In re Ernesto H. (2004) 125 Cal.App.4th 298,
306; cf. George T., supra, 33 Cal.4th at p. 634 [under a de novo
standard, “ ‘a reviewing court makes an original appraisal of all
the evidence’ ”].) In reviewing the constitutional claim raised in
Resendiz, we explained that factual determinations that are
based on “ ‘the credibility of witnesses the [superior court] heard
and observed’ ” are entitled to particular deference, even though
courts reviewing such claims generally may “ ‘reach a different
conclusion [from the trial court] on an independent examination
of the evidence . . . even where the evidence is conflicting.’ ”
(Resendiz, supra, 25 Cal.4th at p. 249 (lead opn. of
Werdegar, J.).)6 In section 1473.7 proceedings, appellate courts
6
The separate opinion correctly characterizes substantial
evidence review as “deferential.” (Conc. & dis. opn., post, at p.
10.) But it doesn’t follow that every time a court extends
deference to a trial court’s factual findings, it’s engaging in
substantial evidence review. (See, e.g., Resendiz, supra, 25
Cal.4th at p. 249 (lead opn. of Werdegar, J.); Ogunmowo, supra,
23 Cal.App.5th at p. 76 [citing Resendiz]; Tapia, supra, 26
19
PEOPLE v. VIVAR
Opinion of the Court by Cuéllar, J.
should similarly give particular deference to factual findings
based on the trial court’s personal observations of witnesses.
(See, e.g., Tapia, supra, 26 Cal.App.5th at pp. 948–950
[deferring where the trial judge hearing the § 1473.7 motion also
presided over the plea hearing].) Where, as here, the facts
derive entirely from written declarations and other documents,
however, there is no reason to conclude the trial court has the
same special purchase on the question at issue; as a practical
matter, “[t]he trial court and this court are in the same position
in interpreting written declarations” when reviewing a cold
record in a section 1473.7 proceeding. (Ogunmowo, supra, 23
Cal.App.5th at p. 79.)7 Ultimately it is for the appellate court to
decide, based on its independent judgment, whether the facts
establish prejudice under section 1473.7.
Cal.App.5th at p. 950 [citing Resendiz and quoting Ogunmowo];
Olvera, supra, 24 Cal.App.5th at p. 1116 [citing Resendiz and
Ogunmowo].) What’s distinctive about substantial evidence
review is that adequately supported factual findings not only
merit deference, but are binding, on appeal. (See People v.
Schultz (2020) 10 Cal.5th 623, 647; cf. In re Lewis (2018) 4
Cal.5th 1185, 1191 [while courts “ ‘generally defer to the
referee’s factual findings,’ ” they “are not binding”].)
7
Our decision addresses only the independent standard of
review under section 1473.7. Nothing we say here disturbs a
familiar postulate: when reviewing a ruling under the
substantial evidence standard, “an appellate court should defer
to the factual determinations made by the trial court,”
regardless of “whether the trial court’s rulings are based on oral
testimony or declarations.” (Shamblin v. Brattain (1988) 44
Cal.3d 474, 479; see Haraguchi v. Superior Court, supra, 43
Cal.4th at pp. 711, 713.)
20
PEOPLE v. VIVAR
Opinion of the Court by Cuéllar, J.
B.
The Legislature made relief available only to certain
immigrants who accepted pleas without understanding the
immigration-related consequences of such decisions. What
someone seeking to withdraw a plea under section 1473.7 must
show is more than merely an error “damaging the moving
party’s ability to meaningfully understand, defend against, or
knowingly accept the actual or potential adverse immigration
consequences” of the plea. (§ 1473.7, subd. (a)(1).) The error
must also be “prejudicial.” (Ibid.) Although the statute doesn’t
itself define what “prejudicial” means, we can glean the meaning
from its context. (See Quintano v. Mercury Casualty Co. (2000)
11 Cal.4th 1049, 1055.)
In People v. Superior Court (Zamudio), supra, 23 Cal.4th
183, we considered what constituted prejudice when a trial court
failed to advise a defendant of the plea’s potential immigration
consequences as required by Penal Code section 1016.5.
Prejudice in such circumstances depended on “ ‘whether it is
“reasonably probable” the defendant would not have pleaded
guilty if properly advised.’ ” (Zamudio, at p. 210.) The focus on
“what the defendant would have done, not whether the
defendant’s decision would have led to a more favorable result”
derived from the fact that a defendant “ ‘may view immigration
consequences as the only ones that could affect his calculations
regarding the advisability of pleading guilty to criminal
charges.’ ” (Martinez, supra, 57 Cal.4th at pp. 562, 563.) A
decision to reject a plea bargain, we explained, “might be based
either on the desire to go to trial or on the hope or expectation of
negotiating a different bargain without immigration
consequences.” (Id. at p. 567.) When a court weighs whether a
defendant would have taken the latter path, it need not decide
21
PEOPLE v. VIVAR
Opinion of the Court by Cuéllar, J.
whether the prosecution would actually “have offered a different
bargain” — rather, the court should consider “evidence that
would have caused the defendant to expect or hope a different
bargain would or could have been negotiated.” (Ibid., italics
added.)
We embraced a similar approach when deciding whether
a lawyer’s deficient advisement on immigration consequences
amounts to prejudicial ineffective assistance of counsel. A
defendant in those circumstances must demonstrate a
reasonable probability that, but for counsel’s incompetence, the
defendant “ ‘would not have pled guilty.’ ” (People v. Patterson
(2017) 2 Cal.5th 885, 901 (Patterson), quoting Resendiz, supra,25 Cal.4th at p. 253 (lead opn. of Werdegar, J.).) The United
States Supreme Court, too, undertakes a similar analysis. In
Lee, supra, ___ U.S. at page ___ [137 S.Ct. at page 1967], the
prejudice prong of the ineffective assistance inquiry turned on
whether the defendant had “adequately demonstrated a
reasonable probability that he would have rejected the plea had
he known that it would lead to mandatory deportation.”
Section 1473.7, subdivision (a)(1) fits this definition of
“prejudicial error,” and we discern no reasons lurking in its
provisions to concoct a different one. (See Camacho, supra, 32
Cal.App.5th at p. 1010.) Indeed, the current version of the
statute acknowledges that prejudicial error “may, but need not,
include a finding of ineffective assistance of counsel.” (§ 1473.7,
subd. (a)(1).) The statutory findings for the 2018 amendment
also declared that the statute “shall be interpreted in the
interests of justice and consistent with the findings and
declarations made in Section 1016.2” (Stats. 2018, ch. 825, § 1,
subd. (c)), which in turn articulate the Legislature’s intended
purpose: to codify Supreme Court “and related California case
22
PEOPLE v. VIVAR
Opinion of the Court by Cuéllar, J.
law and to encourage the growth of such case law in furtherance
of justice” (Pen. Code, § 1016.2, subd. (h)).
So: showing prejudicial error under section 1473.7,
subdivision (a)(1) means demonstrating a reasonable
probability that the defendant would have rejected the plea if
the defendant had correctly understood its actual or potential
immigration consequences. When courts assess whether a
petitioner has shown that reasonable probability, they consider
the totality of the circumstances. (Lee, supra, ___ U.S. at p. ___
[137 S.Ct. at p. 1966].) Factors particularly relevant to this
inquiry include the defendant’s ties to the United States, the
importance the defendant placed on avoiding deportation, the
defendant’s priorities in seeking a plea bargain, and whether the
defendant had reason to believe an immigration-neutral
negotiated disposition was possible. (See id. at p. ___ [137 S.Ct.
at pp. 1967–1969]; Martinez, supra, 57 Cal.4th at p. 568.)
The Court of Appeal found it “not reasonably probable that
[Vivar] would have rejected the plea but for his counsel’s failure
to properly advise him.” (Vivar, supra, 43 Cal.App.5th at p.
229.) Two premises supported its conclusion: (1) that “no
contemporaneous evidence” corroborated Vivar’s claim that he
wouldn’t have entered the plea had he known the plea would
lead to his deportation (id. at p. 230), and (2) that Vivar
“prioritized drug treatment over potential immigration-neutral
pleas.” (Id. at p. 229.) Neither premise, though, withstands
scrutiny. What we find, reviewing the record independently, is
that Vivar was prejudiced.
1
In a declaration submitted with his section 1473.7 motion,
Vivar claims he would never have entered this plea had he
23
PEOPLE v. VIVAR
Opinion of the Court by Cuéllar, J.
understood that it would require his deportation. But when a
defendant seeks to withdraw a plea based on inadequate
advisement of immigration consequences, we have long required
the defendant corroborate such assertions with “ ‘objective
evidence.’ ” (Resendiz, supra, 25 Cal.4th at p. 253 (lead opn. of
Werdegar, J.).) That’s what Vivar has done here. Time and
again, the record readily conveys how Vivar would have
considered his immigration status “the most important part” of
his decision to plead. (Padilla, supra, 559 U.S. at p. 364.) Vivar
was brought to this country at age six as a lawful resident, and
he attended schools, formed a family, and remained here for 40
years. At the time of his plea, he had two children, two
grandchildren, and a wife, all of whom are citizens and all of
whom resided in California. By the time he was deported, his
wife was undergoing radiation treatment for a thyroid condition.
By contrast, Vivar had virtually no ties to Mexico, spoke Spanish
“like an American,” and found it “difficult to function in Mexican
society because people treat [him] like an outsider.” Trial
counsel’s recollection and contemporaneous notes reflect that
Vivar was indeed concerned about the “consequences” of his
plea. All of these constitute contemporaneous objective facts
that corroborate Vivar’s concern about the immigration
consequences of his plea options. (See People v. Mejia (2019) 36
Cal.App.5th 859, 872.)
Also revealing is the objective evidence of Vivar’s state of
mind reflected in uncounseled letters he wrote to the court at or
near the time of his plea. In his first letter, written just a month
after his March 2002 plea, Vivar objected to his immigration
hold and emphasized that “I am a legal resident and have been
for the past 40 years”; noted that not only his wife and mother
are citizens, but his children and grandchildren were all “born
24
PEOPLE v. VIVAR
Opinion of the Court by Cuéllar, J.
here in Riverside County”; and explained that his oldest child
and only son was serving in the United States Air Force and
awaiting deployment to the Middle East. He reiterated these
concerns in another letter from federal immigration custody a
month later, pleading that he be allowed to become “an asset to
my community and not a liability.” Three months after that,
Vivar said that counsel never advised him that his plea would
result in his deportation and declared that “[i]f I would have
been made aware of these facts I would have never plead[ed]
Guilty to this Charge.”
The Court of Appeal neglected to explain why these facts
at or near the time of Vivar’s plea failed to provide adequate
corroboration that he wouldn’t have pleaded guilty had he
known it would result in his deportation. Indeed, the court’s
analysis failed to mention these facts at all. This was error. In
our view, these objective and contemporaneous facts
corroborate, in a most convincing way, the statement in Vivar’s
declaration that he “would never have pleaded guilty” if his
attorney had informed him of the plea’s consequences. (See
Camacho, 32 Cal.App.5th at pp. 1011–1012 [finding prejudice
where the defendant was brought to the United States as a
child, had lived here for over 30 years, and his spouse and
children were citizens]; accord, Lee, supra, ___ U.S at p. ___ [137
S.Ct. at p. 1968] [finding prejudice where the defendant was
brought to the United States as a child, had lived here for nearly
30 years, and his parents were citizens].)
2
What the record also shows — and neither the Court of
Appeal nor the Attorney General disputes — is that Vivar could
have entered a plea avoiding mandatory deportation. Trial
25
PEOPLE v. VIVAR
Opinion of the Court by Cuéllar, J.
counsel’s contemporaneous notes indicate the prosecution
offered a deal under which Vivar would plead guilty to a single
count of burglary (Pen. Code, § 459) with a recommendation that
he serve the low term of two years in state prison. With credits,
Vivar could have cut that term in half. (See Pen. Code, § 2933,
subd. (a).) At the time of his plea, burglary in California was a
deportable felony only in particular situations (see Kim, supra,45 Cal.4th at pp. 1089–1090, 1098), and the uncontradicted
declaration from Vivar’s immigration expert stated that Vivar
could’ve entered such a plea without subjecting himself to
mandatory deportation. Under these circumstances, we find at
least “ ‘a reasonable probability’ ” that he could have tried “to
obtain a better bargain that [did] not include immigration
consequences.” (Martinez, supra, 57 Cal.4th at p. 567.)
Concluding otherwise, the Court of Appeal relied
principally on the fact that Vivar rejected the burglary plea. The
court pointed in particular to counsel’s notes, where she had
written that Vivar “ ‘[w]ants help w/ [his] drug problem.’ ”
(Vivar, supra, 43 Cal.App.5th at p. 229.) Because Vivar “was
offered and rejected a plea agreement that would have
completely avoided any immigration consequences,” the court
inferred “that immigration consequences were not defendant’s
primary consideration in accepting or rejecting any plea offer,
and that further advice on this front was not reasonably
probable to change his decisionmaking.” (Id. at pp. 229–230.)
The Court of Appeal’s inference fails to persuade. Vivar’s
rejection of a potentially deportation-neutral plea can hardly
serve as evidence that he didn’t care about immigration
consequences when it is undisputed that Vivar was not properly
advised — and thus was ignorant — of the immigration
consequences attached to his various plea options. So the fact
26
PEOPLE v. VIVAR
Opinion of the Court by Cuéllar, J.
that he unknowingly rejected an immigration-neutral option
cannot, in itself, demonstrate that “immigration consequences
were not defendant’s primary consideration.” (Vivar, supra, 43
Cal.App.5th at pp. 229–230.)
Even less supports the Court of Appeal’s contention that
Vivar “prioritized drug treatment over potential immigration-
neutral pleas.” (Vivar, supra, 43 Cal.App.5th at p. 229.) Indeed,
it doesn’t make sense to say that Vivar would’ve chosen a plea
that triggered mandatory deportation just so he could
participate in drug treatment when that plea rendered him
ineligible for the program.
According to his declaration, Vivar told counsel that he
was interested in a drug treatment program even if it was not
required by the terms of his plea — and counsel’s notes
corroborate his interest in such a program. Vivar, then, did not
perceive a conflict or tradeoff between the goal of drug treatment
and the goal of a deportation-neutral disposition. What stands
out most clearly from the record is that he was never properly
advised of the role his immigration status would play either in
assessing the attractiveness of his plea options or in his
eligibility for a drug treatment program. In fact, the record
shows he was upset to learn, just a few days after his plea, that
he was ineligible for the recommended treatment program
precisely because of the plea’s impact on his immigration status.
And it was scarcely a month after his plea, having heard no
response from his lawyer, that he wrote a letter to the court
seeking its help. Had he been properly advised, it’s reasonably
probable Vivar would’ve sought a disposition — like the
burglary plea — where he could remain in this country and
undergo drug treatment. The Court of Appeal failed to explain
why Vivar, if properly advised, would’ve viewed these goals as
27
PEOPLE v. VIVAR
Opinion of the Court by Cuéllar, J.
incompatible — or why, if properly advised, he would’ve insisted
on a strategy that prevented him from achieving either of his
goals.
The Court of Appeal tried to buttress its conclusion that
Vivar suffered no prejudice by highlighting “a factual inference
the trial court was entitled to draw” and then deferring to that
inference. (Vivar, supra, 43 Cal.App.5th at p. 230.) The trial
court’s “ ‘finding’ ” was that Vivar “ ‘was more willing to rely on
his experiences than he was on his counsel’s advice.’ ” (Ibid.) As
we explained in part II.A., ante, the Court of Appeal was
mistaken in believing the trial court’s factual findings, which
were based entirely on a cold record, “must be accorded
deference.” (Vivar, at p. 231.) An appellate court should instead
review such findings independently where, as here, the factual
record consists entirely of written documents. Reviewing this
cold record under that standard, we reject the trial court’s
finding. If Vivar acted under the misimpression that he could
avoid immigration consequences so long as his ultimate
sentence was a year or less, it likely was because he failed to
receive adequate and accurate advice from counsel about the
immigration consequences attached to his plea options. Without
proper advice, Vivar had no choice but to rely on his own
experiences and judgment, no matter how uninformed they
might be. Had he truly been “unwilling to listen to the advice of
counsel” (id. at p. 230), he never would’ve expressed to her his
concern about the consequences of his plea. And had he been
correctly advised about those consequences, it’s reasonably
probable he wouldn’t have entered the plea that triggered his
deportation. The Court of Appeal erred in holding otherwise.
Finally, we conclude that the advisements in Vivar’s plea
form did not mitigate the prejudice from counsel’s deficient
28
PEOPLE v. VIVAR
Opinion of the Court by Cuéllar, J.
immigration advice. What the plea form stated was that
deportation was a possibility. (Vivar, supra, 43 Cal.App.5th at
p. 228.) The problem for Vivar, though, was that deportation in
these circumstances was mandatory — and when he accepted
the plea deal, he remained unaware of that crucial fact. (See
Patterson, supra, 2 Cal.5th at pp. 896, 898.) In light of Vivar’s
extensive ties to the United States, the generic advisements in
the plea form do not undermine our conclusion that he was
prejudiced by counsel’s failure to inform him that his plea would
result in his deportation. (See In re Hernandez (2019) 33
Cal.App.5th 530, 547–548; People v. Espinoza (2018) 27
Cal.App.5th 908, 916–917; Ogunmowo, supra, 23 Cal.App.5th at
pp. 80–81.)
III.
Defendants who lack United States citizenship sometimes
face not only penal sanctions but also harsh immigration
consequences if convicted. Because of this, pleas accepted in the
shadow of deficient advice about the risks of deportation can
have “dire” repercussions. (People v. Superior Court (Giron),
supra, 11 Cal.3d at p. 798.) Section 1473.7 offers a remedy in
the form of permission to withdraw a plea. But it’s a remedy
available only to some: those who have completed their
sentences and who suffered a prejudicial error that damaged
their ability to meaningfully understand, defend against, or
knowingly accept the plea’s actual or potential immigration
consequences. (§ 1473.7, subds. (a)(1), (e)(3).) A moving party
demonstrates prejudice by showing that in the absence of the
error regarding immigration consequences, it’s reasonably
probable the moving party would not have entered the plea.
Courts should subject the trial court’s prejudice finding under
this statute to independent review, a standard that heavily
29
PEOPLE v. VIVAR
Opinion of the Court by Cuéllar, J.
weighs trial court factual findings based on the court’s own
observations, but not trial court findings arising only from a cold
record.
The Court of Appeal failed to review the record
independently. Nor did it take into account the substantial
contemporaneous evidence at or near the time of Vivar’s plea
corroborating his claim that he wouldn’t have pleaded guilty if
he’d known it would result in his deportation from his home of
40 years. We reverse the judgment and remand the case to the
Court of Appeal with directions that it remand the case to the
trial court for it to enter an order granting Vivar’s section 1473.7
motion to withdraw his plea.
CUÉLLAR, J.
We Concur:
LIU, J.
KRUGER, J.
GROBAN, J.
JENKINS, J.
30
PEOPLE v. VIVAR
S260270
Concurring and Dissenting Opinion by Justice Corrigan
I concur in the disposition and fully agree that defendant
Robert Landeros Vivar should be allowed to withdraw his plea
under Penal Code section 1473.7.1 Defense counsel’s failure to
properly advise Mr. Vivar about the immigration consequences
of his plea options was plainly prejudicial, entitling him to relief
under the statute. I join in Justice Cuéllar’s majority opinion to
the extent it rejects the notion that the standard of review
applied to rulings under section 1473.7 differs depending upon
the nature of the claimed error. (Maj. opn., ante, pp. 16–17.)
However, I respectfully dissent from the majority’s
holding that a form of “independent review” typically applied in
habeas corpus proceedings should be applied in assessing a trial
court’s prejudice finding under section 1473.7. (Maj. opn., ante,
pp. 15, 29.) While the majority opinion endeavors to distinguish
independent review in this context from de novo review (id. at
p. 19), as a practical matter this will be a distinction without a
difference in most cases brought under section 1473.7. That is
so because, as the majority acknowledges, the evidence
considered by the trial court will often consist entirely of
declarations and documentary evidence. (See maj. opn., ante,
pp. 17–18.) Under the version of independent review articulated
in the majority opinion, no deference is owed to the trial court’s
factual findings except when credibility determinations are
1
Further statutory references are to the Penal Code.
1
PEOPLE v. VIVAR
Corrigan, J., concurring and dissenting
based upon live testimony. (Id. at pp. 19–20.) Consequently, in
a great number of appeals challenging section 1473.7 rulings,
reviewing courts will assume the role of fact finder, requiring
courts to resolve factual conflicts, weigh evidence, and engage in
the type of factual inquiry ordinarily reserved for trial courts.
This would constitute a departure for review of a ruling on a
statutory motion. I would hold that appellate courts should
apply a conventional substantial evidence standard when
reviewing a trial court’s factual findings that bear upon the
prejudice analysis under section 1473.7.
This court granted review to resolve a conflict over the
standard of review governing prejudice findings under the
statute and to clarify what constitutes prejudice under section
1473.7. (Maj. opn., ante, p. 10.) In the Court of Appeal, the
defense argued that all aspects of the trial court’s ruling,
including its factual findings, should be reviewed
independently. The Attorney General contended that the trial
court’s ruling should be reviewed for abuse of discretion but that
its factual findings were owed deference, even if made on a cold
record consisting entirely of documentary evidence. 2
The Court of Appeal created a hybrid standard turning on
the asserted basis for relief. According to the appellate court, if
the section 1473.7 motion raised a constitutional challenge due
to ineffective assistance of counsel, a reviewing court should
“ ‘independently review the order.’ ” (People v. Vivar (2019) 43
Cal.App.5th 216, 224.) This standard requires courts to “ ‘accord
deference to the trial court’s factual determinations if supported
2
In this court, the Attorney General takes the position that
appellate courts should independently review rulings under
section 1473.7.
2
PEOPLE v. VIVAR
Corrigan, J., concurring and dissenting
by substantial evidence in the record, but [to] exercise . . .
independent judgment in deciding whether the facts
demonstrate trial counsel’s deficient performance and resulting
prejudice to the defendant.’ ” (Ibid.) By contrast, the court held
that the denial of a section 1473.7 motion is “ ‘reviewed for an
abuse of discretion’ ” if the basis for the motion is “ ‘statutory
error or a deprivation of statutory rights’ ” not rising to the level
of a constitutional violation. (Vivar, at p. 224.)
In my view, the majority opinion correctly rejects the
bifurcated approach adopted by the Court of Appeal. (Maj. opn.,
ante, pp. 16–17.) Such an approach would afford undue
significance to a distinction the Legislature sought to erase. It
extended relief to all defendants when legal error prevented
meaningful understanding of immigration consequences,
regardless of whether the error constitutes ineffective
assistance of counsel. (Id. at p. 16; see § 1473.7, subd. (a)(1).)
The bifurcated approach would also have the standard of review
turn on a specific finding of ineffective assistance of counsel,
which a trial court might not otherwise reach for reasons
unrelated to the merits of the claim. (Maj. opn., ante, p. 17.)
However, I part ways with the majority conclusion that
the trial court’s prejudice finding under section 1473.7 is subject
to a form of “independent review” that does not defer to the trial
court’s factual findings under conventional substantial evidence
review. (See maj. opn., ante, pp. 29–30.) The majority holds that
the independent review standard affords deference to the trial
court’s factual determinations only if “based on ‘ “the credibility
of witnesses the [superior court] heard and observed.” ’ ” (Id. at
p. 19.) Under that view, no deference is owed to the trial court’s
factual findings when the “facts derive entirely from written
declarations and other documents.” (Id. at p. 20.)
3
PEOPLE v. VIVAR
Corrigan, J., concurring and dissenting
My disagreement is not with applying independent review
to the trial court’s ultimate legal ruling but with adopting a form
of review that largely dispenses with the deference normally
afforded to a lower court’s factual findings. (See People v.
Hernandez (2008) 45 Cal.4th 295, 298–299; People v. Alvarez
(1996) 14 Cal.4th 155, 182.) A substantial evidence inquiry
examines the record in the light most favorable to the judgment
and upholds a finding “if the record contains reasonable,
credible evidence of solid value upon which a reasonable trier of
fact could have relied in reaching the conclusion in question.
Once such evidence is found, the substantial evidence test is
satisfied. [Citation.] Even when there is . . . significant . . .
countervailing evidence, the testimony of a single witness that
satisfies the standard is sufficient to uphold the finding.”
(People v. Barnwell (2007) 41 Cal.4th 1038, 1052.) There is no
reason to dispense with this conventional appellate approach to
reviewing findings of fact.
The standard of review described in the majority opinion
is not completely unheard of, but its extension to review of
statutory claims may well be.3 The standard articulated by the
majority derives primarily from the lead opinion in In re
Resendiz (2001) 25 Cal.4th 230, 249 (lead opn. of Werdegar, J.)
(Resendiz).4 (Maj. opn., ante, pp. 14, 19.) Resendiz considered
3
It should be noted that the majority explicitly limits its
holding to review under section 1473.7. (Maj. opn., ante, p. 20,
fn. 7.)
4
The “independent review” standard described in the
majority opinion also is applied to cases raising First
Amendment issues in which an appellate court is charged with
ensuring that a ruling does not intrude on constitutional free
4
PEOPLE v. VIVAR
Corrigan, J., concurring and dissenting
an ineffective assistance of counsel claim involving affirmative
misadvice about the immigration consequences of a plea.
(Resendiz, at p. 235.) The claim was raised on habeas corpus.
Accordingly, the lead opinion recited the standard applicable to
review of factual findings in habeas corpus proceedings. (Id. at
p. 249.) Of course, in such a context the inquiry goes beyond the
trial record to consider facts and assertions not before the
original trial court. In such circumstances, a court considering
a habeas petition is not simply reviewing the decisions made at
the trial level. It is exercising its own authority based on its own
review of new facts and claims. Those are two very different
tasks. We should be hesitant here to uncritically apply a habeas
corpus standard of review to appellate review of statutory
claims.
The review of factual findings in habeas corpus matters
arises from the procedural posture of those cases.
Constitutionally, the courts of review are granted original
jurisdiction to consider habeas corpus claims. (Cal. Const., art.
VI, § 10.) Because appellate courts are not well suited to
conduct evidentiary hearings, however, a referee will typically
be appointed to make recommended findings of fact. (See Cal.
Rules of Court, rule 8.386(f)(2).) But reviewing courts are not
required to accept the referee’s recommended findings. (In re
Hitchings (1993) 6 Cal.4th 97, 109.) While those findings are
entitled to “ ‘great weight’ ” when supported by substantial,
speech rights. (See People v. Jackson (2005) 128 Cal.App.4th
1009, 1020 [cited by maj. opn., ante, p. 19]; see also Bose Corp.
v. Consumers Union of U.S., Inc. (1984) 466 U.S. 485, 499.)
Because this case does not involve a First Amendment issue,
these cases do not bear upon the standard of review that should
be applied here.
5
PEOPLE v. VIVAR
Corrigan, J., concurring and dissenting
credible evidence (ibid.), they are not binding upon the court as
they would be under the substantial evidence standard. A court
may “ ‘ “reach a different conclusion on an independent
examination of the evidence produced at the [reference hearing]
even where the evidence is conflicting.” ’ ” (Ibid.) Further, no
deference is afforded to factual findings unless “ ‘based on the
credibility of live testimony.’ ” (Resendiz, supra, 25 Cal.4th at p.
249 (lead opn. of Werdegar, J.), citing In re Arias (1986) 42
Cal.3d 667, 695; accord, In re Long (2020) 10 Cal.5th 764, 774.)
When an appellate court exercises original jurisdiction in
a habeas matter, it makes sense to give limited deference to the
referee’s recommended findings. In keeping with its original
jurisdiction, the reviewing court is the ultimate fact finder. The
same review principles apply to a successive writ situation in
which a petitioner files a new habeas corpus petition in the
appellate court when the superior court has denied habeas
corpus relief after an evidentiary hearing. (In re Wright (1978)
78 Cal.App.3d 788, 801.) In such a case, the appellate court
again exercises original jurisdiction.
The situation is different, however, when the matter
comes to the appellate court as an appeal. When the superior
court grants habeas corpus relief and the People appeal, the
Court of Appeal exercises its appellate jurisdiction over the
superior court rulings. (See Cal. Const., art. VI, § 11.) “The
posture of [a] case as a People’s appeal is to be differentiated
from a situation in which an appellate court, reviewing a
petition for writ of habeas corpus as a matter of original
jurisdiction, assigns a referee to take evidence on the matter.”
(In re Pratt (1999) 69 Cal.App.4th 1294, 1314, fn. 16, italics
added.) In an appeal from a habeas corpus grant, a reviewing
court applies the conventional substantial evidence standard to
6
PEOPLE v. VIVAR
Corrigan, J., concurring and dissenting
questions of fact, just as with any other appeal. (Id. at p. 1314.)
In other words, it applies “ ‘ “basic principles of appellate
review.” ’ ” (In re Butler (2020) 55 Cal.App.5th 614, 648.)
Findings of fact are accorded due deference under the
substantial evidence standard, while questions of law are
reviewed independently. (Ibid.)
An appeal from a ruling under section 1473.7 is just that:
an appeal. (§ 1473.7, subd. (f).) It is not an equitable habeas
corpus proceeding in which the appellate court possesses
original jurisdiction. Indeed, the statutory remedy in section
1473.7 is necessary because habeas corpus writ relief is not
available when, as here, the defendant is no longer in actual or
constructive custody. (See People v. Villa (2009) 45 Cal.4th
1063, 1066.) In creating an opportunity for legal relief under
section 1473.7, the Legislature also provided for conventional
appellate review. It did not expand the jurisdiction of the courts
reviewing the trial court’s ruling on the motion. Basic principles
of appellate review should apply, not principles imported from
writ proceedings.
“[A]ppellate court deference to the trial court’s resolution
of fact issues is warranted by jurisdictional considerations and
a recognition of the distinctive roles of trial and appellate courts:
Trial courts decide questions of fact and appellate courts decide
questions of law.” (Eisenberg et al., Cal. Practice Guide: Civil
Appeals and Writs (The Rutter Group 2019) ¶ 8:42, p. 8-21.)
Whether substantial evidence supports a judgment or ruling is
a question of law reposing with the appellate court. (Ibid.)
Further, as a general matter, because of the jurisdictional roles
of the trial and appellate courts, deference to trial court
credibility determinations is the same for both written
declarations and oral testimony. (Haraguchi v. Superior Court
7
PEOPLE v. VIVAR
Corrigan, J., concurring and dissenting
(2008) 43 Cal.4th 706, 711 & fn. 3; Shamblin v. Brattain (1988)
44 Cal.3d 474, 479; Lebel v. Mai (2012) 210 Cal.App.4th 1154,
1159.)
The argument that the reviewing court is “ ‘in the same
position’ ” as the trial court in assessing documentary evidence
is inaccurate. (Maj. opn., ante, p. 20, quoting People v.
Ogunmowo (2018) 23 Cal.App.5th 67, 79.) A reviewing court
exercising appellate jurisdiction is not in the same position as
the trial court. Their respective roles are different. The trial
court decides questions of fact in the first instance. The
reviewing court defers to those findings and only considers legal
holdings de novo. By declining to give deference to the trial
court’s findings when based on documentary evidence, a
reviewing court simply assumes for itself the role of fact finder.
For this reason, we confirmed over a decade ago that even when
“the trial court’s findings were based on declarations and other
written evidence[, that fact] does not lessen the deference due
those findings.” (Haraguchi v. Superior Court, supra, 43 Cal.4th
at p. 711, fn. 3.) Indeed, in clarifying that deference is owed
“whether the trial court’s ruling is based on oral testimony or
declarations,” this court has expressly disapproved authority
suggesting otherwise. (Shamblin v. Brattain, supra, 44 Cal.3d
at p. 479; see id. at p. 479, fn. 4.)
In its adoption of independent review like that described
in Resendiz, the majority opinion cites a number of factors,
including the “history of section 1473.7.” (Maj. opn., ante, p. 18.)
That history purportedly reflects that the standard articulated
by the majority was the “prevailing independent standard of
review” applied to section 1473.7 when the Legislature amended
the law in 2018. (Maj. opn., ante, p. 16.) However, the precise
contours of the standard were far from clear at that time. In
8
PEOPLE v. VIVAR
Corrigan, J., concurring and dissenting
People v. Olvera (2018) 24 Cal.App.5th 1112, although the court
cited Resendiz and referred to independent review of the section
1473.7 ruling, it characterized the standard as follows: “We
defer to the trial court’s factual determinations if supported by
substantial evidence, but exercise our independent judgment to
decide whether the facts demonstrate deficient performance and
resulting prejudice.” (Olvera, at p. 1116, italics added.)
Likewise, in another 2018 case involving section 1473.7, People
v. Tapia (2018) 26 Cal.App.5th 942, the court cited the
independent review standard but applied conventional
substantial evidence review to the trial court’s factual findings,
even though the record apparently consisted entirely of
declarations and documents. 5 (Tapia, at pp. 946–948, 951, 953.)
Indeed, the appellate court upheld the trial court’s implied
finding that the defendant’s declaration was not credible,
stating: “We do not reevaluate witness credibility.” (Id. at p.
953.)
The standard described in People v. Olvera and applied in
People v. Tapia is not the standard advocated by the majority.
The majority approach does not involve substantial evidence
review of factual findings, even as applied to findings based on
live testimony. According great weight to findings is not the
same as being bound by findings supported by substantial
evidence. A court applying the standard adopted by the majority
5
In Tapia, the trial judge who heard the section 1473.7
motion also presided over the plea hearing. (See People v. Tapia,
supra, 26 Cal.App.5th at p. 948.) While the majority opinion
notes this fact (maj. opn., ante, p. 20) and presumably would give
some degree of deference to the trial court’s factual findings in
such a case, that deference still would not be the equivalent of
the substantial evidence standard applied in Tapia.
9
PEOPLE v. VIVAR
Corrigan, J., concurring and dissenting
is free to reach its own conclusions even when the evidence is
conflicting and “ ‘great weight’ ” is afforded to certain findings.
(Resendiz, supra, 25 Cal.4th at p. 249 (lead opn. of Werdegar,
J.).) Simply put, it is incorrect to say the independent review
standard adopted by the majority was the “prevailing” one.
As further support for dispensing with deferential review
of factual findings, the majority cites “the interests at stake in a
section 1473.7 motion.” (Maj. opn., ante, p. 18.) It may be
appropriate to apply de novo review to mixed questions of law
and fact that raise constitutional concerns or that would
constitute a final determination of a party’s rights. (People v.
Ault (2004) 33 Cal.4th 1250, 1266.) Nevertheless, simply
because independent review should be applied to the ultimate
ruling does not justify giving factual findings less deference than
they are owed under the substantial evidence test. Further,
courts should not be free to disregard factual findings because
they conclude the “interests at stake” in a particular case justify
that approach. In most criminal cases, the “interests at stake”
are high. Questions of guilt or innocence or touching on personal
freedom are profoundly consequential. But reviewing courts are
not free to disregard settled authority, or to expand the nature
of their jurisdiction, simply by pronouncing: “This is really
important.”
The majority opinion asserts that “ ‘ “[i]ndependent review
is not the equivalent of de novo review. . . .” ’ ” (Maj. opn., ante,
p. 19, quoting People v. Jackson, supra, 128 Cal.App.4th at
p. 1021.) Yet it does little to explain how, in practice, the
standards will differ as applied to section 1473.7 rulings. The
majority opinion distinguishes the original appraisal of all the
evidence under the de novo standard from deference given to
“factual findings that are based on the trial court’s own
10
PEOPLE v. VIVAR
Corrigan, J., concurring and dissenting
observations” under independent review. (Maj. opn., ante, p.
19.) But many section 1473.7 proceedings will be based on
documentary evidence without live testimony. Under those
circumstances, the form of independent review described by the
majority will for all practical purposes be de novo review
involving an original appraisal of all the evidence. Then, a
reviewing court will be thrust into the role of fact finder,
requiring credibility assessments and a weighing of the
evidence. A simple statement that the standards will somehow
be different provides no guidance and sows confusion. We
should hesitate to adopt a rule placing the reviewing court into
a fact finder’s position.
As the majority opinion notes, in this case the trial court
did not even consider whether Mr. Vivar suffered prejudice,
instead basing its ruling on the finding that his counsel did not
provide ineffective assistance. (Maj. opn., ante, p. 8.) Simply
put, the court made no express or implied factual findings with
respect to prejudice. As a result, there is no finding to which to
defer. To the extent the trial court might arguably have made
findings bearing on prejudice, they would be easily dismissed.
The prejudice question turns on whether Mr. Vivar would
not have entered the plea had he been properly informed and
advised. This is a credibility question. The trial court found his
credibility wanting because, it determined, he “ ‘was more
willing to rely on his experiences than he was on his counsel’s
advice.’ ” (People v. Vivar, supra, 43 Cal.App.5th at p. 230.) The
appellate court concluded, “This was a factual inference the trial
court was entitled to draw. . . .” (Ibid.) Perhaps, but appellate
review of that inference is not meaningless. The Court of Appeal
was required to examine whether the inference found
substantial support in the record. It does not.
11
PEOPLE v. VIVAR
Corrigan, J., concurring and dissenting
There was no evidence that counsel ever gave Mr. Vivar
advice regarding immigration. Indeed, there is no evidence
counsel understood the potential consequences herself or that
she had made it her “business to discover what impact his
negotiated sentence would have on his deportability.” (People v.
Soriano (1987) 194 Cal.App.3d 1470, 1480.) The public defender
did not claim she gave him any substantive information at all
about immigration consequences. Indeed, she made no
assertion as to any advice she provided Mr. Vivar. She said that
she customarily told her noncitizen clients about “ ‘possible’ ”
immigration consequences. (People v. Vivar, supra, 43
Cal.App.5th at p. 222.) But here, the unrebutted evidence was
that she never asked Mr. Vivar about his immigration status.
(Ibid.) Even if she had told him that he “might” get deported
and, if he had further questions he should consult an
immigration attorney, essentially that was no advice at all. (See
id. at pp. 222–223.) This evidence, together with the record as
whole, does not support an inference that Mr. Vivar would have
ignored his counsel’s advice on the immigration consequences of
his plea. He received no such advice, and if he had, the proper
inference to be drawn from his concern about deportation is that
he would have accepted it or at least given it a fair degree of
consideration. He was forced to rely on his own experiences only
because counsel gave him no alternative. Because the record
does not support the trial court’s factual conclusions, a
conventional substantial evidence review suffices here.
CORRIGAN, J.
I Concur:
CANTIL-SAKAUYE, C. J.
12
See next page for addresses and telephone numbers for counsel who
argued in Supreme Court.
Name of Opinion People v. Vivar
__________________________________________________________________
Procedural Posture (see XX below)
Original Appeal
Original Proceeding
Review Granted (published) XX 43 Cal.App.5th 216Review Granted (unpublished)
Rehearing Granted
__________________________________________________________________
Opinion No. S260270
Date Filed: May 3, 2021
__________________________________________________________________
Court: Superior
County: Riverside
Judge: Bambi J. Moyer
__________________________________________________________________
Counsel:
Munger, Tolles & Olson, Joseph D. Lee, William Larsen and Dane P.
Shikman for Defendant and Appellant.
Gibson, Dunn & Crutcher, Kahn A. Scolnick, Daniel R. Adler and
Jason S. Kim for Alyssa Bell, Reuven Cohen, Ingrid V. Eagly, Gilbert
Garcetti, Meline Mkrtichian, Ronald J. Nessim, Gabriel Pardo,
Jennifer Resnik and David J. Sutton as Amici Curiae on behalf of
Defendant and Appellant.
Jennifer L. Pasquarella, Eva L. Bitran; Vasudha Talla; and David Loy
for ACLU Foundation of Southern California, ACLU Foundation of
Northern California and ACLU Foundation of San Diego and Imperial
Counties as Amici Curiae on behalf of Defendant and Appellant.
O’Melveny & Myers and Catalina J. Vergara for The Immigrant Legal
Resource Center, Public Counsel, University of California Irvine Law
Immigrant Rights Clinic, University of California Irvine Law Criminal
Justice Clinic, East Bay Community Law Center, Community Legal
Services in East Palo Alto and University of California Davis
Immigrant Rights Clinic as Amici Curiae on behalf of Defendant and
Appellant.
Xavier Becerra, Attorney General, Michael J. Mongan, State Solicitor
General, Lance E. Winters and Gerald A. Engler, Chief Assistant
Attorneys General, Samuel P. Siegel, Deputy State Solicitor General,
Julie L. Garland, Assistant Attorney General, Melissa Mandel and
Adrian R. Contreras, Deputy Attorneys General, for Plaintiff and
Respondent.
Counsel who argued in Supreme Court (not intended for
publication with opinion):
Dane Shikman
31 Mullen Ave.
San Francisco, CA 94110
(415) 512-4092
Samuel P. Siegel
Deputy State Solicitor General
1300 I Street
Sacramento, CA 95814
(916) 210-6269