People v. Manzanilla

Filed 6/13/22; Certified for Publication 7/6/22 (order attached)
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
THE PEOPLE, B313557
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. MA063994)
v.
CARLOS RENAN MANZANILLA,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County. Daviann L. Mitchell, Judge. Reversed and
remanded with instructions.
Immigrant Defenders Law Center, Caitlin E. Anderson and
Hannah K. Comstock for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Senior
Assistant Attorney General, Steven D. Matthews and Stephanie
A. Miyoshi, Deputy Attorneys General, for Plaintiff and
Respondent.
_________________________________
Carlos Renan Manzanilla moved to vacate a 2014 felony
conviction under California Penal Code section 273.5,1 which,
with his sentence of 365 days’ county jail, is an aggravated felony
under immigration law and subjects him to mandatory
deportation. Manzanilla claimed three legal errors: That defense
counsel failed to advise him that his nolo contendere plea meant
mandatory deportation; that defense counsel failed to defend
against the immigration consequences of his charge by seeking
an immigration-safe plea, such as a one-day reduction in his
sentence; and that he did not understand that he faced
mandatory deportation when he entered his plea.
The trial court denied Manzanilla’s motion on all three
claims of legal error. It also rejected the parties’ agreement to
allow Manzanilla to vacate his conviction and enter an
immigration-safe plea to a misdemeanor. Manzanilla appealed.
We reverse on all grounds. Manzanilla’s defense counsel
did not specifically advise him that he would be subject to
mandatory deportation. Defense counsel also failed to adequately
defend because she did not consider the immigration
consequences in plea bargaining, as evidenced by, among other
things, her failure to counter the prosecution’s initial offer of 365
days’ jail with 364 days’ jail, which would have prevented
Manzanilla from having an aggravated felony conviction.
Finally, there is contemporaneous, objective evidence that
Manzanilla did not subjectively understand that his plea would
subject him to mandatory deportation. Manzanilla has shown
prejudice from these errors by a preponderance of the evidence,
1
Undesignated statutory references are to the Penal Code.
2
including under the factors emphasized by our Supreme Court’s
recent decision in People v. Vivar (2021) 11 Cal.5th 510 (Vivar).
We reverse and remand with instructions to grant the
motion to vacate.
FACTUAL AND PROCEDURAL BACKGROUND
I. 2014 Felony Conviction
On August 19, 2014, the People filled a felony complaint
against Manzanilla, charging him with one count of injuring a
cohabitant resulting in a traumatic condition under section 273.5,
subdivision (a), for having injured his girlfriend, Kellie Warner.
According to the probation officer’s report, while inebriated,
Manzanilla became angry with Warner for allegedly driving his
car without his consent. Manzanilla choked Warner, causing her
to lose consciousness. When she woke up, Manzanilla hit her on
her face and upper torso. Warner escaped and called the police.
When the police arrived, they observed injuries on Warner. She
was treated by paramedics at the scene after she refused to go to
the hospital. Manzanilla was arrested.
In a subsequent interview with police, Warner said that
during this incident, Manzanilla also pulled a knife on her, cut
her forehead, threated to kill her, and left her on the bathroom
floor soaked in her own urine. Warner reported that Manzanilla
had previously stabbed her, requiring surgery, and had been
abusive “for a long time.”
After being represented by a different attorney at
arraignment, Manzanilla was represented by Deputy Public
Defender Jodi Lin (Lin or counsel). Lin’s defense file from 2014
has three entries for Manzanilla: Her evaluation of his case on
August 26, a meeting with him on August 27, and plea
negotiations and a plea hearing on September 3.
3
As the trial court summarized, Lin’s pre-plea notes “had
nothing to do with immigration.” The August 26 entry reflects
the section 273.5, subdivision (a) charge, possible unalleged
charges, and ways to impeach Warner. The August 27 entry
records Lin’s first meeting with Manzanilla, where Lin explained
her role, what Manzanilla should expect at the preliminary
hearing, her defense plan, and possible unalleged charges. In her
subsequent recollection of this meeting, Lin did not recall
learning Manzanilla was a legal permanent resident nor
discussing anything about the immigration consequences of his
charge or potential charges.2 Lin’s third meeting with
Manzanilla took place on September 3 at the preliminary hearing
court’s “lock up.” This was the only day that Lin engaged in plea
negotiations, and she does not remember raising Manzanilla’s
immigration status during them.
The People offered Manzanilla a plea to a felony section
273.5, subdivision (a) conviction with 365 days’ jail, five years’
probation, domestic violence classes, and a protective order.
Manzanilla initially rejected this offer, telling Lin that he wanted
less jail time and release on his own recognizance before
sentencing. Lin countered with the same terms, except for
requesting jail time of six and then nine months. The People
denied both counteroffers. Manzanilla then accepted the initial
offer of 365 days’ jail, along with the other terms.
2
Manzanilla’s current counsel sent a questionnaire titled
“Defense Counsel Questionnaire” to Lin, to which she responded
on September 24, 2020 regarding her memory of the events in
2014.
4
Lin’s notes from the September 3 plea negotiations reflect
the prosecution’s offer, her counteroffers and reasons for them,
and then the prosecution’s denial of those offers and Manzanilla’s
acceptance of the initial offer. Then the notes state that Lin
advised Manzanilla on the criminal rights he was waiving by
taking the plea and his acceptance of those waivers. Finally, Lin
wrote: “Adv. Imm. Consequences. [Defendant] LPR. Adv. Plea
will [change]3 his status. Advised [Defendant] he will have an
immig. hrg.” Lin’s notes then say that Manzanilla “understands”
and “says as long as hearing is in U.S., he’s fine.” Lin’s
subsequently memory is that she told him “there would be a
hearing and he would lose his LPR status. Mr. Manzanilla said
that as long as the hearing is in the U.S., he’s fine. His focus at
that hearing date was to get out of jail as quickly as possible.”
Lin later recalled that she learned Manzanilla was a legal
permanent resident “when Mr. Manzanilla told me as we went
over the immigration consequences. I documented that in his
file.” Manzanilla recalls Lin asking about his immigration status
in the order reflected in her notes: After he told her he would
take the plea offer.
During the plea colloquy on September 3, the preliminary
hearing court asked Manzanilla whether he understood his rights
and informed him of the consequences of his plea, but did not
3
Lin’s handwritten notes have a triangle, rather than the
word “change,” which we read as the symbol for “change” given
the context. In his opening brief, Manzanilla also read the
triangle in this sentence as the symbol for “change” and the
People did not object.
5
mention immigration consequences. The court told Manzanilla
that his plea was to a “felony conviction, which means you cannot
own or possess a firearm for the remainder of your life. If you
violate probation, you’re looking at up to four years in state
prison.” The court informed Manzanilla that if he went to prison,
then he could be on parole for up to three years. It also advised
Manzanilla that he might owe fines between $300 and $400, and
that his plea was to a “priorable offense,” so it could be used as an
enhancement to any subsequent criminal convictions.
Manzanilla then waived his rights on the record. In Manzanilla’s
Felony Advisement of Rights, Waiver, and Plea Form, he initialed
next to the words, “Immigration Consequences – I understand
that if I am not a citizen of the United States, I must expect my
plea of guilty or no contest will result in my deportation . . . .”
The court ended the preliminary hearing by setting
sentencing for September 24, 2017.
II. Initial Attempt to Revoke Plea in September 2014
Shortly after entering his plea on September 3, Manzanilla
sent the court a letter requesting to retract his plea. The letter is
not in the record, but at the September 24, 2014 sentencing
hearing the court stated that it had received Manzanilla’s letter.
The court said that it understood that Manzanilla wanted to
withdraw his plea because he wanted a misdemeanor and he
“wanted to withdraw his plea based on the fact that he might be
deported.” Lin’s notes from the hearing also state that
Manzanilla “says in letter he wants to [withdraw] plea [because]
this conviction will affect his LPR status [and] wants
misd[emeanor.]” Lin’s notes further state that she had advised
Manzanilla of the “imm[igration] conseq[uences] at the last court
date and we had in depth discussion re:[Defendant’s] LPR
6
status.” Lin’s notes say that she asked Manzanilla if the reason
he knew about the immigration consequences of his plea was
because she told him, and he nodded yes.
The sentencing court warned Manzanilla that if he were
successful in withdrawing his plea, the prosecution “might take a
more aggressive approach.” The court also reminded Manzanilla
that he signed a felony advisement form that informed him of the
immigration consequences of his plea. The court then engaged in
the following exchange with Manzanilla:
“Understanding all of that do you still wish to go forward
with this deal?” Manzanilla replied, “Yes. Does that mean
automatically I’m not a permanent resident anymore?” The court
stated, “It means you will be deported, denied naturalization and
excluded from admission. Yes.” Manzanilla replied, “So I will be
deported?” The court said, “Yes. So do you still want to move
forward with the deal?” Manzanilla replied, “If I’m going to be
deported, no.” The court responded, “I want to know, do you
want to go forward with the deal?” and Manzanilla said, “No.”
The court asked again, “And you want to withdraw it?” and
Manzanilla said, “Yes.” And the court then clarified, “Based on
the immigration consequences?” to which Manzanilla replied,
“Yes.”
The court then turned to Lin and stated that Manzanilla’s
motion should “technically” be heard by the judge who took the
plea a few weeks earlier. Lin responded that she was not the
right person to handle the motion because she would “be
testifying against myself.” The court responded that Manzanilla
was not claiming she was “negligent,” but was just saying he did
not like the plea. The court then denied the motion to withdraw
the plea, finding that Manzanilla had “buyer’s remorse.”
7
It continued the sentencing hearing to October 8, 2014, at which
time Manzanilla was sentenced to five years’ probation and 365
days’ jail.
III. May 2021 Motion to Vacate
On May 10, 2021, Manzanilla moved to vacate his 2014
felony conviction by filing a motion under section 1473.7.
In support of his motion, he submitted a declaration
signed under penalty of perjury, detailing, among other things,
the following:
Manzanilla was born in Mexico in 1961. He came to the
United States when he was four years old as a legal permanent
resident, also known as a green card holder. Manzanilla has
lived in the United States ever since. He attended elementary
and high school in Venice and college in Santa Monica.
Manzanilla has two children who are United States citizens.
His parents, who have passed away, and his siblings, all became
or were born citizens. Manzanilla started the process to become a
citizen in the 1990s, but never finished.
In 2018, as a result of violating his parole due to financial
barriers and a disability, Manzanilla spent three years in state
prison. He was then transferred directly from criminal custody to
the custody of U.S. Immigration and Customs Enforcement in
Bakersfield. He remains there today while he waits for the Ninth
Circuit Court of Appeals to resolve his immigration case.4
4
The Ninth Circuit heard oral argument in Manzanilla’s
immigration case in May 2021 and placed it in mediation pending
final resolution of this postconviction motion to vacate.
8
Manzanilla was charged with deportation based on his
conviction for an aggravated felony, specifically his September
2014 section 273.5, subdivision (a) conviction.
Manzanilla declares that he would not have taken the plea
if he knew it would result in his deportation. He declares that
his “whole life—my kids, my family—is here in the United
States.” He has no friends or family in Mexico. He is also afraid
for his life if he returns to Mexico. He is bi-sexual, and last time
he went to Mexico, in the 1990s, he was assaulted by the Mexican
Federal Police based on his sexual orientation (as evidenced by
derogatory language used during the assault) when they found
him with a man, leaving him with broken ribs, a black eye, and
other injuries.
Manzanilla also declares that when Lin went over the plea
waiver form with him in 2014, he “was having a really hard time
seeing because of my cataracts. I was taking a long time to read
everything . . . she was standing over me and asking me to hurry
up. She said it covered everything we had already talked about.
I initialed and she walked away with the form.”
In support of his motion, Manzanilla also included a
declaration by his former girlfriend/the victim, Warner,
(stating that she would have supported a plea that protected
Manzanilla from deportation), transcripts from the September
24, 2014 hearing, Lin’s case notes from 2014, Lin’s questionnaire
responses from September 2020, and records from Manzanilla’s
immigration case.
V. Hearing and Ruling on Motion to Vacate
The trial court held a hearing on Manzanilla’s motion to
vacate on May 25, 2021. The People opened by reporting that the
parties had reached an agreement for Manzanilla to vacate his
9
conviction and to plead to an immigration-safe misdemeanor.
The trial court rejected the agreement, citing the facts in the
probation report and stating that Manzanilla was not “a person
that deserves a misdemeanor.”
The trial court then denied Manzanilla’s motion on all
three claims of error. The court made its decision entirely on
written documents. Manzanilla did not appear because he was in
federal immigration detention.
First, the trial court found that defense counsel sufficiently
advised Manzanilla when she told him that the “plea will change
his status” and he would “have an immigration hearing,” citing
Lin’s notes. The trial court subsequently characterized this
advice as, “he was told he would be deported, and his whole point
was as long as he had the hearing in the United States he was
okay to go ahead and go forward. And that is what Ms. Lin’s
notes indicated . . . .” The trial court did not hear from Lin nor
Manzanilla at the hearing, but it found Lin’s credibility greater
than Manzanilla’s on the written record because he wanted out of
his plea.
Second, the trial court found that defense counsel fulfilled
her duty to defend against immigration consequences because
defense counsel achieved a “good deal,” citing defense counsel’s
characterization of the deal in her questionnaire and the
allegations against Manzanilla in the probation report. The court
also found that counsel “did her job” by countering the initial plea
offer with six and then nine months of jail, rejecting Manzanilla’s
argument that all he needed was a more reasonable offer of a
one-day reduction to 364 days to avoid an aggravated felony
conviction.
10
Third, in rejecting Manzanilla’s claim that he subjectively
misunderstood that he would face mandatory deportation at the
time of his plea, the trial court cited Lin’s notes stating that she
informed Manzanilla that his status would change and he would
have an immigration hearing, concluding he “always understood
he was going to be deported.” Regarding the transcript from the
September 2014 hearing when Manzanilla asked to withdraw his
plea, the trial court viewed it not as reflecting Manzanilla finally
understanding that he would be deported, as his counsel
characterized it, but rather as him verifying what he already
knew from Lin. The trial court then surmised that Manzanilla
was not motivated by a fear of deportation, crediting the 2014
court’s determination he had “buyer’s remorse.” The trial court
cited Manzanilla’s letter to the sentencing court from the days
shortly after his plea, to which the trial court had access but
Manzanilla’s counsel did not (nor is it in the record on appeal),
and stated that the letter showed that Manzanilla wanted to take
back his plea because he was “pressured” by his public defender
and that the letter did not mention his immigration concerns.
Finally, the trial court did not directly address prejudice to
Manzanilla. It simply found that Manzanilla was not motivated
by deportation in seeking to retract his plea in 2014, and that Lin
was more credible than Manzanilla, as stated above.
Manzanilla timely appealed.
DISCUSSION
I. Standard of Review
Our Supreme Court recently determined the standard of
review for section 1473.7 motion proceedings. In Vivar, the court
endorsed the independent standard of review. (Vivar, supra, 11
Cal.5th at pp. 524–528.) Under independent review, we exercise
11
our independent judgment to determine whether the facts satisfy
the rule of law. (Id. at p. 527.) When appellate courts engage in
independent review, they should be mindful that independent
review is not the equivalent of de novo review. (Ibid.) An
appellate court may not simply second-guess factual findings that
are based on the trial court’s own observations. (Ibid.) Factual
determinations that are based on the credibility of witnesses the
trial 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. (Ibid.) In section 1473.7 motion
proceedings, appellate courts should similarly give particular
deference to factual findings based on the trial court’s personal
observations of witnesses. (Vivar, supra, 11 Cal.5th at pp. 527–
528.) Where, as here, the facts derive entirely from written
declarations and other documents, there is no reason to conclude
the trial court has special insight on the question at issue; as a
practical matter, the trial court and appellate court are in the
same position in interpreting written declarations when
reviewing a cold record in a section 1473.7 proceeding.
(Vivar, supra, 11 Cal.5th at p. 528.) Ultimately it is for the
appellate court to decide, based on its independent judgment,
whether the facts establish prejudice under section 1473.7.
II. Applicable Law
A. Section 273.5 and Related Immigration Law
At the time of Manzanilla’s plea, a section 273.5,
subdivision (a) conviction, regardless of the sentence, qualified as
a ground of deportability as a “crime of domestic violence.”
(8 U.S.C.§ 1227(a)(2)(E) [making crime of domestic violence
12
deportable]; United States v. Laurico-Yeno (9th Cir. 2010) 590
F.3d 818, 822 [section 273.5 is a domestic violence crime].)
A conviction under section 273.5 with a sentence of 365 days or
longer,5 however, carries more significant immigration
consequences because the sentence of 365 days or more renders it
an “aggravated felony.” (8 U.S.C. § 1227(a)(2)(A)(iii) & (a)(2)(E)(i)
[making a conviction for a “crime of violence” with a sentence of
one year or more an aggravated felony]; Banuelos-Ayon v. Holder
(9th Cir. 2010) 611 F.3d 1080, 1083 [holding section 273.5 is a
“crime of violence”].)
Mandatory removal from the United States is a
consequence of being convicted of a crime deemed an aggravated
felony under federal immigration law. (Moncrieffe v. Holder
(2013) 569 U.S. 184, 187–188 (Moncrieffe); 8 U.S.C. § 1228(c)
[aggravated felon is “conclusively presumed” deportable].)
An aggravated felony conviction further renders a defendant
ineligible for relief from deportation, such as asylum and
cancellation of removal. (Moncrieffe, supra, 569 U.S. at p. 187.)
B. Section 1473.7
Section 1473.7 authorizes a person who is no longer in
criminal custody to move to vacate a conviction or sentence where
the “conviction or sentence is legally invalid due to prejudicial
error damaging the moving party’s ability to meaningfully
understand, defend against, or knowingly accept the actual or
5
The section 273.5, subdivision (a) conviction did not require
a sentence of a year or more. The charge range, as listed in the
felony complaint, was zero to 365 days’ county jail or two to four
years in state prison.
13
potential adverse immigration consequences of a conviction or
sentence.” (§ 1473.7, subd. (a)(1).) “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.’
[Citation.]” (Vivar, supra, 11 Cal.5th at p. 523.)
Effective January 1, 2019, the Legislature amended section
1473.7 to clarify that a “finding of legal invalidity may, but need
not, include a finding of ineffective assistance of counsel.”
(§ 1473.7, subd. (a)(1).) Therefore, a defendant asserting error
need not prove the elements of a claim for ineffective assistance
of counsel but may instead show prejudicial error. (People v.
Camacho (2019) 32 Cal.App.5th 998, 1008–1009 (Camacho).)
To establish prejudice, a defendant must show by a
preponderance of the evidence that he would not have entered
the plea had he known about the immigration consequences.
(Id. at pp. 1010–1011; see People v. Martinez (2013) 57 Cal.4th
555, 565 [defendant may show prejudice by “convinc[ing] the
court [that he] would have chosen to lose the benefits of the plea
bargain despite the possibility or probability deportation would
nonetheless follow”]; see Lee v. U.S. (2017) __ U.S. __ [137 S.Ct.
1958, 1965] [a defendant can show prejudice by demonstrating a
reasonable probability he would not have pled guilty and would
have insisted on going to trial, but for counsel’s errors].)
III. Manzanilla Demonstrated Error Under Section
1473.7, subdivision (a)(1)
Manzanilla claims prejudicial error based on all three
possible errors enumerated in section 1473.7, subdivision (a)(1):
14
His “ ‘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).).” (Vivar, supra, 11 Cal.5th at p. 523.)
A. Counsel Did Not Specifically Advise Manzanilla
That He Faced Near Certain Deportation
Manzanilla claims that his motion to vacate should be
granted because defense counsel failed to inform him that his
plea would subject him to mandatory deportation. We agree that
counsel’s advice was inadequate under applicable law.
Since the Supreme Court’s decision in Padilla v. Kentucky
(2010) 559 U.S. 356 (Padilla), defense counsel has had a duty to
properly explain the adverse immigration consequences of a plea
to a defendant.6 The court observed that the right to remain in
the United States can be more important to a defendant than any
potential jail sentence. (Id. at p. 368.) Where immigration law is
“ ‘succinct, clear, and explicit’ that the conviction renders removal
virtually certain, counsel must advise his client that removal is a
virtual certainty.” (United States v. Rodriguez-Vega (9th Cir.
2015) 797 F.3d 781, 786 (Rodriguez-Vega), citing Padilla, supra,559 U.S. at p. 369.) Immigration law is clear that removal is
6
California later codified this principal, effective in 2016, in
section 1016.3: “(a) Defense counsel shall provide accurate and
affirmative advice about the immigration consequences of a
proposed disposition, and when consistent with the goals of and
with the informed consent of the defendant, and consistent with
professional standards, defend against those consequences.”
(§ 1016.3, subdivision (a).)
15
“virtually certain” when “the immigration statute or controlling
case law expressly identifies the crime of conviction as a ground
for removal,” which is the case here.7 (Rodriguez-Vega, supra,
797 F.3d at p. 786.)
Defense counsel’s contemporaneous notes reflect that she
told Manzanilla that his plea would “[change] his status [and] he
[would] have [an] immigration hearing.”8 This is the kind of
description one would give if they wanted to avoid actually
stating that deportation would ensue. Counsel did not explain
that Manzanilla faced mandatory deportation. Counsel’s advice
was deficient for lack of specificity despite clear law establishing
that Manzanilla’s removal was virtually certain. (See Padilla,
supra, 559 U.S. at p. 369; Cf. People v. Lopez (2021) 66
Cal.App.5th 561, 579–580 (Lopez) [counsel’s failure to explain the
difference between an “aggravated felony which meant virtually
certain deportation and a nonaggravated felony which left open
the possibility for relief” was inadequate advice]; accord People v.
Espinoza (2018) 27 Cal.App.5th 908, 916 [where defendant was
advised that he could be deported but not told deportation would
7
As detailed above, the law was clear that a conviction
under section 273.5, subdivision (a) with a 365-day or longer
sentence was an aggravated felony and made Manzanilla subject
to mandatory deportation and ineligible for asylum and other
forms of relief. The People do not dispute this.
8
Defense counsel’s later memory is of telling Manzanilla he
would “lose his LPR status,” not only that his status would
“change.”
16
be mandatory, advice constituted ineffective assistance of
counsel].) “To warn merely ‘ “that his plea might have
immigration consequences,” ’ in circumstances where the
consequences were ‘certain,’ was ‘constitutionally deficient.’ ”
(Vivar, supra, 11 Cal.5th at p. 521.)
That Manzanilla initialed the felony advisement, or Tahl
form as it is generally known,9 did not absolve defense counsel of
the duty to advise of immigration consequences. Even where the
form says that the defendant “will” be deported, it does not
substitute for the advice of counsel, and it is not a categorical bar
to relief. “ ‘Although the Tahl form contains the word “will” and
not “may,” it, standing alone, is akin to the “generic advisement”
required of the court under Penal Code section 1016.5 . . . and it
similarly “is not designed, nor does it operate, as a substitute for
such advice” of defense counsel regarding the applicable
immigration consequences in a given case.’ [Citation.]” (Lopez,
supra, 66 Cal.App.5th at p. 577.)
The only warning Manzanilla received that his plea would
result in deportation was the Tahl form. Manzanilla initialed the
Tahl form, but he said shortly afterwards that he felt pressured
to sign it by counsel who told him to hurry up. He further
declared that he had difficultly reading it because of his
cataracts, and counsel said it covered everything they had
discussed, so he simply initialed. Regardless, in evaluating the
Tahl form’s language, “ ‘ “ ‘[t]he defendant can be expected to rely
9
See In re Tahl (1969) 1 Cal.3d 122 (Tahl), overruled on
other grounds by Mills v. Municipal Court (1973) 10 Cal.3d 288,
291.
17
on counsel’s independent evaluation of the charges’ ” ’ ” rather
than the generic statements in the Tahl waiver and plea colloquy.
(Lopez, supra, 66 Cal.App.5th at p. 577, quoting People v.
Patterson (2017) 2 Cal.5th 885, 896.) Even if counsel went over
the Tahl form in detail and Manzanilla read every word in it,
there is no evidence that defense counsel fulfilled her duty to give
him specific advice that he would be subject to mandatory
deportation as a result of pleading no contest.
The circumstances in People v. Tapia (2018) 26 Cal.App.5th
942 (Tapia), cited by the People, are materially different. In
Tapia, the “only evidence” that the defendant was not properly
advised by counsel was the defendant’s own declaration, which
the trial court found not credible because the record showed
defense counsel requested more time to determine the
immigration consequences of the plea. (Id. at p. 953.) Here,
counsel’s own notes and later memory state that she merely told
Manzanilla his status would change or he would “lose his LPR
status,” and he would have an immigration hearing in the United
States—not that he would be deported.
Accordingly, the record fails to support the conclusion that
defense counsel advised Manzanilla that his plea would subject
him to mandatory deportation.
B. Counsel Did Not Defend Against Deportation
Manzanilla next asserts that counsel failed to adequately
defend against the immigration consequences of his plea.
We agree.
In Padilla, the Supreme Court described counsel’s duty to
“plea bargain creatively with the prosecutor in order to craft a
conviction and sentence that reduce[s] the likelihood of
deportation, as by avoiding a conviction for an offense that
18
automatically triggers the removal consequence.” (Padilla,
supra, 559 U.S. at p. 373.)10
There are many ways to do this. Well before Padilla,
the Court of Appeal, Sixth District, identified common ways that
defense counsel can bargain to avoid a conviction that
automatically triggers deportation, one of which is to negotiate a
sentence of 364 days instead of 365 days for offenses that become
aggravated felonies at 365 days. (People v. Bautista (2004) 115
Cal.App.4th 229, 240, fn. 8 (Bautista).)
Defense counsel’s notes and actions show that she failed to
bargain creatively with the prosecutor to reduce the likelihood of
automatic deportation. (See Padilla, supra, 559 U.S. at p. 373.)
It is undisputed that counsel failed to make a counteroffer of 364
days in custody, which was more likely to be accepted by the
prosecution than the more significant sentence reductions she
sought of six or nine months. (See Lopez, supra, 66 Cal.App.5th
at p. 580 [counsel “could have sought a plea agreement that was
more likely to be accepted . . . yet avoided the worst of the
adverse immigration consequences”].) Simply requesting jail
terms of six and nine months was insufficient. For example, in
Bautista, the court found a failure to defend despite counsel’s
attempt to quash a warrant, which, if successful, would have
prevented deportation. (Bautista, supra, 115 Cal App.4th at
10
California subsequently codified this in 2015, effective
2016, by adding a specific duty to “defend against [adverse
immigration] consequences” to the Penal Code. (§ 1016.3, subd.
(a).) This new statue was explicitly intended by the “Legislature
to codify Padilla v. Kentucky and related California case
law . . . .” (§ 1016.2, subd. (h).)
19
pp. 237–242.) This was also the case in Lopez, where the court
found a failure to defend despite counsel’s “attempt to negotiate
[an immigration-neutral] simple possession plea.” (Lopez, supra,
66 Cal.App.5th at p. 579.)
The People point out that in counsel’s questionnaire, she
recalled asking for the six- and nine-month terms because she
says she knew that a conviction of one year meant an
“aggravated felony” and “he would be deported.” But counsel’s
contemporaneous notes are silent as to the immigration
consequences of her counteroffers. Instead, they state that they
were dictated by Manzanilla’s uninformed (as to the immigration
consequences) interest in obtaining a misdemeanor and a shorter
sentence, rather than counsel’s efforts to mitigate immigration
consequences. Regardless, as in Bautista and Lopez, these
counteroffers do not absolve her of her failure to defend.
Moreover, counsel does not remember raising Manzanilla’s
immigration status in plea bargaining, and her notes confirm
this. Her notes and memory also confirm that she learned
Manzanilla was a legal permanent resident only when they
discussed the consequences of the plea, after he stated he would
take it, and after her counteroffers. This suggests that counsel
failed to bargain creatively with the prosecution in a manner that
considered immigration consequences. (See Padilla, supra, 559
U.S. at p. 373.)11
11
Manzanilla also argues that defense counsel could have
bargained for a false imprisonment charge. We need not address
this argument as we find that counsel failed to discharge her
20
The People counter that Manzanilla has not presented any
“affirmative evidence” that the prosecution would have accepted
an immigration-safe plea. This is not required to establish legal
error; it goes to prejudice. Regardless, evidence that the
prosecution would have accepted a 364-day plea is not required
even for prejudice. In the cases the People cite, there was no
indication that an immigration-safe plea was available that
would have been reasonable to the prosecution. (See, e.g.,
People v. Bravo (2021) 69 Cal.App.5th 1063, 1074 [“Nor is there
any indication whatsoever that such a suggestion would have
been acceptable in negotiations with the People or when
presented to the trial court”]; People v. Olvera (2018) 24
Cal.App.5th 1112, 1118 [defendant “does not identify any
immigration-neutral disposition to which the prosecutor was
reasonably likely to agree”]; People v. Perez (2018) 19 Cal.App.5th
818, 830 [“There is no indication in the record that the
prosecution was willing to agree to an immigration safe
disposition”].) Here, there is an indication the prosecution would
reasonably accept a plea of 364 days because the prosecution’s
opening offer was 365 days. The People offer no explanation as to
why the prosecution would have not found a one-day reduction
reasonable.12
duty based upon the failure to request a one-day sentence
reduction.
12
The People’s argument is particularly puzzling in light of
their ultimate agreement (rejected by the trial court) in 2021 to
allow Manzanilla to withdraw his plea and plead to an
immigration-safe misdemeanor.
21
Relying on Bautista, the People nonetheless suggest that
some higher evidentiary standard is required than what is
present here. In Bautista, the defendant offered a declaration
from his defense counsel admitting that he sought a lenient
sentence and not an immigration-neutral charge, and a
declaration from a law professor stating that the prosecution
would have likely accepted an immigration-safe charge.
(Bautista, supra, 37 Cal.App.4th at pp. 238–240.) But here there
is even stronger evidence in the form of the prosecution’s actual
opening offer of just one additional day in jail than Manzanilla
needed to prevent the conviction from being an aggravated
felony. There is certainly nothing in the record indicating an
effort to reduce the sentence by one day would have been doomed
to failure. And, as Manzanilla suggests, that time could have
been made up in a reduction in time served (such as a waiver of
section 4019 credits) or other creative bargaining techniques.
Moreover, requiring an admission from defense counsel or
expert testimony, as existed in Bautista, would impose a
condition on obtaining relief under section 1473.7 that is not
contained in the statute. The court can certainly consider what
evidence is or is not in the record, but there is no litmus test
requiring that the original defense counsel agrees they failed to
adequately negotiate on behalf of their client.
In sum, we find a failure to adequately defend against
Manzanilla’s deportation in plea bargaining by defense counsel.
22
C. Manzanilla Did Not Subjectively Understand That
His Plea Made Him Subject to Deportation
In his final claim of error, Manzanilla asserts that he did
not subjectively understand that his plea exposed him to
mandatory deportation. Objective record evidence supports this
contention.
The focus of our inquiry “is on the ‘defendant’s own error
in . . . not knowing that his plea would subject him to mandatory
deportation and permanent exclusion from the United States.’ ”
(People v. Mejia (2019) 36 Cal.App.5th 859, 871 (Mejia), italics in
original, citing Camacho, supra, 32 Cal.App.5th at p. 1009.) The
defendant must show that “he did not ‘meaningfully understand’
or “knowingly accept” the mandatory deportation consequences
when he pleaded guilty in 2014. [Citation.]” (Mejia, supra, 36
Cal.App.5th at p. 872.)
Objective evidence contemporaneous with Manzanilla’s
plea shows he did not meaningfully understand its consequences.
According to counsel’s notes, she did not warn Manzanilla that he
would be deported, but only said that his status would change,
and he would have an immigration hearing. Manzanilla then
responded that if the hearing was in the United States, then it
was “fine.” This statement suggests subjective
misunderstanding. If Manzanilla knew he was subject to
mandatory deportation to Mexico, then his concern about the
location of his immigration hearing seems irrelevant.
The transcript of the sentencing hearing just 21 days after
his plea also shows that Manzanilla did not understand his plea
meant mandatory deportation. In fact, it confirms that he only
thought, as counsel advised, that his immigration status would
change. After the judge asked, “do you still wish to go forward
23
with this deal?” he replied “Yes. Does that mean automatically
I’m not a permanent resident anymore?” The court elaborated:
“It means you will be deported.” Manzanilla then asked, “So I
will be deported?” The court confirmed this, and Manzanilla
said, “If I’m going to be deported, no” he did not want the deal.
The trial court erred in rejecting this evidence and
concluding, “[h]e always understood he was going to be deported,”
citing counsel’s notes. Counsel’s notes do not mention
deportation. Moreover, they are irrelevant to Manzanilla’s
subjective understanding. “[W]hat the defense attorney said or
did not say about the immigration consequences of the plea” does
not govern the inquiry into subjective misunderstanding. (People
v. Jung (2020) 59 Cal.App.5th 842, 857 (Jung), disapproved of on
other grounds in Vivar, supra, 11 Cal.5th at p. 526, fn. 4; accord
Mejia, supra, 36 Cal.App.5th at p. 866.)
The People claim that Manzanilla’s signature and initials
on the Tahl form show he subjectively understood he would be
deported. This argument has been rejected by numerous courts
where there is contemporaneous evidence to the contrary, and we
reject it today. (See, e.g., Jung, supra, 59 Cal.App.5th at pp. 847,
857–858; Mejia, supra, 36 Cal.App.5th at pp. 865, 872–873.) The
People cite no authority for their claim that this is sufficient
when there is contemporaneous evidence to the contrary.
The People also argue that we should give deference to the
2014 sentencing court that addressed Manzanilla’s letter and
request to withdraw his plea because that court witnessed
Manzanilla testify and determined he had “buyers remorse.”
We disagree. Factual determinations based on credibility are
entitled to deference when they have record support. (People v.
Ogunmowo (2018) 23 Cal.App.5th 67, 79 [“If the trial court had
24
heard live testimony, instead of reading written declarations, its
credibility determinations would be entitled to deference if
supported by the record”].) The 2014 sentencing court did not
have a section 1473.7 motion before it, let alone any evidence in
support of the motion going to subjective misunderstanding. For
example, it did not have Lin’s notes showing that her advisal was
only that Manzanilla’s status would change and he would have
an immigration hearing, which Manzanilla found acceptable if
the hearing was in the U.S, a bizarre concern if he meaningfully
understood he would be deported.
The sentencing judge also curtailed any arguments by
Manzanilla that he did not understand he would be deported at
the time of his plea. It rejected counsel’s suggestion that she
should conflict off the motion, and ended the hearing without
further testimony from Manzanilla after he requested to take
back his plea based on the immigration consequences.
Finally, the People are not asking us to review the trial
court’s factual finding based on credibility, but the 2014
sentencing court’s conclusion. Even so, appellate courts
reviewing factual determinations based on the credibility of
witnesses that a trial court observed may reach a different
conclusion on an independent examination of the evidence.
(Vivar, supra, 11 Cal.5th at pp. 527–528.)
The swiftness with which Manzanilla brought his concern
about deportation to the attention of the trial court after entry of
the plea supports our conclusion that he did not meaningfully
understand the immigration consequences of the plea. He did not
wait months or years to claim he did not realize he would be
deported. He did not wait to claim he did not understand the
consequences only after efforts to avoid deportation proceedings
25
had failed. He was not making a desperate allegation to avoid
the consequences of an immigration proceeding that had gone
unexpectedly bad. Manzanilla advised the court at the first court
hearing after entry of the plea, 21 days later, with no deportation
proceeding underway, that he had not understood that
deportation was a certainty.
Objective, contemporaneous evidence establishes
Manzanilla did not subjectively understand he would be deported
when he entered his plea.
IV. Manzanilla Demonstrated Prejudicial Error
“[P]rejudicial 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.”
(Vivar, supra, 11 Cal.5th at p. 529.) “When courts assess
whether a petitioner has shown that reasonable probability, they
consider the totality of the circumstances. [Citation.] 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.” (Id. at
pp. 529–530.)
Manzanilla has established prejudice under all four factors
that Vivar identified as particularly relevant. First, at the time
of his plea, Manzanilla had been in the United States since 1965,
when he arrived as a four-year-old child, so had called the United
States home for approximately 55 years. He went to school and
started a family in California, and his family members, including
his U.S. citizen minor children, are in the United States.
26
In contrast, he has no family ties to Mexico, and the last time he
was there, on vacation with his family in the 1990s, he was
assaulted due to his sexual orientation and never returned.
This evidence “constitute[s] contemporaneous objective facts that
corroborate [the defendant’s] concern about the immigration
consequences of his plea options.” (Vivar, supra, 11 Cal.5th at
p. 530.)
Second, the facts near the time of Manzanilla’s plea show
that he would not have pled guilty had he known he would be
deported. In his sentencing hearing just 21 days after his plea,
he asked to take back his plea when he was told it meant not only
that he would lose his legal permanent resident status, but that
he would be deported. (Cf. Vivar, supra, 11 Cal.5th at p. 531
[finding contemporaneous evidence of prejudice where defendant
wrote court three months after his plea saying he would not have
taken it if he knew he would be deported].) According to
counsel’s notes from the hearing, he said that he wanted to
withdraw his plea because “this conviction will affect his [legal
permanent resident] status.” In addition, Manzanilla’s response
to counsel that the plea was acceptable if the immigration
hearing was in the United States is contemporaneous evidence
that he was concerned with his physical location and would not
have wanted to be deported to Mexico.
Third, a defendant’s stated interests during plea
negotiations are relevant to the prejudice inquiry if they were
based on a full and accurate understanding of the immigration
consequences at issue. (Vivar, supra, 11 Cal.5th at p. 532.)
A defendant’s stated interests during plea bargaining “can hardly
serve as evidence that he didn’t care about immigration
consequences when it is undisputed that [he] was not properly
27
advised—and thus was ignorant—of the immigration
consequences attached to his various plea options.” (Ibid.)
In Vivar, the defendant even rejected—unknowingly—an
immigration neutral plea offered by the prosecution, and the
court found prejudice: “[T]hat he unknowingly rejected an
immigration-neutral option cannot, in itself, demonstrate that
‘immigration consequences were not defendant’s primary
consideration.’ ” (Ibid.) The objective evidence of Manzanilla’s
goals during plea bargaining, according to counsel’s notes, are
that he wanted a misdemeanor, minimal jail time, and his
immigration hearing in the United States. Because counsel
never told Manzanilla his plea would result in mandatory
deportation, his uninformed interests during plea negotiations do
not show that he was indifferent to immigration consequences.
Fourth, Manzanilla had reason to believe an immigration-
neutral disposition was possible, because all he needed was a
one-day reduction in jail time. A defendant need not have a
subjective understanding that the disposition is possible, as
evidenced by Vivar where the defendant rejected an immigration
safe plea in favor of one that subjected him to deportation
because counsel failed to advise him adequately. (Vivar, supra,
11 Cal.5th at p. 532.)
Manzanilla has established a reasonable probability that
he would have rejected the plea if he had correctly understood its
actual or potential immigration consequences of deportation;
indeed, he tried to take back the plea just 21 days later.
28
DISPOSITION
We reverse the order denying Manzanilla’s motion to
vacate his conviction. On remand the trial court should grant the
motion, vacate Manzanilla’s 2014 conviction, and set the matter
for further proceedings.
*
HARUTUNIAN, J.
We concur:
STRATTON, P. J.
WILEY, J.
*
Judge of the San Diego Superior Court, assigned by the
Chief Justice pursuant to article VI, section 6 of the California
Constitution.
29
Filed 7/6/22
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
THE PEOPLE, B313557
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. MA063994)
v.
ORDER CERTIFYING
CARLOS RENAN MANZANILLA, PUBLICATION
[No change in the judgment]
Defendant and Appellant.
THE COURT:
The opinion in the above entitled matter was filed on June
13, 2022, was not certified for publication in the Official Reports.
For good cause it now appears that the opinion should be
published in the Official Reports and it is so ordered.
____________________________________________________________
*
STRATTON, P. J. WILEY, J. HARUTUNIAN, J.
*
Judge of the San Diego Superior Court, assigned by the
Chief Justice pursuant to article VI, section 6 of the California
Constitution.