Opinion Says Alien Who Acknowledged in Writing That Deportation Was a Certainty As a Consequence of His Conviction and Confirmed His Comprehension in Open Court Should Have Been Permitted to Change Plea
By a MetNews Staff Writer
A citizen of Mexico who pled guilty to unlawful possession of drugs and firearms and signed a form acknowledging that such a plea “would” result in his deportation, and confirmed to the judge that he comprehended the potential consequences, must be allowed to withdraw his plea, Div. Three of the Fourth District Court of Appeal has held, because his lawyer did not specify what count could lead to what outcome.
The opinion, filed Wednesday, enlarges the duty of judges in accepting guilty pleas to ascertain if a defendant who professes an awareness of the prospect or certainty of deportation actually does.
Acting Presiding Justice Eileen C. Moore wrote the opinion which reverses an order by Orange Superior Court Judge Michael A. Leversen denying a plea change.
The defendant, Sigifredo Zendejas Lopez, a resident of Anaheim who holds a green card, had signed a “Tahl form”—named after the California Supreme Court’s 1969 decision in In re Tahl—which included this statement, which he initialed:
“Immigration consequences: I understand if I am not a citizen of the United States, the plea or my conviction for the offense(s) charged will have the consequence of deportation, exclusion from admission to the United States, and denial of naturalization pursuant to the laws of the United States.”
His lawyer signed a form attesting to having “explained to defendant each of the rights set forth on this form,” adding:
“I have discussed the charges and the facts with the defendant. I have studied the possible defenses to the charges and discussed those possible defenses with defendant. I have discussed the possible sentence ranges with defendant. I have advised defendant of immigration consequences and have complied with the requirements of California Penal Code §1016.3(a).”
That provision, in effect since 2016, says:
“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.”
After Lopez pled guilty to three felony counts and Leversen imposed a suspended sentence, with five years of probation and with a condition of spending roughly nine months in jail, the defendant was taken into custody by the federal Immigration and Customs Enforcement (“ICE”) and advised that he faced a high risk of deportation based on one of the convictions entailing drug sales. He then moved in Orange Superior Court to set aside his pleas and go to trial.
He said in a declaration:
“I did not know that criminal convictions in this case would carry any immigration consequences for me. This is because my defense attorney...did not tell me how my pleas would guarantee my detention and deportation….”
The trial lawyer testified at the hearing on the motion that while he had told Lopez that “these charges are deportable,” he did not know “that one in particular makes him deportable.”
From the testimony, Moore concluded that the lawyer “could not and did not explain to Lopez the difference between an aggravated felony which meant virtually certain deportation and a nonaggravated felony which left open the possibility for relief.”
Execution of the Tahl form by Lopez and the attestation provided by the lawyer of compliance with §1016.3(a), Moore declared, is not enough to show that Lopez was truly made aware of the consequences of his plea. She wrote:
“Section 1016.3, along with its companion statutes, have changed the law in California with respect to counsel’s role. It is no longer necessary for a defendant to clear the high bar of ineffective assistance of counsel in order to establish his or her defense attorney did not meet the relevant standard. Further, what was once adequate advice may no longer meet the statutory requirements of section 1016.3. Such is the case here.”
“It…appears from the Tahl form that Lopez robotically initialed almost every line on it, including the prosecutor’s, the defense attorney’s, and the interpreter’s statements. (There was no interpreter used in this case.) It is at best unclear that Lopez read or understood what he was initialing. But even presuming he did, the Tahl form, as a ‘generic advisement’ of consequences, does not constitute a bar to relief….
“The most important fact about the immigration paragraph of the Tahl form is that both trial counsel and Lopez agree there was no discussion of it. Thus, there was no substantial evidence from which a reasonable finder of fact could conclude that trial counsel’s review of the Tahl form with Lopez was anything but brief and pro forma. The review of the Tahl form took place in the hallway outside the courtroom, just before the hearing on the plea agreement, which was the first time Lopez heard about the proposed plea. Trial counsel testified that he read the immigration portion verbatim from the form. He did not testify that he explained it or expanded on it, nor did he testify that he and the Lopez had any earlier meetings or phone calls to discuss the plea or its immigration consequences. This type of pro forma review does not satisfy section 1016.3, which requires not only accurate but also “affirmative advice” about the immigration consequences of a proposed plea agreement. (Italics added.)”
At a July 31, 2019 hearing on the plea, Leversen held up the Tahl form and asked Lopez if he confirmed that he signed and initialed it after going over it with his attorney and understood it. He responded: “Yes, I do.”
The judge reminded him that “if you’re not a citizen of the United States, your plea will have immigration consequences, such as the denial of naturalization, the exclusion from admission into the United States, or even deportation,” and he indicated his awareness of that.
“To be clear, the trial court read the required warning, but that warning was a general one, and it was not a substitute for counsel’s advice….A proper advisement by the court does not foreclose the possibility of relief when counsel provides inaccurate or incomplete advice regarding immigration consequences….Providing that advice was not the court’s responsibility; it was trial counsel’s.”
The case is People v. Lopez, 2021 S.O.S. 3077.
Lopez is a plaintiff in an action in the U.S. District Court for the Central District of California challenging alleged practices of ICE. He is one of five plaintiffs who contend that ICE agents engage in the disarming subterfuge of posing as probation officers.
The allegation relates to the circumstance of his arrest by ICE agents at about 8 a.m. in October 2019 based on his conviction in the Orange Superior Court. Lopez contends in the complaint that he willingly exited, shoeless, the apartment he shared with his girlfriend, supposing this was a proper but yet-unexplained order by local officials, was then handcuffed, ushered into an SUV without being told why he was being arrested and without being able to fetch his shoes or secure the girlfriend’s phone number.
“Only then did the officer tell Mr. Zendejas Lopez that he was with ICE,” the complaint sets forth. “The officer opened his vest and Mr. Zendejas Lopez saw for the first time the word ‘ICE’ on the officer’s chest.”
The complaint asserts that “ICE’s impersonation of police and probation officers exploits the trust” which recently declared congressional policies “seek to build with members of immigrant communities,” saying:
“Many individuals who have been subjected to ICE ruses have expressed anger and betrayal upon learning the officers’ true identities, and report that they and their family members now feel wary of uniformed officers. Young children who were present during ruse arrests now become upset and cry when they see a uniformed police officer.”
Last year, a District Court judge ordered the release of Lopez from the ICE Detention Facility in Adelanto, located in Riverside County, based on the health risk to him posed by the COVID-19 epidemic.
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