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Name: In re Resendiz
Case #: S078879
Court: CA Supreme Court
District CalSup
Opinion Date: 04/02/2001
Subsequent History: Rehg. den. 6/13/01

The court declined to categorically bar ineffective assistance claims based on advice regarding immigration consequences of a guilty plea if the court has provided the advisement in Penal Code section 1016.5 that the plea may result in deportation. Instead, affirmative misadvice regarding immigration consequences may constitute ineffective assistance in a particular case. But, even if the petitioner had been misadvised as to immigration consequences, he could not show prejudice. His assertion that he would not have pleaded guilty if given competent advice must be corroborated independently by objective evidence. Petitioner faced a maximum term of five years and four months; the plea bargain was for 180 days and three years of probation. Petitioner presented no evidence suggesting the prosecutor would have accepted a plea that would allow him to avoid deportation. Also, nothing in the evidence provided by petitioner showed how he might have been able to avoid conviction or what specific defenses were available to him at trial. Petitioner failed to show it was reasonably probable that he would have forgone the distinctly favorable outcome he obtained by pleading guilty if he had not been misadvised. Three other justices concurred in the disposition because they believed the court’s correct advice under Penal Code section 1016.5 prevented petitioner from showing prejudice.