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Name: People v. Vivar
Case #: S260270
Court: CA Supreme Court
District CalSup
Opinion Date: 05/03/2021

An independent standard of review, under which an appellate court determines whether the facts satisfy the rule of law, applies to all prejudice determinations under Penal Code section 1473.7, subdivision (a)(1). Vivar entered the United States from Mexico in 1962 at the age of six. In 2002, he was prosecuted for attempting to steal Sudafed from a store. He rejected a deportation-neutral plea offer for burglary with a low-term prison sentence and accepted a plea to possession of materials with the intent to manufacture methamphetamine (Health & Saf. Code, § 11383, subd. (c)), which included probation and drug treatment. This plea caused his removal from the U.S. In 2018, he moved to vacate his conviction, because his attorney failed to advise him of the deportation consequences of his plea. He declared that, if properly advised, he never would have accepted the section 11383 plea. His motion was denied. The Court of Appeal affirmed. Review was granted. Held: Reversed. Penal Code section 1473.7 allows persons who have completed their sentence, but who suffered prejudice relating to a guilty plea, to move to withdraw the plea. The defendant must show not only 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, but also, prejudice. In this context, prejudice means the defendant “demonstrated a reasonable probability that he would have rejected the plea had he known that it would lead to mandatory deportation.” Factors relevant to this determination include the defendant’s ties to the U.S., the importance he placed on avoiding deportation, his priorities in seeking a plea bargain, and whether he had reason to believe an immigration-neutral negotiated disposition was possible. In this case, the objective and contemporaneous facts, based on written documents, corroborate the defendant’s declaration that he “would never have pleaded guilty” if he had been properly advised. [Editor’s Note: Justice Corrigan filed a concurring and dissenting opinion. She fully agreed that Vivar should be allowed to withdraw his plea under section 1473.7. However, she did not agree with 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.]