I like work; it fascinates me; I can sit and look at it for hours. I love to keep it by me; the idea of getting rid of it nearly breaks my heart.
It is impossible to enjoy idling thoroughly unless one has plenty of work to do. Jerome K. Jerome, The Idle Thoughts of an Idle Fellow (1889); On Being Idle
In this profession, as in any other, it always appeared that the “recipe” to be really good in a chosen field was to continually consume and digest as much information as was possible, mix with equal portions of hard work, compassion and creativity. Finally, a light frosting of enthusiasm–which is generated anytime you engage in an activity which you truly enjoy–and, `voila, out pops a really good _____________ [fill in the blank, “ditch digger”, attorney, proctologist, judge, “hamburger flipper”, you name it.].
Until recently, the choice of practicing criminal law afforded the practitioner the luxury of focusing on lofty ideals, which included, but are certainly not limited to, the right against unreasonable governmental searches and seizures, due process and the right against self-incrimination. Moreover, the ultimate right of liberty [i.e. incarceration] and life or death was, with the exception of civil contempt, always the province of criminal law. Slowly, the tentacles of competing areas of law have slithered into our hallowed practice. While there was always an undercurrent of civil law [restitution], immigration [potential deportation, exclusion] and, ugh, family law [disgruntled spouses/victims complaining witnesses], court consolidation and the recent Fourth District’s decision in In re Resendiz, (1999) _____ Cal.App.4th _____; 99 DAR 3299 (4/8/99), have, once again, altered the complexion of our practice.
The initial postulate, upon which Resendiz is based, is that whenever a defendant pleads guilty he must be advised of the direct consequences of his plea. Conversely, collateral consequences, which are defined as indirect ones that do not “inexorably follow” from a conviction involved in the plea, do not warrant a mandated advisal. Direct consequences of a plea include the statutory range of punishment, probation ineligibility, and a required term of parole. People v Crosby, (1992) 3 Cal.App.4th 1352. Misadvice by counsel concerning direct consequences of the plea is a ground for withdrawal of a guilty plea and, as noted below, a determination that counsel rendered ineffective assistance of counsel. People v Huynh, (1991) 229 Cal.App.3d 1067.
In Resendiz, the defendant was a citizen of Mexico, though a legal resident in the United States for twenty-five years, and had two minor, dependent children who live in, and are citizens of, the United States. He entered a guilty plea to a felony drug charge and received a local commitment to county jail. Prior to the court taking defendant’s guilty plea to the drug charge, the defendant executed a change of plea form which advised him that “the conviction for the offense charged may have the consequence of deportation, exclusion from admission to the United States, or denial of naturalization pursuant to the laws of the United States.”1
Additionally, in open court, at the time the plea was taken, the defendant orally acknowledged his understanding of certain rights and consequences of his plea including the fact that if he were not a citizen, the conviction could result in his deportation or denial of naturalization at some later point in time.2” After serving his time in county jail, Resendiz was released to INS authorities and the deportation process was initiated. After unsuccessfully attempting to withdraw his guilty plea to the drug charge, Resendiz sought writ relief. Ibid at p. 3299.
A review of trial counsel’s performance revealed that, at the time the plea was taken, it was his habit and custom to advise his non-citizen clients that they should assume that they will be deported. Additionally, though he knew that his client was a non-citizen, trial counsel did no independent research into the immigration consequences of the plea nor did he seek the advice of an immigration attorney to determine the immigration consequences. Ibid.
After discussing the factual underpinnings surrounding the case before them, the Fourth District (1) granted the writ of habeas corpus; and (2) found that trial counsel’s performance constituted “ineffective assistance of counsel” [IAC].
In granting the writ, the court observed that with the enactment of the federal “Illegal Immigration Reform and Immigrant Responsibility Act of 1996” and the “Antiterrorism and Effective Death Penalty Act of 1996”, the legislative changes mandate deportation and permanent exclusion for drug offenses such as those admitted in the present case; the Tahl form Resendiz executed–which reflected the state of the law prior to the legislative changes–warned him of only a possibility of deportation. Neither the Tahl form, trial counsel or the court admonished Resendiz that his plea would trigger mandatory deportation. Inasmuch as mandatory deportation now flows inexorably from the guilty plea, failure to so advise the defendant at the time the plea is taken is grounds to set the same aside. Ibid at p. 3300.
As to finding IAC, the court made reference to Strickland v. Washington, (1984) 466 U.S. 668, 687-688, 694 and observed that here, as in People v. Soriano, (1987), 194 Cal.App.3d 1470, the defendant:
“received only a pro forma caution from his attorney about the deportation consequences of his guilty plea. Furthermore, whatever advice his counsel did give him was not founded on adequate investigation of federal immigration law.” In re Resendiz, supra, 99 DAR at p. 3300.
As of the date of this writing, two opinions have been filed subsequent to Resendiz which discuss analogous issues. Both have taken the opposite tack to the Fourth District. In People v. Ramirez, (1999) ____ Cal.App.4th ____; 99 DAR 3667 (4/21/99) and People v. Posas, (1999) ____ Cal.App.4th ____; 99 DAR 5945 (6/16/99), the Fifth District and the Third District, respectively, addressed the issue of whether Penal Code § 1016.5 requires the defendant–at the time the plea is taken–be orally advised of the immigration consequences of his plea. Both courts found that a written advisement is sufficient. Neither court squarely addressed the sufficiency of the language in Penal Code § 1016.5 and neither addressed the changes in federal immigration law as it relates to direct/indirect consequences of a guilty plea. Thus, neither of these decisions constitute contrary authority to that in Resendiz.
While this article cannot substitute as a primer on immigration law, as a general rule of thumb, you may rest assured that your non-citizen client will be introduced to the deportation process if you “cop” him/her out to: (1) anything involving drugs or guns; (2) crimes of moral turpitude; (3) aggravated felonies [see Penal Code §§ 1192.7 and 667.5]; (4) any felony in which the court imposes more than 364 days custody. This list is not exclusive and, if the past is any indication of the future interpretation of the federal immigration scheme, it is subject to change with increasing frequency.
As a practical matter, Resendiz opens up to scrutiny virtually all pleas entered by non-citizens which triggers immigration consequences. The remedy will be to set-aside the plea, and litigate the matter anew, in the posture of status quo ante. The negative implication of Resendiz is that in order to achieve the desired remedy, it appears that the trial court must first find IAC by trial counsel who facilitated the taking of the guilty plea. To this end, one local defense practitioner waxed prophetic when he observed that the major source of the blight which continually plagues our profession is due, in no small part, to the fact that it invites, even encourages, its members to feed upon themselves in order to secure a satisfactory outcome. In this regard, the opinion in Resendiz rings like a giant dinner bell calling all that will listen to come and put on the feed bag, the profession awaits you.
- This advisal is mandated by Penal Code § 1016.5, subdivision (a), which states, in pertinent part, as follows: “[i]f you are not a citizen, you are hereby advised that conviction of the offense for which you have been charged 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.”
- Up until the date Resendiz was published in the advance sheets, on April 8, 1999, the identical scenario, regarding the taking of pleas, was played out scores of times every day in North County courts.