People v. Vivar

IN THE SUPREME COURT OF

CALIFORNIA

THE PEOPLE,

Plaintiff and Respondent,

v.

ROBERT LANDEROS VIVAR,

Defendant and Appellant.

S260270

Fourth Appellate District, Division Two

E070926

Riverside County Superior Court

RIF101988

May 3, 2021

Justice Cuéllar authored the opinion of the Court, in which

Justices Liu, Kruger, Groban, and Jenkins concurred.

Justice Corrigan filed a concurring and dissenting opinion, in

which Chief Justice Cantil-Sakauye concurred.

PEOPLE v. VIVAR

S260270

Opinion of the Court by Cuéllar, J.

The population of the United States includes millions of

immigrants who arrived as children, attended schools, and

found work here. (See Dep’t of Homeland Security v. Regents of

the Univ. of California (2020) ___ U.S. ___, ___ [140 S.Ct. 1891,

1932] (conc. & dis. opn. of Kavanaugh, J.).) Whether they

become citizens or not, these immigrants’ ties to our country are

evident not only in their work and schooling, but in how they’ve

formed attachments and families of their own. In contrast, what

ties they once had to their country of birth — from which they

may lack even memories — often slip away. So when long-

standing noncitizen residents of this country are accused of

committing a crime, the most devastating consequence may not

be a prison sentence, but their removal and exclusion from the

United States. (See People v. Martinez (2013) 57 Cal.4th 555,

563 (Martinez).) Because the prospect of deportation “is an

integral part,” and often even “the most important part,” of a

noncitizen defendant’s calculus in responding to certain

criminal charges (Padilla v. Kentucky (2010) 559 U.S. 356, 364

(Padilla)), both the Legislature and the courts have sought to

ensure these defendants receive clear and accurate advice about

the impact of criminal convictions on their immigration status,

along with effective remedies when such advice is deficient.

(E.g., Pen. Code, §§ 1016.2 et seq., 1473.7; Lee v. United States

(2017) ___ U.S. ___ [137 S.Ct. 1958] (Lee); Padilla, at p. 360;

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Opinion of the Court by Cuéllar, J.

Martinez, at p. 559; People v. Superior Court (Giron) (1974) 11

Cal.3d 793, 798.)

How these provisions apply to people like defendant

Robert Landeros Vivar — who came to the United States at age

six and lacked any meaningful ties to his country of birth — is

the problem we address in this case. Vivar was arrested in 2002

for attempting to steal Sudafed from a grocery store. Although

he’d spent four decades living in this country as a lawful

permanent resident, he lacked American citizenship. What he

nonetheless possessed were robust ties to the United States. His

mother, wife, children, and grandchildren were all citizens. His

son, who was serving in the United States Air Force, was about

to be deployed to the Middle East.

Unfortunately, as the Court of Appeal held and the

Attorney General concedes, Vivar was never properly advised

about the immigration consequences of his plea options. He

didn’t know, for example, that pleading guilty to violating

Health and Safety Code section 11383, former subdivision (c),

would necessarily subject him to mandatory deportation, while

pleading guilty to violating Penal Code section 459 would not.

Vivar took the former plea offer and rejected the latter. His

mistake soon became manifest: within days, Vivar was

subjected to an immigration hold, and a few months later he was

deported.

After Vivar made his way back into the United States by

crossing the border without inspection, he sought expungement

of his drug conviction. He succeeded and then tried to secure

further relief by way of a petition for writ of error coram nobis.

Neither had any effect on his immigration status, however. He

was again deported in 2013.

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In 2018, Vivar filed a motion to vacate his 2002 conviction

under a recently enacted statute offering relief to those who had

already served their sentences. (Pen. Code, § 1473.7 (section

1473.7).) A successful section 1473.7 motion requires a showing,

by a preponderance of the evidence, of a prejudicial error that

affected the defendant’s ability to meaningfully understand the

actual or potential immigration consequences of a plea. (Id.,

subds. (a)(1), (e)(1).) The Court of Appeal concluded that while

counsel had failed to offer Vivar competent advice about

immigration consequences in 2002, Vivar failed to demonstrate

any prejudice from the error. (People v. Vivar (2019) 43

Cal.App.5th 216, 225–231 (Vivar).) Based on an independent

review of the record, we disagree. Vivar has demonstrated a

reasonable probability that if he had been properly advised by

counsel about the immigration consequences of his plea, he

wouldn’t have pleaded guilty to an offense subjecting him to

mandatory deportation. We therefore reverse the judgment of

the Court of Appeal.

I.

In 1962, when Vivar was six years old, he and his family

immigrated as lawful permanent residents from Mexico to the

United States. He now has two children and six grandchildren.

All are American citizens and all reside here in California, along

with Vivar’s two siblings.

A.

Upon arrival, Vivar quickly adapted to life in the United

States. Since early in his youth, his primary language has been

English. In high school, he helped establish a Reserve Officers’

Training Corps program and hoped to serve his country in

Vietnam like his older brother, Martin, but the war ended a few

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Opinion of the Court by Cuéllar, J.

months after he graduated. Vivar instead began working at an

airline and was soon promoted to a management position that

required him to work a night shift at the airport and a day shift

in the office. Limited to only a few hours of sleep a night, he

turned to amphetamines to stay awake.

Vivar first entered — and successfully completed — a

residential drug treatment program in the late 1990s.

Unfortunately, he relapsed in 2001. The conviction under

review arose from his methamphetamine addiction. In

February 2002, he was caught trying to steal 12 boxes of

Sudafed from a grocery store in Corona. Vivar told the store’s

loss prevention officer — and later, the police — that he planned

to provide the Sudafed to someone who would manufacture

methamphetamine and, in turn, share some of the finished

product with him. The Riverside County District Attorney

charged Vivar with possessing methamphetamine precursors

with the intent to manufacture the drug (Health & Saf. Code,

§ 11383, former subd. (c); see id., § 11383.5, subd. (c)) as well as

petty theft with a prior conviction (Pen. Code, § 666).

B.

The District Attorney offered Vivar several plea options.

What happened next is in some dispute. Vivar recalls his

attorney conveying an offer of an unspecified felony plea with a

three-year sentence. He rejected that offer because of his

mistaken belief — never corrected by his appointed attorney —

that all felony convictions resulted in deportation and that the

opposite was true for misdemeanors. (Cf. U.S. v. Graham (3d

Cir. 1999) 169 F.3d 787, 792 [some misdemeanors can qualify as

an aggravated felony under federal immigration law].) Based

on this mistake, he asked counsel to secure a plea deal that could

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Opinion of the Court by Cuéllar, J.

eventually be reduced to a misdemeanor. He also informed her

he had a drug problem and wanted treatment, even if not

required by the plea offer.

Following those discussions, counsel relayed an offer for

Vivar to plead guilty to burglary (Pen. Code, § 459) with a low-

term prison sentence. With good-conduct credits, he could’ve

served just a year in prison and avoided mandatory deportation.

(See Pen. Code, §§ 461, former subd. (a), 2933, subd. (a).)

According to Vivar, though, counsel never advised him about the

immigration-related benefits of this plea, nor did she correct his

misimpression about the respective immigration consequences

of felonies and misdemeanors. Unaware the burglary plea offer

could be deportation-neutral, he rejected it. He pleaded guilty

instead to possessing methamphetamine precursors with intent

to manufacture in exchange for an agreed-on 365-day county jail

sentence — with a stipulation that the court would recommend

admission to a residential drug treatment facility — and that a

low-term, two-year prison sentence would be imposed only if he

failed to complete the treatment program. Vivar mistakenly

believed this disposition would allow him both to get treatment

and, once the conviction was reduced to a misdemeanor, avoid

deportation.1

Before entering his plea in March 2002, Vivar executed a

form that required him to initial 17 separate paragraphs

acknowledging that he understood the potential consequences of

his plea. One paragraph stated, “If I am not a citizen of the

1

Vivar says counsel informed him that the court could

reduce the felony conviction to a misdemeanor — and Vivar

believed that this disposition carried no immigration

consequences.

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Opinion of the Court by Cuéllar, J.

United States, I understand that this conviction 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.” Another paragraph provided, “I have had

an adequate time to discuss with my attorney (1) my

constitutional rights, (2) the consequences of any guilty plea,

and (3) any defenses I may have to the charges against me.”

Vivar’s counsel declined to submit a declaration in

connection with the hearing on the section 1473.7 motion. Her

recollection was presented to the court instead through unsworn

email correspondence and her handwritten notes. Counsel

stated that while she didn’t specifically remember Vivar’s case,

her “standard practice” at the time was to “advise non-citizen

clients of the potential for immigration consequences” of their

convictions and that she “routinely followed that practice.”

After reviewing her notes from the plea negotiations, counsel

indicated that she was “confident that Mr. Vivar was ‘fully

advised’ of the consequences of the plea,” which under the

circumstances of the case “would have included the standard

advisement of possible deportation.” She also stated that she

“believe[d]” she “specifically cautioned” Vivar “that, in spite of

his experience” in a prior criminal proceeding, residential

treatment “would NOT determine whether or not he would be

deported on the new offense,” and that if Vivar had any

questions “he should consult an immigration attorney for

clarification.” What she did not advise him was whether his

understanding of felonies, misdemeanors, and immigration law

was correct. Nor did she advise him as to the actual

immigration consequences of a plea to the drug charge or any

other plea.

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Opinion of the Court by Cuéllar, J.

C.

A few days after being sentenced, Vivar was informed that

he couldn’t be admitted to the recommended drug treatment

program “ ‘due to an “immigration hold.” ’ ” (Vivar, supra, 43

Cal.App.5th at p. 221.) As he would’ve known had he been

properly advised, his conviction activated a tripwire in

immigration law — it qualified as a controlled substance offense

as well as an aggravated felony. (See 8 U.S.C. §§ 1101(a)(43)(B),

1227(a)(2)(A), 1227(a)(2)(B).)2 Vivar promptly sent a series of

letters to the court expressing confusion about the situation and

requesting assistance with admission to the drug treatment

program. (Vivar, at p. 221.) In those letters, he explained that

he had been a legal resident for the past 40 years, that his family

members were United States citizens, and that his son was

currently serving in the United States Air Force and awaiting

deployment to the Middle East. He made plain that “[i]f I would

have been made aware of these facts I would never have

plead[ed] Guilty to this Charge.” In the meantime, federal

immigration authorities notified Vivar that he was subject to

removal because of his recent criminal conviction and, in

January 2003, deported him. (Vivar, at p. 221.)

Determined to rejoin and support his family — and unable

to find work in Mexico — Vivar reentered the United States,

without inspection, in May 2003. In 2008, he successfully

obtained an order to expunge his conviction under Penal Code

2

According to Vivar’s immigration law expert, this

conviction “triggered the worst of all immigration consequences:

mandatory deportation with a bar to almost all forms of

immigration relief, and permanent ineligibility for U.S.

citizenship.”

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Opinion of the Court by Cuéllar, J.

section 1203.4. It took another three years for him to learn,

when he was again detained by immigration authorities, that

expungement did not mitigate the immigration consequences of

his plea. (See Martinez, supra, 57 Cal.4th at p. 560.) Vivar then

filed a petition for writ of error coram nobis, which was denied.

In March 2013, he was again deported and has been living in

Tijuana, Mexico ever since. There, he works full-time at a call

center and founded a nonprofit organization to help deported

mothers of United States citizen children as well as deported

mothers of children lawfully residing in the United States under

the Deferred Action for Childhood Arrivals program. He has

also been volunteering with organizations to support deported

United States veterans. If this conviction can be vacated, Vivar

— who has remained drug-free since 2002 — may be able to seek

reentry to the United States and be reunited with his family.

Vivar filed a motion in January 2018 to vacate his

conviction under Penal Code section 1473.7 — the motion under

review here. He asserted, among other things, that he would

never have pleaded guilty to violating Health and Safety Code

section 11383, former subdivision (c), if counsel had informed

him it would result in his deportation. The trial court denied

the motion, reasoning (1) that counsel made no affirmative

misadvisement, and (2) that “nonadvisement” of immigration

consequences didn’t qualify as ineffective assistance under

United States Supreme Court precedent. The trial court didn’t

consider whether Vivar suffered prejudice from counsel’s failure

to provide adequate advice.

The Court of Appeal affirmed, but on different grounds.

Contrary to the trial court, the Court of Appeal determined that

defense counsel provided ineffective assistance. (Vivar, supra,

43 Cal.App.5th at p. 228.) At a minimum, the court reasoned,

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Opinion of the Court by Cuéllar, J.

Vivar had asked “a specific question about deportation” (ibid.),

a question that “required an attorney to research and apprise

their client of the immigration consequences of a plea” (id. at

p. 227). To warn merely “ ‘that his plea might have immigration

consequences,’ ” in circumstances where the consequences were

“certain,” was “constitutionally deficient.” (Id. at p. 228.) What

barred relief here, in the Court of Appeal’s view, was Vivar’s

failure to demonstrate prejudice — in this context, a reasonable

probability that he wouldn’t have entered the same plea if he

had been properly advised. (Id. at p. 229.) The court reasoned

that Vivar’s main priority seemed to be drug treatment, not

immigration consequences, and asserted that this was

corroborated by counsel’s contemporaneous notes, by Vivar’s

rejection of the immigration-neutral burglary plea, and by the

trial court’s finding that Vivar was “ ‘was more willing to rely on

his experiences than he was on his counsel’s advice.’ ” (Id. at

p. 230.) Despite the decades Vivar spent in this country, his

family members’ American citizenship, and his prompt objection

to the federal immigration hold, the Court of Appeal insisted

there was “no contemporaneous evidence in the record” to

corroborate Vivar’s claim that he would’ve preferred an

immigration-neutral disposition. (Ibid.)

We granted Vivar’s petition to review two rulings made by

the Court of Appeal: first, its conclusion that he suffered no

prejudice within the meaning of section 1473.7, subdivision

(a)(1); and second, its conclusion that appellate courts must

review deferentially factual findings made by the trial court

concerning prejudice under section 1473.7, even if those findings

are based on a cold record consisting solely of documentary

evidence. Because no one sought review to challenge the Court

of Appeal’s finding that Vivar’s counsel was ineffective, we

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Opinion of the Court by Cuéllar, J.

assume for purposes of this proceeding that counsel failed to

properly advise Vivar about the immigration consequences of

his plea or of the plea offers he rejected. After we granted review

— and after receiving a 30-day extension to file his brief on the

merits — the Attorney General has undertaken a “fresh look” at

the Court of Appeal’s analysis and now concedes that the Court

of Appeal erred in applying a deferential standard of review to

the trial court’s prejudice findings. He further concedes that,

under independent review, Vivar has demonstrated prejudice

and is entitled to relief. We have retained the case for decision

to resolve a conflict in the Court of Appeal concerning the

standard of review governing prejudice findings under section

1473.7, subdivision (a)(1) and to clarify more generally what

demonstrates prejudice under that provision. (See People v.

Maya (2020) 9 Cal.5th 239, 241.)

II.

It took less than a month for Vivar to realize the dire

ramifications of his mistaken embrace of a felony drug

possession plea. What ensued in the 18 years that followed

underscores how much Vivar consistently valued his presence

on American soil, and how likely it is that — properly advised

— he would have prioritized a resolution of his case allowing

him to stay in the country. Mere weeks after entering his plea,

when he learned that he was subject to an immigration hold and

thus ineligible for a residential drug treatment program, he sent

the sentencing judge a handwritten letter “to seek the court’s

mercy.” Vivar informed the court that he was “a legal resident

and ha[s] been for the past 40 years”; that his mother and wife

were American citizens; that his children and grandchildren, all

born in Riverside County, were likewise citizens; and that his

oldest child and only son was in the United States military

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Opinion of the Court by Cuéllar, J.

awaiting deployment to the Middle East. He “fully accept[ed]”

responsibility for his actions but “would like to change my life

for good and become a productive member of society.” Two

months later, after he was transferred to a federal immigration

facility, he reiterated his willingness “to do whatever it takes to

once again be an asset to my community and not a liability” and

asked the court to reduce his conviction to a misdemeanor. (See

Pen. Code, § 17, subd. (b).)

A few months later, in October 2002, Vivar asked that his

case “be Re-opened” on due process grounds. The legal advice

he received at the time of his plea never conveyed, Vivar

insisted, that he was accepting responsibility for “an Aggravated

Felony for Immigration purposes and thus would warrant

Immediate Deportation.” Had he been so advised, he “would

have never plead[ed] Guilty to this Charge.” He was deported a

few months later.

In 2008, Vivar successfully moved to expunge his

conviction through another pro se filing. Only later did he learn

that expungement hadn’t erased or even mitigated the

immigration consequences of his plea. (See Martinez, supra, 57

Cal.4th at p. 560.) In 2012, a lawyer advised Vivar he could

obtain relief on grounds of ineffective assistance of counsel by

filing a petition for writ of error coram nobis. Vivar hired the

lawyer to file such a petition. Yet this filing, too, proved

fruitless: This court had already held, in 2009, that a

defendant’s ignorance of a plea’s immigration consequences —

or counsel’s failure to negotiate a different plea — constituted a

mistake of law and thus did not qualify as a ground for relief on

coram nobis. (People v. Kim (2009) 45 Cal.4th 1078, 1102–1104

(Kim).) In a companion case, we also held that persons in federal

immigration custody after completing their state sentences, as

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Opinion of the Court by Cuéllar, J.

well as any probation or parole period, are no longer in state

custody. (People v. Villa (2009) 45 Cal.4th 1063.) So their state

convictions are beyond the reach of habeas corpus.

But they are not beyond the reach of remedies recently

enacted by the Legislature. As Vivar was running out of options,

lawmakers considered the problem faced by Vivar and so many

others who were unaware of the immigration consequences

posed by a plea entered many years earlier. (See Kim, supra, 45

Cal.4th at p. 1107 [“the Legislature has been active in providing

statutory remedies when the existing remedies . . . have proven

ineffective”; “the Legislature remains free to enact further

statutory remedies for those in defendant’s position”].) They did

so by enacting section 1473.7, which “create[d] an explicit right

for a person no longer imprisoned or restrained.” (Legis.

Counsel’s Dig., Assem. Bill No. 813 (2015–2016 Reg. Sess.).)

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.” (§ 1473.7, subds. (e)(1), (a)(1).)

A finding of prejudicial error under this provision may, but need

not, be based on ineffective assistance of counsel. (Id., subd.

(a)(1).) If the motion is meritorious, “the court shall allow the

moving party to withdraw the plea.” (Id., subd. (e)(3).)

The Court of Appeal determined that trial counsel failed

to advise Vivar of “the certain immigration consequences of his

plea.” (Vivar, supra, 43 Cal.App.5th at p. 228.) This rendered

counsel’s representation “constitutionally deficient.” (Ibid.)

Because no party challenged this finding — and the question of

counsel’s deficient performance falls outside the issues

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presented for review — we accept it as true for purposes of this

proceeding. We review only the Court of Appeal’s finding that

Vivar suffered no prejudice on account of counsel’s error. In

examining that finding, we consider first what is the applicable

standard of review. Then we apply that standard to the record

here. Reviewing the record independently, we conclude Vivar

was prejudiced within the meaning of section 1473.7,

subdivision (a)(1).

A.

When a trial court grants or denies a motion to vacate a

conviction under section 1473.7, the parties can appeal.

(§ 1473.7, subd. (f).) Both parties acknowledge, though, that the

standard for reviewing such orders is “unsettled.” (People v.

Rodriguez (2019) 38 Cal.App.5th 971, 977.) In the Court of

Appeal, the Attorney General analogized section 1473.7 motions

to other statutes authorizing withdrawal of a plea — despite

their different wording (see, e.g., Pen. Code, § 1018 [a trial court

“may” permit a defendant to withdraw a plea “for a good cause

shown”]) — and argued that denial of the motion should be

reviewed deferentially for abuse of discretion. (See, e.g.,

Rodriguez, at p. 977.) Vivar disagreed, making the case that his

prejudice claim raised a mixed question of law and fact that

should be reviewed independently. (See, e.g., People v. DeJesus

(2019) 37 Cal.App.5th 1124, 1133.) Unsatisfied with these two

possibilities, the Court of Appeal proposed yet another option: a

complicated framework in which the standard of review

governing a trial court’s section 1473.7 prejudice ruling would

vary depending on the basis of the claimed error. Under this

option, the trial court’s ruling would be reviewed independently

where the prejudicial error consists of constitutionally

ineffective assistance of counsel but would be reviewed for abuse

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of discretion where the claim rests merely on “ ‘statutory

error.’ ” (Vivar, supra, 43 Cal.App.5th at p. 224.)

The Attorney General reversed course in the proceedings

before us. He no longer advocates the abuse of discretion

standard — even in the context of mere statutory error. Instead,

he urges us to apply the independent standard of review to all

prejudice determinations under section 1473.7, subdivision

(a)(1). Although we are not “bound” to accept a party’s

concession on a question of law (Desny v. Wilder (1956) 46 Cal.2d

715, 729), after careful review we accept the Attorney General’s

concession. (See In re McKinney (1968) 70 Cal.2d 8, 14.)

Our case law has applied the independent review standard

— which accords substantial weight to the trial court’s

credibility findings — in analogous circumstances. Whether

counsel’s advice regarding immigration was inadequate and

whether such inadequacy prejudiced the defense, while mixed

questions, are predominantly questions of law. (See In re

Resendiz (2001) 25 Cal.4th 230, 248–249 (Resendiz) (lead opn. of

Werdegar, J.).)3 Accordingly, we review such rulings

independently (Resendiz, at p. 248), and rightly so, given the

profound and substantial consequences of a prejudicial

misadvisement on a defendant’s life. (Cf. People v. Ault (2004)

33 Cal.4th 1250, 1265 (Ault) [“the proper review standard is

influenced in part by the importance of the legal rights or

interests at stake”]; id. at p. 1266 [“another important

consideration in determining the appropriate standard of review

3

Because Justice Mosk concurred in Justice Werdegar’s

lead opinion in all respects relevant here (see Resendiz, supra,

25 Cal.4th at p. 255 (conc. & dis. opn. of Mosk, J.)), we cite only

to the lead opinion.

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is the consequences of an erroneous determination in the

particular case”].)

Nothing in section 1473.7, subdivision (a)(1) or elsewhere

gives us a reason to deviate from this template. Indeed, prior to

section 1473.7’s amendment in 2018 — which clarified that the

“legal invalidity” of a conviction or sentence “may, but need not,

include a finding of ineffective assistance of counsel” (§ 1473.7,

subd. (a)(1); Stats. 2018, ch. 825, § 2) — our courts had

“uniformly assumed” that relief was available only to those who

had demonstrated constitutionally ineffective assistance (People

v. Camacho (2019) 32 Cal.App.5th 998, 1005 (Camacho)). And

to the extent those courts considered the question, they applied

a standard of independent review to such claims. (See, e.g.,

People v. Ogunmowo (2018) 23 Cal.App.5th 67, 75–76

(Ogunmowo); accord, People v. Tapia (2018) 26 Cal.App.5th 942,

950 (Tapia) [following Ogunmowo]; People v. Olvera (2018) 24

Cal.App.5th 1112, 1115–1116 (Olvera) [same].) A standard of

independent review — the same standard governing our review

of these claims on habeas corpus — is most consistent with

section 1473.7’s purpose: to offer relief to those persons who

suffered “prejudicial error” but are “no longer imprisoned or

restrained” and for that reason alone are unable to pursue relief

on habeas corpus. (Legis. Counsel’s Dig., Assem. Bill No. 813

(2015–2016 Reg. Sess.).)

When the Legislature amended section 1473.7 in 2018,

nowhere did it “signal an intent to supersede” the standard of

review the Court of Appeal had already articulated (In re W.B.

(2012) 55 Cal.4th 30, 57; see, e.g., Ogunmowo, supra, 23

Cal.App.5th at pp. 75–76), nor did it propose that appellate

courts adopt a more deferential standard of review. To the

contrary: the Legislature explicitly stated its intended purpose

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was to make relief more broadly available to deserving

defendants, given the critical interests at stake. (See Assem.

Com. on Public Safety, Analysis of Assem. Bill No. 2867 (2017–

2018 Reg. Sess.) as amended Apr. 5, 2018, pp. 2, 4 [this bill helps

achieve the original goal of “creating a process for individuals to

erase the catastrophic consequences . . . that can attach to even

very old criminal convictions” by “clearing up minor

discrepancies that have arisen since implementation”].) The

2018 amendment expanded the category of defendants who

could obtain relief by eliminating any requirement that the

defendant establish ineffective assistance of counsel. An

uncodified section of the 2018 amendment declared that the

expanded language in subdivision (a)(1) provided “clarification

to the courts regarding Section 1473.7 of the Penal Code to

ensure uniformity throughout the state and efficiency in the

statute’s implementation.” (Stats. 2018, ch. 825, § 1, subd. (b),

italics added.) Moreover, the Legislature instructed courts to

interpret section 1473.7 “consistent with the findings and

declarations made in section 1016.2 of the Penal Code” (Stats.

2018, ch. 825, § 1, subd. (c)) — which in turn articulated a

purpose “to codify . . . related California case law and to

encourage the growth of such case law in furtherance of justice”

(Pen. Code, § 1016.2, subd. (h), italics added). Under these

particular circumstances — where legislators expressed keen

awareness of how section 1473.7 was being implemented and

viewed the 2018 amendment as a clarification and codification

of existing law — we see no reason to disturb the prevailing

independent standard of review.

The Court of Appeal posited that a different standard

should apply when the moving party relies on a mistake of law

under section 1473.7, subdivision (a)(1) that does not rise to the

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level of ineffective assistance of counsel. (See Vivar, supra, 43

Cal.App.5th at p. 224.) But that approach would cut against the

Legislature’s stated goals of codifying existing law and ensuring

uniformity. (Stats. 2018, ch. 825, § 1, subd. (b).) What’s more,

it would endow with determinative significance the precise

distinction — whether the asserted error constituted ineffective

assistance of counsel — that the Legislature sought to erase by

amending section 1473.7, subdivision (a)(1) to provide that “[a]

finding of legal invalidity may, but need not, include a finding of

ineffective assistance of counsel.” Overburdened trial courts

might well choose to consider only whether there was

“prejudicial error” damaging the moving party’s ability to

understand actual or potential immigration consequences

without deciding whether such an error actually rose to the level

of constitutionally deficient performance. (§ 1473.7, subd.

(a)(1).) Or courts may fail to make the latter finding simply

because of the happenstance that no party provided trial counsel

with “timely advance notice of the motion hearing,” which is a

prerequisite to “a specific finding of ineffective assistance of

counsel.” (Id., subd. (g).) It would make little sense to make the

standard of review hinge on these trivial choices.4 (See People

v. Bravo, supra, 58 Cal.App.5th at p. 1180 (conc. opn. of Raphael,

J.).)

Our embrace of the independent standard of review also

fits with how section 1473.7 motions generally arise. Only

4

Because we adopt an independent standard of review for

all claims made under section 1473.7, subdivision (a)(1), we

disapprove People v. Bravo (2020) 58 Cal.App.5th 1161, 1167,

People v. Jung (2020) 59 Cal.App.5th 842, 853, and People v.

Rodriguez (2019) 38 Cal.App.5th 971, 977 to the extent they are

inconsistent with this opinion.

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PEOPLE v. VIVAR

Opinion of the Court by Cuéllar, J.

defendants who have already completed their sentences may

even seek relief under section 1473.7. So these motions — as

the separate opinion acknowledges — are ordinarily brought

many years after the plea. (Compare Pen. Code, § 1018

[allowing a plea to be withdrawn only “before judgment or

within six months . . . if entry of judgment is suspended”].)

Vivar, for example, brought his motion nearly 16 years after

entering his plea. Years later, the judge adjudicating the

resulting motion may never have participated in any of the

underlying proceedings and must rely entirely on a cold record.

(Cf. Haraguchi v. Superior Court (2008) 43 Cal.4th 706, 711, fn.

3; see id. at p. 713 [motions to recuse the prosecutor are

reviewed for abuse of discretion because trial courts “are in a

better position than appellate courts to . . . evaluate the

consequences of a potential conflict in light of the entirety of a

case, a case they inevitably will be more familiar with than the

appellate courts”].)5 Indeed, that’s what happened here: the

judge hearing the section 1473.7 motion had no firsthand

familiarity with the circumstances surrounding Vivar’s plea.

So our embrace of independent review in this context is a

product of multiple factors with special relevance here: the

history of section 1473.7, the interests at stake in a section

1473.7 motion, the type of evidence on which a section 1473.7

ruling is likely to be based, and the relative competence of trial

courts and appellate courts to assess that evidence. (See Ault,

supra, 33 Cal.4th at pp. 1260–1261, 1265–1266.) The fact that

5

Despite the passage of time, a trial court nonetheless

retains the discretion to conduct an evidentiary hearing to

resolve disputes of fact. (See People v. Superior Court (Zamudio)

(2000) 23 Cal.4th 183, 201.)

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Opinion of the Court by Cuéllar, J.

the motion is reviewed by way of appeal does not necessarily

dictate a particular standard of review. (See id. at pp. 1266–

1267.)

“[U]nder independent review, an appellate court exercises

its independent judgment to determine whether the facts satisfy

the rule of law.” (In re George T. (2004) 33 Cal.4th 620, 634.)

When courts engage in independent review, they should be

mindful that “ ‘[i]ndependent review is not the equivalent of de

novo review . . . .’ ” (People v. Jackson (2005) 128 Cal.App.4th

1009, 1021.) An appellate court may not simply second-guess

factual findings that are based on the trial court’s own

observations. (See In re Ernesto H. (2004) 125 Cal.App.4th 298,

306; cf. George T., supra, 33 Cal.4th at p. 634 [under a de novo

standard, “ ‘a reviewing court makes an original appraisal of all

the evidence’ ”].) In reviewing the constitutional claim raised in

Resendiz, we explained that factual determinations that are

based on “ ‘the credibility of witnesses the [superior 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.’ ”

(Resendiz, supra, 25 Cal.4th at p. 249 (lead opn. of

Werdegar, J.).)6 In section 1473.7 proceedings, appellate courts

6

The separate opinion correctly characterizes substantial

evidence review as “deferential.” (Conc. & dis. opn., post, at p.

10.) But it doesn’t follow that every time a court extends

deference to a trial court’s factual findings, it’s engaging in

substantial evidence review. (See, e.g., Resendiz, supra, 25

Cal.4th at p. 249 (lead opn. of Werdegar, J.); Ogunmowo, supra,

23 Cal.App.5th at p. 76 [citing Resendiz]; Tapia, supra, 26

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Opinion of the Court by Cuéllar, J.

should similarly give particular deference to factual findings

based on the trial court’s personal observations of witnesses.

(See, e.g., Tapia, supra, 26 Cal.App.5th at pp. 948–950

[deferring where the trial judge hearing the § 1473.7 motion also

presided over the plea hearing].) Where, as here, the facts

derive entirely from written declarations and other documents,

however, there is no reason to conclude the trial court has the

same special purchase on the question at issue; as a practical

matter, “[t]he trial court and this court are in the same position

in interpreting written declarations” when reviewing a cold

record in a section 1473.7 proceeding. (Ogunmowo, supra, 23

Cal.App.5th at p. 79.)7 Ultimately it is for the appellate court to

decide, based on its independent judgment, whether the facts

establish prejudice under section 1473.7.

Cal.App.5th at p. 950 [citing Resendiz and quoting Ogunmowo];

Olvera, supra, 24 Cal.App.5th at p. 1116 [citing Resendiz and

Ogunmowo].) What’s distinctive about substantial evidence

review is that adequately supported factual findings not only

merit deference, but are binding, on appeal. (See People v.

Schultz (2020) 10 Cal.5th 623, 647; cf. In re Lewis (2018) 4

Cal.5th 1185, 1191 [while courts “ ‘generally defer to the

referee’s factual findings,’ ” they “are not binding”].)

7

Our decision addresses only the independent standard of

review under section 1473.7. Nothing we say here disturbs a

familiar postulate: when reviewing a ruling under the

substantial evidence standard, “an appellate court should defer

to the factual determinations made by the trial court,”

regardless of “whether the trial court’s rulings are based on oral

testimony or declarations.” (Shamblin v. Brattain (1988) 44

Cal.3d 474, 479; see Haraguchi v. Superior Court, supra, 43

Cal.4th at pp. 711, 713.)

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Opinion of the Court by Cuéllar, J.

B.

The Legislature made relief available only to certain

immigrants who accepted pleas without understanding the

immigration-related consequences of such decisions. What

someone seeking to withdraw a plea under section 1473.7 must

show is more than merely 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. (§ 1473.7, subd. (a)(1).) The error

must also be “prejudicial.” (Ibid.) Although the statute doesn’t

itself define what “prejudicial” means, we can glean the meaning

from its context. (See Quintano v. Mercury Casualty Co. (2000)

11 Cal.4th 1049, 1055.)

In People v. Superior Court (Zamudio), supra, 23 Cal.4th

183, we considered what constituted prejudice when a trial court

failed to advise a defendant of the plea’s potential immigration

consequences as required by Penal Code section 1016.5.

Prejudice in such circumstances depended on “ ‘whether it is

“reasonably probable” the defendant would not have pleaded

guilty if properly advised.’ ” (Zamudio, at p. 210.) The focus on

“what the defendant would have done, not whether the

defendant’s decision would have led to a more favorable result”

derived from the fact that a defendant “ ‘may view immigration

consequences as the only ones that could affect his calculations

regarding the advisability of pleading guilty to criminal

charges.’ ” (Martinez, supra, 57 Cal.4th at pp. 562, 563.) A

decision to reject a plea bargain, we explained, “might be based

either on the desire to go to trial or on the hope or expectation of

negotiating a different bargain without immigration

consequences.” (Id. at p. 567.) When a court weighs whether a

defendant would have taken the latter path, it need not decide

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Opinion of the Court by Cuéllar, J.

whether the prosecution would actually “have offered a different

bargain” — rather, the court should consider “evidence that

would have caused the defendant to expect or hope a different

bargain would or could have been negotiated.” (Ibid., italics

added.)

We embraced a similar approach when deciding whether

a lawyer’s deficient advisement on immigration consequences

amounts to prejudicial ineffective assistance of counsel. A

defendant in those circumstances must demonstrate a

reasonable probability that, but for counsel’s incompetence, the

defendant “ ‘would not have pled guilty.’ ” (People v. Patterson

(2017) 2 Cal.5th 885, 901 (Patterson), quoting Resendiz, supra,

25 Cal.4th at p. 253 (lead opn. of Werdegar, J.).) The United

States Supreme Court, too, undertakes a similar analysis. In

Lee, supra, ___ U.S. at page ___ [137 S.Ct. at page 1967], the

prejudice prong of the ineffective assistance inquiry turned on

whether the defendant had “adequately demonstrated a

reasonable probability that he would have rejected the plea had

he known that it would lead to mandatory deportation.”

Section 1473.7, subdivision (a)(1) fits this definition of

“prejudicial error,” and we discern no reasons lurking in its

provisions to concoct a different one. (See Camacho, supra, 32

Cal.App.5th at p. 1010.) Indeed, the current version of the

statute acknowledges that prejudicial error “may, but need not,

include a finding of ineffective assistance of counsel.” (§ 1473.7,

subd. (a)(1).) The statutory findings for the 2018 amendment

also declared that the statute “shall be interpreted in the

interests of justice and consistent with the findings and

declarations made in Section 1016.2” (Stats. 2018, ch. 825, § 1,

subd. (c)), which in turn articulate the Legislature’s intended

purpose: to codify Supreme Court “and related California case

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PEOPLE v. VIVAR

Opinion of the Court by Cuéllar, J.

law and to encourage the growth of such case law in furtherance

of justice” (Pen. Code, § 1016.2, subd. (h)).

So: showing prejudicial 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. When courts assess whether a

petitioner has shown that reasonable probability, they consider

the totality of the circumstances. (Lee, supra, ___ U.S. at p. ___

[137 S.Ct. at p. 1966].) 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. (See id. at p. ___ [137 S.Ct.

at pp. 1967–1969]; Martinez, supra, 57 Cal.4th at p. 568.)

The Court of Appeal found it “not reasonably probable that

[Vivar] would have rejected the plea but for his counsel’s failure

to properly advise him.” (Vivar, supra, 43 Cal.App.5th at p.

229.) Two premises supported its conclusion: (1) that “no

contemporaneous evidence” corroborated Vivar’s claim that he

wouldn’t have entered the plea had he known the plea would

lead to his deportation (id. at p. 230), and (2) that Vivar

“prioritized drug treatment over potential immigration-neutral

pleas.” (Id. at p. 229.) Neither premise, though, withstands

scrutiny. What we find, reviewing the record independently, is

that Vivar was prejudiced.

1

In a declaration submitted with his section 1473.7 motion,

Vivar claims he would never have entered this plea had he

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Opinion of the Court by Cuéllar, J.

understood that it would require his deportation. But when a

defendant seeks to withdraw a plea based on inadequate

advisement of immigration consequences, we have long required

the defendant corroborate such assertions with “ ‘objective

evidence.’ ” (Resendiz, supra, 25 Cal.4th at p. 253 (lead opn. of

Werdegar, J.).) That’s what Vivar has done here. Time and

again, the record readily conveys how Vivar would have

considered his immigration status “the most important part” of

his decision to plead. (Padilla, supra, 559 U.S. at p. 364.) Vivar

was brought to this country at age six as a lawful resident, and

he attended schools, formed a family, and remained here for 40

years. At the time of his plea, he had two children, two

grandchildren, and a wife, all of whom are citizens and all of

whom resided in California. By the time he was deported, his

wife was undergoing radiation treatment for a thyroid condition.

By contrast, Vivar had virtually no ties to Mexico, spoke Spanish

“like an American,” and found it “difficult to function in Mexican

society because people treat [him] like an outsider.” Trial

counsel’s recollection and contemporaneous notes reflect that

Vivar was indeed concerned about the “consequences” of his

plea. All of these constitute contemporaneous objective facts

that corroborate Vivar’s concern about the immigration

consequences of his plea options. (See People v. Mejia (2019) 36

Cal.App.5th 859, 872.)

Also revealing is the objective evidence of Vivar’s state of

mind reflected in uncounseled letters he wrote to the court at or

near the time of his plea. In his first letter, written just a month

after his March 2002 plea, Vivar objected to his immigration

hold and emphasized that “I am a legal resident and have been

for the past 40 years”; noted that not only his wife and mother

are citizens, but his children and grandchildren were all “born

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PEOPLE v. VIVAR

Opinion of the Court by Cuéllar, J.

here in Riverside County”; and explained that his oldest child

and only son was serving in the United States Air Force and

awaiting deployment to the Middle East. He reiterated these

concerns in another letter from federal immigration custody a

month later, pleading that he be allowed to become “an asset to

my community and not a liability.” Three months after that,

Vivar said that counsel never advised him that his plea would

result in his deportation and declared that “[i]f I would have

been made aware of these facts I would have never plead[ed]

Guilty to this Charge.”

The Court of Appeal neglected to explain why these facts

at or near the time of Vivar’s plea failed to provide adequate

corroboration that he wouldn’t have pleaded guilty had he

known it would result in his deportation. Indeed, the court’s

analysis failed to mention these facts at all. This was error. In

our view, these objective and contemporaneous facts

corroborate, in a most convincing way, the statement in Vivar’s

declaration that he “would never have pleaded guilty” if his

attorney had informed him of the plea’s consequences. (See

Camacho, 32 Cal.App.5th at pp. 1011–1012 [finding prejudice

where the defendant was brought to the United States as a

child, had lived here for over 30 years, and his spouse and

children were citizens]; accord, Lee, supra, ___ U.S at p. ___ [137

S.Ct. at p. 1968] [finding prejudice where the defendant was

brought to the United States as a child, had lived here for nearly

30 years, and his parents were citizens].)

2

What the record also shows — and neither the Court of

Appeal nor the Attorney General disputes — is that Vivar could

have entered a plea avoiding mandatory deportation. Trial

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Opinion of the Court by Cuéllar, J.

counsel’s contemporaneous notes indicate the prosecution

offered a deal under which Vivar would plead guilty to a single

count of burglary (Pen. Code, § 459) with a recommendation that

he serve the low term of two years in state prison. With credits,

Vivar could have cut that term in half. (See Pen. Code, § 2933,

subd. (a).) At the time of his plea, burglary in California was a

deportable felony only in particular situations (see Kim, supra,

45 Cal.4th at pp. 1089–1090, 1098), and the uncontradicted

declaration from Vivar’s immigration expert stated that Vivar

could’ve entered such a plea without subjecting himself to

mandatory deportation. Under these circumstances, we find at

least “ ‘a reasonable probability’ ” that he could have tried “to

obtain a better bargain that [did] not include immigration

consequences.” (Martinez, supra, 57 Cal.4th at p. 567.)

Concluding otherwise, the Court of Appeal relied

principally on the fact that Vivar rejected the burglary plea. The

court pointed in particular to counsel’s notes, where she had

written that Vivar “ ‘[w]ants help w/ [his] drug problem.’ ”

(Vivar, supra, 43 Cal.App.5th at p. 229.) Because Vivar “was

offered and rejected a plea agreement that would have

completely avoided any immigration consequences,” the court

inferred “that immigration consequences were not defendant’s

primary consideration in accepting or rejecting any plea offer,

and that further advice on this front was not reasonably

probable to change his decisionmaking.” (Id. at pp. 229–230.)

The Court of Appeal’s inference fails to persuade. Vivar’s

rejection of a potentially deportation-neutral plea can hardly

serve as evidence that he didn’t care about immigration

consequences when it is undisputed that Vivar was not properly

advised — and thus was ignorant — of the immigration

consequences attached to his various plea options. So the fact

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Opinion of the Court by Cuéllar, J.

that he unknowingly rejected an immigration-neutral option

cannot, in itself, demonstrate that “immigration consequences

were not defendant’s primary consideration.” (Vivar, supra, 43

Cal.App.5th at pp. 229–230.)

Even less supports the Court of Appeal’s contention that

Vivar “prioritized drug treatment over potential immigration-

neutral pleas.” (Vivar, supra, 43 Cal.App.5th at p. 229.) Indeed,

it doesn’t make sense to say that Vivar would’ve chosen a plea

that triggered mandatory deportation just so he could

participate in drug treatment when that plea rendered him

ineligible for the program.

According to his declaration, Vivar told counsel that he

was interested in a drug treatment program even if it was not

required by the terms of his plea — and counsel’s notes

corroborate his interest in such a program. Vivar, then, did not

perceive a conflict or tradeoff between the goal of drug treatment

and the goal of a deportation-neutral disposition. What stands

out most clearly from the record is that he was never properly

advised of the role his immigration status would play either in

assessing the attractiveness of his plea options or in his

eligibility for a drug treatment program. In fact, the record

shows he was upset to learn, just a few days after his plea, that

he was ineligible for the recommended treatment program

precisely because of the plea’s impact on his immigration status.

And it was scarcely a month after his plea, having heard no

response from his lawyer, that he wrote a letter to the court

seeking its help. Had he been properly advised, it’s reasonably

probable Vivar would’ve sought a disposition — like the

burglary plea — where he could remain in this country and

undergo drug treatment. The Court of Appeal failed to explain

why Vivar, if properly advised, would’ve viewed these goals as

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Opinion of the Court by Cuéllar, J.

incompatible — or why, if properly advised, he would’ve insisted

on a strategy that prevented him from achieving either of his

goals.

The Court of Appeal tried to buttress its conclusion that

Vivar suffered no prejudice by highlighting “a factual inference

the trial court was entitled to draw” and then deferring to that

inference. (Vivar, supra, 43 Cal.App.5th at p. 230.) The trial

court’s “ ‘finding’ ” was that Vivar “ ‘was more willing to rely on

his experiences than he was on his counsel’s advice.’ ” (Ibid.) As

we explained in part II.A., ante, the Court of Appeal was

mistaken in believing the trial court’s factual findings, which

were based entirely on a cold record, “must be accorded

deference.” (Vivar, at p. 231.) An appellate court should instead

review such findings independently where, as here, the factual

record consists entirely of written documents. Reviewing this

cold record under that standard, we reject the trial court’s

finding. If Vivar acted under the misimpression that he could

avoid immigration consequences so long as his ultimate

sentence was a year or less, it likely was because he failed to

receive adequate and accurate advice from counsel about the

immigration consequences attached to his plea options. Without

proper advice, Vivar had no choice but to rely on his own

experiences and judgment, no matter how uninformed they

might be. Had he truly been “unwilling to listen to the advice of

counsel” (id. at p. 230), he never would’ve expressed to her his

concern about the consequences of his plea. And had he been

correctly advised about those consequences, it’s reasonably

probable he wouldn’t have entered the plea that triggered his

deportation. The Court of Appeal erred in holding otherwise.

Finally, we conclude that the advisements in Vivar’s plea

form did not mitigate the prejudice from counsel’s deficient

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Opinion of the Court by Cuéllar, J.

immigration advice. What the plea form stated was that

deportation was a possibility. (Vivar, supra, 43 Cal.App.5th at

p. 228.) The problem for Vivar, though, was that deportation in

these circumstances was mandatory — and when he accepted

the plea deal, he remained unaware of that crucial fact. (See

Patterson, supra, 2 Cal.5th at pp. 896, 898.) In light of Vivar’s

extensive ties to the United States, the generic advisements in

the plea form do not undermine our conclusion that he was

prejudiced by counsel’s failure to inform him that his plea would

result in his deportation. (See In re Hernandez (2019) 33

Cal.App.5th 530, 547–548; People v. Espinoza (2018) 27

Cal.App.5th 908, 916–917; Ogunmowo, supra, 23 Cal.App.5th at

pp. 80–81.)

III.

Defendants who lack United States citizenship sometimes

face not only penal sanctions but also harsh immigration

consequences if convicted. Because of this, pleas accepted in the

shadow of deficient advice about the risks of deportation can

have “dire” repercussions. (People v. Superior Court (Giron),

supra, 11 Cal.3d at p. 798.) Section 1473.7 offers a remedy in

the form of permission to withdraw a plea. But it’s a remedy

available only to some: those who have completed their

sentences and who suffered a prejudicial error that damaged

their ability to meaningfully understand, defend against, or

knowingly accept the plea’s actual or potential immigration

consequences. (§ 1473.7, subds. (a)(1), (e)(3).) A moving party

demonstrates prejudice by showing that in the absence of the

error regarding immigration consequences, it’s reasonably

probable the moving party would not have entered the plea.

Courts should subject the trial court’s prejudice finding under

this statute to independent review, a standard that heavily

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Opinion of the Court by Cuéllar, J.

weighs trial court factual findings based on the court’s own

observations, but not trial court findings arising only from a cold

record.

The Court of Appeal failed to review the record

independently. Nor did it take into account the substantial

contemporaneous evidence at or near the time of Vivar’s plea

corroborating his claim that he wouldn’t have pleaded guilty if

he’d known it would result in his deportation from his home of

40 years. We reverse the judgment and remand the case to the

Court of Appeal with directions that it remand the case to the

trial court for it to enter an order granting Vivar’s section 1473.7

motion to withdraw his plea.

CUÉLLAR, J.

We Concur:

LIU, J.

KRUGER, J.

GROBAN, J.

JENKINS, J.

30

PEOPLE v. VIVAR

S260270

Concurring and Dissenting Opinion by Justice Corrigan

I concur in the disposition and fully agree that defendant

Robert Landeros Vivar should be allowed to withdraw his plea

under Penal Code section 1473.7.1 Defense counsel’s failure to

properly advise Mr. Vivar about the immigration consequences

of his plea options was plainly prejudicial, entitling him to relief

under the statute. I join in Justice Cuéllar’s majority opinion to

the extent it rejects the notion that the standard of review

applied to rulings under section 1473.7 differs depending upon

the nature of the claimed error. (Maj. opn., ante, pp. 16–17.)

However, I respectfully dissent from 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. (Maj. opn., ante,

pp. 15, 29.) While the majority opinion endeavors to distinguish

independent review in this context from de novo review (id. at

p. 19), as a practical matter this will be a distinction without a

difference in most cases brought under section 1473.7. That is

so because, as the majority acknowledges, the evidence

considered by the trial court will often consist entirely of

declarations and documentary evidence. (See maj. opn., ante,

pp. 17–18.) Under the version of independent review articulated

in the majority opinion, no deference is owed to the trial court’s

factual findings except when credibility determinations are

1

Further statutory references are to the Penal Code.

1

PEOPLE v. VIVAR

Corrigan, J., concurring and dissenting

based upon live testimony. (Id. at pp. 19–20.) Consequently, in

a great number of appeals challenging section 1473.7 rulings,

reviewing courts will assume the role of fact finder, requiring

courts to resolve factual conflicts, weigh evidence, and engage in

the type of factual inquiry ordinarily reserved for trial courts.

This would constitute a departure for review of a ruling on a

statutory motion. I would hold that appellate courts should

apply a conventional substantial evidence standard when

reviewing a trial court’s factual findings that bear upon the

prejudice analysis under section 1473.7.

This court granted review to resolve a conflict over the

standard of review governing prejudice findings under the

statute and to clarify what constitutes prejudice under section

1473.7. (Maj. opn., ante, p. 10.) In the Court of Appeal, the

defense argued that all aspects of the trial court’s ruling,

including its factual findings, should be reviewed

independently. The Attorney General contended that the trial

court’s ruling should be reviewed for abuse of discretion but that

its factual findings were owed deference, even if made on a cold

record consisting entirely of documentary evidence. 2

The Court of Appeal created a hybrid standard turning on

the asserted basis for relief. According to the appellate court, if

the section 1473.7 motion raised a constitutional challenge due

to ineffective assistance of counsel, a reviewing court should

“ ‘independently review the order.’ ” (People v. Vivar (2019) 43

Cal.App.5th 216, 224.) This standard requires courts to “ ‘accord

deference to the trial court’s factual determinations if supported

2

In this court, the Attorney General takes the position that

appellate courts should independently review rulings under

section 1473.7.

2

PEOPLE v. VIVAR

Corrigan, J., concurring and dissenting

by substantial evidence in the record, but [to] exercise . . .

independent judgment in deciding whether the facts

demonstrate trial counsel’s deficient performance and resulting

prejudice to the defendant.’ ” (Ibid.) By contrast, the court held

that the denial of a section 1473.7 motion is “ ‘reviewed for an

abuse of discretion’ ” if the basis for the motion is “ ‘statutory

error or a deprivation of statutory rights’ ” not rising to the level

of a constitutional violation. (Vivar, at p. 224.)

In my view, the majority opinion correctly rejects the

bifurcated approach adopted by the Court of Appeal. (Maj. opn.,

ante, pp. 16–17.) Such an approach would afford undue

significance to a distinction the Legislature sought to erase. It

extended relief to all defendants when legal error prevented

meaningful understanding of immigration consequences,

regardless of whether the error constitutes ineffective

assistance of counsel. (Id. at p. 16; see § 1473.7, subd. (a)(1).)

The bifurcated approach would also have the standard of review

turn on a specific finding of ineffective assistance of counsel,

which a trial court might not otherwise reach for reasons

unrelated to the merits of the claim. (Maj. opn., ante, p. 17.)

However, I part ways with the majority conclusion that

the trial court’s prejudice finding under section 1473.7 is subject

to a form of “independent review” that does not defer to the trial

court’s factual findings under conventional substantial evidence

review. (See maj. opn., ante, pp. 29–30.) The majority holds that

the independent review standard affords deference to the trial

court’s factual determinations only if “based on ‘ “the credibility

of witnesses the [superior court] heard and observed.” ’ ” (Id. at

p. 19.) Under that view, no deference is owed to the trial court’s

factual findings when the “facts derive entirely from written

declarations and other documents.” (Id. at p. 20.)

3

PEOPLE v. VIVAR

Corrigan, J., concurring and dissenting

My disagreement is not with applying independent review

to the trial court’s ultimate legal ruling but with adopting a form

of review that largely dispenses with the deference normally

afforded to a lower court’s factual findings. (See People v.

Hernandez (2008) 45 Cal.4th 295, 298–299; People v. Alvarez

(1996) 14 Cal.4th 155, 182.) A substantial evidence inquiry

examines the record in the light most favorable to the judgment

and upholds a finding “if the record contains reasonable,

credible evidence of solid value upon which a reasonable trier of

fact could have relied in reaching the conclusion in question.

Once such evidence is found, the substantial evidence test is

satisfied. [Citation.] Even when there is . . . significant . . .

countervailing evidence, the testimony of a single witness that

satisfies the standard is sufficient to uphold the finding.”

(People v. Barnwell (2007) 41 Cal.4th 1038, 1052.) There is no

reason to dispense with this conventional appellate approach to

reviewing findings of fact.

The standard of review described in the majority opinion

is not completely unheard of, but its extension to review of

statutory claims may well be.3 The standard articulated by the

majority derives primarily from the lead opinion in In re

Resendiz (2001) 25 Cal.4th 230, 249 (lead opn. of Werdegar, J.)

(Resendiz).4 (Maj. opn., ante, pp. 14, 19.) Resendiz considered

3

It should be noted that the majority explicitly limits its

holding to review under section 1473.7. (Maj. opn., ante, p. 20,

fn. 7.)

4

The “independent review” standard described in the

majority opinion also is applied to cases raising First

Amendment issues in which an appellate court is charged with

ensuring that a ruling does not intrude on constitutional free

4

PEOPLE v. VIVAR

Corrigan, J., concurring and dissenting

an ineffective assistance of counsel claim involving affirmative

misadvice about the immigration consequences of a plea.

(Resendiz, at p. 235.) The claim was raised on habeas corpus.

Accordingly, the lead opinion recited the standard applicable to

review of factual findings in habeas corpus proceedings. (Id. at

p. 249.) Of course, in such a context the inquiry goes beyond the

trial record to consider facts and assertions not before the

original trial court. In such circumstances, a court considering

a habeas petition is not simply reviewing the decisions made at

the trial level. It is exercising its own authority based on its own

review of new facts and claims. Those are two very different

tasks. We should be hesitant here to uncritically apply a habeas

corpus standard of review to appellate review of statutory

claims.

The review of factual findings in habeas corpus matters

arises from the procedural posture of those cases.

Constitutionally, the courts of review are granted original

jurisdiction to consider habeas corpus claims. (Cal. Const., art.

VI, § 10.) Because appellate courts are not well suited to

conduct evidentiary hearings, however, a referee will typically

be appointed to make recommended findings of fact. (See Cal.

Rules of Court, rule 8.386(f)(2).) But reviewing courts are not

required to accept the referee’s recommended findings. (In re

Hitchings (1993) 6 Cal.4th 97, 109.) While those findings are

entitled to “ ‘great weight’ ” when supported by substantial,

speech rights. (See People v. Jackson (2005) 128 Cal.App.4th

1009, 1020 [cited by maj. opn., ante, p. 19]; see also Bose Corp.

v. Consumers Union of U.S., Inc. (1984) 466 U.S. 485, 499.)

Because this case does not involve a First Amendment issue,

these cases do not bear upon the standard of review that should

be applied here.

5

PEOPLE v. VIVAR

Corrigan, J., concurring and dissenting

credible evidence (ibid.), they are not binding upon the court as

they would be under the substantial evidence standard. A court

may “ ‘ “reach a different conclusion on an independent

examination of the evidence produced at the [reference hearing]

even where the evidence is conflicting.” ’ ” (Ibid.) Further, no

deference is afforded to factual findings unless “ ‘based on the

credibility of live testimony.’ ” (Resendiz, supra, 25 Cal.4th at p.

249 (lead opn. of Werdegar, J.), citing In re Arias (1986) 42

Cal.3d 667, 695; accord, In re Long (2020) 10 Cal.5th 764, 774.)

When an appellate court exercises original jurisdiction in

a habeas matter, it makes sense to give limited deference to the

referee’s recommended findings. In keeping with its original

jurisdiction, the reviewing court is the ultimate fact finder. The

same review principles apply to a successive writ situation in

which a petitioner files a new habeas corpus petition in the

appellate court when the superior court has denied habeas

corpus relief after an evidentiary hearing. (In re Wright (1978)

78 Cal.App.3d 788, 801.) In such a case, the appellate court

again exercises original jurisdiction.

The situation is different, however, when the matter

comes to the appellate court as an appeal. When the superior

court grants habeas corpus relief and the People appeal, the

Court of Appeal exercises its appellate jurisdiction over the

superior court rulings. (See Cal. Const., art. VI, § 11.) “The

posture of [a] case as a People’s appeal is to be differentiated

from a situation in which an appellate court, reviewing a

petition for writ of habeas corpus as a matter of original

jurisdiction, assigns a referee to take evidence on the matter.”

(In re Pratt (1999) 69 Cal.App.4th 1294, 1314, fn. 16, italics

added.) In an appeal from a habeas corpus grant, a reviewing

court applies the conventional substantial evidence standard to

6

PEOPLE v. VIVAR

Corrigan, J., concurring and dissenting

questions of fact, just as with any other appeal. (Id. at p. 1314.)

In other words, it applies “ ‘ “basic principles of appellate

review.” ’ ” (In re Butler (2020) 55 Cal.App.5th 614, 648.)

Findings of fact are accorded due deference under the

substantial evidence standard, while questions of law are

reviewed independently. (Ibid.)

An appeal from a ruling under section 1473.7 is just that:

an appeal. (§ 1473.7, subd. (f).) It is not an equitable habeas

corpus proceeding in which the appellate court possesses

original jurisdiction. Indeed, the statutory remedy in section

1473.7 is necessary because habeas corpus writ relief is not

available when, as here, the defendant is no longer in actual or

constructive custody. (See People v. Villa (2009) 45 Cal.4th

1063, 1066.) In creating an opportunity for legal relief under

section 1473.7, the Legislature also provided for conventional

appellate review. It did not expand the jurisdiction of the courts

reviewing the trial court’s ruling on the motion. Basic principles

of appellate review should apply, not principles imported from

writ proceedings.

“[A]ppellate court deference to the trial court’s resolution

of fact issues is warranted by jurisdictional considerations and

a recognition of the distinctive roles of trial and appellate courts:

Trial courts decide questions of fact and appellate courts decide

questions of law.” (Eisenberg et al., Cal. Practice Guide: Civil

Appeals and Writs (The Rutter Group 2019) ¶ 8:42, p. 8-21.)

Whether substantial evidence supports a judgment or ruling is

a question of law reposing with the appellate court. (Ibid.)

Further, as a general matter, because of the jurisdictional roles

of the trial and appellate courts, deference to trial court

credibility determinations is the same for both written

declarations and oral testimony. (Haraguchi v. Superior Court

7

PEOPLE v. VIVAR

Corrigan, J., concurring and dissenting

(2008) 43 Cal.4th 706, 711 & fn. 3; Shamblin v. Brattain (1988)

44 Cal.3d 474, 479; Lebel v. Mai (2012) 210 Cal.App.4th 1154,

1159.)

The argument that the reviewing court is “ ‘in the same

position’ ” as the trial court in assessing documentary evidence

is inaccurate. (Maj. opn., ante, p. 20, quoting People v.

Ogunmowo (2018) 23 Cal.App.5th 67, 79.) A reviewing court

exercising appellate jurisdiction is not in the same position as

the trial court. Their respective roles are different. The trial

court decides questions of fact in the first instance. The

reviewing court defers to those findings and only considers legal

holdings de novo. By declining to give deference to the trial

court’s findings when based on documentary evidence, a

reviewing court simply assumes for itself the role of fact finder.

For this reason, we confirmed over a decade ago that even when

“the trial court’s findings were based on declarations and other

written evidence[, that fact] does not lessen the deference due

those findings.” (Haraguchi v. Superior Court, supra, 43 Cal.4th

at p. 711, fn. 3.) Indeed, in clarifying that deference is owed

“whether the trial court’s ruling is based on oral testimony or

declarations,” this court has expressly disapproved authority

suggesting otherwise. (Shamblin v. Brattain, supra, 44 Cal.3d

at p. 479; see id. at p. 479, fn. 4.)

In its adoption of independent review like that described

in Resendiz, the majority opinion cites a number of factors,

including the “history of section 1473.7.” (Maj. opn., ante, p. 18.)

That history purportedly reflects that the standard articulated

by the majority was the “prevailing independent standard of

review” applied to section 1473.7 when the Legislature amended

the law in 2018. (Maj. opn., ante, p. 16.) However, the precise

contours of the standard were far from clear at that time. In

8

PEOPLE v. VIVAR

Corrigan, J., concurring and dissenting

People v. Olvera (2018) 24 Cal.App.5th 1112, although the court

cited Resendiz and referred to independent review of the section

1473.7 ruling, it characterized the standard as follows: “We

defer to the trial court’s factual determinations if supported by

substantial evidence, but exercise our independent judgment to

decide whether the facts demonstrate deficient performance and

resulting prejudice.” (Olvera, at p. 1116, italics added.)

Likewise, in another 2018 case involving section 1473.7, People

v. Tapia (2018) 26 Cal.App.5th 942, the court cited the

independent review standard but applied conventional

substantial evidence review to the trial court’s factual findings,

even though the record apparently consisted entirely of

declarations and documents. 5 (Tapia, at pp. 946–948, 951, 953.)

Indeed, the appellate court upheld the trial court’s implied

finding that the defendant’s declaration was not credible,

stating: “We do not reevaluate witness credibility.” (Id. at p.

953.)

The standard described in People v. Olvera and applied in

People v. Tapia is not the standard advocated by the majority.

The majority approach does not involve substantial evidence

review of factual findings, even as applied to findings based on

live testimony. According great weight to findings is not the

same as being bound by findings supported by substantial

evidence. A court applying the standard adopted by the majority

5

In Tapia, the trial judge who heard the section 1473.7

motion also presided over the plea hearing. (See People v. Tapia,

supra, 26 Cal.App.5th at p. 948.) While the majority opinion

notes this fact (maj. opn., ante, p. 20) and presumably would give

some degree of deference to the trial court’s factual findings in

such a case, that deference still would not be the equivalent of

the substantial evidence standard applied in Tapia.

9

PEOPLE v. VIVAR

Corrigan, J., concurring and dissenting

is free to reach its own conclusions even when the evidence is

conflicting and “ ‘great weight’ ” is afforded to certain findings.

(Resendiz, supra, 25 Cal.4th at p. 249 (lead opn. of Werdegar,

J.).) Simply put, it is incorrect to say the independent review

standard adopted by the majority was the “prevailing” one.

As further support for dispensing with deferential review

of factual findings, the majority cites “the interests at stake in a

section 1473.7 motion.” (Maj. opn., ante, p. 18.) It may be

appropriate to apply de novo review to mixed questions of law

and fact that raise constitutional concerns or that would

constitute a final determination of a party’s rights. (People v.

Ault (2004) 33 Cal.4th 1250, 1266.) Nevertheless, simply

because independent review should be applied to the ultimate

ruling does not justify giving factual findings less deference than

they are owed under the substantial evidence test. Further,

courts should not be free to disregard factual findings because

they conclude the “interests at stake” in a particular case justify

that approach. In most criminal cases, the “interests at stake”

are high. Questions of guilt or innocence or touching on personal

freedom are profoundly consequential. But reviewing courts are

not free to disregard settled authority, or to expand the nature

of their jurisdiction, simply by pronouncing: “This is really

important.”

The majority opinion asserts that “ ‘ “[i]ndependent review

is not the equivalent of de novo review. . . .” ’ ” (Maj. opn., ante,

p. 19, quoting People v. Jackson, supra, 128 Cal.App.4th at

p. 1021.) Yet it does little to explain how, in practice, the

standards will differ as applied to section 1473.7 rulings. The

majority opinion distinguishes the original appraisal of all the

evidence under the de novo standard from deference given to

“factual findings that are based on the trial court’s own

10

PEOPLE v. VIVAR

Corrigan, J., concurring and dissenting

observations” under independent review. (Maj. opn., ante, p.

19.) But many section 1473.7 proceedings will be based on

documentary evidence without live testimony. Under those

circumstances, the form of independent review described by the

majority will for all practical purposes be de novo review

involving an original appraisal of all the evidence. Then, a

reviewing court will be thrust into the role of fact finder,

requiring credibility assessments and a weighing of the

evidence. A simple statement that the standards will somehow

be different provides no guidance and sows confusion. We

should hesitate to adopt a rule placing the reviewing court into

a fact finder’s position.

As the majority opinion notes, in this case the trial court

did not even consider whether Mr. Vivar suffered prejudice,

instead basing its ruling on the finding that his counsel did not

provide ineffective assistance. (Maj. opn., ante, p. 8.) Simply

put, the court made no express or implied factual findings with

respect to prejudice. As a result, there is no finding to which to

defer. To the extent the trial court might arguably have made

findings bearing on prejudice, they would be easily dismissed.

The prejudice question turns on whether Mr. Vivar would

not have entered the plea had he been properly informed and

advised. This is a credibility question. The trial court found his

credibility wanting because, it determined, he “ ‘was more

willing to rely on his experiences than he was on his counsel’s

advice.’ ” (People v. Vivar, supra, 43 Cal.App.5th at p. 230.) The

appellate court concluded, “This was a factual inference the trial

court was entitled to draw. . . .” (Ibid.) Perhaps, but appellate

review of that inference is not meaningless. The Court of Appeal

was required to examine whether the inference found

substantial support in the record. It does not.

11

PEOPLE v. VIVAR

Corrigan, J., concurring and dissenting

There was no evidence that counsel ever gave Mr. Vivar

advice regarding immigration. Indeed, there is no evidence

counsel understood the potential consequences herself or that

she had made it her “business to discover what impact his

negotiated sentence would have on his deportability.” (People v.

Soriano (1987) 194 Cal.App.3d 1470, 1480.) The public defender

did not claim she gave him any substantive information at all

about immigration consequences. Indeed, she made no

assertion as to any advice she provided Mr. Vivar. She said that

she customarily told her noncitizen clients about “ ‘possible’ ”

immigration consequences. (People v. Vivar, supra, 43

Cal.App.5th at p. 222.) But here, the unrebutted evidence was

that she never asked Mr. Vivar about his immigration status.

(Ibid.) Even if she had told him that he “might” get deported

and, if he had further questions he should consult an

immigration attorney, essentially that was no advice at all. (See

id. at pp. 222–223.) This evidence, together with the record as

whole, does not support an inference that Mr. Vivar would have

ignored his counsel’s advice on the immigration consequences of

his plea. He received no such advice, and if he had, the proper

inference to be drawn from his concern about deportation is that

he would have accepted it or at least given it a fair degree of

consideration. He was forced to rely on his own experiences only

because counsel gave him no alternative. Because the record

does not support the trial court’s factual conclusions, a

conventional substantial evidence review suffices here.

CORRIGAN, J.

I Concur:

CANTIL-SAKAUYE, C. J.

12

See next page for addresses and telephone numbers for counsel who

argued in Supreme Court.

Name of Opinion People v. Vivar

__________________________________________________________________

Procedural Posture (see XX below)

Original Appeal

Original Proceeding

Review Granted (published) XX 43 Cal.App.5th 216

Review Granted (unpublished)

Rehearing Granted

__________________________________________________________________

Opinion No. S260270

Date Filed: May 3, 2021

__________________________________________________________________

Court: Superior

County: Riverside

Judge: Bambi J. Moyer

__________________________________________________________________

Counsel:

Munger, Tolles & Olson, Joseph D. Lee, William Larsen and Dane P.

Shikman for Defendant and Appellant.

Gibson, Dunn & Crutcher, Kahn A. Scolnick, Daniel R. Adler and

Jason S. Kim for Alyssa Bell, Reuven Cohen, Ingrid V. Eagly, Gilbert

Garcetti, Meline Mkrtichian, Ronald J. Nessim, Gabriel Pardo,

Jennifer Resnik and David J. Sutton as Amici Curiae on behalf of

Defendant and Appellant.

Jennifer L. Pasquarella, Eva L. Bitran; Vasudha Talla; and David Loy

for ACLU Foundation of Southern California, ACLU Foundation of

Northern California and ACLU Foundation of San Diego and Imperial

Counties as Amici Curiae on behalf of Defendant and Appellant.

O’Melveny & Myers and Catalina J. Vergara for The Immigrant Legal

Resource Center, Public Counsel, University of California Irvine Law

Immigrant Rights Clinic, University of California Irvine Law Criminal

Justice Clinic, East Bay Community Law Center, Community Legal

Services in East Palo Alto and University of California Davis

Immigrant Rights Clinic as Amici Curiae on behalf of Defendant and

Appellant.

Xavier Becerra, Attorney General, Michael J. Mongan, State Solicitor

General, Lance E. Winters and Gerald A. Engler, Chief Assistant

Attorneys General, Samuel P. Siegel, Deputy State Solicitor General,

Julie L. Garland, Assistant Attorney General, Melissa Mandel and

Adrian R. Contreras, Deputy Attorneys General, for Plaintiff and

Respondent.

Counsel who argued in Supreme Court (not intended for

publication with opinion):

Dane Shikman

31 Mullen Ave.

San Francisco, CA 94110

(415) 512-4092

Samuel P. Siegel

Deputy State Solicitor General

1300 I Street

Sacramento, CA 95814

(916) 210-6269