# People v. Superior Court (Zamudio)

> California Supreme Court · July 12, 2000 · 96 Cal. Rptr. 2d 463

URL: https://www.frixlaw.com/law-library/cases/9541575

## Case

- **Full name:** The PEOPLE, Petitioner, v. THE SUPERIOR COURT OF SAN JOAQUIN COUNTY, Respondent; JOSE FRANCISCO ZAMUDIO, Real Party in Interest
- **Court:** California Supreme Court
- **Decided:** July 12, 2000
- **Citations:** 96 Cal. Rptr. 2d 463; 23 Cal. 4th 183; 999 P.2d 686
- **Precedential status:** Published
- **Opinion:** Dissent by Mosk
- **Judges:** Werdegar, Mosk
- **Cited by:** 305 later opinions in the Frix Law Library

## Citator (automated)

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## Opinion text

MOSK, J., Dissenting.—
Unlike the majority, I do not find any requirement in the Penal Code that a noncitizen convicted criminal seeking to vacate the judgment under Penal Code section 1016.5 (section 1016.5) must show that he or she would have proceeded to trial if he or she had known about the possible immigration and nationality consequences of pleading guilty or no contest. Therefore, I respectfully dissent.
Subdivision (a) of section 1016.5 provides: “Prior to acceptance of a plea of guilty or nolo contendere to any offense punishable as a crime under state law, except offenses designated as infractions under state law, the court shall administer the following advisement on the record to the defendant: [10 If 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 [1] deportation, [2] exclusion from admission to the United States, or [3] denial of naturalization pursuant to the laws of the United States.” (Italics added.)
In turn, subdivision (b) of section 1016.5 provides that if a court fails to give that warning and the possible consequence for the defendant is “[1] deportation, [2] exclusion from admission to the United States, or [3] denial of naturalization pursuant to the laws of the United States, the court, on defendant’s motion, shall vacate the judgment and permit the defendant to withdraw the plea of guilty or nolo contendere, and enter a plea of not guilty.” (Italics added.)
On its face, the foregoing language does not admit of any exceptions. It is mandatory, qualified only by the requirement that the defendant show that he or she faces the possibility of one of the adverse consequences.
Nevertheless, I recognize that “our obligation is to construe the statute as a whole.” (People v. Rayford (1994) 9 Cal.4th 1, 21 [ 36 Cal.Rptr.2d 317 , 884 P.2d 1369 ].) Therefore, I agree that an individual in Jose Francisco Zamudio’s position must also show that he or she did not know about the adverse immigration and nationality consequences of his plea. I reach this conclusion because subdivision (d) of section 1016.5 provides: “The Legislature finds and declares that in many instances involving an individual who is not a citizen of the United States charged with an offense punishable as a crime under state law, a plea of guilty or nolo contendere is entered without the *212 defendant knowing that a conviction of such offense is grounds for deportation, exclusion from admission to the United States, or denial of naturalization pursuant to the laws of the United States. Therefore, it is the intent of the Legislature ... to promote fairness to such accused individuals by requiring [compliance with section 1016.5].”
The language “without the defendant knowing” and “such accused individuals” in subdivision (d) of section 1016.5 permits a conclusion that an individual seeking to vacate a guilty or no contest plea must show a lack of knowledge of one or more of the three immigration or nationality consequences of that plea. “Section 1016.5 recognizes that noncitizens sometimes unknowingly expose themselves to [such] adverse . . . consequences by entering pleas.” (People v. Murillo (1995) 39 Cal.App.4th 1298, 1305 [ 46 Cal.Rptr.2d 403 ].) That is the danger that the statute is designed to protect against, and if a defendant does know of each enumerated consequence, failing to advise him or her of them is harmless error. (See also People v. Castaneda (1995) 37 Cal.App.4th 1612, 1620 [ 44 Cal.Rptr.2d 666 ].)
But the majority engraft another requirement onto section 1016.5, concluding that the convicted criminal must also show that he or she would not have pleaded guilty or no contest. I disagree.
There is nothing in the language of section 1016.5 that may be read to impose such a requirement. The majority do not state otherwise. Rather, they find authority for it in Penal Code section 1404 (section 1404).
Section 1404 provides: “Neither a departure from the form or mode prescribed by this Code in respect to any pleading or proceeding, nor an error or mistake therein, renders it invalid, unless it has actually prejudiced the defendant, or tended to his prejudice, in respect to a substantial.right.”
In the case of section 1016.5, however, the Legislature has specified that it does implicate a substantial right when a noncitizen defendant who does not know about the possible consequences pleads guilty or no contest without being advised of the possibility of deportation, later exclusion, or bar to naturalization. Section 1404, therefore, is without effect on section 1016.5.
The majority state that an immigration consequence is a collateral matter in a criminal proceeding and that section 1404 “constitutes a legislative command that courts disregard technical errors.” (Maj. opn., ante, at p. 199.) There is, however, nothing necessarily collateral or technical about deportation, exclusion, or loss of the opportunity to obtain United States citizenship. *213 The Legislature was trying to avoid a situation in which, based on imperfect information, a defendant could be banished from the United States and quite possibly separated from his family for life. The United States Supreme Court has noted the severity of such a consequence. Deportation “may result. . . in loss of both property and life; or of all that makes life worth living.” (Ng Fung Ho v. White (1922) 259 U.S. 276, 284 [ 42 S.Ct. 492, 495 , 66 L.Ed. 938 ].) “To banish [noncitizens] from home, family, and adopted country is punishment of the most drastic kind whether done at the time when they were convicted or later.” (Lehmann v. Carson (1957) 353 U.S. 685, 691 [ 77 S.Ct. 1022, 1025 , 1 L.Ed.2d 1122 ] (cone. opn. of Black, J.).) “ ‘Denaturalization consequences [including possible deportation and exclusion] may be more grave than consequences that flow from conviction for crimes. . . . [T]o deprive a person of his American citizenship is an extraordinarily severe penalty. The consequences of such a deprivation may even rest heavily upon his children.’ ” (Kungys v. United States (1988) 485 U.S. 759, 792 [ 108 S.Ct. 1537, 1557 , 99 L.Ed.2d 839 ] (cone. opn. of Stevens, J.).)
It is also important to understand that a proper advisement must refer to all three immigration and nationality consequences. With regard to immigration consequences, exclusion and deportation are different consequences of a criminal conviction. “The differences between proceedings of exclusion and those of deportation are significant.” (Maldonado-Sandoval v. United States I. & N. Serv. (9th Cir. 1975) 518 F.2d 278, 280 (per curiam).) The rights accorded to the alien in each are quite different. (Leng May Ma v. Barber (1958) 357 U.S. 185, 187 [ 78 S.Ct. 1072, 1073-1074 , 2 L.Ed.2d 1246 ].) It is beyond the scope of this discussion to outline the differences—they are many, subtle, and complicated—but for an overview, one need only compare 8 United States Code section 1182 (a)(2), with id., section 1227(a)(2). The only point to be made here is that the Legislature was wise to require separate warnings about exclusion and deportation. Section 1016.5’s requirements are well grounded in title 8 of the United States Code, and the courts should adhere carefully to the Legislature’s requirement that a defendant be aware of each possible adverse consequence to a noncitizen following entry of a guilty plea. 1
*214 For the foregoing reasons, and on the basis of the record before us, I would affirm the decision of the Court of Appeal summarily denying the writ petition.
Kennard, J., concurred.
On July 12, 2000, the opinion was modified to read as printed above.
The majority also discuss, in what I perceive to be a dictum, article VI, section 13 of the California Constitution. Contrary to anything that may be said or implied in parts of that discussion, I believe that the constitutional provision bars only a reviewing court from reversing a judgment when there has been no prejudicial error. (Mitchell v. Gonzales (1991) 54 Cal.3d 1041, 1054 [ 1 Cal.Rptr.2d 913 , 819 P.2d 872 ]; People v. Watson (1956) 46 Cal.2d 818, 834-836 [ 299 P.2d 243 ]; Herbert v. Lankershim (1937) 9 Cal.2d 409, 476-477 [ 71 P.2d 220 ]; Copley v. Putter (1949) 93 Cal.App.2d 453, 456 [ 207 P.2d 876 ].) “[T]he final test is the ‘opinion’ of the reviewing court.” (People v. Watson, supra, 46 Cal.2d 818, 835 .) I have found *214 no authority for the suggestion that the constitutional provision prevents the Legislature from imposing a particular remedy for a particular trial court error.
Moreover, even if article VI, section 13 did apply to legislated remedies, I am not persuaded that the error is procedural in nature and hence covered by the provision.
And even if the constitutional provision applied to legislated remedies and the error were procedural in nature, it would appear, from the text of section 1016.5, that the Legislature has determined that it would be a miscarriage of justice for the erroneously entered plea to stand if the result is possible banishment from the United States. (See id., subd. (d).)

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9541575. Public record. Not legal advice.