# In Re Resendiz

> California Supreme Court · April 2, 2001 · 105 Cal. Rptr. 2d 431

URL: https://www.frixlaw.com/law-library/cases/9782535

## Case

- **Full name:** In Re HUGO RANGEL RESENDIZ on Habeas Corpus
- **Court:** California Supreme Court
- **Decided:** April 2, 2001
- **Citations:** 105 Cal. Rptr. 2d 431; 25 Cal. 4th 230; 2001 Daily Journal DAR 3279; 19 P.3d 1171; 2001 Cal. Daily Op. Serv. 2643; 2001 Cal. LEXIS 1812
- **Precedential status:** Published
- **Opinion:** Concurring in part by Brown
- **Judges:** Werdegar, Brown
- **Cited by:** 158 later opinions in the Frix Law Library

## Citator (automated)

- **Red flag:** Abrogated on other grounds by Padilla v. Kentucky, 559 U.S. 356 (2010).
- Negative treatments: 1
- Distinguished by: 0
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9782535

## How later opinions describe it (automated extraction)

- explaining that the deportation consequences do not “inexorably follow” from a conviction in that deportation “can be instituted only upon the order of the Attorney General” (citations and internal quotation marks omitted)
- holding “that affirmative misadvice regarding immigration consequences can in certain circumstances constitute ineffective assistance of counsel”
- explaining that “collateral” consequences of a plea do not “inexorably follow” from a conviction of the offense involved in the plea
- holding “affirmative mis-advice regarding immigration consequences can in certain circumstances constitute ineffective assistance of counsel.”

## Opinion text

BROWN, J., Concurring and Dissenting.
I concur in the disposition because I agree that petitioner has failed to show prejudice. I write separately because the lead opinion offers protection nobody needs, for reasons that are nowhere explained, through a method that will impose prohibitive costs on the administration of criminal justice. If we are going to cast a cloud on the validity of hundreds—perhaps thousands—of guilty pleas, we should explain why concerns about immigration entitle a defendant to multiple accurate advisements when the express waiver of constitutional rights is satisfied with one.
As courts throughout the country have held, incorrect information from counsel does not prejudice a defendant who receives correct information from the court. Reviewing courts need only verify the defendant received the correct information before pleading guilty. Resendiz received the Penal Code section 1016.5 1 advisement from the court, and thus cannot show prejudice.
I.
Counsel Had No Duty to Advise
We have never before held the right to receive immigration advice from defense counsel is guaranteed by the Sixth Amendment to the United States Constitution or article I, section 15 of the California Constitution. The Sixth Amendment is limited by its text: “In all criminal prosecutions, the accused shall enjoy the right... to have the assistance of counsel for his defense.” The amendment does not cover civil proceedings: “The protections provided by the Sixth Amendment are explicitly confined to ‘criminal prosecutions.’ ” *260 (Austin v. United States (1993) 509 U.S. 602, 608 [ 113 S.Ct. 2801, 2804 , 125 L.Ed.2d 488 ].) Counsel’s performance is thus measured against that of reasonably competent criminal defense counsel, not counsel specializing in civil fields like immigration. (Wiley v. County of San Diego (1998) 19 Cal.4th 532, 542 [ 79 Cal.Rptr.2d 672 , 966 P.2d 983 ] [defendants entitled to “counsel acting reasonably ‘ “within the range of competence demanded of attorneys in criminal cases” ’ ”].)
The vast majority of other courts, state and federal, have also concluded there is no Sixth Amendment right to receive advice regarding the immigration consequences of a guilty plea, and the absence of advice cannot constitute ineffective assistance of counsel. (U.S. v. Gonzalez (1st Cir. 2000) 202 F.3d 20, 25 ; U.S. v. George (7th Cir. 1989) 869 F.2d 333, 337-338 , and cases cited therein; State v. Dalman (N.D. 1994) 520 N.W.2d 860, 863-864 , and cases cited therein; Com. v. Frometa (1989) 520 Pa. 552 [ 555 A.2d 92, 94 ], and cases cited therein.)
In People v. Superior Court (Giron) (1974) 11 Cal.3d 793 [ 114 Cal.Rptr. 596 , 523 P.2d 636 ] (Giron), the defendant pleaded guilty; neither defense counsel, the prosecutor, nor the court advised him he could be deported as a result. {Id. at p. 797.) We held the trial court could exercise its discretion in deciding whether to allow the defendant to withdraw his plea under those circumstances. We did not deem the absence of such an advisement to be either judicial error or ineffective assistance of counsel. We refused to hold that defendants who plead guilty have a right to information regarding a collateral consequence like deportation. (Ibid.)
The Legislature responded to Giron by enacting section 1016.5. In so doing, the Legislature expressed concern “about the ‘many instances involving [noncitizen defendants]’ in which ‘a plea of guilty or nolo contendere is entered without the defendant knowing that a conviction of such offense is grounds for deportation.’ ” (People v. Superior Court (Zamudio) (2000) 23 Cal.4th 183, 193 [ 96 Cal.Rptr.2d 463 , 999 P.2d 686 ], quoting § 1016.5, subd. (d).) “ ‘[T]o promote fairness to such accused individuals,’ ” the Legislature mandated a specific warning about possible deportation consequences. {Ibid.)
The statute’s history discloses the Legislature considered the advisement not merely a hint to discuss the matter with counsel, but a complete and conclusive provision of the information the defendant needed. Senator Alex Garcia, the author of Senate Bill No. 276, explained, “[T]his bill is primarily designed to assure that lawful aliens ... are made fully aware of the consequences of [their] plea.” (Sen. Garcia, letter to Governor Brown re: *261 Sen. Bill No. 276 (1977-1978 Reg. Sess.) Sept. 14, 1977.) Committee reports similarly explained the bill’s purpose was to “assure that a non-citizen criminal defendant is fully apprised of the consequences [of her plea].” (Assem. Com. on Crim. Justice, analysis of Sen. Bill No. 276 (1977-1978 Reg. Sess.) as amended Aug. 25, 1977, p. 1.) There is no evidence the Legislature contemplated this full apprisal could be modified or impeached by counsel’s off-the-record remarks.
The statute would be mere surplusage if it provided defendants with advice that was already constitutionally mandated. The right to notice of the possible collateral consequence of deportation is statutory in origin; the Sixth Amendment to the United States Constitution does not entitle a defendant to immigration advice. The lead opinion does not suggest otherwise.
II.
Any Misadvice from Counsel Was Harmless in Light of the Court’s Correct Advisement
The lead opinion notes a clear consensus nationwide that finds an “affirmative misstatement regarding deportation may constitute ineffective assistance” of counsel. (U.S. v. Mora-Gomez (E.D.Va. 1995) 875 F.Supp. 1208, 1212 ; see lead opn., ante, at p. 251 & fn. 14.) The cases cited are all distinguishable; none involved a judicial advisement similar to the one required by section 1016.5. The defendants in those cases were thus vulnerable to counsel’s misadvice, as Resendiz was not.
The section 1016.5 advisement should shield pleas from collateral attack. The Legislature designed the advisement to combat ignorance on the part of pleading defendants; a defendant must have the correct information, but it does not matter from whom he receives it. (People v. Quesada (1991) 230 Cal.App.3d 525, 536 [ 281 Cal.Rptr. 426 ] (Quesada).) The Court of Appeal upheld Quesada’s plea because he received the correct information from counsel, even though the court failed to read the requisite advisement. (Id. at p. 539.) Consistent with the statute’s purpose, Quesada pleaded with awareness of the potential consequences.
As the Quesada court observed, the critical question is whether the defendant received the correct information. He is not entitled to multiple warnings on the subject. As the on-the-record pronouncements of the court carry more weight than the private remarks of counsel (United States v. Porrino (2d Cir. 1954) 212 F.2d 919 , 921), judicial advisement ensures the *262 plea is intelligent, notwithstanding contrary guidance from counsel. Although the lead opinion notes the consensus holding that misadvice may constitute ineffective assistance absent judicial advisement, there is an even clearer consensus holding that misadvice, even if it amounts to deficient representation under Strickland v. Washington (1984) 466 U.S. 668, 687 [ 104 S.Ct. 2052, 2064 , 80 L.Ed.2d 674 ], is not prejudicial where the court provides the correct advice.
A.
Most apposite to our review is the decisional authority of Florida, the other state whose large noncitizen population has prompted careful consideration of this issue. Florida courts have concluded that the very purpose of that state’s section 1016.5 analogue is to guarantee defendants receive correct advice regarding deportation, rather than have them depend on their criminal counsel, who may be unfamiliar with immigration law. So long as Florida defendants receive that judicial advisement, counsel’s misadvice cannot render the plea unknowing and invalid.
In State v. Ginebra (Fla. 1987) 511 So.2d 960 , the Florida Supreme Court cited Giron, supra, 11 Cal.3d 793 , in concluding a defendant had no right to advice from either the court or counsel concerning immigration consequences, and thus a defendant’s ignorance regarding the possibility of deportation did not invalidate the plea. (Ginebra, at pp. 961-962.) As California forestalled the potential unfairness of Giron by enacting section 1016.5, Florida answered Ginebra by adding subsection (c)(viii) to rule 3.172 of the Florida Rules of Criminal Procedure (hereafter subsection (c)(viii)), which requires courts to inform defendants their guilty pleas could lead to deportation. (See In re Amendments to Florida Rules (Fla. 1988) 536 So.2d 992 .)
The presence or absence of this judicial advisement now determines whether counsel’s misadvice regarding deportation will support vacating a plea. Misadvice may support an ineffective assistance claim when the court fails to advise the defendant. (Dugart v. State (Fla.Dist.Ct.App. 1991) 578 So.2d 789 .) But an adequate court advisement is clearly intended to have a prophylactic effect. “Starting with the cases espousing the principle that there is no right to be informed of the collateral consequences of a guilty plea, which were followed by the 1988 amendment to the Rules of Criminal Procedure instructing judges to advise a defendant that deportation could result if the defendant is not a United States citizen, it is reasonable to conclude that the supreme court intended to avoid the vacating of guilty pleas on the sole ground that the non-citizen defendant may have been misinformed about deportation as a collateral consequence of pleading guilty. Otherwise, *263 there was little reason for adopting subsection (c)(viii).” (Bermudez v. State (Fla.Dist.Ct.App. 1992) 603 So.2d 657, 658 , italics added.) Because the court properly advised the defendant, Bermudez denied the defendant’s claim of ineffective assistance based on counsel’s alleged misstatement.
B.
Federal courts likewise hold judicial advisements safeguard pleas from collateral attack, because the court’s advice cures any possible harm arising from counsel’s error. There is no federal parallel to section 1016.5 or subsection (c)(viii), but analogous cases have consistently affirmed that defendants do not suffer prejudice from counsel’s misadvice, even if it amounts to deficiency under Strickland v. Washington, supra, 466 U.S. 668 , where the court provides the correct information.
In U.S. v. Thornton (9th Cir. 1994) 23 F.3d 1532 , the defendant pleaded guilty, received a sentence of life imprisonment, and subsequently challenged his plea as being the product of counsel’s erroneous advice. The Ninth Circuit Court of Appeals rejected the claim: “[Ejven if Thornton’s attorney and the parties didn’t realize the guidelines allowed a life sentence,” “the district judge advised him that a life sentence was possible, [citation], thus rendering any advice given by Thornton’s counsel, even if erroneous, non-prejudicial.” (Id. at pp. 1533-1534.) Substitute “deportation” for “a life sentence,” and the instant analysis is the same, except that deportation, while significant, is a collateral consequence, not within the control of the sentencing court.
Other circuits are in accord. In Barker v. U.S. (7th Cir. 1993) 7 F.3d 629 , the defendant pleaded guilty after allegedly receiving misadvice from counsel about the possible sentence. The Seventh Circuit Court of Appeals found the trial court’s advice “cured” any possible harm. “In this case, even if advice from [the] trial attorney had led to [Barker’s] misunderstanding of the consequences of his guilty plea, any such confusion was cured by the trial court [which took] careful and appropriate measures to dispel any confusion on Mr. Barker’s part before the plea was accepted.” (Id. at p. 633; see also Worthen v. Meachum (10th Cir. 1988) 842 F.2d 1179, 1184 , disapproved on other grounds in Coleman v. Thompson (1991) 501 U.S. 722, 749-751 [ 111 S.Ct. 2546, 2564-2565 , 115 L.Ed.2d 640 ] [“even if Worthen’s attorney’s alleged mistaken advice about parole rendered his performance inferior to that reasonably expected of attorneys . . . , Worthen was not prejudiced by advice that the court specifically told him was incorrect”].)
The rule is the same even where (1) the defendant alleges counsel informed the defendant the court’s advisement will not apply due to the *264 defendant’s particular circumstances (rather than being wrong generally); and (2) counsel confirms he provided this misadvice. In Ramos v. Rogers (6th Cir. 1999) 170 F.3d 560 , Ramos’s collateral attack on his plea included affidavits from both himself and counsel describing an off-the-record agreement that would have granted Ramos probation after he had served one year in prison. Counsel informed Ramos the deal “would not be discussed on the record during his plea” and thus “[Ramos should] just answer [the court’s] questions at the plea as if no deals had been made,” and to “ ‘just go along with what the judge asked me.’ ” (Id. at pp. 562-563.) The Sixth Circuit Court of Appeals rejected Ramos’s claim, noting “the state trial court specifically asked Ramos, ‘Do you understand that [rape] is not a probation-able offense, that you are not going to receive probation under any circumstances?’ ” (Id. at p. 565.) Recalling this express advisement, the Sixth Circuit found no “prejudice when the court specifically informed [Ramos] that his counsel’s advice was incorrect.” (Ibid.) The Ninth Circuit similarly rejected the claim of a defendant whose attorney allegedly advised him that if he pleaded guilty he would be eligible for parole in seven years, and that the court would announce there was no possibility of parole only for the benefit of the public. (Dennis v. People of State of California (9th Cir. 1969) 414 F.2d 424, 425 .) The Dennis court refused to vacate the plea, emphasizing the colloquy in which both counsel and the court described the sentence as being “ ‘without possibility of parole.’ ” (Id. at p. 426, fn. 2.)
Furthermore, the People need not prevail in a credibility contest to protect the plea from collateral attack; the rule is the same even where the trial and appellate court agree that (1) counsel provided misadvice; and (2) it amounted to “ineffective assistance of counsel.” (Warner v. U.S. (6th Cir. 1992) 975 F.2d 1207 , 1211 (Warner).) 2 Trial counsel incorrectly advised Warner, who faced federal and state charges, that the federal district court could impose sentence concurrent to Warner’s state sentence. (Warner, at p. 1211.) The Sixth Circuit Court of Appeals found no prejudice, however, because the district court advised Warner, “ 1 am not in any way concerned with the State sentence .... I will impose a Federal sentence . . . [and] that Federal sentence will go into effect, but in no way will that be shortened or modified by the State sentence.’ ” (Ibid.) The Sixth Circuit also rejected Warner’s claim he lied to the court, in denying any off-the-record promises had been made, on the instruction of counsel: “Even if Warner did deny knowledge of a plea agreement in reliance on [counsel’s] mistaken advice, this does not amount to prejudice when the court specifically informed him that . . . advice was incorrect.” (Id. at p. 1212.)
Most tellingly, the federal district court and the circuit court did vacate Warner’s plea to the state charges because the state court never corrected *265 counsel’s misadvice. “These . . . findings are not inconsistent. The federal court advised Warner that there would be no concurrent sentences, the state court did not.” (Warner, supra, 975 F.2d at p. 1214.) The presence of correct judicial advice thus distinguishes cases where counsel’s misadvice justifies vacating a plea from those where it does not.
III.
Appellate Review of the Instant Claim Requires Only a Quick Review of the Transcript to Ensure the Court Properly Advised Defendant
Appellate review of claims like Resendiz’s may therefore be limited. For a plea to be valid, the record must reveal the defendant was informed he could be deported as a consequence of his plea. On-the-record advisement is necessary—and sufficient.
On-the-record advisement serves a dual purpose; it protects both the defendant and his plea. (Boykin v. Alabama (1969) 395 U.S. 238, 244 [ 89 S.Ct. 1709, 1712-1713 , 23 L.Ed.2d 274 ] (Boykin); In re Tahl (1969) 1 Cal.3d 122, 132 [ 81 Cal.Rptr. 577 , 460 P.2d 449 ].) Boykin prescribed on-the-record advisement of a defendant’s constitutional rights to guarantee the plea was voluntary and knowing. On the one hand, on-the-record advisement ensured defendants did not plead guilty out of ignorance. On the other, “[w]hen the judge discharges that function, he leaves a record adequate for any review that may be later sought. . . and forestalls the spin-off of collateral proceedings that seek to probe murky memories.” (Boykin, at p. 244 [89 S.Ct. at pp. 1712-1713], fns. omitted, italics added.) Boykin advised courts to examine defendants to ensure they understand the nature of the charges, the constitutional rights being waived, and the permissible range of sentences, “ ‘[i]f these convictions are to be insulated from attack.’ ” (Id. at p. 244, fn. 7 [ 89 S.Ct. at p. 1713 ], quoting Commonwealth v. Rundle (1968) 428 Pa. 102 [ 237 A.2d 196, 197-198 ].)
Determining the knowing nature of a plea is a “simple [] task.” (People v. Allen (1999) 21 Cal.4th 424, 442 [ 87 Cal.Rptr.2d 682 , 981 P.2d 525 ].) Because on-the-record advisement is both necessary and sufficient, our evaluation of Boykin-Tahl challenges is minimal. “[T]he record of the hearing . . . should clearly demonstrate the defendant was told of his rights and that he affirmatively waived them. . . . [A] quick review of the transcript of the sentencing hearing may be all that is necessary.” (Allen, at p. 442.) Only in those “unusual cases” where no advisement precedes the plea will further investigation be necessary. (Ibid.)
Review of section 1016.5 claims should be no broader in scope. The statutory preference for defendants to understand the possible collateral *266 consequences of their pleas does not warrant more zealous protection than the constitutional imperative that defendants understand their constitutional rights and the direct consequences of their pleas. (People v. Ramirez (1999) 71 Cal.App.4th 519, 522 [ 83 Cal.Rptr.2d 882 ].) The record reflects Resendiz received correct advice regarding deportation; no further review is warranted. (Cf. People v. Allen, supra, 21 Cal.4th at p. 442 .)
Conclusion
Defendant, who was advised by the court he could be deported and confirmed he understood this possibility, now seeks to withdraw his plea based on his not knowing he could be deported. To credit his claim rewards disregard for the court and creates an incentive for mendacity.
Defendant’s claim must fail because the court provided him with all the information to which he was entitled, and all the information the Legislature has deemed necessary for an intelligent plea. The judicial advisement places a defendant on notice. He may, depending on the importance he attaches to the potential consequence, seek additional time, clarification and expert advice. But if his understanding is contrary to the court’s warning, “it [is] imperative that [defendant] not stand mute during the plea colloquy.” (Resta v. State (Fla.Dist.Ct.App. 1997) 698 So.2d 378 , 379.)
The lead opinion encourages “probfing] murky memories,” contrary to Boykin (supra, 395 U.S. at p. 244 [ 89 S.Ct. at p. 1713 ]). Memories are likely to be especially murky in cases like this one, where counsel may well be tom between protecting himself from an ineffectiveness finding and protecting a client from conviction and deportation. Even if not every collateral attack is successful, searching beyond the transcript and taking testimony from all involved parties will significantly strain judicial resources.
By enacting section 1016.5, the Legislature responded appropriately and effectively to the potential for unfairness to noncitizen defendants. The law was the first of its kind and has served as a national model. 3 Today’s opinion signals to criminal defendants that the court’s advice is wasted breath; defendants may safely ignore the pronouncement of the court, accept the benefit of the bargain, and plead ignorance years after the fact. Nothing is *267 created by the lead opinion except confusion. I therefore concur in the disposition only.
Baxter, J., and Chin, J., concurred.
Petitioner’s petition for a rehearing was denied June 13, 2001. Mosk, J., was of the opinion that the petition should be granted.
Hereafter, all statutory references are to the Penal Code unless otherwise indicated.
The Warner court apparently used the phrase “ineffective assistance of counsel” to refer to Strickland’s first prong.
Every state that has prescribed a specific text has adopted section 1016.5’s warning practically verbatim ( Conn. Gen. Stat. § 54 -lj(a); D.C. Code § 16-713 (a); Hawaii Rev. Stat. § 802E-2; Mass. Gen. Laws ch. 278, § 29D; Ohio Rev. Code § 2943.031(A); Wash. Rev. Code § 10.40.200 (2)), and two states have even adopted the legislative findings expressed in section 1016.5, subdivision (d) (Hawaii Rev. Stat. § 802E-1; Wash. Rev. Code § 10.40.200 (1)).

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9782535. Public record. Not legal advice.