The test for prejudice is whether it is reasonably probable that a determination more favorable to the defendant would have resulted in the absence of counsel’s failure.[176]  Unless counsel’s performance was so deficient that a breakdown in the adversarial process occurred, actual prejudice must be shown to justify reversal.  The defense must show a reasonable probability of a different outcome, i.e., a probability sufficient to undermine confidence in the result.[177] 

 

            As the California Supreme Court has stated:

 

            The test for prejudice that is relevant in light of the preceding is well established.  In Hill, supra, 474 U.S. at pages 58-59, the United States Supreme Court explained that a defendant who pled guilty demonstrates prejudice caused by counsel’s incompetent performance in advising him to enter the plea by establishing that a reasonable probability exists that, but for counsel’s incompetence, he would not have pled guilty and would have insisted, instead, on proceeding to trial.[178]

 

            The standard of reversal is that the chances of a more favorable outcome must be significant, less than a preponderance, but great enough to undermine confidence in the existing outcome.[179]  In the context of setting aside a plea, prejudice is shown if petitioner establishes a reasonable possibility, less than 50 percent but great enough to undermine confidence in the outcome, that s/he would not have entered the plea if correctly advised.[180]

 

            In Soriano, the court found the prejudice requirement to be satisfied because the petitioner “has been prejudiced by the institution of deportation proceedings against him.”[181]  The court made this ruling even though trial counsel had testified that the best offer she was able to obtain was a four-year state prison sentence suspended, and that the options of a sentence of “imposition of sentence suspended” or a sentence of one day less than one year in jail were not available to her.[182]  The court also noted: “Defendant states in his declaration that he would not have entered the plea had he known he was exposing [himself] to deportation.”[183]  Thus, under Soriano, prejudice is shown by proving that the client was incorrectly advised about the immigration consequences, and that removal proceedings have been instituted against the client.

 

[176] People v. Fosselman, 33 Cal.3d 572, 584 (1983); People v. Pope, supra, 23 Cal.3d 412.

[177] United States v. Cronic, 466 U.S. 648, 104 S.Ct. 2039 (1984); Strickland v. Washington, 466 U.S. 668 (1984).

[178] Resendiz, supra, at 253, citing In re Alvernaz, supra, 2 Cal.4th at pp. 933-934.

[179] People v. Howard, 190 Cal.App.3d 41, 45, 235 Cal.Rptr. 223 (1987).

[180] People v. Karis, 46 Cal.3d 612, 250 Cal.Rptr. 659, 682 (1988); People v. Wright, 43 Cal.3d 487, 233 Cal.Rptr. 69, 76 (1987); In re Ronald E., 19 Cal.3d 315, 137 Cal.Rptr. 781, 788 (1977).  See also People v. Limones, 233 Cal.App.3d 338, 284 Cal.Rptr. 418, 421 (1991) (“Thus, it does not appear that it was reasonably probable that appellant would not have agreed to the submission of his case on the stipulated facts had he been more specifically advised of the probability that the proceeding would result in conviction.”).

[181] People v. Soriano, 194 Cal.App.3d 1470, 240 Cal.Rptr. 328, 336 (1987).

[182] Id. at p. 335.

[183] Id. at p. 336.

Lower Courts of Second Circuit

POST CON RELIEF - NEW YORK - INEFFECTIVE ASSISTANCE - IMMIGRATION CONSEQUENCES - AFFIRMATIVE MISADVICE - DEFENDANT’S STATEMENT HE WOULD NOT HAVE PLEADED GUILTY IF CORRECTLY ADVISED SUFFICIENT TO REQUIRE A HEARING
People v. McKenzie, ___ N.E.3d ___, 2004 N.Y. App. Div. LEXIS 1329 (N.Y. Feb. 9, 2004) (allegation that defendant would not have pleaded guilty if properly advised, sufficient to require hearing on claim of ineffective assistance based on affirmative misadvice concerning immigration consequences).

Ninth Circuit

POST CON RELIEF " GROUNDS " INEFFECTIVE ASSISTANCE OF COUNSEL " PREJUDICE
United States v. Bonilla, ___ F.3d ___ (9th Cir. Mar. 11, 2011) (It bears emphasizing that by entering a plea of guilty without a plea agreement as to both counts of the indictment, Bonilla did not stand to benefit from a plea agreement in a way that might have made the plea an attractive alternative to trial.).

POST CON RELIEF " GROUNDS " INEFFECTIVE ASSISTANCE OF COUNSEL " PREJUDICE " LACK OF ADVICE CONCERNING MANDATORY DEPORTATION COULD AT LEAST PLAUSIBLY MOTIVATED DEFENDANT TO PLEAD RATHER THAN GO TO TRIAL
United States v. Bonilla, ___ F.3d ___ (9th Cir. Mar. 11, 2011) (Because a reasonable person in Bonillas position could well have interpreted his lawyers silence to mean that pleading guilty would not place him in jeopardy of deportation, it is evident that counsels failure to advise Bonilla of the immigration consequences could have at least plausibly motivated him to plead guilty rather than go to trial. Garcia, 401 F.3d at 1012.).

POST CON RELIEF " GROUNDS " INEFFECTIVE ASSISTANCE OF COUNSEL " PREJUDICE " COUNSELS SILENCE CONCERNING IMMIGRATION CONSEQUENCES COULD HAVE MOTIVATED DEFENDANT TO PLEAD GUILTY
United States v. Bonilla, ___ F.3d ___ (9th Cir. Mar. 11, 2011) (Because a reasonable person in Bonilla's position could well have interpreted his layer's silence to mean that pleading guilty would not place him in jeopardy of deportation, it is evident that counsel's failure to advise Bonilla of the immigration consequences..." could have motivated him to plead guilty.).

POST CON - GROUNDS - INEFFECTIVE ASSISTANCE OF COUNSEL
Davis v. Woodford, ___ F.3d ___ (9th Cir. September 21, 2004) (although counsel rendered ineffective assistance in failing to impeach prosecution witness with evidence that he had lied to a police officer about a traffic ticket -- counsel tried to impeach with the fact of the misdemeanor conviction that followed the lie [but misdemeanor convictions are not admissible for impeachment in California, only the conduct underlying the conviction is] -- but evidence failed to meet the second Strickland prong since the witness had been impeached with other evidence, and "it was almost impossible to believe" this conduct would have made a difference in the outcome of the case).

APPEALS - FEDERAL - STRUCTURAL ERROR
United States v. Recio, 371 F.3d 1093 (9th Cir. June 15, 2004) (trial court use of criminal conspiracy rule that was later rejected constituted structural error, requiring reversal without specific showing of prejudice); see Sullivan v. Louisiana, 508 U.S. 275, 282 (1993).

Other