Tooby's California Post-Conviction Relief for Immigrants

In People v. Soriano, [166] the court held that in order to render effective assistance of counsel, defense counsel must investigate the particular immigration consequences to defendant of a plea and advise the client of those consequences prior to entry of the plea.  The court held it insufficient for counsel to rely on the general language of Penal Code § 1016.5 warning the defendant at the plea that deportation, exclusion, and denial of naturalization may result.  Even though the proper § 1016.5 warning had in fact been given in the case, the court of appeal vacated the conviction.

            Thus, in order to prevail on a claim of ineffective assistance of counsel during plea bargaining, the client must show (a) that defense counsel did not investigate the exact immigration consequences that would flow from the conviction, (b) that counsel did not advise the client of those consequences, and (c) that the client did not enter the plea knowingly and intelligently.  Further, prejudice must be shown, i.e., there is a reasonable probability that the client would not have entered this plea if s/he had been told the truth.  See § 7.26, infra.

            The California Supreme Court has not yet reached this conclusion.  In deciding an "affirmative misadvice" case, it stated: "We are not persuaded that the Sixth Amendment imposes a blanket obligation on defense counsel, when advising pleading defendants, to investigate immigration consequences or research immigration law. In any event, petitioner in this case does not allege a mere failure to investigate, so the question is not squarely presented."[167]  It did not, however, even cite, much less overrule, Soriano.  More recently, the Supreme Court stated:

Although an attorney has a constitutional duty at least not to affirmatively misadvise his or her client as to the immigration consequences of a plea [citations omitted], any violation in this regard should be raised in a motion for a new trial or in a petition for a writ of habeas corpus.[168]

The Supreme Court made no holding on the question whether counsel has a duty to advise.  Again, Soriano was not overruled.  Therefore, Soriano remains binding on trial courts throughout the state. 

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

[167]  Id. at 249-250.

[168] People v. Kim (2009) 45 Cal.4th 1078, 1104, 90 Cal.Rptr.3d 355 (first emphasis supplied), citing People v. Bautista (2004) 115 Cal.App.4th 229 [issuing order to show cause on habeas corpus].)