Ruling: Criminal defense attorneys must provide detailed, up-to-date immigration advice to clients

The 4th District Court of Appeal's recent opinion in People v. Lopez, 2021 DJDAR 7170 (July 14, 2021), may come as a surprise to the defense bar, which might have assumed that general, even categorical, warnings to clients taking plea deals that their convictions "will have the consequence of deportation" would satisfy the requirement to provide competent immigration advice. Many defense practitioners might have assumed such a warning was particularly sufficient when presented to the defendant in writing, initialed by the defendant prior to the plea, repeated orally on the record by the judge at the time of the plea, and acknowledged orally by the defendant at the time of the plea. Not so, the Court of Appeal holds.

In 2016, California enacted Penal Code Section 1016.3(a) which requires defense attorneys to "provide accurate and affirmative advice," about adverse immigration consequences of accepting a plea deal. Lopez's case nicely illustrates how this requirement will be enforced in a run-of-the-mill felony case. Lopez was pulled over by police on two separate occasions about two weeks apart in 2015. In the first stop, police seized a loaded 12-guage shotgun, which was later determined to be stolen, and a half gram of methamphetamine. In the second stop, police found 16 grams of methamphetamine and a digital scale with crystalline residue on it. Lopez was charged with possession of a controlled substance with a firearm, carrying a loaded, stolen firearm in public, possession for sale of methamphetamine, and possession of methamphetamine.

In July 2019, Lopez accepted a plea agreement in which he pled guilty to the three felony counts and the misdemeanor possession charge was dismissed. He initialed and signed an eight-page "Tahl" waiver form, the standard form issued on a county-by-county basis which sets forth the rights waived by a defendant in accepting a plea and the consequences thereof. The Tahl form included an explicit warning that accepting the plea would result in deportation. Trial counsel also signed the form, including affirming that he had advised the defendant of the immigration consequences of the plea and had complied with Section 1016.3(a)'s requirements. Lopez confirmed on the record that he had read and understood the form. The trial court re-read the immigration warning specifically, and Lopez confirmed that he understood it.

In October 2019, after having been arrested for two additional criminal offenses, Lopez was taken into immigration custody and given notice that he was subject to removal based on his prior controlled substance felonies. In January 2020, Lopez moved to withdraw his plea pursuant to Penal Code Section 1018. Lopez, now represented by new counsel, claimed his attorney had not informed him of any of the immigration consequences of his plea. Lopez explained that he paid his attorney $20,000 and then heard little or nothing from him about the case except for seeing him at court dates. Even then, Lopez complained, the attorney would sit with other attorneys rather than with him and told him nothing about the case except to show up at the next court date. Regarding the plea form, Lopez argued that the immigration section was not read to him specifically by his attorney and that he believed his attorney would not have let him plead to the charges if they could have resulted in deportation.

Trial counsel also testified. He stated his belief that the charges "are deportable," and that he would have told Lopez as much as part of his general practice. Critically, trial counsel performed poorly when quizzed by new counsel about the details of current immigration law. For example, trial counsel mistakenly believed that if taken to county jail, an inmate is likely to be picked up by the "immigration bus," and therefore avoiding jailtime was a way to avoid immigration consequences. As the Court of Appeal noted, this represents an outdated view of how California authorities cooperate, or rather fail to do so, with federal immigration authorities. On cross-examination by Lopez's new attorney, it was exposed that trial counsel was unaware of Section 287(g) of the Immigration and Nationality Act or Senate Bill 54.

Perhaps more importantly, trial counsel admitted that he did no research into the specific deportation risk of the charges against Lopez. Rather, he simply tried to negotiate for a lesser charge with the prosecution, which was unsuccessful. He did not record any separate notes in his file documenting that he advised Lopez of the immigration consequences of his plea, relying instead on the Tahl form as the written record.

The Lopez opinion is notable for how quickly it dispenses with the effect of the Tahl form as a valid waiver of Lopez's right to appeal based on an adverse immigration decision. The court noted that Lopez had initialed every box on the form, including some which were not intended for his initials, indicating that it was "at best unclear" that Lopez understood the form. The "most important fact" about the form, in the court's opinion, was that Lopez and trial counsel agreed there was no separate discussion about it between them. Trial counsel simply read the immigration portion of the form to Lopez verbatim and had him initial it. The court held that this "pro forma review" violated Section 1016.3's requirement to provide "affirmative advice."

So too the Court of Appeal found little weight to the trial judge's recitation of the immigration warning in open court and Lopez's statement on the record that he understood it. The requirement to provide immigration advice was defense counsel's, not the trial court's. The Court of Appeal found that each charge against Lopez had immigration consequences which were "different and readily ascertainable," going on to cite a number of 9th Circuit immigration cases and federal immigration statutes. Without knowing the details of federal immigration law, trial counsel could not comply with his statutory duties under Section 1016.3(a). Although Lopez would have had little or no chance of acquittal at trial, the court found credible his declaration that he would have gone to trial rather than accept the plea deal had he known he would be deported and accordingly granted his appeal.

Readers can imagine several different strategies being adopted in light of Lopez. Most obviously, defense practitioners will try to acquaint themselves with federal immigration law to a greater degree. Perhaps finding it unrealistically burdensome to become experts in a second nuanced and rapidly changing area of law, they will farm out the task to other specialists, strongly encouraging or even requiring their clients to receive written immigration advice from an immigration attorney prior to accepting any plea deal. Courts may adopt ever more detailed and complex plea forms and extend plea colloquies to include charts, such as exist in many DUI plea forms, which explicitly list all possible immigration consequences of various categories of offenses and the relevant citations and require defendants and counsel to affirm in detail that they have separately discussed the immigration consequences of each and every charge being pled to. 