Modification: People v. Alatorre

THE PEOPLE,

Plaintiff and Respondent,

v.

CARLOS ARGENIS FIGUEROA ALATORRE,

Defendant and Appellant.

No. D077894

(Imperial County Super. Ct.

No. JCF18829)

California Courts of Appeal

Fourth Appellate District

Division One

Filed November 22, 2021

ORDER MODIFYING OPINION

AND DENYING REHEARING

NO CHANGE IN JUDGMENT

THE COURT:

Respondent's second petition for rehearing, received on November 18, 2021 (Petition), is deemed to include a request to file a late petition, which is granted. (Cal. Rules of Court, rules 8.366(a), 8.268(b)(1)(A) & (b)(4).) The Petition is deemed filed as of the date of this order.

It is ordered that the opinion filed October 22, 2021 and modified November 16, 2021, be modified as follows:

1. On page 31 of footnote 31, last sentence of the first full paragraph, the words "They cannot be read to authorize" is changed to "On this record, they do not authorize" so the sentence reads:

On this record, they do not authorize the prosecution to elicit testimony from Alatorre's former attorneys in violation of the attorney-client privilege.

2. On page 31 of footnote 31, at the end of the last paragraph ending with the words "an attorney charged with professional wrongdoing," add the following sentence:

We express no opinion on whether former defense counsel might properly offer admissible testimony in a section 1473.7 hearing for different purposes or under different circumstances.

The Petition is DENIED.

There is no change in judgment.

HUFFMAN, Acting P. J.

Copy: All parties

THE PEOPLE,

Plaintiff and Respondent,

v.

CARLOS ARGENIS FIGUEROA ALATORRE,

Defendant and Appellant.

No. D077894

(Imperial County Super. Ct.

No. JCF18829)

California Courts of Appeal

Fourth Appellate District

Division One

Filed November 16, 2021

ORDER MODIFYING OPINION

AND DENYING REHEARING

NO CHANGE IN JUDGMENT

THE COURT:

It is ordered that the opinion filed October 22, 2021 be modified as follows:

1. On page 28, the paragraph of footnote 30 is modified to read as follows:

30 Alatorre's plea form only indicated that the plea "could result in my being deported." Counsel told the court at the hearing that there was no longer a transcript of the plea proceedings from 2008. Alatorre submitted a declaration stating he was never advised by his counsel "that a conviction for the crime(s) charged could directly result in my deportation, exclusion, and denial of naturalization of citizenship from the United States, my home." Two lawyers involved in his representation were subpoenaed by the People for the hearing but were released without testifying, presumably because the superior court determined that the section 1473.7 motion was untimely. We focus on Alatorre's subjective understanding, and given the compelling evidence on that issue we find it unnecessary to consider any potential factual disagreement between Alatorre and his attorneys as to what he was told in 2008 at the time of the plea.

2. The paragraph commencing at the bottom of page 30 with "There is little in the record" and ending at the top of page 31 with "communicated the prosecutor's offer to him," add new footnote 31 as follows:

31 In a petition for rehearing, the Attorney General contends we should remand for a new hearing where the prosecution could present the testimony of the lawyers who represented Alatorre at the time of the plea. (Ante, fn. 30.) Citing Vivar, supra, 11 Cal.5th at page 530, he suggests these attorneys might offer relevant testimony on Alatorre's priorities in negotiating a plea deal and whether he viewed deportation as a major concern. But the cited comments in Vivar were made in the context of discussing the defendant's burden to corroborate his assertion that he would not have entered the plea had he fully understood the immigration consequences. They cannot be read to authorize the prosecution to elicit testimony from Alatorre's former attorneys in violation of the attorney-client privilege.

Of course, there is a limited exception to the attorney-client privilege for communications "relevant to an issue of breach, by the lawyer or by the client, of a duty arising out of the lawyer-client relationship" (Evid. Code, § 958), and here the record is clear that the lawyers were subpoenaed by the prosecution solely "to refute any allegations of [ineffective] assistance of counsel." As we have explained, however, relief under section 1473.7 does not depend on a showing of ineffective assistance, and so any proffered evidence in this regard simply was not "relevant to an issue of breach." (Evid. Code, § 958; see also Brockway v. State Bar (1991) 53 Cal.3d 51, 63 ["Evidence Code section 958 only authorizes disclosure of relevant communications between a client . . . and an attorney charged with professional wrongdoing."].)

Respondent's petition for rehearing is denied.

There is no change in judgment.

HUFFMAN, Acting P. J.

Copy: All parties