Filed 3/27/17




      IN THE SUPREME COURT OF CALIFORNIA


THE PEOPLE,                          )
                                     )
           Plaintiff and Respondent, )
                                     )                            S225193
           v.                        )
                                     )                      Ct.App. 4/2 E060758
RON DOUGLAS PATTERSON,               )
                                     )                       Riverside County
           Defendant and Appellant.  )                    Super. Ct. No. EE220540
____________________________________)


        After pleading guilty to a drug possession charge, Ron Douglas Patterson, a
Canadian citizen who has lived in the United States since his admission to this
country in 1996, learned that the plea rendered him subject to mandatory
deportation. Patterson filed a timely motion to withdraw the plea under Penal
Code section 1018 on grounds of mistake or ignorance. The trial court denied the
motion, concluding it was legally insufficient because Patterson had received the
standard statutory advisement that a criminal conviction “may have the
consequences of deportation, exclusion from admission to the United States, or
denial of naturalization pursuant to the laws of the United States.” (Pen. Code,
§ 1016.5, subd. (a).) The Court of Appeal affirmed.
        In People v. Superior Court (Giron) (1974) 11 Cal.3d 793, 798 (Giron),
this court held that a defendant‟s ignorance that a guilty plea will render him
deportable may constitute good cause to withdraw the plea under Penal Code
section 1018. The question now before us is whether receipt of the standard



                                          1
statutory advisement that a criminal conviction “may” have adverse immigration
consequences (Pen. Code, § 1016.5), bars a noncitizen defendant from seeking to
withdraw a guilty plea on that basis. We conclude that the section 1016.5
advisement creates no such bar. We therefore reverse the judgment of the Court
of Appeal and remand to permit the trial court to determine whether, after
considering all relevant factors, Patterson has shown good cause for withdrawing
his plea.
                                         I.
       Patterson was charged in a nine-count complaint with evading a police
officer (Veh. Code, § 2800.2); with sale or transportation of methamphetamine
(Health & Saf. Code, § 11379, subd. (a)) and cocaine (id., § 11352, subd. (a)); and
with possession of cocaine (id., § 11350, subd. (a)), morphine (ibid.), MDMA1
(Health & Saf. Code, § 11377, subd. (a)), methamphetamine (ibid.), and PCP
(ibid.). At a preliminary hearing on March 13, 2013, Patterson entered a
negotiated plea of guilty to evading a peace officer and possession of MDMA,
both felonies; on the prosecution‟s motion, the remaining counts were dismissed in
the interests of justice. Patterson waived referral to probation and requested
immediate sentencing. The trial court suspended imposition of sentence and
placed Patterson on three years‟ formal probation, on conditions that included 180
days in custody (with credit for three days served), to be served in the work release
program.
       Before entering his guilty plea, Patterson initialed and signed a plea form
that stated, in accordance with Penal Code section 1016.5: “If I am not a citizen of
the United States, I understand that this conviction may have the consequences of


1      Methylenedioxymethamphetamine, colloquially known as “ecstasy.”




                                         2
deportation, exclusion from admission to the United States, or denial of
naturalization pursuant to the laws of the United States.”2 He also stated in court
that he had reviewed the plea form with his attorney and had no questions. When
asked by the court whether he understood “everything” on the plea form, Patterson
replied that he did.
       Six months later, on September 13, 2013, Patterson, now represented by
new counsel, filed a motion to withdraw his guilty plea pursuant to Penal Code
section 1018 (section 1018). That provision authorizes a court, “for a good cause
shown,” to permit a guilty plea to be withdrawn “at any time before judgment or
within six months after an order granting probation is made if entry of judgment is
suspended.” In his declaration in support of this motion, Patterson explained that
he is a Canadian citizen and registered nurse who has lived and worked in the
United States since 1996 on “a variety of non-immigrant visas.”. He sought to
withdraw the plea because he had since learned the plea would render him subject
to mandatory deportation from the United States.
       Patterson described the circumstances that led him to enter the plea as
follows: At the preliminary hearing, the prosecution had made a “take-it-or-leave-
it offer.” Patterson‟s defense counsel told him that she did not know what
immigration consequences the plea would have, and she and Patterson tried to get
in touch with Patterson‟s immigration lawyer, with whom Patterson had
apparently never discussed his criminal case. When they were unsuccessful,
Patterson‟s criminal defense attorney recommended that he take the offer, and


2     We use the terms “deportation” and “removal” interchangeably. (See
Calcano-Martinez v. I.N.S. (2001) 533 U.S. 348, 350, fn. 1 [noting that, as part of
1996 amendments to the immigration statute, references to “deportation” in the
Immigration and Nationality Act were replaced with the term “removal”].)




                                         3
Patterson “followed her advice.” Had he known that the convictions would result
in his deportation, Patterson said, he “would have followed through with [his] plan
to take the case to trial.”
       Patterson also supported his motion with a declaration by Stacy Tolchin, an
attorney specializing in immigration law. The specialist summarized the
immigration consequences of Patterson‟s guilty plea to a violation of Health and
Safety Code section 11377, subdivision (a) as follows: “Mr. Patterson is subject
to arrest at any time on deportation charges, the Immigration Judge has no
authority to release him from mandatory ICE [Immigration and Customs
Enforcement] detention on bond or otherwise, and he is barred from obtaining the
Lawful Permanent Resident status for which he is otherwise qualified.” She stated
that if Patterson had consulted her before entering his plea, she would have
recommended that he “absolutely not enter this disposition” and instead “attempt
to enter a plea to a different disposition, that would be immigration neutral, yet
give the court and prosecution equivalent convictions and sentences.”3 She noted
that Patterson has no prior arrests or convictions. The immigration specialist
further stated that, if the prosecution had been unwilling to agree to a negotiated
guilty plea to an immigration-neutral disposition, she would have recommended
that Patterson take his case to trial.
       To demonstrate that Patterson had a triable case, the motion explained that
all of the drug charges were based on substances found in an opaque closed
container in Patterson‟s car, which, according to the motion, had been left there by

3      As an example of one such possible disposition that was supported by the
facts of Patterson‟s case, the immigration specialist suggested “a plea to felony
accessory after the fact to possession of an unspecified controlled substance, in
violation of Penal Code § 32, and Health and Safety Code § 11377(a), with the
same sentence to probation on condition of serving 180 days in custody . . . .”




                                          4
a passenger a day and a half before Patterson‟s arrest. An unnamed witness had
seen this person getting into the car with the container. The motion noted that a
test of Patterson‟s blood at the time of his arrest was negative for drugs and
alcohol. In his declaration, Patterson denied any clear recollection of the incident
and denied that he knowingly possessed the drugs, explaining that the container in
which they were found had been left in his car by a real estate broker. He
attributed his erratic driving to an acute attack of hypoglycemia, a condition he
has experienced on previous occasions.
       Finally, as evidence that Patterson was unaware of the specific immigration
consequences of a guilty plea to possession of MDMA, Patterson submitted a
letter his defense counsel wrote to the prosecutor. The letter, dated the day before
Patterson entered his plea, described Patterson as a Canadian citizen and registered
nurse who had been lawfully present in the United States on employment-based
visas for many years, and who had strong professional and personal ties in the
country. Counsel stated her belief that Patterson had viable defenses to all the
charges against him, but she nevertheless proposed that he plead guilty to two
felony violations of Health and Safety Code section 11377, for which he would be
placed in a drug diversion program (Pen. Code, § 1000), and a misdemeanor
violation of Vehicle Code section 2800.2, for which he would be placed on
probation with conditions including service of 270 days in jail.
       The trial court denied Patterson‟s motion to withdraw his guilty plea on the
ground that he had been advised, as required by Penal Code section 1016.5
(section 1016.5), that the conviction “may” have serious immigration
consequences. The trial court stated that “[t]he question is what level of
advisement is necessary for any of the items in the felony plea form to stand up,”
and that “the Legislature . . . passed 1016.5 so that there would be a specific
language that had to be given to each person.” Although the court acknowledged

                                          5
that the federal immigration consequences of Patterson‟s plea “are disastrous,” the
court concluded that even if everything Patterson said in his papers was true, his
motion was “legally insufficient” to permit Patterson to withdraw his plea.
According to the court, “the defendant‟s subjective level of understanding” of the
immigration consequences of his plea was not “truly relevant because anybody
can come in and say, oh, I didn‟t really understand.”
       Patterson appealed, challenging the trial court‟s denial of his motion to
withdraw his guilty plea. While the appeal was pending, he filed a habeas corpus
petition in the superior court. In his petition, Patterson alleged that trial counsel‟s
failure to advise him that his conviction for possession of MDMA would result in
his automatic deportation, as well as her failure to attempt to negotiate an
immigration-neutral disposition, violated his right to the effective assistance of
counsel under the Sixth Amendment to the United States Constitution. He further
alleged that he would not have entered the plea had he received accurate advice
about its adverse immigration consequences. The petition was assigned to a
different trial judge from the judge who had accepted Patterson‟s guilty plea and
denied his motion to set aside the plea. Less than a week after the habeas corpus
petition was filed, the judge denied it without issuing an order to show cause or
conducting an evidentiary hearing, concluding that Patterson had not demonstrated
a reasonable probability that he would have obtained a more favorable outcome in
the absence of counsel‟s alleged deficiencies.
       Patterson then filed a new habeas corpus petition in the Court of Appeal
raising the same claims as his petition in the superior court. Although the petition
did not include a declaration from trial counsel describing the events resulting in
Patterson‟s guilty plea, Patterson attached a declaration from Attorney Norton
Tooby, a criminal law specialist who has taught seminars for attorneys regarding
the immigration consequences of criminal cases. Tooby‟s declaration states that

                                           6
he spoke to Patterson‟s trial counsel, who was willing to answer Tooby‟s
questions but was unwilling to sign a declaration, explaining that “she would
prefer to be subpoenaed to testify, so the court could resolve any objection based
on attorney-client privilege before she revealed confidential attorney-client
information to the court and prosecution.” According to Tooby, trial counsel said
that she did no “investigation or research into the actual (as opposed to potential)
immigration consequences” of the charges and, “[i]nstead of advising him on the
actual immigration consequences of the specific plea, she advised him to seek
immigration counsel.” In Tooby‟s view, counsel‟s performance denied Patterson
his right to the effective assistance of counsel.
       The Court of Appeal consolidated Patterson‟s appeal and his habeas corpus
petition. On Patterson‟s appeal from denial of the motion to withdraw his guilty
plea, the Court of Appeal affirmed the trial court‟s judgment. The court concluded
that the section 1016.5 advisement sufficiently informed Patterson of the
immigration consequences of his conviction, even though he “was not clear what
those consequences may be.” The Court of Appeal denied Patterson‟s habeas
corpus petition without issuing an order to show cause or conducting an
evidentiary hearing. The court first concluded that trial counsel was not
ineffective. The court reasoned that a criminal defense attorney‟s responsibility is
to advise the defendant “that serious immigration consequences could result from
the conviction,” and that Patterson had been so advised, as evidenced by his
having initialed a box on his felony plea form acknowledging that his conviction
“ „may have the consequence[] of deportation.‟ ” The Court of Appeal further
concluded that Patterson was not, in any event, prejudiced by his counsel‟s alleged
deficiency. The court acknowledged Patterson‟s assertion that he would not have
pleaded guilty had he been aware that the plea would render him deportable, but
noted that such self-serving allegations are not sufficient to show prejudice. On

                                           7
the other hand, the court noted, Patterson had not alleged that trial counsel
inaccurately conveyed the plea offer to him, Patterson was facing a maximum of
10 years in prison if he was convicted, and a conviction would nevertheless have
rendered him deportable.
       Patterson filed a petition for review challenging the Court of Appeal‟s
affirmance of his convictions and its denial of his habeas corpus petition. We
granted the petition with respect to the appeal. As to his attack on the denial of his
habeas corpus petition, we ordered the petition for review (to which the exhibits
from his habeas corpus petition in the Court of Appeal were attached) refiled as an
original habeas corpus petition, and we issued an order directing the Chief
Probation Officer of the Riverside County Probation Department to show cause
why the relief prayed for should not be granted. The Attorney General has filed a
return to the order to show cause on behalf of the probation officer, and Patterson
has filed a traverse.
                                         II.
                                         A.
       At any time before judgment, or within six months after an order granting
probation if entry of judgment is suspended, a trial court may permit a defendant
to withdraw a guilty plea for “good cause shown.” (§ 1018.) “Mistake, ignorance
or any other factor overcoming the exercise of free judgment is good cause for
withdrawal of a guilty plea” under section 1018 (People v. Cruz (1974) 12 Cal.3d
562, 566 (Cruz)), and section 1018 states that its provisions “shall be liberally
construed . . . to promote justice.” A defendant seeking to withdraw a guilty plea
on grounds of mistake or ignorance must present clear and convincing evidence in
support of the claim. (Cruz, at p. 566.) A trial court‟s decision whether to permit
a defendant to withdraw a guilty plea under section 1018 is reviewed for abuse of
discretion. (In re Brown (1973) 9 Cal.3d 679, 685.) “[W]hen a trial court‟s

                                          8
decision rests on an error of law, that decision is an abuse of discretion.” (People
v. Superior Court (Humberto S.) (2008) 43 Cal.4th 737, 746.)
       In Giron, this court held that a defendant may establish good cause to
withdraw a guilty plea under section 1018 by showing that he or she was unaware
that the plea would result in deportation. (Giron, supra, 11 Cal.3d at p. 798.)
Noting that the immigration consequences of certain criminal convictions may be
“dire” for a noncitizen defendant (ibid.), we explained: “A trial court . . . may take
into consideration such material matters with which an accused was confronted and
as to which he made erroneous assumptions when he entered a guilty plea. The
court might consider that justice would not be promoted if an accused, willing to
accept a misdemeanor conviction and probationary status, cannot by timely action
revoke his election when he thereafter discovers that much more serious sanctions,
whether criminal or civil, direct or consequential, may be imposed.” (Id. at p. 797.)
       Responding to much the same concerns, the Legislature enacted section
1016.5 in 1977. Intended “to promote fairness” for noncitizen defendants who
may not be aware that a conviction of certain offenses may have severe
immigration consequences (§ 1016.5, subd. (d)), the provision instructs that before
a court accepts any “plea of guilty or nolo contendere to any offense punishable as
a crime under state law, except offenses designated as infractions under state law,”
it must advise the defendant as follows: “If you are not a citizen, you are hereby
advised that conviction of the offense for which you have been charged may have
the consequences of deportation, exclusion from admission to the United States, or
denial of naturalization pursuant to the laws of the United States” (id., subd. (a)).
Failure to provide the required advisement constitutes grounds for vacating the
judgment and withdrawing the guilty plea if the defendant can show that the plea
“may have the consequences for the defendant of deportation, exclusion from
admission to the United States, or denial of naturalization pursuant to the laws of

                                           9
the United States.” (Id., subd. (b); see generally People v. Superior Court
(Zamudio) (2000) 23 Cal.4th 183, 193.)
                                          B.
       Here, as in Giron, defendant seeks to withdraw his guilty plea on the
ground that at the time of the plea he was unaware that the conviction would
render him subject to removal from the United States. Under the Immigration and
Nationality Act (8 U.S.C. § 1101 et seq.), “[a]ny alien who at any time after
admission has been convicted of a violation of . . . any law or regulation of a State,
the United States or a foreign country relating to a controlled substance . . . , other
than a single offense involving possession for one‟s own use of 30 grams or less of
marijuana, is deportable” (8 U.S.C. § 1227(a)(2)(B)(i)), and any such deportable
alien “shall, upon the order of the Attorney General, be removed” (8 U.S.C.
§ 1227(a)). These provisions, as the United States Supreme Court has observed,
“specifically command[] removal for all controlled substances convictions except
for the most trivial of marijuana possession offenses.” (Padilla v. Kentucky (2010)
559 U.S. 356, 368 (Padilla).) Although the Attorney General of the United States
has limited discretion to cancel the removal of certain noncitizens, he has no
power to cancel the removal of nonpermanent residents convicted of most
controlled substance offenses. (8 U.S.C. § 1229b(b).)
       The question before us is whether Patterson is barred from seeking section
1018 relief on grounds of mistake or ignorance because he received the standard
advisement — given to all criminal defendants in California who plead guilty to
any offense other than an infraction — that his or her criminal conviction “may”
have adverse immigration consequences. (§ 1016.5.) We see no logical reason
why the section 1016.5 advisement would operate as such a bar. A defendant
entering a guilty plea may be aware that some criminal convictions may have
immigration consequences as a general matter, and yet be unaware that a

                                          10
conviction for a specific charged offense will render the defendant subject to
mandatory removal. Thus, as we have previously noted in a different context, the
standard section 1016.5 advisement that a criminal conviction “may” have adverse
immigration consequences “cannot be taken as placing [the defendant] on notice
that, owing to his particular circumstances, he faces an actual risk of suffering
such.” (People v. Superior Court (Zamudio), supra, 23 Cal.4th at p. 204.) And
for many noncitizen defendants deciding whether to plead guilty, the “actual risk”
that the conviction will lead to deportation — as opposed to general awareness
that a criminal conviction “may” have adverse immigration consequences — will
undoubtedly be a “material matter[]” that may factor heavily in the decision
whether to plead guilty. (Giron, 11 Cal.3d at p. 797; cf. INS. v. St. Cyr (2001) 533
U.S. 289, 325 [for noncitizens, “[t]here is a clear difference . . . between facing
possible deportation and facing certain deportation”]; U.S. v. Rodriguez-Vega (9th
Cir. 2015) 797 F.3d 781, 790 [“Warning of the possibility of a dire consequence is
no substitute for warning of its virtual certainty. As Judge Robert L. Hinkle
explained, „Well, I know every time that I get on an airplane that it could crash,
but if you tell me it‟s going to crash, I‟m not getting on.‟ [Citation.]”].)
       Nor does it appear that the Legislature that enacted section 1016.5 intended
the required advisements to serve as a categorical bar to the withdrawal of a guilty
plea on grounds of mistake or ignorance. Addressing a similar issue in In re
Resendiz (2001) 25 Cal.4th 230 (Resendiz), abrogated in part on other grounds by
Padilla, supra, 559 U.S. at page 370, we held that receipt of the section 1016.5
advisement does not bar a criminal defendant from challenging his conviction on
the ground that his counsel was ineffective in failing to adequately advise him
about the immigration consequences of entering a guilty plea. (Resendiz, at
pp. 241 (lead opn. of Werdegar, J.), 255 (conc. & dis. opn. of Mosk, J.).) We
explained that, under section 1016.5, “defendants who wish to plead guilty are

                                          11
entitled to receive from the court some advice regarding immigration
consequences — a general warning of three immigration consequences that „may‟
occur. [Citation.] In evaluating the court‟s advice, „[t]he defendant can be
expected to rely on counsel‟s independent evaluation of the charges, applicable
law, and evidence, and of the risks and probable outcome of trial.‟ ” (Resendiz, at
p. 247.) One of the purposes of the section 1016.5 advisement is to enable the
defendant to seek advice from counsel about the actual risk of adverse
immigration consequences. (See Resendiz, at p. 242 [“If anything, the statutory
scheme contemplates an enhanced, not a diminished, role for counsel.”].) This
purpose is reflected in the requirement, set out in subdivision (b) of the statute,
that, “[u]pon request, the court shall allow the defendant additional time to
consider the appropriateness of the plea in light of the advisement.” Subdivision
(d) explains that the Legislature intended for courts to “grant the defendant a
reasonable amount of time to negotiate with the prosecuting agency in the event
the defendant or the defendant‟s counsel was unaware of the possibility of
deportation, exclusion from admission to the United States, or denial of
naturalization as a result of conviction.” (§ 1016.5, subd. (d).)4 The purpose is
also evident in the special ground for a motion to withdraw a guilty plea set out in
section 1016.5. That provision, in contrast to section 1018, permits a defendant


4      This intent recently has been reinforced by the 2015 enactment of Penal
Code section 1016.3, which requires that defense counsel “provide accurate and
affirmative advice about the immigration consequences of a proposed disposition,
and when consistent with the goals of and with the informed consent of the
defendant, and consistent with professional standards, defend against those
consequences” (id., subd. (a)), as well as imposing a new requirement that “[t]he
prosecution, in the interests of justice, . . . consider the avoidance of adverse
immigration consequences in the plea negotiation process as one factor in an effort
to reach a just resolution” (id., subd. (b)).




                                          12
who was not given the section 1016.5 advisement to move to withdraw his or her
plea at any time if “conviction of the offense to which defendant pleaded guilty or
nolo contendere may have the consequences for the defendant of deportation,
exclusion from admission to the United States, or denial of naturalization pursuant
to the laws of the United States.” (§ 1016.5, subd. (b).)5 Nothing in the language
of section 1016.5 suggests that the Legislature intended the generalized
advisement to bar defendants from seeking the time-limited relief from a
mistakenly entered guilty plea under section 1018.
       In defending the trial court‟s ruling, the Attorney General relies on cases
holding that a trial court generally has no duty to advise defendants of collateral
consequences of a plea, including immigration consequences. (See, e.g., U.S. v.
Delgado-Ramos (9th Cir. 2011) 635 F.3d 1237 [due process does not require trial
court to advise the defendant of a plea‟s immigration consequences].) This is true,
but the focus of a section 1018 inquiry is not what the trial court told the
defendant; it is, rather, what the defendant knew when entering the plea. As we
explained in Giron, to hold that ignorance of specific immigration consequences
may constitute good cause to withdraw a plea is not to hold that the trial court is
under a duty to provide such case-specific immigration advice. (Giron, supra, 11
Cal.3d at p. 797.) Even when a trial court has fulfilled its advisement duties, a
defendant may show good cause to withdraw a guilty plea under section 1018


5       As noted, Patterson received the advisement, and he does not contend that
the trial court was required under section 1016.5 to permit him to withdraw his
guilty plea. (See People v. Aguilar (2014) 227 Cal.App.4th 60, 71 [“Section
1016.5 addresses only the duty of trial courts to advise the defendant of the
immigration consequences of the plea, and it empowers the court to vacate a
conviction and set aside a plea only for the court‟s failure to fulfill that duty.”
(Italics omitted.)].)




                                          13
when, because of mistake or ignorance, the defendant has entered a guilty plea he
or she would not otherwise have entered. (Cruz, supra, 12 Cal.3d at p. 566.)
       It is also true, as the Attorney General points out, that the immigration
consequences of a guilty plea are often unclear, and it may be difficult to know
with certainty at the time a noncitizen defendant enters a guilty plea whether the
defendant will in fact face specific immigration consequences. As the United
States Supreme Court has observed, “[i]mmigration law can be complex,” and
there are “numerous situations in which the deportation consequences of a
particular plea are unclear or uncertain.” (Padilla, supra, 559 U.S. at p. 369.)
This means that there are indeed some cases in which the most that can reasonably
be said is that the conviction “may” have adverse immigration consequences. But
when, as in this case, federal immigration law specifies in “succinct, clear, and
explicit” terms that a criminal conviction will result in deportability, the United
States Supreme Court has held that a criminal defense attorney must accurately
advise his or her client of that consequence before the client enters a guilty plea.
(Id. at pp. 368-369.) The generic advisement under section 1016.5 is not designed,
nor does it operate, as a substitute for such advice.
       The Attorney General contends that Patterson, knowing his plea could have
immigration consequences, made a calculated gamble to enter the plea without
seeking advice from immigration counsel, and that he should be held to his part of
the bargain in the same manner as a defendant who enters a guilty plea gambling
that the sentencing court will treat him with leniency. (Giron, supra, 11 Cal.3d at
pp. 797-798, citing People v. Burkett (1953) 118 Cal.App.2d 204.) But as we
observed in Giron, there is an important distinction between the situation in which
a defendant, aware that a conviction will render him subject to a particular set of
penalties, nevertheless “enters a guilty plea hoping for leniency which is not
forthcoming,” and one in which the defendant is unaware that, in addition to any

                                          14
punishment the court might impose, the guilty plea will also render him subject to
mandatory deportation. (Giron, supra, 11 Cal.3d at p. 797.) We explained that in
the latter situation, the defendant cannot be said to have “gambl[ed] on the severity
of possible penalties,” and therefore a court may exercise its discretion to grant or
deny the motion to withdraw the plea after “considering all factors necessary to
bring about a just result.” (Id. at p. 798.) Of course, here, unlike in Giron,
Patterson was advised that his plea “may” have immigration consequences. He
alleges, however, that he and his counsel were unaware that his plea would make
him subject to mandatory removal from the United States and would bar his future
reentry. He further asserts that, but for his ignorance, he would not have entered
the plea and would instead have attempted to negotiate an immigration-neutral
disposition, or failing that, would have taken his case to trial. If those allegations
are true, he did not appreciate the risk he was taking by entering a guilty plea.
Nothing in our cases bars a trial court from exercising its discretion in these
circumstances to grant or deny a motion under section 1018 to withdraw the plea
on grounds of mistake or ignorance.
       Patterson‟s motion to withdraw his guilty plea was not, in short,
categorically barred by section 1016.5. Rather, as is typically the case under
section 1018, a court asked to set aside a guilty plea based on mistake or ignorance
of the deportation consequences is “properly vested with discretion to grant or to
deny the motion after considering all factors necessary to bring about a just
result.” (Giron, supra, 11 Cal.3d at p. 798.) In exercising that discretion, a trial
court may take into consideration the defendant‟s reaction to the section 1016.5
advisement — for example, whether the defendant acknowledged understanding
the advisement and whether he or she expressed concerns about possible
deportation consequences or sought additional time to consult with counsel. These
considerations, along with any others that bear on the defendant‟s state of mind at

                                          15
the time of the plea, may assist courts in evaluating a later claim that the defendant
would not have entered the plea had he or she understood the plea would render
the defendant deportable.
       In this case, however, the trial court did not rule on whether Patterson had
credibly demonstrated that he would not have entered a guilty plea to possession
of a controlled substance had he known the plea‟s immigration consequences.
Rather, in denying Patterson‟s motion, the trial court concluded that even if
Patterson was unaware of the actual immigration consequences of his guilty plea,
he could not, as a matter of law, show good cause to withdraw that plea because he
had been advised that his plea “may” have adverse immigration consequences.
This was error. We accordingly reverse the judgment of the Court of Appeal and
direct it to remand this case to the trial court, so that the trial court may exercise its
discretion to determine whether Patterson has shown good cause to withdraw his
guilty plea on grounds of mistake or ignorance.6

6       In support of his argument that the trial court properly denied the motion to
withdraw the guilty plea, the Attorney General relies on People v. Flores (1974)
38 Cal.App.3d 484, People v. Quesada (1991) 230 Cal.App.3d 525, and People v.
Castaneda (1995) 37 Cal.App.4th 1612. All three cases are distinguishable. In
Flores, the Court of Appeal concluded that the trial court had not abused its
discretion when it denied the motion to withdraw of a defendant who was aware
the plea would render him deportable, but was not aware of the risk that federal
authorities would in fact deport him. (Flores, supra, 38 Cal.App.3d at p. 488.) In
Quesada, the court, relying on Flores, similarly concluded that the trial court had
not abused its discretion when it denied a withdrawal motion by a defendant who
not only received the standard section 1016.5 advisement, but who also, the court
inferred from the record, was aware of a specific risk of deportation in his
particular case. (Quesada, supra, 230 Cal.App.3d at p. 539.) In Castaneda, the
defendant sought to withdraw his plea under section 1016.5, subdivision (b), on
the ground that he had not received the required advisement, even though he had
previously received the advisement in a different criminal proceeding. The court
concluded that a defendant who is aware of the content of that advisement may not
file a special motion to withdraw under section 1016.5, subdivision (b).
                                                            (Footnote continued on next page.)


                                           16
                                           III.
        Because the trial court has not yet exercised its discretion to determine
whether Patterson should be permitted to withdraw his guilty plea, there is no need
at this time to address Patterson‟s claim, raised in the habeas corpus petition filed
in this court, that his plea was constitutionally invalid because trial counsel
rendered ineffective assistance at the time of his guilty plea. If the trial court
grants Patterson‟s motion to withdraw his guilty plea, the habeas corpus petition
will become moot; if the trial court denies the motion, the merits of the habeas
corpus petition must be resolved. We will therefore transfer the habeas corpus
petition to the superior court with directions to consider it if it becomes necessary
to do so. (See generally In re Hawthorne (2005) 35 Cal.4th 40, 44 [habeas corpus
petition transferred to the superior court after this court issued an order to show
cause].)
        Although the superior court previously denied the habeas corpus petition
Patterson filed in that court, it did so without issuing an order to show cause or
conducting an evidentiary hearing. Our issuance of an order to show cause in this
matter reflects this court‟s determination, contrary to that of the superior court, that
Patterson has stated a prima facie claim for relief. (People v. Superior Court
(Pearson) (2010) 48 Cal.4th 564, 572 [“A court issues an order to show cause in a
habeas corpus matter only when the petitioner has stated a prima facie case for relief
on one or more claims.”].) That determination does not, of course, mean that his


(Footnote continued from previous page.)

(Castaneda, supra, 37 Cal.App.4th at pp. 1619-1620.) In none of these cases did
the court conclude that receipt of the section 1016.5 advisement categorically bars
a noncitizen defendant from seeking to withdraw a guilty plea under section 1018
based on a lack of awareness that the plea would render the defendant deportable.



                                           17
conviction must be overturned. Issuance of an order to show cause is, rather, “an
intermediate but nonetheless vital step in the process of determining whether the
court should grant the affirmative relief that the petitioner has requested,” which
institutes “ „a proceeding in which issues of fact are to be framed and decided.‟ ”
(People v. Romero (1994) 8 Cal.4th 728, 740 (Romero).) We express no view as to
whether Patterson will ultimately be entitled to relief on his habeas corpus claim.
       In the event the trial court finds it necessary to evaluate Patterson‟s habeas
petition, it must employ a two-step process. First, the court must determine
“whether counsel‟s representation „fell below an objective standard of
reasonableness,‟ ” as judged by “ „prevailing professional norms.‟ ” (Padilla,
supra, 559 U.S. at p. 366, quoting Strickland v. Washington (1984) 466 U.S. 668,
688.) Second, the court must determine whether “ „there is a reasonable
probability that, but for counsel‟s unprofessional errors, the result of the
proceeding would have been different.‟ ” (Ibid.)
       Here, Patterson alleges that his trial counsel‟s representation was
constitutionally deficient because counsel was unable to advise him on the
likelihood that his acceptance of the proffered plea bargain would result in his
deportation. In Resendiz, we expressly declined to “address whether a mere
failure to advise [of immigration consequences] could . . . constitute ineffective
assistance,” instead holding only that a counsel‟s affirmative misadvice
concerning the risk of deportation may give rise to an ineffective assistance claim.
(Resendiz, supra, 25 Cal.4th at p. 240 (lead opn. of Werdegar, J.); see id. at p. 255
(conc. & dis. opn. of Mosk, J.).) But in Padilla, the high court expressly rejected
the argument that claims of ineffective assistance are limited to instances of
affirmative misadvice, reasoning that a rule that encouraged attorneys to remain
silent about immigration consequences “would be fundamentally at odds with the
critical obligation of counsel to advise the client of „the advantages and

                                          18
disadvantages of a plea agreement.‟ ” (Padilla, supra, 559 U.S. at p. 370.)
Although the high court explained that when “the deportation consequences of a
particular plea are unclear or uncertain” and “the law is not succinct and
straightforward,” counsel “need do no more than advise a noncitizen client that
pending criminal charges may carry a risk of adverse immigration consequences,”
the court also explained that where the immigration consequences of a guilty plea
are clear, the defendant‟s right to receive accurate advice is “equally clear.” (Id. at
p. 369.)
       To establish that he was prejudiced by counsel‟s alleged errors, Patterson
must show “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.” (Resendiz, supra, 25 Cal.4th at p. 253.)7 Here, Patterson
alleges that he would not have accepted the plea bargain had he been aware of the
deportation consequences, and the Attorney General denies that this is the case.
Ordinarily, an evidentiary hearing is the appropriate means of resolving factual
disputes of this nature. (Romero, supra, 8 Cal.4th at pp. 739-740 [“if the return
and traverse reveal that petitioner‟s entitlement to relief hinges on the resolution of
factual disputes, then the court should order an evidentiary hearing”].) A hearing
is particularly appropriate when, as in this case, trial counsel is unwilling to



7      Currently pending before the United States Supreme Court is Lee v. United
States (6th Cir. 2016) 825 F.3d 311 (cert. granted Dec. 14, 2016, __ U.S. __
[__ S.Ct. __]), which presents the question (as stated in the petition for writ of
certiorari) “[w]hether it is always irrational for a defendant to reject a plea offer
notwithstanding strong evidence of guilt when the plea would result in mandatory
and permanent deportation.” The high court‟s decision in Lee may provide
additional guidance in evaluating the question of prejudice should the trial court
conclude that counsel rendered ineffective assistance.



                                          19
provide a declaration describing her discussions with the defendant before the
latter accepted the plea bargain. Patterson argues that the prosecution cannot
allege in good faith that he would have accepted the plea bargain even if he was
aware of its immigration consequences because they have not proffered facts
tending to show that such was the case, but the prosecution cannot come forward
with such facts if trial counsel is unwilling to submit a declaration. The question
whether Patterson would have rejected the proffered plea bargain if he had been
aware of its effect on his deportation status thus may require resolution at a
hearing at which trial counsel, and perhaps Patterson himself, can offer testimony
that may be assessed by the trial court.
       The trial court may, in its discretion, elect to consolidate the habeas corpus
proceedings with the motion to withdraw the guilty plea, and to resolve both
matters in a single evidentiary hearing.
                                           IV.
       We reverse the judgment of the Court of Appeal. The Court of Appeal is
directed to remand the matter to the trial court for further proceedings consistent
with this opinion. In a separate order to be filed when this matter becomes final,
we will transfer the original habeas corpus petition filed in this court to the
superior court for further proceedings consistent with this opinion.


                                                   KRUGER, J.
WE CONCUR:

CANTIL-SAKAUYE, C. J.
WERDEGAR, J.
CHIN, J.
CORRIGAN, J.
LIU, J.
CUÉLLAR, J.

                                           20
See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion People v. Patterson
__________________________________________________________________________________

Unpublished Opinion XXX NP opn. filed 3/9/15, 4th Dist., Div. 2
Original Appeal
Original Proceeding
Review Granted
Rehearing Granted

__________________________________________________________________________________

Opinion No. S225193
Date Filed: March 27, 2017
__________________________________________________________________________________

Court: Superior
County: Riverside
Judge: Helios (Joe) Hernandez

__________________________________________________________________________________

Counsel:

A. J. Kutchins for Defendant and Appellant.

Kamala D. Harris, Attorney General, Kathleen A. Kenealy, Acting Attorney General, Gerald A. Engler,
Chief Assistant Attorney General, Julie L Garland, Assistant Attorney General, William M. Wood, Heather
Crawford, Steven T. Oetting, A. Natasha Cortina and Meagan J. Beale, Deputy Attorneys General, for
Plaintiff and Respondent.
Counsel who argued in Supreme Court (not intended for publication with opinion):

A. J. Kutchins
P.O. Box 5138
Berkeley, CA 94705
(510) 841-5635

Meagan J. Beale
Deputy Attorney General
600 West Broadway, Suite 1800
San Diego, CA 92101
(619) 645-2225
