Post-Conviction Relief for Immigrants

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.