"[Cal.] Penal Code section 1016.5 requires that before accepting a plea of guilty or nolo contendere to any criminal offense, the trial court must advise the defendant that if he or she is not a United States citizen, conviction of the offense may result in 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).) If the advisement was not given, and the defendant shows that conviction of the offense to which he or she pleaded guilty or nolo contendere may result in adverse immigration consequences, the court, on the defendant‘s motion, is required to vacate the judgment and permit the defendant to withdraw his or her plea and enter a plea of not guilty. (Id., subd. (b).) Relief will be granted, however, only if the defendant establishes prejudice. (People v. Superior Court (Zamudio) (2000) 23 Cal.4th 183, 210 (Zamudio).) As we explained in Zamudio, prejudice is shown if the defendant establishes it was reasonably probable he or she would not have pleaded guilty if properly advised. (Ibid.)
We granted review to consider whether a court ruling on a motion to vacate pursuant to section 1016.5 may deny relief, for lack of prejudice, if it concludes the defendant would not have obtained a more favorable outcome had he or she chosen not to plead guilty or nolo contendere. We hold that because the question is what the defendant would have done, relief should be granted if the court, after considering evidence offered by the parties relevant to that question, determines the defendant would have chosen not to plead guilty or nolo contendere, even if the court also finds it not reasonably probable the defendant would thereby have obtained a more favorable outcome. Having so concluded, we also consider whether, as defendant contends, the court ruling on the motion may consider a claim that the defendant would have rejected the existing plea bargain to attempt to negotiate a bargain that would not result in deportation, a denial of naturalization, or exclusion from admission to the United States, or if, as the Attorney General contends, relief is available only if the defendant would have rejected the plea bargain to go to trial. We hold relief is available if the defendant establishes he or she would have rejected the existing bargain to accept or attempt to negotiate another. Because the trial court in this case denied relief on the ground there was no reasonable probability defendant would have obtained a more favorable result by rejecting the plea bargain, which is not the test for prejudice, we reverse the judgment of the Court of Appeal affirming the trial court‘s order denying relief and direct it to remand the matter to the trial court to conduct further proceedings consistent with our opinion here." - People v. Martinez, Aug. 8, 2013.
[Hats off to Sara E. Coppin, John T. Philipsborn, Aimee Feinberg and Michael K. Mehr!]