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Immigrants who get bad legal advice about the consequences of a guilty plea can bring ineffective assistance of counsel claims, the California Supreme Court ruled Monday. Declining the state government’s request that it adopt a bright-line rule prohibiting such claims, a four-member majority said instead that they should be considered on a case by case basis. But six of the justices concluded that Hugo Resendiz — a legal immigrant and father of two who had been living in the United States for 25 years before his arrest on drug charges — hadn’t met his burden of showing that he wouldn’t have pleaded guilty had his attorney explained that it was likely he would be deported. Three of the justices, led by Kathryn Mickle Werdegar, said while judges are already required to inform immigrant defendants of the potential for deportation, that doesn’t foreclose a claim of ineffective assistance of counsel. “The existence of a state statute requiring courts to deliver a specified immigration advisement cannot deprive defendants of these federal constitutional rights,” wrote Werdegar, who was joined by Chief Justice Ronald George and Justice Joyce Kennard. In a separate concurring and dissenting opinion, Justice Stanley Mosk agreed that the claim was viable, but went further to say that Resendiz should have been allowed to withdraw his plea and take his chances at trial. Mosk said that federal immigration policies favoring deportation of convicted criminals “verged on the monstrously cruel in their harshness compared to many of the crimes on which they are imposed.” Citing a slew of examples of non-citizens banished from the United States — and their families — Mosk said he would impose on all attorneys a requirement to inquire about a client’s immigration status and then advise noncitizens about the consequences of a guilty plea. In Resendiz’ case, he wrote, “If Mexico refused to accept petitioner, he will enter an American Gulag that few know to exist. The federal government will imprison him indefinitely, as it has imprisoned countless other legally deportable but practically undeportable individuals.” Three of the justices, led by Janice Rogers Brown, criticized the majority’s holding, saying it offered “protection nobody needs, for reasons that are nowhere explained, through a method that will impose prohibitive costs on the administration of criminal justice.” According to Resendiz, his trial lawyer, Leonard Basinger, knew he was a noncitizen but told him that he would have “no problems with immigration” as a result of the plea deal, except that he wouldn’t be able to become a citizen. Resendiz faced about five years in prison on charges of possessing marijuana and cocaine for sale. His plea deal called for three years on felony probation and 180 days in jail. He signed papers indicating that the judge had advised him that his plea could subject him to deportation. Indeed, all three opinions noted that state law already requires judges to instruct non-citizens that pleading guilty to certain crimes can have adverse immigration consequences. Brown said the opinions by Werdegar and Mosk failed to explain “why concerns about immigration entitle a defendant to multiple accurate advisements when the express waiver of constitutional rights is satisfied with one.” But Oakland attorney Norton Tooby said Brown — who was joined by Justices Marvin Baxter and Ming Chin — was just “plain wrong.” “The alert the trial court is supposed to give is just that — an alert,” said Tooby, who filed an amicus brief on Resendiz’ behalf. “But you can’t say that just a warning of the possibility of deportation is enough. You would expect the defendant and defense counsel to talk about what’s really going to happen.” Tooby added that the last five years have been characterized by extremely harsh federal anti-immigrant legislation that calls for “mandatory deportation for the tiniest of crimes.” He also noted that California is a state of immigrants, where these questions often come up in criminal courtrooms — and he praised the majority for “refusing to go along with the prosecutors’ effort to rotate back the clocks and pretend the immigrant cause can be ignored by defense counsel.” Garrett Beaumont, who argued In re Resendiz, 01 C.D.O.S. 2643, for the California Attorney General’s office, declined to comment. Resendiz’ attorney, Michelle Rogers, said, “We sincerely appreciate the opinion from Justice Mosk, who saw the merits of our client’s case.”

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