People v. Vivar

In People v. Vivar (2019) the court there noted that a ‘prejudicial error’ for purposes of Penal Code section 1473.7 occurs when there is a reasonable probability that the person would not have pled guilty had he or she has known that the guilty plea would result in mandatory and dire immigration consequences. The question Court in Mr. Vivar’s case considered whether he would have received a more favorable outcome in the case overall or whether he would have been convicted of the same crimes even if he had proceeded to trial. Instead, the focus of the appellate court was whether, if aware of its immigration consequences, Mr. Vivar would have rejected the plea. The appellate court ruled overturning the lower court that Mr. Vivar need only show contemporaneous evidence demonstrating a reasonable probability that but for the alleged error, he would not have entered a guilty plea. Further, it was held that in order to prevail on the motion, he must show prejudice if he can convince the court “he would never have entered the plea if he had known that it would render him deportable.” In its reasoning, the Court of Appeal determined that the trial counsel failed to advise Mr. Vivar of “the certain immigration consequences of his plea.” Because of this failure counsel’s representation was deemed to be “constitutionally deficient.” In closing the appellate court determined Mr. Vivar was prejudiced within the meaning of section 1473.7, subdivision (a)(1).