1

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 
2

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.” 
3

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-leaveit 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”].) 
4

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 . . . .” 
5

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 
6

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 
7

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 
8

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 
9

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 
10

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 
11

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 
12

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)). 
13

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.)].)
14

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 
15

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 
16

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.)
17

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. 
18

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 
19

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.
20

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.
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