Filed 5/9/18
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION ONE
THE PEOPLE, B283427
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. A990468)
v.
AKINTUNDE HAKEEM
OGUNMOWO,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County, Michael D. Abzug, Judge. Reversed and
remanded with directions.
Mark A. Davis for Defendant and Appellant.
Xavier Becerra, Attorney General, Gerald A. Engler, Chief
Assistant Attorney General, Lance E. Winters, Assistant
Attorney General, Steven D. Matthews and Rene Judkiewicz,
Deputy Attorneys General, for Plaintiff and Respondent.
__________________________________
Akintunde Hakeem Ogunmowo appeals from an order
denying his motion to vacate his 1989 conviction for possession
for sale of a controlled substance. He brought this motion under
1
Penal Code section 1473.7, arguing his conviction was legally
invalid because his trial counsel incorrectly advised him about
the immigration consequences of his guilty plea and he was
prejudiced as a result. We conclude Ogunmowo made a sufficient
showing that his counsel rendered ineffective assistance in
misadvising him about the immigration consequences of his
guilty plea, and he was prejudiced by counsel’s deficient
performance. We reverse the trial court’s order denying the
motion to vacate the conviction and remand the matter to the
trial court to allow Ogunmowo to withdraw his guilty plea.
BACKGROUND
In 1980, when Ogunmowo was 17 years old, he left Nigeria
and came to the United States. He became a lawful permanent
resident of the United States in 1988. In June 1989, he was
arrested and charged with sale or transportation of a controlled
substance (Health & Saf. Code, § 11352; count 1), possession for
sale of a controlled substance (Health and Saf. Code, § 11351;
count 2), and two counts of conspiracy (§ 182; counts 3 & 4).
1989 Guilty Plea
Attorney Jerry Kaplan represented Ogunmowo on the drug
charges. As set forth in Kaplan’s affidavit submitted with the
section 1473.7 motion to vacate the conviction, he advised
Ogunmowo to plead guilty to count 2 (possession for sale of a
1
Statutory references are to the Penal Code unless
otherwise noted.
2
controlled substance [cocaine]) in exchange for a negotiated two-
year prison term.
According to his affidavit, Kaplan had a “good recollection”
of Ogunmowo’s criminal case, based on his review of the file (at
the time he made his affidavit) and “the unique circumstances
involved in [the] case.” In 1989, when he represented
Ogunmowo, Kaplan was aware Ogunmowo was a Nigerian native
who had recently received his “green card.” Ogunmowo
expressed to Kaplan his concern regarding the effect of a
conviction on his immigration status. In 1989, Kaplan
understood that “immigration issues were considered collateral to
any criminal court representation.” Thus, Kaplan believed he
“had no obligation to investigate” this collateral consequence of
the plea. Accordingly, he did not investigate, inform himself
about or seek to protect Ogunmowo from any immigration
consequences of the plea. Nonetheless—as stated in his own
words in his affidavit—he “advised Mr. Ogunmowo that because
he was a lawful permanent resident of the United States, that he
would not face any immigration consequences because of his plea
in this case.” As Kaplan acknowledges, his advice “was wrong,”
as we explain in more detail below.
Following his attorney’s advice, on August 7, 1989,
Ogunmowo pleaded guilty to count 2, and the trial court
sentenced him to the low-term of two years in prison. During the
plea proceedings, the trial court informed Ogunmowo about
“possible effects of [the] plea on any
2
alien/citizenship/probation/parole status.” In his declaration
2
Neither the minute order nor the reporter’s transcript
from the August 7, 1989 plea hearing is part of the record before
3
submitted in connection with the motion to vacate his conviction
under section 1473.7, Ogunmowo stated he had “no recollection”
that the trial court advised him about the immigration
consequences of his guilty plea.
Prior Attempts to Vacate Conviction
1990 petition for writ of coram nobis
Attorney Kaplan explained in his affidavit submitted in
connection with the section 1473.7 motion to vacate the
conviction that, in January 1990, he filed a petition for writ of
coram nobis on behalf of Ogunmowo. He alleged in the petition
that a sheriff’s deputy involved in Ogunmowo’s drug case “made
materially false statements and allegations in his preliminary
hearing testimony which were central to [Kaplan’s]
recommendation that Mr. Ogunmowo [plead guilty] in this case.”
According to Kaplan’s affidavit, “Shortly after Mr. Ogunmowo’s
plea and conviction, [the deputy] was caught up in a corruption
scandal and charged in federal court with numerous crimes of
3
moral turpitude involving alleged ‘suspects.’ ” The trial court
denied Ogunmowo’s coram nobis petition.
us. Nor are these documents included in the copy of the file we
requested and received from the superior court. As set forth
more fully below, in connection with earlier motions to vacate his
conviction that Ogunmowo brought in 2009 and 2014, the trial
court made findings that the minute order from the date of the
plea reflects the court made an advisement about possible
immigration consequences of the plea.
3
As also set forth in Kaplan’s affidavit, in 1993, the federal
district court sentenced the deputy to 16 years in prison “for
stealing money seized in drug investigations, conspiracy to
commit perjury, tax evasion, aiding and abetting perjury,
submitting false documents on a loan application, and attempting
4
2009 motion to vacate conviction
After his 1989 conviction, Ogunmowo continued to live in
the United States. Between 1994 and 2002, he and his romantic
partner (a U.S. citizen) had four children together, all born in Los
Angeles.
In or about March 2004, the United States Department of
Justice Immigration and Naturalization Service instituted
removal proceedings against Ogunmowo under section 240 of the
Immigration and Nationality Act (8 U.S.C. § 1229a), citing his
1989 conviction as the basis for removal.
On January 13, 2009, Ogunmowo filed a motion to vacate
his 1989 conviction based on the immigration consequences of his
4
plea (the ongoing deportation proceedings). The trial court
denied the motion, stating in its minute order: “Defendant has
waited almost 20 years to bring this motion. Defendant is now
complaining of the collateral consequences of his plea due to his
present deportation proceedings. Defendant has not shown
mistake, inadvertence, ignorance or any other factor overreaching
the defendant’s clear and fair judgment on the date the plea was
entered. The court docket from the date of the plea indicates that
to possess and distribute 66 pounds of cocaine for $6 million
profit.” In connection with his section 1473.7 motion, Ogunmowo
submitted newspaper articles detailing the corruption scandal as
a whole and this particular deputy’s criminal case and resulting
prison sentence.
4
The motion is not included in the record on appeal or the
superior court file we received (nor is the 2014 motion for
reconsideration we discuss below), so the specific grounds on
which Ogunmowo sought vacation of the conviction are unclear.
The minute order denying the motion is part of the record.
5
defendant was in fact told of the alien, citizenship and
immigration consequences of the plea entered.”
2014 motion for reconsideration of 2009 order
denying motion to vacate conviction
In September 2012, the immigration court sent Ogunmowo
notice of an April 2013 hearing scheduled in his removal
5
proceedings.
On March 10, 2014, Ogunmowo filed a motion for
reconsideration of the order denying his January 13, 2009 motion
to vacate his conviction. On September 26, 2014, the trial court
denied the motion, “not[ing] that the minute order from the date
of the plea, August 7, 1989, specifically states, ‘defendant advised
of possible effects of plea on any
alien/citizenship/probation/parole status.’ ” Based on this quoted
language, the court made a finding that “the defendant received
6
an advisement that substantially complied with section 1016.5,”
as set forth in the September 26, 2014 minute order.
5
It is not clear from the record what occurred in
Ogunmowo’s removal proceedings between 2004 and 2012. He
stated in his declaration that the immigration agency “[a]t one
point . . . administratively closed [his] file,” but the case was
reopened prior to the time he filed the present motion to vacate
his conviction.
6
Section 1016.5, subdivision (a) provides: “Prior to
acceptance of a plea of guilty or nolo contendere to any offense
punishable as a crime under state law, except offenses designated
as infractions under state law, the court shall administer the
following advisement on the record to the defendant: [¶] 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
6
Present Section 1473.7 Motion to Vacate Conviction
On January 1, 2017, section 1473.7 became effective. This
statute authorizes a “person no longer imprisoned or restrained”
to “prosecute a motion to vacate a conviction or sentence” where
the “conviction or sentence is legally invalid due to a prejudicial
error damaging the moving party’s ability to meaningfully
understand, defend against, or knowingly accept the actual or
potential adverse immigration consequences of a plea of guilty or
nolo contendere.” (§ 1473.7, subd. (a)(1).) Thus, for the first time
since Ogunmowo received notice of the removal proceedings
initiated against him, he had a mechanism for challenging his
7
conviction based on ineffective assistance of counsel.
On March 3, 2017, Ogunmowo filed a motion to vacate his
conviction under section 1473.7, arguing his conviction was
legally invalid because his trial counsel incorrectly advised him
about the immigration consequences of his guilty plea and he was
prejudiced as a result. Ogunmowo’s trial counsel, Jerry Kaplan,
stated in his affidavit submitted with the motion that he
“recall[ed] Mr. Ogunmowo being concerned about what would
happen to his immigration status if he was convicted in this
case.” As discussed above, Kaplan admitted in the affidavit that
although he did not investigate, inform himself about or seek to
protect Ogunmowo from any immigration consequences of the
United States, or denial of naturalization pursuant to the laws of
the United States.”
7
Ogunmowo could not bring an ineffective assistance of
counsel claim in a petition for writ of habeas corpus after the
removal proceedings commenced in 2004 because he was no
longer imprisoned or restrained.
7
plea—because he understood he “had no obligation to investigate”
this collateral consequence of the plea—he nonetheless “advised
Mr. Ogunmowo that because he was a lawful permanent resident
of the United States, that he would not face any immigration
consequences because of his plea in this case.” As Kaplan further
conceded in the affidavit, his advice “was wrong.” As set forth in
the 2004 notice of removal proceedings against Ogunmowo, an
8
alien convicted of violating a law relating to a controlled
substance was ineligible for a visa and ineligible for admission to
the United States. (8 U.S.C. § 1182(a)(2)(A)(i)(II).) Being deemed
inadmissible rendered an alien subject to removal. Thus,
Ogunmowo’s conviction made him subject to removal from the
United States.
In his declaration in support of the motion, Ogunmowo
stated: “I would have rejected the plea agreement had I known I
could be subject to immigration sanctions. I moved my life 7,700
miles across the globe from Lagos, Nigeria to Los Angeles in
1980. I became a lawful permanent resident in 1988. I was not
about to accept the possibility of deportation or inability to
maintain my immigration status to be in the United States. I
had already established my life in the United States.” He also
stated: “Important to me was the fact that my attorney told me I
would not face any immigration consequences because of my
status as a lawful permanent resident of the United States. I
relied upon this incorrect information in deciding to plead guilty
in this case.” Ogunmowo asserted he “would have opted to go to
8
“The term ‘alien’ means any person not a citizen or
national of the United States,” including a lawful permanent
resident. (8 U.S.C. § 1101(a)(3).)
8
trial if [he] knew that [his] decision to plead guilty would mean
automatic deportation and no chance at ever being a U.S.
citizen.”
The Los Angeles District Attorney did not file an opposition
to the motion. A deputy district attorney appeared at the June 9,
2017 hearing and submitted, without argument, on the trial
court’s written tentative ruling denying the motion.
At the hearing, the trial court acknowledged the “law has
changed,” and therefore the court did not “fault [Ogunmowo] for
waiting until now to try to withdraw his plea.” The court adopted
its tentative ruling, entitled “Findings of Fact and Conclusions of
Law,” in which it concluded Ogunmowo did not make a sufficient
showing that he was prejudiced by his attorney’s incorrect advice
regarding the immigration consequences of his guilty plea.
The trial court’s written ruling states, in pertinent part:
“[T]he Court finds that the attorney’s alleged opinion about the
immigration consequences of the defendant’s plea, which Mr.
Kaplan acknowledges he did not research or otherwise verify,
played no part in the defendant’s decision to accept the plea
negotiated on his behalf.
“In this regard, the Court notes the absence of any credible
discussion in the moving papers about the materiality of advice
that Mr. Kaplan may have given to the defendant. The moving
party has not addressed the potential consequences of rejecting
the negotiated offer because of its collateral immigration
consequences. The absence of any such disclosure, either by Mr.
Kaplan or the defendant, leads to the reasonable assumption that
the immigration consequences was [sic] not a factor in accepting
the plea. This finding is punctuated by Mr. Kaplan’s admission
that he does not practice in the field of immigration law and
9
made no effort to determine whether his advice was correct, an
oversight which undoubtedly would have been corrected by any
competent counsel if, indeed, his advice had any material bearing
on the defendant’s decision to plead. [Citation.]
“Without passing upon Mr. Kaplan’s contention that he
‘had no obligation to investigate any collateral consequences of
this disposition,’ he certainly had an obligation, if his client asked
about the immigration consequences of the plea, to refer him to a
reliable source or advise him in a competent manner. Mr.
Kaplan[’s] emphasis that he ‘did not investigate, inform about, or
protect against any potential immigration fall out of the plea,’
compels a conclusion that the advice was not important to his
client in deciding whether to accept the disposition. Likewise,
Mr. Kaplan’s apparent silence when the Court advised his client
of the immigration consequences of the plea that was directly
contrary to his alleged advice is strong circumstan[tial] evidence
that the advice was never given or, more probably, that the
immigration consequences did not influence the defendant’s . . .
decision to plead.”
The trial court concluded Ogunmowo made an insufficient
showing of prejudice under the applicable standard. Therefore,
the court denied his section 1473.7 motion to vacate his
conviction.
DISCUSSION
Ogunmowo contends the trial court erred in denying his
section 1473.7 motion to vacate his conviction because he made a
sufficient showing (1) that trial counsel’s performance was
deficient and (2) that he was prejudiced by the deficiency. We
agree.
10
As set forth above, section 1473.7 authorizes a “person no
longer imprisoned or restrained” to “prosecute a motion to vacate
a conviction or sentence” where the “conviction or sentence is
legally invalid due to a prejudicial error damaging the moving
party’s ability to meaningfully understand, defend against, or
knowingly accept the actual or potential adverse immigration
consequences of a plea of guilty or nolo contendere.” (§ 1473.7,
subd. (a)(1).) “The court shall grant the motion to vacate the
conviction or sentence if the moving party establishes, by a
preponderance of the evidence, the existence of any of the
grounds for relief specified in subdivision (a).” (§ 1473.7, subd.
(e)(1).)
The motion “shall be filed with reasonable diligence after
the later of the following: [¶] (1) The date the moving party
receives a notice to appear in immigration court or other notice
from immigration authorities that asserts the conviction or
sentence as a basis for removal. [¶] (2) The date a removal order
against the moving party, based on the existence of the conviction
or sentence, becomes final.” (§ 1473.7, subd. (b).) Ogunmowo
filed his motion two months after the effective date of section
1473.7 and before the finality of any removal order. Thus, his
9
motion was timely.
Ineffective assistance of counsel that damages a
defendant’s ability to meaningfully understand, defend against,
9
In this case, the Attorney General does not dispute the
retroactivity of section 1473.7. (Cf. People v. Perez (2018) 19
Cal.App.5th 818, 824-829 [in ruling on a section 1473.7 motion,
the Court of Appeal rejected the Attorney General’s argument
that the statute did not apply retroactively to a defendant who
pleaded guilty before the statute’s effective date].)
11
or knowingly accept the actual or potential adverse immigration
consequences of a guilty plea, if established by a preponderance
of the evidence, is the type of error that entitles the defendant to
relief under section 1473.7. (People v. Landaverde (2018) 20
Cal.App.5th 287, 290 [affirming trial court’s denial of motion to
vacate under section 1473.7 based on conclusions appellant did
not establish deficient performance or prejudice where his trial
counsel failed to advise him about the immigration consequences
of the plea].) To establish ineffective assistance of counsel, a
defendant must demonstrate that his counsel’s performance fell
below an objective standard of reasonableness under prevailing
professional norms and that he was prejudiced by the deficient
performance. (Strickland v. Washington (1984) 466 U.S. 668,
687-688, 691-692; People v. Williams (1997) 16 Cal.4th 153, 215.)
Standard of Review
There is no published decision addressing the applicable
standard of review of an order denying a motion to vacate a
conviction under section 1473.7. Both Ogunmowo and the
Attorney General assert the applicable standard of review is
abuse of discretion. In support of his position, the Attorney
General cites decisions applying the abuse of discretion standard
to review of orders granting and denying motions to vacate
convictions under section 1016.5 (People v. Superior Court
(Zamudio) (2000) 23 Cal.4th 183, 192; People v. Chien (2008) 159
Cal.App.4th 1283, 1287) and denying withdrawal of a guilty plea
under section 1018 (People v. Patterson (2017) 2 Cal.5th 885,
894). Because Ogunmowo is claiming violation of a constitutional
right (the right to effective assistance of counsel), not a statutory
violation, we find these cases and the abuse of discretion
standard inapplicable, as explained more fully below.
12
De novo review is the appropriate standard for a mixed
question of fact and law that implicates a defendant’s
constitutional right. (People v. Cromer (2001) 24 Cal.4th 889,
899-902.) A defendant’s claim that he or she was deprived of the
constitutional right to effective assistance of counsel “presents a
mixed question of fact and law,” and we accordingly review such
question independently. (In re Resendiz (2001) 25 Cal.4th 230,
248, abrogated in part on other grounds in Padilla v. Kentucky
(2010) 559 U.S. 356, 370.) We accord deference to the trial court’s
factual determinations if supported by substantial evidence in
the record, but exercise our independent judgment in deciding
whether the facts demonstrate trial counsel’s deficient
performance and resulting prejudice to the defendant. (In re
Resendiz, supra, 25 Cal.4th at p. 249; People v. Taylor (1984) 162
Cal.App.3d 720, 724-725, citing People v. Leyba (1981) 29 Cal.3d
591, 596-597 [explaining the standard for reviewing on appeal an
ineffective assistance of counsel claim made in a motion for new
trial].) We apply this standard in reviewing the trial court’s
order denying Ogunmowo’s motion to vacate his conviction under
section 1473.7, in which he argued his conviction was legally
invalid because his trial counsel rendered ineffective assistance
by incorrectly advising him about the immigration consequences
of his guilty plea, and he was prejudiced as a result.
Trial Counsel’s Deficient Performance
Ogunmowo’s declaration and Kaplan’s affidavit, submitted
with the section 1473.7 motion to vacate the conviction, establish:
Before he entered his guilty plea, Ogunmowo expressed to
attorney Kaplan his concerns about the immigration
consequences of a guilty plea. Kaplan was aware Ogunmowo was
a Nigerian native who had recently received his “green card.”
13
Kaplan believed he had no obligation to research or investigate
the immigration consequences of the plea because immigration
issues were “collateral” consequences of the plea. Therefore,
Kaplan did not investigate, inform himself about or seek to
protect Ogunmowo from any immigration consequences of the
plea. Notwithstanding his lack of research and investigation,
Kaplan informed Ogunmowo unequivocally that he would not
face any immigration consequences as a result of the guilty plea
because he was a lawful permanent resident of the United States.
This information was incorrect, and as Kaplan now
acknowledges, he misadvised his client about the immigration
consequences of the guilty plea. As set forth in sections 7342-
7344 of the Anti-Drug Abuse Act of 1988 (102 Stat. 4469-4471),
an alien convicted of an aggravated felony, including a drug
trafficking offense, was subject to mandatory removal from the
United States. Thus, the law was clear at the time Ogunmowo
entered his guilty plea that a conviction for possession for sale of
a controlled substance rendered him subject to removal.
We need not discuss whether a trial attorney in 1989 had
an affirmative obligation to advise his client of the immigration
consequences of a guilty plea under California law. (Padilla v.
Kentucky, supra, 559 U.S. at p. 374 [announcing that the Sixth
Amendment requires trial counsel to advise a criminal defendant
about the risk of deportation arising from a guilty plea]; Chaidez
v. U.S. (2013) 568 U.S. 342, 344, 350 [holding that the rule
announced in Padilla was not retroactive, but noting that prior to
Padilla, state courts were required to resolve the issue for
themselves].) This is not a case where trial counsel remained
silent and failed to discuss immigration consequences with his
client at all. Here, Ogunmowo raised his immigration concerns
14
with Kaplan, and in return, Kaplan gave him incorrect advice
without researching or investigating the issue. Affirmatively
misadvising a client that he will not face immigration
consequences as a result of a guilty plea in a drug trafficking
case—when the law states otherwise—is objectively deficient
performance under prevailing professional norms.
We also note that at the time Kaplan represented
Ogunmowo, “The American Bar Association’s Standards for
Criminal Justice, standard 14-3.2, which discusses plea
agreements, provide[d], in pertinent part, that ‘(b) To aid the
defendant in reaching a decision, defense counsel, after
appropriate investigation, should advise the defendant of the
alternatives available and of considerations deemed important by
defense counsel or the defendant in reaching a decision.’ (3 ABA
Standards for Criminal Justice, std. 14-3.2 (2d ed. 1980) p. 73.)
The commentary to the standard note[d] the importance of
advising a client of collateral consequences which may follow his
conviction. ‘[W]here the defendant raises a specific question
concerning collateral consequences (as where the defendant
inquires about the possibility of deportation), counsel should fully
advise the defendant of these consequences.’ [Citation.]” (People
v. Soriano (1987) 194 Cal.App.3d 1470, 1481.)
Prejudice
To establish prejudice, a “defendant must show that there
is a reasonable probability that, but for counsel’s unprofessional
errors, the result of the proceeding would have been different. A
reasonable probability is a probability sufficient to undermine
confidence in the outcome.” (Strickland v. Washington, supra,
466 U.S. at p. 694.) “[W]hen a defendant claims that his
counsel’s deficient performance deprived him of a trial by causing
15
him to accept a plea, the defendant can show prejudice by
demonstrating a ‘reasonable probability that, but for counsel’s
errors, he would not have pleaded guilty and would have insisted
on going to trial.’ ” (Lee v. U.S. (2017) ___ U.S. ___, 137 S.Ct.
1958, 1965.) The probability of obtaining a more favorable result
at trial is one factor to consider in evaluating prejudice, but it is
not necessarily the determinative factor. (People v. Martinez
(2013) 57 Cal.4th 555, 559.) As the United States Supreme Court
recently explained in Lee v. U.S., supra, 137 S.Ct. 1958, it could
be reasonably probable that a defendant “would have rejected
any plea leading to deportation—even if it shaved off prison
time—in favor of throwing a ‘Hail Mary’ at trial,” where “avoiding
deportation was the determinative factor for [the defendant].”
(Id. at p. 1967.) “Courts should not upset a plea solely because of
post hoc assertions from a defendant about how he would have
pleaded but for his attorney’s deficiencies. Judges should instead
look to contemporaneous evidence to substantiate a defendant’s
expressed preferences.” (Ibid.)
In his declaration, Ogunmowo stated he relied on Kaplan’s
incorrect advice that he would not face any immigration
consequences as a result of his guilty plea and would not have
pleaded guilty if Kaplan had correctly advised him. He asserted
he “would have opted to go to trial if [he] knew that [his] decision
to plead guilty would mean automatic deportation and no chance
at ever being a U.S. citizen.” He had “moved [his] life 7,700 miles
across the globe” nearly a decade before, and “was not about to
accept the possibility of deportation or inability to maintain [his]
immigration status to be in the United States.”
Kaplan’s affidavit demonstrates Ogunmowo sought his
advice about the immigration consequences of a guilty plea.
16
Ogunmowo explained his immigration status to Kaplan and
expressed concern regarding the effect of a conviction on his
immigration status. This contemporaneous evidence—Kaplan’s
account of discussions that occurred at the time of the guilty
plea—supports Ogunmowo’s assertion he would have rejected the
plea deal if his attorney had not misadvised him about the
immigration consequences of a conviction. His immigration
status was such an important factor to him that he affirmatively
sought his attorney’s counsel about immigration consequences
before entering his guilty plea.
Although neither Ogunmowo’s declaration nor Kaplan’s
affidavit flushed out the likelihood of success at trial or set forth
Ogunmowo’s exposure if he went to trial and was convicted on all
10
charges, we conclude Ogunmowo nonetheless established
10
It appears from the information, filed July 19, 1988, that
Ogunmowo’s maximum exposure was 11 years in prison: a high
term of five years for sale or transportation of a controlled
substance (Health & Saf. Code, § 11352; count 1), a term of five
years for the enhancement that the cocaine in count 1 exceeded
10 pounds by weight within the meaning of former Health and
Safety Code section 11370.4, subdivision (a), and one year (one-
third the midterm) for possession for sale of a controlled
substance (Health and Saf. Code, § 11351; count 2). Based on our
review of the June 22, 1989 felony complaint and the information,
punishment for convictions on the conspiracy charges (counts 3 &
4) probably would have been stayed under section 654. The
information also included a count for attempted possession for
sale of a controlled substance (count 5) and attempted sale or
transportation of a controlled substance (count 6). Because the
attempt counts are based upon an attempt to complete the crimes
alleged in counts 1 and 2, there could be no conviction for both
the attempt crimes and the completed crimes. (See In re
17
prejudice without these factors. His declaration makes clear that
he wanted to avoid deportation at all costs, such that he would
have rejected a scenario of automatic deportation—pleading
guilty to a drug trafficking offense—in favor of a scenario of
possible deportation—defending his case at trial, regardless of
the other potential consequences (a longer prison sentence). Like
the defendant in Lee v. U.S., supra, 137 S.Ct. at page 1967,
“deportation was the determinative factor for him; deportation
after some time in prison was not meaningfully different from
deportation after somewhat less time.” His priority was
remaining in the United States.
The trial court’s “conclusion that [Kaplan’s] advice was not
important to [Ogunmowo] in deciding whether to accept the
disposition” is not entitled to our deference under the applicable
independent standard of review for two reasons. First, the trial
court’s conclusion was drawn from statements in Ogunmowo’s
declaration and Kaplan’s affidavit. The trial court and this court
are in the same position in interpreting written declarations. If
the trial court had heard live testimony, instead of reading
written declarations, its credibility determinations would be
entitled to deference if supported by the record. (In re Resendiz,
supra, 25 Cal.4th at p. 249.) Second, the conclusion is not
supported by the record or case law.
In concluding Ogunmowo was not prejudiced by his
counsel’s incorrect advice, the trial court hearing this motion
emphasized that the court that took the plea warned Ogunmowo
Sylvester C. (2006) 137 Cal.App.4th 601, 610, fn. 18.) On the
court’s own motion we take judicial notice of the June 22, 1989
felony complaint and the July 19, 1989 information we received
from the superior court as part of the file we requested.
18
about immigration consequences. The fact that the court advised
Ogunmowo that immigration consequences arising from the
guilty plea were possible does not preclude Ogunmowo from
establishing that counsel’s incorrect advice prejudiced him.
Under California law, a “defendant can pursue a claim for relief
for ineffective assistance of counsel, based on counsel’s misadvice
regarding immigration consequences, notwithstanding that the
trial court had properly advised the defendant under section
1016.5.” (People v. Aguilar (2014) 227 Cal.App.4th 60, 72, citing
In re Resendiz, supra, 25 Cal.4th at pp. 240-242.) “[T]hat a
defendant may have received valid section 1016.5 advisements
from the court does not entail that he has received effective
assistance of counsel in evaluating or responding to such
advisements.” (In re Resendiz, supra, at p. 241.) When
Ogunmowo expressed concern about the immigration
consequences of a guilty plea, Kaplan told him he would not face
immigration consequences if he pleaded guilty because he was a
lawful permanent resident of the United States. Ogunmowo
reasonably relied on Kaplan’s advice—which was unequivocal
and tailored to the specific facts of Ogunmowo’s particular
immigration status—over the trial court’s standard warning that
deportation might be a possible consequence of a guilty plea for
someone who is a noncitizen. Moreover, the court’s warning,
given just before the plea is taken, does not afford the same time
for “ ‘mature reflection’ ” as a private discussion with a
defendant’s own counsel that incorporates the particular
circumstances of the defendant’s case. (People v. Soriano, supra,
194 Cal.App.3d at pp. 1479, 1481 [granting petition for writ of
habeas corpus and vacating judgment based on finding that the
defendant was deprived of the effective assistance of counsel in
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entering his guilty plea where his counsel responded to his
inquiry about immigration consequences by either misadvising
him that he would not face deportation (the defendant’s version)
or providing a pro forma response that his plea might have
immigration consequences without conducting any investigation
(trial counsel’s version)].)
The trial court similarly questioned the credibility of
Kaplan’s affidavit because Kaplan apparently remained silent
when the court that took the plea gave the warning about
possible immigration consequences. The trial court concluded
Kaplan’s silence “was strong circumstan[tial] evidence that”
either he never advised Ogunmowo about immigration
consequences or “more probably, that the immigration
consequences did not influence the defendant’s . . . decision to
plead.” We disagree with the trial court’s conclusion. Kaplan
explained in his affidavit that he believed Ogunmowo would not
face adverse immigration consequences as a result of his guilty
plea because of his status as a lawful permanent resident of the
United States. And he so advised Ogunmowo. It is not
surprising Kaplan remained silent when the court that took the
plea gave the standard warning that a noncitizen might face
possible immigration consequences. The court was not
addressing Ogunmowo’s particular status as a lawful permanent
resident.
Taken together, Ogunmowo’s declaration and Kaplan’s
affidavit demonstrate a reasonable probability Ogunmowo would
not have pleaded guilty if Kaplan had not misadvised him.
Accordingly, Ogunmowo established prejudice.
The trial court erred in denying Ogunmowo’s section 1473.7
motion to vacate his conviction. Ogunmowo met his burden of
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establishing by a preponderance of the evidence (1) that Kaplan’s
performance was deficient in misadvising him about the
immigration consequences of his guilty plea and (2) that Kaplan’s
incorrect advice prejudiced him in that there is a reasonable
probability he would not have pleaded guilty if properly advised.
The trial court’s conclusions to the contrary are not supported by
the record. Accordingly, we reverse the order and remand the
matter to the trial court to allow Ogunmowo to withdraw his
guilty plea.
DISPOSITION
The order is reversed and the matter is remanded to the
trial court to allow Ogunmowo to withdraw his guilty plea.
CERTIFIED FOR PUBLICATION
CHANEY, J.
We concur:
ROTHSCHILD, P. J.
JOHNSON, J.
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