23 Cal.App.5th 67
Cal. Ct. App.2018Background
- Defendant Akintunde Ogunmowo, a Nigerian national who became a lawful permanent resident in 1988, pleaded guilty in 1989 to possession for sale of a controlled substance in exchange for a two‑year term.
- Trial counsel Jerry Kaplan told Ogunmowo (without researching) that as a lawful permanent resident he would not face immigration consequences from the plea; that advice was incorrect.
- Ogunmowo later faced removal proceedings beginning in 2004 based on the 1989 conviction. He sought relief multiple times (1990 coram nobis; motions in 2009 and 2014) without success.
- In 2017, after Penal Code § 1473.7 took effect, Ogunmowo filed a motion to vacate his 1989 conviction, arguing counsel’s misadvice about immigration consequences constituted ineffective assistance that prejudiced him.
- The trial court denied the § 1473.7 motion, finding Ogunmowo failed to show prejudice; the Court of Appeal reversed, concluding counsel’s affirmative misadvice was deficient and that Ogunmowo showed a reasonable probability he would have rejected the plea to avoid deportation.
Issues
| Issue | Plaintiff's Argument (People) | Defendant's Argument (Ogunmowo) | Held |
|---|---|---|---|
| Whether counsel’s affirmative misadvice about immigration consequences was deficient performance | Counsel had no obligation to investigate collateral immigration issues and his alleged misstatement did not materially affect the plea decision | Kaplan affirmatively told defendant he would face no immigration consequences and failed to investigate; that misadvice was objectively unreasonable | Court: Deficient — affirmatively misadvising a noncitizen that a drug‑related plea carried no immigration consequence is objectively deficient conduct |
| Whether defendant showed prejudice from counsel’s misadvice under Strickland/§1473.7 | The record (court advisement, lack of discussion of trial risks) showed immigration advice did not materially influence plea | Defendant stated he relied on counsel’s advice and would have gone to trial to avoid deportation; contemporaneous evidence (counsel’s affidavit showing defendant asked about immigration) supports that claim | Court: Prejudice shown — reasonable probability defendant would have rejected plea because avoiding deportation was determinative |
| Proper standard of appellate review for ineffective‑assistance claim on §1473.7 motion | Abuse of discretion (as with some statutory plea‑vacatur motions) | De novo review applies because claim raises constitutional ineffective‑assistance question (mixed fact/law) | Court: Apply de novo review to the mixed question; defer to trial court on factual findings supported by substantial evidence |
| Timeliness of §1473.7 motion | Motion was unduly delayed (prior opportunities) | Motion was timely under §1473.7 because it was filed with reasonable diligence after notice of removal and statute’s effective date | Court: Motion was timely; filed soon after §1473.7 effective date and before any final removal order |
Key Cases Cited
- Padilla v. Kentucky, 559 U.S. 356 (Sixth Amendment requires counsel to advise about deportation risk where law is clear)
- Strickland v. Washington, 466 U.S. 668 (standard for deficient performance and prejudice)
- Lee v. United States, 137 S. Ct. 1958 (prejudice in plea cases can be shown by defendant’s desire to avoid deportation even if trial risk was high)
- In re Resendiz, 25 Cal.4th 230 (ineffective‑assistance claims are mixed questions reviewed independently; court advisements under §1016.5 do not foreclose ineffective‑assistance claims)
- People v. Landaverde, 20 Cal.App.5th 287 (application of §1473.7 principles in post‑conviction plea vacatur context)
- People v. Soriano, 194 Cal.App.3d 1470 (discussing counsel’s duty to advise on collateral consequences when defendant raises specific concern)