People v. Olvera
235 Cal. Rptr. 3d 200
| Cal. Ct. App. 5th | 2018Background
- Olvera, a lawful permanent resident, pleaded no contest in 2005 to conspiracy to transport cocaine for sale in exchange for time served and probation; he signed a plea form containing boilerplate immigration warnings stating the plea "will" result in deportation/exclusion.
- The conviction is an aggravated felony under federal immigration law and triggers mandatory removal; Olvera later complied with probation and the court ordered early termination and dismissal under §1203.4.
- In 2016 Olvera moved under the newly operative §1473.7 to vacate his plea, alleging ineffective assistance because trial counsel did not specifically advise him of immigration consequences or seek an immigration-neutral disposition.
- The trial court denied relief, finding the plea form’s unambiguous written admonition and counsel’s representation that he reviewed it with Olvera satisfied any duty to warn.
- On appeal the court independently reviewed whether counsel’s performance was deficient and whether Olvera identified any realistic immigration-neutral alternative that counsel should have negotiated.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether counsel rendered ineffective assistance by failing to advise of immigration consequences | Olvera: counsel did not discuss that plea would bar naturalization and cause deportation or recommend immigration counsel | People: counsel reviewed and explained a clear written admonition; no duty to seek unavailable alternatives | No deficiency: written admonition was unequivocal and counsel satisfied duty |
| Whether counsel was deficient for failing to investigate or negotiate an immigration-neutral plea | Olvera: counsel never suggested or pursued a lesser/"plead up" immigration-neutral disposition | People: Olvera fails to identify any immigration-neutral disposition that prosecutor would have accepted | No deficiency: Olvera did not identify any viable alternative plea the prosecutor was likely to agree to |
| Whether §1473.7 permits relief and burden of proof | Olvera: timely invoked §1473.7 to vacate based on prejudicial ineffective assistance causing unexpected immigration consequences | People: statutory requirements apply; but substantive Strickland standard governs prejudice | Court applied §1473.7 but required Strickland showing and found Olvera did not meet it |
| Whether pre-2005 professional norms imposed affirmative advisory duties | Olvera: ABA standards and pre-2005 state cases show such norms existed | People: Padilla post-dates 2005 and Chaidez limits retroactivity of Padilla rule | Court did not decide the general duty question because, even assuming it existed, counsel satisfied it here |
Key Cases Cited
- Strickland v. Washington, 466 U.S. 668 (U.S. 1984) (establishes ineffective assistance standard)
- Padilla v. Kentucky, 559 U.S. 356 (U.S. 2010) (counsel must advise about deportation consequences of pleas)
- Chaidez v. United States, 568 U.S. 342 (U.S. 2013) (Padilla rule not retroactive to convictions already final)
- In re Resendiz, 25 Cal.4th 230 (Cal. 2001) (Strickland applied to immigration-related ineffective assistance claims)
- People v. Bautista, 115 Cal.App.4th 229 (Cal. Ct. App. 2004) (failure to investigate/seek an immigration-neutral plea can be deficient)
- People v. Superior Court (Zamudio), 23 Cal.4th 183 (Cal. 2000) (plea form waiver can satisfy statutory advisement requirements)