On June 28, 2018, the California Court of Appeal filed the fourth appellate
case analyzing issues pertaining to Penal Code section 1473.7. In 2005, the defendant in
People v. Olvera, 2018 Cal. App. LEXIS 596, out of the Superior Court of Ventura County,
pled no contest to one count of conspiracy to transport cocaine for sale,
a violation of Penal Code section 182(a)(1)/Health and Safety Code section 11352(b).
At the trial court level, Mr. Olvera filed a motion to vacate his judgment
based on the theory that his trial counsel rendered ineffective assistance
in 2005 for failing to advise him of the immigration consequences of his
plea or failing to attempt to negotiate to an immigration-neutral disposition.
At the time that Mr. Olvera entered his plea, he signed a boilerplate form
regarding the immigration consequences of his plea acknowledging that
he expressly assumed that his plea “will, now or later, result in
[his] deportation, exclusion from admission or readmission, and denial
of naturalization or citizenship.” Mr. Olvera also acknowledged
that his attorney had gone over the form with him. However, it was noted
that during the plea colloquy there was no specific mention about immigration
Mr. Olvera argued in his motion to vacate that his attorney did not recommend
that he consult with an immigration attorney and he does not recall any
discussion with his attorney to a potential immigration-neutral plea.
Mr. Olvera did however acknowledge that his attorney reviewed the plea
form with him.
The trial court denied the motion observing that the language in the plea
form was “pretty clear” and the court distinguished the form
from others that warn that a plea “may have” adverse consequences.
The appellate court held that the trial court did not err when it denied
the defendant’s motion because he failed to establish deficient
performance. The appellate court stated that Mr. Olvera’s counsel
advised him in writing to assume the plea “will” have immigration
consequences and Mr. Olvera failed to identify an immigration-neutral
disposition that his counsel could have attempted to negotiate to.
The appellate court did not express an opinion on whether trial counsel
had an affirmative duty to advise regarding the immigration consequences
of a plea back in 2005 and the appellate court stated that, even if his
counsel did have an affirmative duty, he had satisfied it. According to
the appellate court, “the admonition was boilerplate, but it was
unequivocal and accurate.”
Overall, the defendant in People v. Olvera failed to meet his burden that
his trial counsel rendered deficient performance and the appellate court
upheld the denial.
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Penal Code section 1473.7 became effective on January 1, 2017 and states,
in pertinent part, as follows:
(a) A person no longer imprisoned or restrained may prosecute a motion
to vacate a conviction or sentence for either of the following reasons:
(1) 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.
(2) Newly discovered evidence of actual innocence exists that requires
vacation of the conviction or sentence as a matter of law or in the interests
(b) A motion pursuant to paragraph (1) of subdivision (a) 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.
(c) A motion pursuant to paragraph (2) of subdivision (a) shall be
filed without undue delay from the date the moving party discovered, or
could have discovered with the exercise of due diligence, the evidence
that provides a basis for relief under this section.