NEW Appellate Opinion Analyzing Recently Enacted Penal Code Section 1473.7.

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 consequences.

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 of justice.

(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.

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