NEW Appellate Opinion Analyzing Recently Enacted Penal Code section 1473.7

On May 9, 2018, the California Court of Appeal certified for publication the third appellate case analyzing issues pertaining to Penal Code section 1473.7.[1] On August 7, 1989, the defendant in People v. Akintunde Hakeem Ogunmowo, out of the Superior Court of Los Angeles County, pled guilty to possession for sale of a controlled substance [cocaine] (Health & Safety Code section 11351). (People v. Akintunde Hakeem Ogunmowo (2018 S.O.S. 2260). During the plea proceedings, Mr. Ogunmowo was informed about “possible effects of [the] plea on any alien/citizenship/probation/parole status.” In March of 2004, Mr. Ogunmowo was placed in federal removal proceedings.[2]

Subsequent to his plea, Mr. Ogunmowo made multiple unsuccessful attempts to vacate his conviction.[3] On March 3, 2017, Mr. Ogunmowo filed a motion pursuant to 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.” (Id. at page 7). The trial court denied the motion and Mr. Ogunmowo appealed.

The appellate court in Ogunmowo began its opinion by recognizing that “for the first time since Ogunmowo received notice of the removal proceedings initiated against him, he had a mechanism for challenging his conviction based on ineffective assistance of counsel” under Penal Code section 1473.7. (Id.).

In his motion, Mr. Ogunmowo attached an affidavit from his trial counsel which stated that his trial counsel recalled Mr. Ogunmowo being concerned about what would happen to his immigration status if he was convicted in the case. (Id.). Further, the affidavit stated that although his trial counsel “did not investigate, inform himself about or seek to protect Ogunmowo from any immigration consequences of the plea – because he understood he ‘had no obligation to investigate’ this collateral consequences 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.’” (Id.). Mr. Ogunmowo’s trial counsel admitted in his affidavit that this advice “’was wrong.’” (Id. at page 8).

Mr. Ogunmowo also submitted a declaration in support of his motion detailing why he would have rejected the plea agreement has he known he could be subject to immigration consequences. (Id.). He noted that he relied upon the incorrect advice from his trial counsel in making his decision to plead guilty to the controlled substance offense. (Id.).

Upon the hearing on the motion, the trial court submitted a written ruling in which it concluded that “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.” (Id. at page 9). The trial court further stated that it believed that the incorrect advice provided to Mr. Ogunmowo prior to his plea “played no part in the defendant’s decision to accept the plea negotiated on his behalf.” (Id.). The trial court concluded that Mr. Ogunmowo made an insufficient showing of prejudice under the applicable standard. (Id. at page 10).

The appellate court first determined that the motion was timely given that it was filed two months after the effective date of section 1473.7 and before the finality of any removal order. (Id. at page 11). The court reaffirmed the holding in People v. Landaverde (2018) 20 Cal.App.5th 287, 290), that an ineffective assistance of counsel claim must comply with the test set forth in Strickland v. Washington (1984) 466 U.S. 668. Further, the appellate court determined that the standard of review of an order denying a motion to vacate a conviction under section 1473.7 is de novo. (Id. at page 13).

The appellate court ultimately reversed the denial of Mr. Ogunmowo’s Penal Code section 1473.7 motion, determining that his trial counsel provided him affirmative misadvice without researching or investigating the immigration issue and he was sufficiently prejudiced as a result. The appellate court held that “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.” (Id. at page 15).

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[1] 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.

[2]For the full text of the opinion visit:

http://sos.metnews.com/sos.cgi?0518//B283427

[3] 1990 – Ogunmowo petitioned for Writ of Coram Nobis

2009 – Ogunmowo Motion to Vacate Conviction

2014 – Ogunmowo Motion for Reconsideration of 2009 Order Denying Motion to Vacate Conviction

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