People v. Landaverde

Filed 2/7/18

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF

CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION EIGHT

THE PEOPLE, B282107

Plaintiff and Respondent, (Los Angeles County

Super. Ct. No. BA161254)

v.

ARNULFO R. LANDAVERDE,

Defendant and

Appellant.

APPEAL from an order of the Superior Court of Los

Angeles County, Drew E. Edwards, Judge. Affirmed.

Michael J. Codner for Defendant and Appellant.

Xavier Becerra, Attorney General, Gerald A. Engler,

Chief Assistant Attorney General, Lance E. Winters, Assistant

Attorney General, Steven D. Matthews and Michael Katz,

Deputy Attorneys General, for Plaintiff and Respondent.

******

We affirm the denial of appellant’s motion to vacate his

1998 plea of guilty to committing a lewd act with a child under

the age of 14 in violation of Penal Code section 288, subdivision

(a).1 This motion, which was brought pursuant to the

procedural mechanism set forth in section 1473.7, was based

on the substantive allegation that appellant’s Sixth

Amendment right to the effective assistance of counsel was

violated by his trial counsel’s supposed failure to research and

advise him of the immigration consequences of that plea.2

We conclude that (1) section 1473.7 provided a

procedural vehicle through which appellant could litigate the

validity of his plea; (2) appellant’s counsel’s failure to advise

him of the immigration consequences of his plea did not

constitute deficient professional performance under the then-

contemporary standard; and, (3) appellant has failed to

demonstrate that he suffered any legally cognizable prejudice

from the alleged deficient professional performance.

BACKGROUND

According to the federal immigration court, appellant

entered the United States in 1989. In July 1998, appellant

pled guilty to one count of committing a lewd act with a minor

(§ 288, subd. (a).) This crime carries a three-, six-, or eight-

year state prison sentence. The victim was 13 years old.

1 Undesignated statutory citations are to the Penal Code.

2 Although the record is equivocal on this point, for

purposes of this appeal, we will assume that appellant’s trial

counsel did not advise him of the immigration consequences of

his plea.

2

Pursuant to his plea agreement, appellant was granted

probation for five years under conditions that included the six

days in county jail, which he had already served, performance

of 200 hours of community service, completion of a counseling

program, staying away from the victim, not dating girls under

the age of 18, and registering as a sex offender.

In 2007, appellant was placed in federal removal

proceedings. The immigration judge concluded as follows:

“Although [appellant] was convicted of an aggravated felony,

because he was not sentenced to five years incarceration his

conviction does not automatically bar him from withholding of

removal under either 241(b) or the Convention Against

Torture. In a situation such as this the Court has to evaluate

the crime to determine whether or not it constitutes a

particularly serious crime.”

The immigration judge summarized the facts in the

probation officer’s report as follows: Appellant “was aware of

the age of the victim, . . . they engaged in sexual intercourse

after dating for three months, and . . . they went out five to 10

times before having sex. And that he took her to an apartment

where they voluntarily engaged in sexual intercourse and that

he used an assumed name with the victim.” When appellant

asked the victim’s mother if he could marry the victim, the

victim’s mother called the police. In the immigration

proceeding, appellant denied that he was guilty of any lewd

act. The immigration judge noted that appellant also denied

committing a theft notwithstanding his theft conviction.

3

In 2016, appellant moved to withdraw his guilty plea

pursuant to section 1016.5.3 (People v. Landaverde (Apr. 19,

2017, B276912) [nonpub. opn.].) In his declaration in support

of that motion, appellant averred that “[n]either the Court nor

my attorney advised me that by pleading guilty, I would or

could be removed from the country and/or lose my ability to

fight for my legal residence.” Appellant further averred that

he would not have pled guilty had he known the potential

immigration consequences and “would have insisted on taking

the case to trial . . . .” Appellant also averred that during the

immigration proceedings he received ineffective assistance of

counsel because his counsel “improperly conceded my crime

qualifying as a particularly serious crime.”

We affirmed the denial of appellant’s motion to vacate

pursuant to section 1016.5. (People v. Landaverde, supra,

B276912.) We concluded that the record showed that appellant

was properly advised of the immigration consequences of his

plea under section 1016.5. (People v. Landaverde, supra,

B276912.) Specifically, the trial court had informed him: “ ‘If

you are not a citizen, you are hereby advised that a conviction

of the offense for which you have been charged may have the

consequences of deportation, exclusion from admission to the

United States, or denial of naturalization pursuant to the laws

of the United States.’ ” (Ibid.)

Based on an almost identical declaration, in February

2017, appellant filed a motion alleging that his plea must be

3 On our own motion, we take judicial notice of the record

in appellant’s prior appeal, case No. B276912.

4

vacated under section 1473.7. He argued that his trial

“counsel was not effective, in that Defendant was not correctly

advised by counsel regarding the immigration consequences of

his plea, and there is a reasonable probability that but for

failure to advise Defendant of the immigration consequences of

his plea, Defendant would not have pleaded guilty and would

have insisted on proceeding to trial.” The trial court denied

appellant’s current motion to vacate his plea, and this appeal

followed.

DISCUSSION

1. Procedure

Section 1473.7, which became effective on January 1,

2017, provides that a person who is no longer imprisoned may

move to vacate a judgment if 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.” (§ 1473.7,

subd. (a)(1), italics added.) As the italicized language provides,

a defendant making such a claim is required to demonstrate

that he or she suffered “prejudicial error.”

The legal effect of section 1473.7 is procedural. Motions

for relief based on alleged violations of immigration protections

are almost always made years or even decades after the

underlying criminal convictions. Commonly, they are brought

only after removal proceedings or other adverse immigration

actions are initiated by the federal government. This passage

of time, often referred to as a lack of “due diligence,” has, by

itself, created insurmountable procedural bars that have

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foreclosed virtually all avenues of collateral attack on criminal

judgments, regardless of the merits of the underlying action.

This is clearly demonstrated by two of the leading

California Supreme Court cases in this area. Applying the

traditional rule that postconviction relief must be sought with

“reasonable diligence” from the time that the defendant

became aware, or should have become aware, of the issue that

underlies the challenge (see People v. Shipman (1965) 62

Cal.2d 226, 230), our Supreme Court held in People v. Kim

(2009) 45 Cal.4th 1078, that petitions for writ of error corum

nobis, the legal equivalent of a motion to vacate a plea, must be

brought within a “reasonable time” of the defendant becoming

aware of the issue. (Id. at p. 1096.) Noting that the defendant

in that case must have been aware of his immigration status at

the time he entered his plea, the Supreme Court ruled that the

“reasonable” time for seeking postconviction relief began to run

from the time the defendant was informed in court of

immigration consequences. (See, e.g., id. at pp. 1098-1099.)

People v. Villa (2009) 45 Cal.4th 1063 did not deal

directly with a timing issue characterized as “due diligence”

but, rather, applied a limitation on relief that resulted

indirectly from the passage of time. Villa’s holding is that

section 1473, subdivision (a)’s, requirement that a person

seeking habeas corpus be “unlawfully imprisoned or restrained

of his or her liberty” renders habeas corpus unavailable to a

defendant who has completed his or her state sentence but who

is in federal immigration custody pending removal or other

immigration proceedings. This, too, had the effect of placing a

time-based limitation on the seeking of relief and created a

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substantial bar to challenging the effectiveness of counsel in

immigration cases.

These two cases have repeatedly been cited as erecting

fatal procedural bars to relief for defendants who face adverse

immigration consequences stemming from past criminal

convictions and are seeking judicial relief from alleged defects

in those convictions. (E.g., People v. Aguilar (2014) 227

Cal.App.4th 60; People v. Mbaabu (2013) 213 Cal.App.4th

1139; People v. Hyung Joon Kim (2012) 212 Cal.App.4th 117;

People v. Gari (2011) 199 Cal.App.4th 510.)

Section 1473.7 was enacted to remove those barriers.

Subdivision (a) of section 1473.7, eliminates the “imprisoned or

restrained” requirement of section 1473, subdivision (a)(1), in

immigration cases. Section 1473.7, subdivision (b), now allows

motions to vacate pleas or to otherwise seek relief based on

alleged errors related to immigration issues to be made “with

reasonable diligence” after the later of the following: (1) the

moving party receives a notice to appear in immigration court

or some other notice from immigration authorities alleging a

criminal conviction as a basis for removal; or, (2) the date of

finality of a removal order based on a criminal conviction.

These are both significant changes in the law and create

a greatly expanded procedural window for defendants to seek

relief in immigration cases. There has been no argument that

appellant does not fall within the purview of section 1473.7

and that his challenge to his underlying conviction is

procedurally barred. We hold that section 1473.7 applies to

appellant’s action and that there is no procedural bar to his

bringing it.

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2. Ineffective Assistance of Counsel

Section 1473.7 does not, however, affect the standards by

which motions to vacate pleas based on an alleged Sixth

Amendment violation due to deficient performance of counsel

are decided. A defendant who seeks to vacate a conviction on

this ground must still establish two things: (1) that counsel’s

performance was deficient in that it fell below an objective

standard of reasonableness and (2) that he or she was

prejudiced by that deficient performance. (Strickland v.

Washington (1984) 466 U.S. 668, 687-688 (Strickland); People

v. Williams (1997) 16 Cal.4th 153, 215.) Section 1473.7, under

which this action was brought, seemingly codifies this

requirement by placing the burden on the defendant to

establish cause for relief by a preponderance of the evidence.

(§ 1473.7, subd. (e).) Although existing case law does not use

the phrase “preponderance of the evidence” in its formulation

of the test for ineffective assistance of counsel, section 1473.7’s

requirements essentially track the showings that were

required prior to the enactment of section 1473.7. (See In re

Cordero (1988) 46 Cal.3d 161, 180.)

a. Prong One: Deficient Performance of Trial

Counsel

The United States Supreme Court’s decision in Padilla v.

Kentucky (2010) 559 U.S. 356 (Padilla), forms the basis for

appellant’s argument that his trial counsel’s performance was

defective. In Padilla, the United States Supreme Court ruled

that defense attorneys have an affirmative obligation to

provide competent advice to noncitizen criminal defendants

regarding the potential immigration consequences of guilty or

no contest pleas.

8

Prior to Padilla, the immigration ramifications of guilty

or no contest pleas were generally considered indirect or

“collateral” consequences of those pleas, about which a

defendant need not be advised. (People v. Superior Court

(Zamudio) (2000) 23 Cal.4th 183, 198; People v. Limones (1991)

233 Cal.App.3d 338, 344; People v. Barocio (1989) 216

Cal.App.3d 99, 107-108.)4 Therefore, failure to advise a

defendant about those ramifications could not support a claim

of ineffective assistance of counsel under the first “prong” of

the Strickland analysis because such a failure did not fall

below a general standard of reasonableness.

Padilla changed this. The effect of this change was

discussed in Chaidez v. United States (2013) 568 U.S. 342. In

Chaidez, the United States Supreme Court held that Padilla

had had the effect of suddenly changing the nature of

immigration issues from being “collateral consequences” of

pleas to something unique, roughly akin to direct

4 Based on local statutes, California, along with a handful

of other jurisdictions, eventually adopted a modified approach

that allowed relief based on claims of ineffective assistance of

counsel when an attorney affirmatively misadvised a

defendant about the immigration consequences of a plea

because legally incorrect advice fell below that reasonableness

standard, but retained the traditional rule that failure to

advise at all did not fall below the standard. (In re Resendiz

(2001) 25 Cal.4th 230, abrogated by Padilla, supra, 559 U.S.

356, 369-370.)

This exception to the general rule is inapplicable to the

case at bench because appellant does not allege that his trial

counsel affirmatively misadvised him.

9

consequences. However it was characterized, the United

States Supreme Court ruled that Padilla had created a new

affirmative obligation on trial counsel to understand and

accurately explain the immigration consequences of a plea to a

defendant prior to the entry of that plea where no such duty

had existed before. This rule was not based on prevailing

professional standards but, rather, on a determination that

immigration consequences were potentially so profound that

trial counsel had an obligation to accurately advise their

clients about them. Therefore, the court in Chaidez held that,

under the rules set out in Teague v. Lane (1989) 489 U.S. 288,

the Padilla ruling could not be applied retroactively to cases,

such as appellant’s, that were final at the time of the Padilla

decision.

The effect of this is that appellant’s trial counsel had no

affirmative obligation to advise him of the immigration

consequences of his plea at the time that plea was taken.

Therefore, his failure to do so did not fall below the then-

contemporary reasonable objective standard of practice. Thus,

appellant has failed to satisfy the first prong of the Strickland

test and his claim of ineffective assistance of counsel must fail.

Perhaps in recognition that the Padilla ruling does not

apply retroactively to his case, appellant also argues that

California imposed an independent pre-Padilla duty on trial

counsel to inform their clients of the immigration consequences

of their pleas. This argument is unavailing.

Appellant’s reliance on recently enacted sections 1016.2

and 1016.3, which were intended to codify both the Padilla

requirements and any existing California decisional law, is

misplaced. These provisions cannot apply to the case at bench

10

for two reasons. First, these statutes, which were added in

2015 by Assembly Bill No. 1343 (2015-2016 Reg. Sess.), were,

by their terms, enacted to codify the Padilla ruling (§ 1016.2,

subd. (h)). This would include the restriction on retroactivity,

which occurred in 2013 in the Chaidez decision, under the

familiar rule that the Legislature is presumed to be aware of

decisional law and to have enacted statutes in light of that

decisional law. (People v. Giordano (2007) 42 Cal.4th 644,

659.)

Second, section 3 creates a strong presumption that

changes to the Penal Code are to be applied prospectively only,

unless it is “ ‘very clear’ ” from either the language of the

statute or extrinsic sources that the Legislature intended

retroactive application. (People v. Brown (2012) 54 Cal.4th

314, 324.) Sections 1016.2 and 1016.3 contain no such

statement of legislative intent and, given their repeated

references to the Padilla decision, it is clear that the

Legislature did not intend that sections 1016.2 and 1016.3

apply retroactively.

Appellant’s argument is also based on language in the

introduction to section 1016.2, subdivision (a), referencing both

Padilla and a trio of pre-Padilla California decisions.

However, an examination of the three pre-Padilla cases cited

in section 1016.2, subdivision (a), as defining California law on

counsel’s obligations, demonstrates that there was, in fact, no

such independent duty.

In People v. Soriano (1987) 194 Cal.App.3d 1470, the

defendant’s trial counsel, in response to repeated questions

about potential immigration consequences, advised him that

his plea “might” have adverse consequences, similar in

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language to that required by section 1016.5. This advice was

erroneous and trial counsel had undertaken no effort to obtain

accurate information. The holding in Soriano was that this

erroneous advice constituted ineffective assistance of counsel

because, when asked, trial counsel had an obligation to

research further and provide accurate information. Soriano

does not stand for the proposition that, in the absence of

inquiry from the defendant, defense counsel had an affirmative

obligation to research and advise the defendant of his

immigration consequences.

People v. Barocio, supra, 216 Cal.App.3d 99 similarly did

not create an independent pre-Padilla duty to advise

defendants of immigration consequences of their pleas. In

Barocio, the defendant’s trial attorney failed to seek a judicial

recommendation against deportation. There was no issue

about counsel’s advice to the defendant. Indeed, the court in

Barocio specifically held that while section 1016.5 imposed a

duty on the court to warn of the possible immigration

consequences of a plea, counsel had no corresponding duty

because immigration concerns were “collateral consequence[s]”

of the plea. (Barocio, at pp. 107-108.) The only deficiency

found in Barocio was trial counsel’s failure to advise the

defendant of the right to a recommendation against

deportation and the case was remanded to the trial court for

counsel to seek a recommendation against deportation.

Finally, in People v. Bautista (2004) 115 Cal.App.4th 229,

there was expert evidence presented to the court that an

“immigration neutral” plea bargain was generally available to

defendants who were similarly situated to the defendant in

that case. This expert testimony established that defense

12

counsel’s admitted failure to investigate such an “immigration

neutral” disposition fell below the reasonable standard of

practice. Again, there is no suggestion in Bautista that trial

counsel had a pre-Padilla duty to research and explain

immigration consequences to their clients. Appellant has

presented no evidence that such an “immigration neutral”

disposition was available in his case and, from the comments of

the immigration court judge, it appears that escaping a five-

year prison sentence gave appellant a significant advantage

under the then-prevailing immigration law.

Because appellant’s trial counsel had no duty in this pre-

Padilla case to research and advise appellant of the potential

immigration consequences of his plea, appellant has failed to

carry his burden of establishing the first prong of the

Strickland test, that trial counsel’s performance fell below an

objectively reasonable standard.5

5 The California Supreme Court’s decision in People v.

Patterson (2017) 2 Cal.5th 885 does not alter this result. In

Patterson, the defendant pled guilty on March 13, 2013.

Therefore, Patterson’s case occurred three years after the

Padilla decision, meaning that his trial counsel did have the

obligation created by Padilla to properly advise him. His trial

counsel did not know the immigration consequences and did

not advise him of those consequences, a clear violation of the

requirements of Padilla. Our Supreme Court held that the fact

that the defendant was advised under section 1016.5 did not

substitute for the required advisement by counsel and did not

act as a bar to his setting aside his plea. Patterson provides no

authority for the proposition that counsel had an obligation to

research and advise on immigration consequence prior to the

Padilla decision.

13

b. Prong Two: Prejudice

The United States Supreme Court recently examined the

second prong of the Strickland analysis, prejudice, in the

context of an immigration case in Lee v. United States (2017)

___ U.S. ___ [137 S.Ct. 1958] (Lee). While recognizing that

determination of prejudice is to be made on a case-by-case

basis in light of all of the circumstances (137 S.Ct. at p. 1966),

the United States Supreme Court examined a number of

factors in determining whether the defendant in Lee was

prejudiced by his counsel’s plainly inadequate representation.

The first, but not determinative, factor was the likelihood

of success at trial. In Lee, the defendant had essentially

confessed to the crime, which rendered his chances at trial

“grim,” in the words of the court. In the case at bench, there is

no confession, but the victim’s credibility about appellant’s

actions was bolstered by the fact that the then-23-year-old

appellant asked for a 13-year-old girl’s hand in marriage.

Moreover, after hearing appellant’s statement, the

immigration court judge found him to be not credible. A jury

could well have reached the same conclusion.

The second factor that the United States Supreme Court

examined in Lee was a comparison of the potential

consequences after a trial and the consequences that flowed

from a plea. The Lee opinion is vague about the benefit that

the defendant received except to say that it was a reduced

prison sentence. In the case at bench, however, appellant, who

had sexual intercourse with a 13-year-old girl and was

convicted of committing a lewd act with a child under the age

of 14, received significant benefits from his plea agreement.

He was granted probation with only six days of local custody,

14

which he had already served, and some community service,

and was spared what could have been a mandatory state

prison term (§ 1203.066, subd. (a)(8)), ranging from three to

eight years.

The final factor that the United States Supreme Court

examined in Lee was the importance of immigration

consequences to the defendant. The defendant in Lee

repeatedly asked his attorney about immigration consequences

and was erroneously assured that there were none. The

defendant in Lee balked when the judge who was taking his

plea gave him an admonition that parallels the requirements

of section 1016.5. He proceeded with the plea only when his

trial counsel again assured him that he would not be removed.

None of these actions are present in the case at bench. Indeed,

immigration consequences apparently only became important

to appellant nine years after his plea when he learned that he

was to be removed.

Based on an evaluation of all of the circumstances in the

case at bench, we do not believe that appellant has carried his

burden of establishing prejudice.

As the United States Supreme Court noted in both

Padilla and Lee, “[s]urmounting Strickland’s high bar is never

an easy task.” (Padilla, supra, 559 U.S. at p. 371; see Lee,

supra, 137 S.Ct. at p. 1967.) It is important to recognize that

while appellant has a significant interest in the outcome of the

case, there is also a strong societal interest in the finality of

cases, an interest that can only be overcome upon the clear

demonstration of a miscarriage of justice. If that was not the

case, literally thousands of cases would be subject to being

vacated and, in many cases, rendered immune from

15

prosecution. Such a result would be particularly egregious in

the circumstances of this and similar cases where a defendant

is attempting to hold his or her trial counsel to a standard that

not only did not exist at the time of his plea but which had

been specifically rejected by appellate courts.

DISPOSITION

Appellant has not carried his burden of establishing

either deficient performance or prejudice. The order denying

appellant’s motion to vacate his 1998 guilty plea is affirmed.

HALL, J.*

WE CONCUR:

BIGELOW, P. J.

RUBIN, J.

* Judge of the Los Angeles Superior Court, assigned by the

Chief Justice pursuant to article VI, section 6 of the California

Constitution.

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