People v. Olvera ( 2018 )

Filed 6/28/18
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SIX
THE PEOPLE, 2d Crim. No. B281767
(Super. Ct. No. 2005030430)
Plaintiff and Respondent, (Ventura County)
v.
EFRAIN OLVERA,
Defendant and Appellant.
Efrain Olvera appeals an order denying his motion to
vacate judgment and withdraw his 2005 plea of no contest to one
count of conspiracy to transport cocaine for sale. (Pen. Code,1 §
182, subd. (a)(1); Health & Saf. Code, § 11352, subd. (b).) He
contends his trial counsel rendered ineffective assistance in 2005
when he did not advise him of the immigration consequences of
his plea or attempt to negotiate an immigration-neutral
disposition. Olvera’s motion was timely under a new statute that
allows him to move to vacate a plea that has unexpected
immigration consequences as a result of ineffective assistance if
1 All
statutory references are to the Penal Code unless
otherwise stated.
the motion is brought with “due diligence” after deportation
proceedings commence. (§ 1473.7.) But Olvera does not
demonstrate that his counsel’s performance was deficient.
(Strickland v. Washington (1984) 466 U.S. 668, 688 (Strickland).)
We therefore affirm.
FACTUAL AND PROCEDURAL HISTORY
Olvera immigrated from Mexico in 1995. He is a
permanent legal resident. He moved to Oxnard in 1998, married
in 2001, and bought a business and a home. He and his wife
have a daughter who is a citizen of the United States.
In 2005, Olvera pled no contest to transporting
cocaine for sale in exchange for “time served” and three years of
formal probation. The charge arose from an investigation into a
drug trafficking organization that was led by two other men,
during which officers executed a warrant at Olvera’s home.
Officers seized a black fanny pack containing a pound of cocaine
and camera batteries. Olvera denied the pack was his, and said
the pack was left in his garage by a friend.
When he entered his plea, Olvera signed a form with
boilerplate language about immigration consequences: he
acknowledged that the law concerning the effect of “a criminal
offense of any kind on my legal status as a non-citizen will
change from time to time,” so “I hereby expressly assume that my
plea . . . will, now or later, result in my deportation, exclusion
from admission or readmission,” and “denial of naturalization
and citizenship.” He acknowledged that his attorney “has gone
over this form with me.” His attorney represented that he
“explained the direct and indirect consequences of this plea,” to
Olvera. At the change of plea hearing, Olvera again
acknowledged that he went over the form with his attorney and
2
an interpreter. There was no specific colloquy about immigration
consequences.
The charge to which Olvera pled is an aggravated
felony under federal immigration law. It triggers mandatory
removal. (8 U.S.C. § 1101(a)(43)(B), (U).) In support of his
motion to vacate, Olvera acknowledges that his attorney
reviewed the plea form with him, but declares he does not “recall
discussing the specific immigration consequences of [his] plea
with [his] attorney, i.e., that this conviction would be a bar to
[his] naturalization and that [he] could be deported and denied
readmision to the United States.” He declares his attorney did
not recommend that he consult with an immigration attorney,
and he does not “recall [his] attorney suggesting a plea to an
alternative lesser charge, to avoid the serious immigration
consequences [he] now face[s].”
Olvera complied with the terms of his probation. In
2007, the court ordered early termination. (§ 1203.3.) It reduced
the offense to a misdemeanor and ordered the “guilty plea [is]
withdrawn; not guilty plea entered or verdict of guilty is set
aside. The case is dismissed pursuant to [section] 1203.4 of the
Penal Code.”
In 2016, Olvera’s family became concerned about
being “torn apart because of the stricter rules that are being
proposed for non-citizens.” Olvera moved to withdraw his plea
based on his Sixth Amendment right to the effective assistance of
counsel, which was violated when his trial counsel did not advise
him of the immigration consequences of his plea. Along with his
declaration, he submitted records of his legal status, business
records, tax returns, and letters from his wife and daughter
regarding their dependence on him. He declared that if he had
3
been properly informed, he would have sought a different
disposition or gone to trial. He did not submit a declaration from
trial counsel.
The trial court denied the motion. It observed that
the language in the plea form was “pretty clear.” The court
distinguished the form from others that warn a plea “may have”
adverse immigration consequences.
DISCUSSION
The trial court did not err when it denied Olvera’s
motion because he did not establish deficient performance.
Counsel advised him in writing to assume that the plea “will”
have deportation consequences, and Olvera does not identify any
alternate immigration-neutral disposition that counsel could
have negotiated on his behalf.
Olvera first moved for relief under sections 1016.2
(Legislative findings regarding immigration consequences);
1016.3 (prosecutor’s duty to consider avoiding immigration
consequences in plea negotiations); and 1016.5 (court’s failure to
give statutory advisement). Sections 1016.2 and 1016.3 do not
apply because they were enacted in 2015 and are not retroactive.
(§ 3.) And the court’s duty under section 1016.5 was satisfied by
the waiver form which Olvera signed, as he concedes. (People v.
Superior Court (Zamudio) (2000) 23 Cal. 4th 183, 207-208.)
Olvera supplemented his motion in January 2017 to
invoke the provisions of section 1473.7 when it became operative.
That statute allows a person like Olvera, who is no longer
imprisoned or restrained, to move to vacate the conviction
entered on his no contest plea, based on ineffective assistance of
counsel that gives rise to unexpected immigration consequences.
Olvera must establish by a preponderance of the evidence that
4
his conviction is “invalid due to a prejudicial error” that damaged
his “ability to meaningfully understand, defend against, or
knowingly accept the actual or potential adverse immigration
consequences” of the plea. (§ 1473.7, subd. (a)(1).) To establish
“prejudicial error,” he must meet the Strickland criteria. (In re
Resendiz (2001) 25 Cal. 4th 230, 248, abrogated in part on other
grounds in Padilla v. Kentucky (2010) 559 U.S. 356, 370
(Padilla).)
We independently review the order denying the
motion to vacate which “presents a mixed question of fact and
law.” (In re Resendiz, supra, 25 Cal.4th at p. 248; People v.
Ogunmowo (2018) 23 Cal.App.5th 67, 76.) We defer to the trial
court’s factual determinations if supported by substantial
evidence, but exercise our independent judgment to decide
whether the facts demonstrate deficient performance and
resulting prejudice. (In re Resendiz, at p. 249.) Since 2001, it has
been settled in California that ineffective assistance claims may
be viable despite the collateral nature of immigration
consequences and despite statutory warnings that the plea “may”
have such consequences. (Ibid.)
To prevail, Olvera must demonstrate that (1)
counsel’s representation fell below an objective standard of
reasonableness, as judged by “prevailing professional norms”
(Strickland, supra, 466 U.S. at p. 688), and (2) “but for counsel’s
unprofessional errors, the result of the proceeding would have
been different” (id. at p. 694; Padilla, supra, 559 U.S. at p. 366);
that is, “a reasonable probability exists that, but for counsel’s
incompetence, he would not have pled guilty and would have
insisted, instead, on proceeding to trial” (In re Resendiz, supra, 25
Cal.4th at p. 253).
5
The parties disagree whether professional norms in
2005 imposed upon defense counsel an affirmative duty to
investigate and advise on immigration consequences. Olvera
points to evidence of such norms in ABA Standards and practice
guides dating from the 1990’s (see, e.g., Padilla, supra, 559 U.S.
at p. 367), and he points to pre-2005 California decisions
recognizing a duty to advise. (People v. Soriano (1987) 194
Cal. App. 3d 1470, 1481-1482 [vacating judgment where counsel
“merely warned defendant that his plea might have immigration
consequences,” based on an ABA standard that: “‘[W]here the
defendant raises a specific question concerning collateral
consequences (as where the defendant inquires about the
possibility of deportation), counsel should fully advise the
defendant of these consequences’”]; People v. Barocio (1989) 216
Cal. App. 3d 99, 103-104 [vacating sentence (but not plea) so
counsel could request a sentence with a recommendation against
deportation because counsel “failed to advise [defendant] of [this]
deportation remedy,” thereby falling short of his duty to “make a
rational and informed decision on strategy and tactics founded on
adequate investigation and preparation”]; People v. Bautista
(2004) 115 Cal. App. 4th 229, 238, 241 (Bautista) [issuing order to
show cause on petition for writ of habeas corpus where counsel
failed to investigate an immigration-neutral upward plea because
it “never crossed his mind”].) The People counter that the United
States Supreme Court did not recognize a Sixth Amendment duty
to advise on collateral immigration consequences until 2010
(Padilla, supra, 559 U.S. at p. 367) and that the court has since
held that this “new rule” is not retroactive (Chaidez v. United
States (2013) 568 U.S. 342, 357-358).
6
We note that the California Supreme Court
disavowed the collateral-direct consequences distinction in 2001
(nine years before Padilla), and expressly reserved the question
whether there was at that time an affirmative duty to advise (In
re Resendiz, supra, 25 Cal.4th at pp. 240, 248, 250). But we need
not express an opinion on the issue because even if Olvera’s
counsel had an affirmative duty to advise him on the immigration
consequences of his plea, he satisfied it. The admonition was
boilerplate, but it was unequivocal and accurate. As the trial
court observed, the written admonition on the plea form was
“pretty straightforward, especially for 2005.”
Olvera also contends counsel’s performance was
deficient when he did not investigate an immigration-neutral
disposition. By 2005, a California court had concluded that the
mere failure to investigate an immigration-neutral alternative
disposition in plea bargaining could constitute deficient
performance. (Bautista, supra, 115 Cal.App.4th at p. 238.) But
Olvera’s showing is insufficient to prevail under this theory of
deficiency.
Unlike the petitioner in Bautista, he does not identify
any available immigration-neutral disposition. In Bautista,
counsel advised the defendant he “would be deported” as a result
of a plea of guilty to possessing marijuana for sale, but counsel
did not attempt to plead upward to an available immigration-
neutral offense. (Bautista, supra, 115 Cal.App.4th at p. 238.) An
expert in immigration law declared that Bautista could have
“pleaded up” to an offense with greater sentencing exposure, but
less severe immigration consequences, which the expert believed
the prosecutor would have accepted. Prosecutors had agreed to
the disposition in similar cases on which the expert had
7
consulted. (Id. at p. 240.) The Bautista court concluded the claim
was viable and issued an order to show cause for an evidentiary
hearing in the trial court. (Id. at pp. 241-242.) Olvera declares
his counsel never advised him of a “lesser” immigration-neutral
offense to which he might have pled. But he does not identify any
immigration-neutral disposition to which the prosecutor was
reasonably likely to agree.
Because Olvera has not established that his counsel
rendered deficient performance, he is not entitled to relief. The
court did not err when it denied his motion to vacate.
DISPOSITION
The order is affirmed.
CERTIFIED FOR PUBLICATION.
TANGEMAN, J.
We concur:
GILBERT, P. J.
PERREN, J.
8
F. Dino Inumerable, Judge
Superior Court County of Ventura
______________________________
Robert F. Landheer, for Defendant and Appellant.
Xavier Becerra, Attorney General, Gerald A. Engler,
Chief Assistant Attorney General, Lance E. Winters, Senior
Assistant Attorney General, Steven D. Matthews, Supervising
Deputy Attorney General, Analee J. Brodie and David Glassman,
Deputy Attorneys General, for Plaintiff and Respondent.