Penal Code section 1473.7, effective January 1, 2017, provided a new avenue of relief for out-of-custody defendant to move to vacate his 1998 guilty plea based on inadequate advisement of possible immigration consequences. Landaverde, a noncitizen, entered the United States in 1989. In 1998, he pleaded guilty to committing a lewd act with a child under the age of 14. (Pen. Code, § 288, subd. (a).) He was granted probation and ordered to serve six days in jail (time served) and community service. In 2007, federal removal proceedings were initiated based on the conviction. In 2016, Landaverde moved to set aside his plea under Penal Code section 1016.5 on the grounds that neither the court nor his attorney advised him of immigration consequences and, had he known, he would not have pleaded guilty. The denial of the motion was affirmed in a prior appeal. In 2017, he filed a motion under section 1473.7 to vacate the plea based on almost identical grounds. That motion was also denied, and the defendant appealed. Held: Affirmed. Section 1473.7, effective 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.” The motion may 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. Section 1473.7 was designed to remove procedural bars to relief for defendants who face adverse immigration consequences stemming from past criminal convictions and it applies to Landaverde’s action.

Defendant failed to establish that his trial attorney’s performance was deficient because, at the time of defendant’s guilty plea in 1998, trial counsel had no affirmative obligation to advise him of the immigration consequences of his plea. Although the defendant was entitled to move to vacate his plea, section 1473.7 did not change 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 must still establish that counsel’s performance was deficient in that it fell below an objective standard of reasonableness, and that the defendant was prejudiced because of it. (Strickland v. Washington (1984) 466 U.S. 668.) Section 1473.7 places the burden on the defendant to establish cause for relief by a preponderance of the evidence. In Padilla v. Kentucky (2010) 559 U.S. 356, the United States Supreme Court held 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. Previously, immigration ramifications of guilty pleas were considered collateral consequences and the failure to advise a defendant about those consequences could not support a claim of ineffective assistance of counsel (but incorrect legal advice fell below the standard). Because Padilla was a major change in the law, it was not retroactive to cases that were final when Padilla was decided. The Court of Appeal here concluded that recent California legislation that codified the Padilla standard (sections 1016.2 and 1016.3) did not apply retroactively. Landaverde’s trial counsel had no duty in this pre-Padilla case to research and advise him of the potential immigration consequences of his plea and he failed to carry his burden of establishing that trial counsel’s performance fell below an objectively reasonable standard.

Defendant failed to establish that he was prejudiced by trial counsel’s failure to advise him about the immigration consequences of his plea. While recognizing that determination of prejudice is to be made on a case-by-case basis in light of all of the circumstances, in Lee v. United States (2017) ___ U.S. ___ [137 S.Ct. 1958], the United States Supreme Court examined a number of factors in determining whether the defendant was prejudiced by his counsel’s plainly inadequate representation related to the immigration consequences of his plea. The first, but not determinative, factor was the likelihood of success at trial. The second factor was a comparison of the potential consequences after a trial and the consequences that flowed from a plea. The final factor examined in Lee was the importance of immigration consequences to the defendant. Applying these factors in Landaverde’s case, the Court of Appeal concluded that he had not carried his burden of establishing prejudice. There was ample evidence to support a conviction had he gone to trial, that he received significant benefits from the plea agreement (probation with only six days of local custody, community service, and avoiding a possible mandatory state prison term of three to eight years), and immigration consequences apparently only became important to Landaverde nine years after his plea when he learned that he was to be removed.

The full opinion is available on the court’s website here: http://www.courts.ca.gov/opinions/documents/B282107.PDF