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Name: People v. Olvera
Case #: B281767
Court: CA Court of Appeal
District 2 DCA
Division: 6
Opinion Date: 06/28/2018
Summary

Trial court did not err when it denied defendant’s Penal Code section 1473.7 motion to withdraw his no contest plea because the plea form he signed advised him to assume the plea would have deportation consequences. In 2005, Olvera pleaded no contest to conspiracy to transport cocaine for sale. Although there was no specific colloquy about immigration consequences, Olvera signed a form with boilerplate language about immigration consequences. In the form he expressly assumed that his plea “will, now or later, result in my deportation, exclusion from admission or readmission,” and “denial of naturalization and citizenship.” He also acknowledged that his attorney went over the form with him and explained the direct and indirect consequences of the plea. At the change of plea hearing, he acknowledged that he went over the form with his attorney and an interpreter. In 2016, Olvera moved to withdraw his plea, arguing his trial attorney did not advise him of the immigration consequences of his plea and that he would have sought a different disposition or gone to trial if he had been properly advised. The trial court denied the motion and Olvera appealed. Held: Affirmed. Section 1473.7, effective January 1, 2017, allows a person no longer in actual or constructive custody to file a motion to vacate a conviction that is invalid due to prejudicial error damaging the moving party’s ability to understand the immigration consequences of a guilty plea. The grounds for relief must be established by a preponderance of the evidence. The Court of Appeal here concluded that Olvera failed to demonstrate that his trial attorney was ineffective. Even if Olvera’s trial attorney had an affirmative duty to advise him on the immigration consequences of his plea (which was a point of disagreement on appeal), the duty was satisfied in this case. Although the written admonition in the plea form was boilerplate, it was unequivocal and accurate. Olvera also failed to identify any immigration-neutral disposition the prosecution was reasonably likely to have accepted.

The full opinion is available on the court’s website here: http://www.courts.ca.gov/opinions/documents/B281767.PDF