On February 7, 2018, the California Court of Appeal certified for publication the second appellate case analyzing issues pertaining to Penal Code section 1473.7.[1] In July of 1998, the defendant in People v. Arnulfo Landaverde, out of the Superior Court of Los Angeles County, pled guilty to committing a lewd act with a minor (Penal Code section 288(a)). (People v. Arnulfo Landaverde (2018) S.O.S. 708). In 2007, Mr. Landaverde was placed in federal removal proceedings.[2]
In February of 2017, Mr. Landaverde filed a motion pursuant to Penal Code section 1473.7 alleging his trial counsel was not effective.[3] The trial court denied the motion and Mr. Landaverde appealed.
The appellate court in Landaverde began its opinion by recognizing that Section 1473.7 was enacted to remove the procedural bars that have been created by prior case law that have virtually foreclosed “all avenues of collateral attack on criminal judgments, regardless of the merits of the underlying action.”[4] (Id. at pages 5-7). In light of this finding, the appellate court determined that Section 1473.7 applies to Mr. Landaverde’s action and that there is no procedural bar to him bringing it.
As to Mr. Landaverde’s ineffective assistance of counsel (“IAC”) claim, the appellate court held that, “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.” (Id. at page 8). The appellate court reaffirmed the grounds needed to establish IAC as decided in Strickland v. Washington (1984) 466 U.S. 668).
In support of his IAC claim, Mr. Landaverde argued that his trial counsel failed to provide competent advice regarding the immigration consequences of his plea as required by Padilla v. Kentucky (2010) 559 U.S. 356, and this failure amounted to defective performance. (Id.). The appellate court determined that at the time Mr. Landaverde’s plea was taken Padilla had yet to be decided, and as such, his trial counsel had no affirmative obligation regarding immigration advice. Mr. Landaverde also argued that “California imposed an independent pre-Padilla duty on trial counsel to inform their clients of the immigration consequences of their pleas.” The appellate court found this argument unavailing as well and determined Mr. Landaverde failed to satisfy the first prong of Strickland. (Id. at 10).
The appellate court ultimately affirmed the denial of Mr. Landaverde’s Penal Code section 1473.7 motion, determining that he failed to carry his burden of establishing either deficient performance or prejudice in his IAC claim.
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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:
[3] In his motion, Mr. Landaverde asserted 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.” (Page 5).
[4] See People v. Shipman (1965) 62 Cal.2d 226, 230; People v. Kim (2009) 45 Cal.4th 1078; People v. Villa (2009) 45 Cal.4th 1063; and People v. Aguilar (2014) 227 Cal.App.4th 60.