People v. Ogunmowo

• Court: California Court of Appeals
• Writing for the Court: CHANEY, J.
• Citation: People v. Ogunmowo, 232 Cal.Rptr.3d 529, 23 Cal.App.5th 67 (Cal. App. 2018)
• Decision Date: 09 May 2018
• Docket Number: B283427
• Parties: The PEOPLE, Plaintiff and Respondent, v. Akintunde Hakeem OGUNMOWO, Defendant and Appellant.

23 Cal.App.5th 67

232 Cal.Rptr.3d 529

The PEOPLE, Plaintiff and Respondent,

v.Akintunde Hakeem OGUNMOWO, Defendant and Appellant.

B283427

Court of Appeal, Second District, Division 1, California.

Filed May 9, 2018

Mark A. Davis, Pasadena, 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 Rene Judkiewicz, Deputy Attorneys General, for Plaintiff and Respondent.

CHANEY, J.

Akintunde Hakeem Ogunmowo appeals from an order denying his motion to vacate his 1989 conviction for possession for sale of a controlled substance. He brought this motion under Penal Code section 1473.7,¹ arguing his conviction was legally invalid because his trial counsel incorrectly advised him about the immigration consequences of his guilty plea and he was prejudiced as a result. We conclude Ogunmowo made a sufficient showing that his counsel rendered ineffective assistance in misadvising him about the immigration consequences of his guilty plea, and he was prejudiced by counsel’s deficient performance. We reverse the trial court’s order denying the motion to vacate the conviction and remand the matter to the trial court to allow Ogunmowo to withdraw his guilty plea.

BACKGROUND

In 1980, when Ogunmowo was 17 years old, he left Nigeria and came to the United States. He became a lawful permanent resident of the United States in 1988. In June 1989, he was arrested and charged with sale or transportation of a controlled substance ( Health & Saf. Code, § 11352 ; count 1), possession for sale of a controlled substance ( Health and Saf. Code, § 11351 ; count 2), and two counts of conspiracy (§ 182; counts 3 & 4).

1989 Guilty Plea

Attorney Jerry Kaplan represented Ogunmowo on the drug charges. As set forth in Kaplan’s affidavit submitted with the section 1473.7 motion to vacate the conviction, he advised Ogunmowo to plead guilty to count 2 (possession for sale of a controlled substance [cocaine] ) in exchange for a negotiated two-year prison term.

According to his affidavit, Kaplan had a "good recollection" of Ogunmowo’s criminal case, based on his review of the file (at the time he made his affidavit) and "the unique circumstances involved in [the] case." In 1989, when he represented Ogunmowo, Kaplan was aware Ogunmowo was a Nigerian native who had recently received his "green card." Ogunmowo expressed to Kaplan his concern regarding the effect of a conviction on his immigration status. In 1989, Kaplan understood that "immigration issues were considered collateral to any criminal court representation." Thus, Kaplan believed he "had no obligation to investigate" this collateral consequence of the plea. Accordingly, he did not investigate, inform himself about or seek to protect Ogunmowo from any immigration consequences of the plea. Nonetheless—as stated in his own words in his affidavit—he "advised Mr. Ogunmowo that because he was a lawful permanent resident of the United States, that he would not face any immigration consequences because of his plea in this case." As Kaplan acknowledges, his advice "was wrong," as we explain in more detail below.

Following his attorney’s advice, on August 7, 1989, Ogunmowo pleaded guilty to count 2, and the trial court sentenced him to the low-term of two years in prison. During the plea proceedings, the trial court informed Ogunmowo about "possible effects of [the] plea on any alien/citizenship/probation/parole status."² In his declaration submitted in connection with the motion to vacate his conviction under section 1473.7, Ogunmowo stated he had "no recollection" that the trial court advised him about the immigration consequences of his guilty plea.

Prior Attempts to Vacate Conviction

1990 petition for writ of coram nobis

Attorney Kaplan explained in his affidavit submitted in connection with the section 1473.7 motion to vacate the conviction that, in January 1990, he filed a petition for writ of coram nobis on behalf of Ogunmowo. He alleged in the petition that a sheriff’s deputy involved in Ogunmowo’s drug case "made materially false statements and allegations in his preliminary hearing testimony which were central to [Kaplan’s] recommendation that Mr. Ogunmowo [plead guilty] in this case." According to Kaplan’s affidavit, "Shortly after Mr. Ogunmowo’s plea and conviction, [the deputy] was caught up in a corruption scandal and charged in federal court with numerous crimes of moral turpitude involving alleged ‘suspects.’ "³ The trial court denied Ogunmowo’s coram nobis petition.2009 motion to vacate conviction

After his 1989 conviction, Ogunmowo continued to live in the United States. Between 1994 and 2002, he and his romantic partner (a U.S. citizen) had four children together, all born in Los Angeles.

In or about March 2004, the United States Department of Justice Immigration and Naturalization Service instituted removal proceedings against Ogunmowo under section 240 of the Immigration and Nationality Act ( 8 U.S.C. § 1229a ), citing his 1989 conviction as the basis for removal.

On January 13, 2009, Ogunmowo filed a motion to vacate his 1989 conviction based on the immigration consequences of his plea (the ongoing deportation proceedings).⁴ The trial court denied the motion, stating in its minute order: "Defendant has waited almost 20 years to bring this motion. Defendant is now complaining of the collateral consequences of his plea due to his present deportation proceedings. Defendant has not shown mistake, inadvertence, ignorance or any other factor overreaching the defendant’s clear and fair judgment on the date the plea was entered. The court docket from the date of the plea indicates that defendant was in fact told of the alien, citizenship and immigration consequences of the plea entered."2014 motion for reconsideration of 2009 order denying motion to vacate conviction

In September 2012, the immigration court sent Ogunmowo notice of an April 2013 hearing scheduled in his removal proceedings.⁵

On March 10, 2014, Ogunmowo filed a motion for reconsideration of the order denying his January 13, 2009 motion to vacate his conviction. On September 26, 2014, the trial court denied the motion, "not[ing] that the minute order from the date of the plea, August 7, 1989, specifically states, ‘defendant advised of possible effects of plea on any alien/citizenship/probation/parole status.’ " Based on this quoted language, the court made a finding that "the defendant received an advisement that substantially complied with section 1016.5,"⁶ as set forth in the September 26, 2014 minute order.

Present Section 1473.7 Motion to Vacate Conviction

On January 1, 2017, section 1473.7 became effective. This statute authorizes a "person no longer imprisoned or restrained" to "prosecute a motion to vacate a conviction or sentence" where 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).) Thus, for the first time since Ogunmowo received notice of the removal proceedings initiated against him, he had a mechanism for challenging his conviction based on ineffective assistance of counsel.⁷

On March 3, 2017, Ogunmowo filed a motion to vacate his conviction under section 1473.7, arguing his conviction was legally invalid because his trial counsel incorrectly advised him about the immigration consequences of his guilty plea and he was prejudiced as a result. Ogunmowo’s trial counsel, Jerry Kaplan, stated in his affidavit submitted with the motion that he "recall[ed] Mr. Ogunmowo being concerned about what would happen to his immigration status if he was convicted in this case." As discussed above, Kaplan admitted in the affidavit that although he did not investigate, inform himself about or seek to protect Ogunmowo from any immigration consequences of the plea—because he understood he "had no obligation to investigate" this collateral consequence of the plea—he nonetheless "advised Mr. Ogunmowo that because he was a lawful permanent resident of the United States, that he would not face any immigration consequences because of his plea in this case." As Kaplan further conceded in the affidavit, his advice "was wrong." As set forth in the 2004 notice of removal proceedings against Ogunmowo, an alien⁸ convicted of violating a law relating to a controlled substance was ineligible for a visa and ineligible for admission to the United States. ( 8 U.S.C. § 1182(a)(2)(A)(i)(II).) Being deemed inadmissible rendered an alien subject to removal. Thus, Ogunmowo’s conviction made him subject to removal from the United States.

In his declaration in support of the motion, Ogunmowo stated: "I would have rejected the plea agreement had I known I could be subject to immigration sanctions. I moved my life 7,700 miles across the globe from Lagos, Nigeria to Los Angeles in 1980. I became a lawful permanent resident in 1988. I was not about to accept the possibility of deportation or inability to maintain my immigration status to be in the United States. I had already established my life in the United States." He also stated: "Important to me was the fact that my attorney told me I would not face any immigration consequences because of my status as a lawful permanent resident of the United States. I relied upon this incorrect information in deciding to plead guilty in this case." Ogunmowo asserted he "would have opted to go to trial if [he] knew that [his] decision to plead guilty would mean automatic deportation and no chance at ever being a U.S. citizen."

The Los Angeles District Attorney did not file an opposition to the motion. A deputy district attorney appeared at the June 9, 2017 hearing and submitted, without argument, on the trial court’s written tentative ruling denying the motion.

At the...