Filed 5/9/18 CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION ONE

THE PEOPLE,

Plaintiff and Respondent,

v.

AKINTUNDE HAKEEM OGUNMOWO,

Defendant and Appellant. B283427

( Los Angeles County Super. Ct. No. A990468)

APPEAL from an order of the Superior Court of Los Angeles County, Michael D. Abzug, Judge. Reversed and
remanded with directions. Mark A. Davis for Defendant and Appellant.
Xavier Becerra , Attorney Gen eral, Gerald A. Engler, Chief Assistant Attorney General, Lance E. Winters, Assistant Attorney General, Steven D. Matthews and Rene Judkiewicz

, Deputy Attor neys General, for Plaintiff and Respondent

.

__________________________________

### 2 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 t his mot ion under

Penal Code section 14 7 3 .7
, 1 arguing his conviction was legally
invalid because his trial co unse l 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 con sequences 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 th e drug charges. As s et forth in Kaplan’s affidavit submitted with the
section 14 7 3 .7 motion to vacate the conviction, he advised Ogunmowo to plead guilty to count 2 (possession for sale of a

1 Statutory references are to the Penal Code unless otherwise noted.

### 3

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 repr esented 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. I n 1989
, Kaplan
understood that “immigr ation 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 prote ct Ogunmowo from any immigration consequences of the pl ea. 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 conseq uences 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

2 Ne ither the minute order nor the reporter’s transcript from the August 7, 1989 plea hearing is part of the record before

### 4

submitted in connection with the motion to vacat e his conviction
under section 14 7 3 .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 Ka plan explained in his affidavit submitted in

connect ion with the section 14 7 3 .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 in volved 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.

us. Nor are these documents included in the copy of the file we requested and received from the superior court. As set forth more fully below, in connection with earlier motions to vacate his conviction that Ogunmowo brought in 2009 and 2014, the trial court made findings that the minute order from the date of the plea reflects the court made an advisement about possible immigration conse quences of the plea.

3 As also set forth in Kaplan’s affidavit, in 1993, the federal district court sentenced the deputy to 16 years in prison “for stealing money seized in drug investigations, conspiracy to commit perjury, tax evasion, aiding and abett ing perjury, submitting false documents on a loan application, and attempting

### 5 20 09 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, t he U nited S tates 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 a lmost 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 defenda nt’s clear and fair judgment on the date the plea was entered. The court docket from the date of the plea indicates that

to possess and distribute 66 pounds of cocaine for $6 million profit.” In connection with his section 1473.7 motion, Ogunmowo submitted newspaper articles detailing the corrupti on scandal as a whole and this particular deputy’s criminal case and resulting prison sentence.

4 The motion is not included in the record on appeal or the superior court file we received (nor is the 2014 motion for reconsideration we discuss below ), so the specific grounds on which Ogunmowo sought vacation of the conviction are unclear. The minute order denying the motion is part of the record.

### 6

defendant was in fact told of the alien, citizenship and immigration consequences of the plea entered.”
2014 mo tion for reconsiderat ion 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
reconsider ation of the or der 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 effe cts of plea on any alien/citizenship/probation/parole status.’ ” B ased on this quoted language, the court made a finding that “the defendant received

an advisement that substantial ly complied with section 1016.5, ” 6
as set forth in the September 26, 2014 m inute order.

5 It is not clear from the record what occurred in Ogunmowo’s removal proceedings between 2004 and 2012. He stated in his declaration that the immigration agency “[a]t one point . . . administratively closed [his] file,” but the case was reopened prior to the time he filed the present motion to vacate his conviction.

6 Section 1016.5, subdivision (a) provides : “Prior to acceptance of a plea of guilty or nolo contendere to any offense punishable as a crime under state law, except offenses designated as infractions under state law, the court shall administer the following advisement on the record to the defenda nt: [¶] If you are not a citizen, you are hereby advised that conviction of the offense for which you have been charged may have the consequences of deportation, exclusion from admission to the

### 7

Present Section 14 7 3 .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

no lo contendere.” (§ 1473.7, subd. (a)(1).) Thu s, 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 res ult

. Ogunmowo’s trial cou nsel, 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, Kapla n admitted in the affidavit that although he did not investigate, inform himself about or seek to protect Ogunmowo from any immig ration consequences of the

United States, or denial of naturalization pursuant to the l aws of the United States.”

7 Ogunmowo could not bring an ineffective assistance of counsel claim in a petition for writ of habeas corpus after the removal proceedings commenced in 2004 because he was no longer imprisoned or restrained.

### 8

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, a n
alien 8 convicted of violating a law rela ting to a controlled
substance wa s 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 p lea 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 de portation 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 consequ ences 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

8 “The term ‘alien ’ means any person not a citizen or national of the United States,” including a lawful permanent resident. (8 U.S.C. § 1101(a)(3).)

### 9

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 hearing, the trial court acknowledged the “law has changed

, ” and therefore the court did not “fault [Ogunmowo] for waiting until now to try to withdraw his plea.” The co urt adopted
its tentative ruling, entitled “Findings of Fact and Conclusions of Law,” in which it concluded Ogunmowo did not make a sufficient showing that he was prejudiced by his attorney’s incorrect advice regarding the immigration consequences of his g uilty plea. The trial court’s written ruling states, in pertinent part: “[T]he Court finds that the attorney’s alleged opinion about the immigration consequences of the defendant’s plea, which Mr. Kaplan acknowledges he did not research or otherwise ver ify, played no part in the defendant’s decision to accept the plea negotiated on his behalf. “In this regard, the Court notes the absence of any credible discussion in the moving papers about the materiality of advice that Mr. Kaplan may have given to the defendant. The moving party has not addressed the potential consequences of rejecting the negotiated offer because of its collateral immigration consequences. The absence of any such disclosure, either by Mr. Kaplan or the defendant, leads to the reason able assumption that the immigration consequences was [ sic ] not a factor in accepting the plea. This finding is punctuated by Mr. Kaplan’s admission that he does not practice in the field of immigration law and

### 10

made no effort to determine whether his advi ce was correct, an oversight which undoubtedly would have been corrected by any competent counsel if, indeed, his advice had any material bearing on the defendant’s decision to plead. [Citation.] “Without passing upon Mr. Kaplan’s contention that he
‘had no obligation to investigate any collateral consequences of this disposition,’ he certainly had an obligation, if his client asked about the immigration consequences of the plea, to refer him to a reliable source or advise him in a competent manner. Mr. Kaplan[ ’ s] emphasis that he ‘did not investigate, inform about, or protect against any potential immigration fall out of the plea, ’ compels a conclusion that the advice was not important to his
client i n deciding whether to accept the disposition. Likewis e, Mr. Kaplan’s apparent silence when the Court advised his client of the immigration consequences of the plea that was directly contrary to his alleged advice is strong circumstan[tial] evidence that the advice was never given or, more probably, that the immigration consequences did not influence the defendant’s . . . decision to plead.” The trial court concluded Ogunmowo made an insufficient showing of prejudice under the applicable standard. Therefore,
the court denied his section 1473.7 motion to vac ate his
conviction.
DISCUSSION Ogunmowo contends the trial court erred in denying his
section 1473.7 motion to vacate his co nviction because he made a sufficient showing (1) that trial counsel’s performance was deficient and (2) that he was prejudiced b y the deficiency. We

agree.

### 11 As set forth above, section 1473.7 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 e rror 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).) “The court shall grant th e motion to vacate the conviction or sentence if the moving party establishes, by a preponderance of the evidence, the existence of any of the grounds for relief specified in subdivision (a).” (§ 1473.7, subd. (e)(1).)
The motion “shall be filed with rea sonable diligence after the later of the following: [¶] (1) Th e date the moving party
receives a notice to appear in immigration court or other notice from immigration authorities that asse rts the conviction or

sentence a s 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.” (§ 1473.7, subd. (b).) Ogunmowo
filed his motion two months after the effective date of section 1473.7 and before the finality of any removal order. Thus, his motion was timely. 9
Ineffective assistance of counsel that damages a defendant’s ability to meaningfully understand, defend against,

9 In this case, the Attorney General does not dispute the retroactivity of section 1473.7. (Cf. People v. Perez (2018) 19 Cal.App.5th 818 , 824

- 829 [in ruling on a section 1473.7 motion, the Court of Appeal rejected the Attorney General’s argument that the statute did not apply retroactively to a defendant who pleaded guilty before the statute’s effective date].)

### 12

or knowingly accept the actual or potential adverse immigration consequences of a guilty plea, if established by a preponderance of the evidence, is the type of error that entitles the defendant to
relief under section 1473.7. ( People v. Landaverde (2018) 20 Cal.App.5th 287, 290 [ affirming trial court’s denial of motion to
vacate under section 1473 .7 based on conclusions appellant did not establish deficient performance or prejudice where his trial
counsel failed to advise him about the immigration consequences of the plea ] .) To establish ineffective assistance of counsel, a defendant must demonstr ate that his counsel’s performance fell below an objective standard of reasonableness under prevailing professional norms and that he was prejudiced by the deficient performance. ( Strickland v. Washington (1984) 466 U.S. 668,
687

- 688 , 691

- 692 ; People v. W illiams (1997) 16 Cal.4th 153, 215.)
Standard of Review
There is no published decisi on addressing the applicable standard of review of an order denying a motion to vacate a
conviction under section 1473.7. Both Ogunmowo and the
Attorne y General assert th e applicable standard of review is
abuse of discretion. In support of his position, the Attorney
General cites decisions applying the abuse of discretion standard
to review of orders granting and denying motions to va cate convictions under section 1016.5 ( People v. Superior Court (Zamudio) (2000) 23 Cal.4th 183, 192; People v. Chien (2008) 159 Cal.App.4th 1283, 1287) and denying withdrawal of a guilty plea under section 1018 ( People v. Patterson (2017) 2 Cal.5th 885, 894)

. Because Ogunmowo is claiming vio lation of a constitutional right (the right to effective assistance of counsel), not a statutory violation, we find these cases and the abuse of discretion standard inapplicable , as explained more fully below

.

### 13 De novo review is the appropriate standard fo r a mixed question of fact and law that implicates a defendant’s constitutional right. ( People v. Cromer (2001) 24 Cal.4th 889,
899

- 902.) A defendant’s claim that he or she was deprived of the constitutional right to effective assistance of counsel “pres ents a mixed question of fact and law,” and we accordingly review such question independently. ( 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 .) We accord deference to the tri al court’s factual determinations if supported by substantial evidence in
the record , b ut exercise our independent judgment in deciding
whether the facts demonstrate trial counsel’s deficient performance and resulting prejudice to the defendant

. ( In re
Re sendiz

, supra , 25 Cal.4th at p. 249; People v. Taylor (1984) 162 Cal.App.3d 720, 724

- 725 , citing People v. Leyba (1981) 29 Cal.3d 591, 596

- 597 [explaining the standard for reviewing on appeal an
ineffective assistance of counsel claim made in a motion for new trial].) We apply this standard in reviewing the trial court’s order denying Ogunmowo’s motion to vacate his conviction under section 1473.7, in which he argued his conviction was legally
invalid because his trial counsel rendered ineffective assistan ce by incorrectly advising him about the immigration consequences of his guilty plea

, and he was prejudiced as a result.
Trial Counsel’s Deficient Performance Ogunmowo ’s declaration and Kaplan’s affidavit , submitted
with the section 1473.7 motion to vacat e the conviction, establish: Before he entered his guilty plea, Ogunmowo expressed to attorney Kaplan his concerns about the immigration consequences of a guilty plea. Kaplan was aware Ogunmowo was a Nigerian native who had recently received his “ green c ard. ”

### 14

Kaplan believed he had no obligation to research or investigate the immigration consequences of the plea because immigration
issues were “ collateral ” consequences of the plea. Therefore, Kaplan did not investigate, inform himself about or seek to

p rotect Ogunmowo from any immigration consequences of the plea. Notwithstanding his lack of research and investigation, Kaplan informed Ogunmowo unequivocally that he would not face any immigration consequences as a result of the guilty plea
because he was a lawful permanent resident of the United States.
This information was in correct, and as Kaplan now acknowledges

, he misadvised his client about the immigration consequences of the guilty plea. As set forth in sections 7342

- 7344 of the Anti

- Drug Abuse A ct of 1988 (102 Stat. 4469

- 4471), an alien convicted of an aggravated felony, including a drug
traffic king offense, was subject to mandatory removal from the United States. Thus, the law was clear at the time Ogunmowo entered his guilty plea that a convic tion for possession for sale of
a controlled substance rendered him subject to removal. We need not discuss whether a trial attorney in 1989 had an affirmative obligation to advise his client of the immigration consequences of a guilty plea under Califo rnia law

. ( Padilla v. Kentucky

, supra , 559 U.S. at p. 374 [announcing that the Sixth Amendment requires trial counsel to advise a criminal defendant about the risk of deportation arising from a guilty plea]; Chaidez
v. U.S. (2013) 568 U.S. 342 , 344, 350 [ holding that the rule
announced in Padilla was not retroactive, but noting that prior to
Padilla

, state courts were required to resolve the issue for themselves].) This is not a case where trial counsel remained
silent and failed to discuss immigration co nsequences with his client at all. Here, Ogunmowo raised his immigration concerns

### 15

with Kaplan, and in return, Kaplan gave him incorrect advice without researching or investigating the issue. Affirmatively misadvising a client that he will not face immigr ation consequences as a result of a guilty plea in a drug trafficking

case

— when t he law states otherwise

— is objectively deficient performance under prevailing professional norms.
We also note that at the time Kaplan represented Ogunmowo, “The American Bar Association’s Standards for Criminal Justice, standard 14

- 3.2, which discusses plea agreements, provide [d], in pertinent part, that ‘ (b) To aid the defendant in reaching a decision, defense counsel, after appropriate investigation, should advise the defen dant of the alternatives available and of considerations deemed important by
defense counsel or the de fendant in reaching a decision.’ (3 ABA Standards for Criminal Justice, std. 14

- 3.2 (2d ed. 1980) p. 73.) The commentary to the standard note [d] the imp ortance of advising a client of collateral consequences which may follow his
conviction. ‘ [W]here the defendant raises a specific question concerning collateral consequences (as where the defendant inquires about the possibility of deportation), counsel s hould fully advise the defendant of these consequences .’ [Citation.]” ( People
v. Soriano (1987) 194 Cal.App.3d 1470, 1481.) Prejudice To establish prejudice, a “defendant must show that there is a reasonable probability that, but for counsel ’ s unprofess ional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.” ( Strickland v. Washington

, supra , 466 U.S. at p. 694.) “[W]hen a defendant claims that hi s counsel’s deficient performance deprived him of a trial by causing

### 16

him to accept a plea, the defendant can show prejudice by demonstrating a ‘reasonable probability that, but for counsel’s errors, he would not have pleaded guilty and would have insisted on going to trial.’ ” ( Lee v. U.S. (2017) ___ U.S. ___, 137 S.Ct. 1958, 1965.) The probability of obtaining a more favorable result at trial is one factor to consider in evaluating prejudice, but it is not necessarily the determinative factor. ( People v . Martinez (2013) 57 Cal.4th 555, 559.) As the United States Supreme Court recently explained in Lee v. U.S.

, supra , 137 S.Ct. 1958, it could be reasonably probable that a defendant “would have rejected any plea leading to deportation

— even if it shaved of f prison
time

— in favor of throwing a ‘Hail Mary’ at trial,” where “avoiding deportation was the determinative factor for [the defendant].” ( Id . at p. 1967.) “Courts should not upset a plea solely because of post hoc assertions from a defendant about how he would have pleaded but for his attorney’s deficiencies. Judges should instead look to contemporaneous evidence to substantiate a defendant’s expressed preferences.” ( Ibid .) In his declaration, Ogunmowo stated he relied on Kaplan’s
incorrect advice tha t he would not face any immigration consequences as a result of his guilty plea and would not have pleaded guilty if Kaplan had correctly advised him. He asserted he “would have opted to go to trial if [he] knew that [his] decision to plead guilty would m ean automatic deportation and no chance at ever being a U.S. citizen.” He had “moved [his] life 7,700 miles across the globe” nearly a decade before, and “was not about to accept the possibility of deportation or inability to m aintain [his] immigration st atu s to be in the United States.” Kaplan’s affidav it demonstrates Ogunmowo sought his advice about the immigration consequences of a guilty plea.

### 17

Ogunmowo explained his immigration status to Kaplan and expressed concern regarding the effect of a convictio n on his immigration status. This contemporaneous evidence

— Kaplan’s account of discussions that occurred at the time of the guilty plea

— supports Ogunmowo’s assertion he would have rejected the plea deal if his attorney had not misadvised him about the
imm igration consequences of a conviction. His immigration status was such an important factor to him that he affirmatively sought h is attorney’s counsel about immigration consequences before entering his guilty plea

. Although n either Ogunmowo’s declaration n or Kaplan’s
affidavit flushed out the likelihood of success at trial or set forth Ogunmowo’s exposure if he went to trial a nd was convicted on all charges, 10 we conclude Ogunmowo nonetheless established

10 It appear s from the information, filed July 19, 1988, that Ogunmowo’s maximum exposure was 11 years in prison: a high term of five years for sale or transportation of a controlled substance (Health & Saf. Code, § 11352; count 1), a term of five years for the enhan cement that the cocaine in count 1 exceeded 10 pounds by weight within the meaning of former Health and Safety Code section 11370.4, subdivision (a)

, and one year (one

third the midterm) for possession for sale of a controlled substance (Health a nd Saf. Co de, § 11351; count 2)

. Based on our review of the June 22, 1989 felony complaint and the information, punishment for convictions on the conspiracy charges (counts 3 & 4) probably would have been stayed under section 654. The information also included a c ount for attempted possession for sale of a controlled substance (count 5) and attempted sale or transportation of a controlled substance (count 6)

. Because the attempt counts are based upon an attempt to complete the crimes alleged in counts 1 and 2, the re could be no conviction for both the attempt crimes and the completed crimes. (See In re

### 18

prejudice without these factors. His declaration make s cle ar that he wanted to avoid deportation at all costs, such that he would have rejected a scenario of automatic deportation

— pleading guilty to a drug trafficking offense

— in favor of a scenario of possible deportation

— defending his case at trial, regardl ess of the other potential consequences (a longer prison sentence). Like
the defendant in Lee v. U.S.

, supra , 137 S.Ct. at page 1967, “deportation was the determinative factor for him; deportation after some time in prison was not meaningfully different f rom deportation after somewhat less time.” His priority was remaining in the United States.
The trial court’s “conclusion that [Kaplan’s] advice was not important to [Ogunmowo] in deciding whether to accept the disposition” is not enti tled to our deferenc e under the applicable independent standard of review for two reasons

. First, the trial
court’s conclusion was drawn from statements in Ogunmowo’s declaration and Kaplan’s affidavit

. The trial court and this court
are in the same position in interpreting written declarations. If the trial court had heard live testimony, instead of reading written declarations, its credibility determinations would be
entitled to deference if supported by the record . ( In re Resendiz

, supra , 25 Cal.4th at p. 249.) Second, the conclusion is not supported by the record or case law

. In concluding Ogunmowo was not prejudiced by his counsel’s incorrect advice, the trial court hearing this motion emphasized that the court that took the plea warned Ogunmowo

Sylvester C. (2006) 137 Cal.App.4th 601, 610, fn. 18.) On the court’s own motion we take judicial notice of the June 22, 1989 felony complaint and the July 19, 198 9 information we received from the superior court as part of the file we requested.

### 19

about immigration con sequences. The fact that the court advi sed Ogunmowo that immigration consequences arising from the guilty plea were possible does not preclude Ogunmowo from establishing that counsel’s incorrect advice prejudiced him

. Under California law, a “defendant c an pursue a claim for relief for ineffective assistance of counsel, based on counsel’s misadvice regarding immigration consequences, notwithstanding that the trial court had properly advised the defendant under section 1016.5.” ( People v. Aguilar (2014) 2 27 Cal.App.4th 60, 72, citing
In re Resendiz

, supra , 25 Cal.4th at pp. 240

- 242.) “[T]hat a defendant may have received valid section 1016.5 advisements
from the court does not entail that he has received effective assistance of counsel in evaluating or re sponding to such advisements.” ( In re Resendiz

, supra , at p. 241.) When Ogunmowo expressed concern about the immigration consequences of a guilty plea , Kaplan told him he would not face immigration consequences if he pleaded guilty because he was a
lawfu l permanent resident of the United States. Ogunmowo reasonably relied on Kaplan’s advice

— which was unequivocal
and tailo red to the specific facts of Ogunmowo’s particular immigration status

— over the trial court’s standard warning that deportation might be a possible consequence of a guilty plea for
someone who is a noncitizen. Moreover, the court’s warning, given just before the plea is taken, does not afford the same time
for “ ‘mature reflection’ ” as a private discussion with a
defendant’s own counsel that incorporates the particular circumstances of the defendant’s case. ( People v. Soriano

, supra , 194 Cal.App.3d at pp. 1479, 1481 [granting petition for writ of habeas corpus and vacating judgment based on finding that the defendant was deprived of the effective assistance of counsel in

### 20

entering his guilty plea where his counsel responded to his inquiry about immigration consequences by either misadvising him that he would not face deportation ( the defendant’s version) or providing a pro forma response t hat his plea might have immigration consequences without conducting any investigation (trial counsel’s version)].)
T he trial court similarly questioned the credibility of Kaplan’s affidavit because Kaplan apparently remained silent
when the court that too k the plea gave the warning about possible immigration consequences. The trial court concluded Kaplan’s silence “was strong circumstan[tial] evidence that” either he never advised Ogunmowo about immigration consequences or “more probably, that the immigra tion consequences did not influence the defendant’s . . . decision to plead.” We disagree with the trial court’s conclusion. Kaplan explained in his affidavit that he believed Ogunmowo would not face adverse immigration consequences as a result of his gu ilty plea because of his status as a lawful permanent resident of the
United States . A nd he so advised Ogunmowo. It is not surprising Kaplan remained silent when the court that took the plea gave the standard warning that a noncitizen might face possible immigration consequences. The court was not addressing Ogunmowo’s particular status as a lawful permanent
resident. Taken together, Ogunmowo’s declaration and Kaplan’s
affidavit demonstrate a reasonable probability Ogunmowo would not have pleaded guilt y if Kaplan had not misadvised him. Accordingly, Ogunmowo established prejudice.
The trial court erred in denying Ogunmowo’ s section 1473 .7
motion to vacate his conviction. Ogunmowo met his burden of

### 21

establishing by a preponderance of the evidence (1) t hat Kaplan’s performance was deficient in misadvising him about the immigration consequences of his guilty plea and (2) that K aplan’s incorrect advice prejudiced him in that there is a reasonable probability he would not have pleaded guilty if properly adv ised. The trial court’s conclusions to the contrary are not supported by
the record. Accordingly, we reverse the order and remand the matter to the trial court to allow Ogunmowo to withdraw his guilty plea.
DISPOSITION
The order is reversed and the matt er is remanded to the trial court to allow Ogunmowo to withdraw his guilty plea.
CERTIFIED FOR PUBLICATION

CHANEY, J.

We concur:

ROTHSCHILD, P. J.

JOHNSON , J

.