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 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.

__________________________________
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 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 

 

1

Statutory references are to the Penal Code unless 

otherwise noted.
3

controlled substance [cocaine]) in exchange for a negotiated twoyear 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 

 

2

Neither 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 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.

 

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 consequences 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 abetting perjury, 

submitting false documents on a loan application, and attempting 
5

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).4The 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 

 

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 corruption 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 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. 

 

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 defendant: [¶] 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 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 

 

United States, or denial of naturalization pursuant to the laws 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, an 

alien8convicted 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 

 

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 court 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 guilty 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 verify, 

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 reasonable 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 advice 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 in deciding whether to accept the disposition. Likewise, 

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 vacate his 

conviction. 

DISCUSSION

Ogunmowo contends the trial court erred in denying his 

section 1473.7 motion to vacate his conviction because he made a 

sufficient showing (1) that trial counsel’s performance was 

deficient and (2) that he was prejudiced by 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 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).) “The court shall grant the 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 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.” (§ 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 demonstrate 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. Williams (1997) 16 Cal.4th 153, 215.)

Standard of Review

There is no published decision addressing the applicable 

standard of review of an order denying a motion to vacate a 

conviction under section 1473.7. Both Ogunmowo and the 

Attorney General assert the 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 vacate 

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 violation 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 for 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 “presents 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 trial court’s 

factual determinations if supported by substantial evidence in 

the record, but exercise our independent judgment in deciding 

whether the facts demonstrate trial counsel’s deficient 

performance and resulting prejudice to the defendant. (In re 

Resendiz, 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 assistance 

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 vacate 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 card.”
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 

protect 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 incorrect, 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 Act of 1988 (102 Stat. 4469-4471), 

an alien convicted of an aggravated felony, including a drug 

trafficking 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 conviction 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 California 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 consequences 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 immigration 

consequences as a result of a guilty plea in a drug trafficking

case—when the 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 defendant of the 

alternatives available and of considerations deemed important by 

defense counsel or the defendant 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 importance 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 should 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 unprofessional 

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 his 

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 off 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 that 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 mean 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 maintain [his] 

immigration status to be in the United States.”

Kaplan’s affidavit 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 conviction 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 

immigration consequences of a conviction. His immigration 

status was such an important factor to him that he affirmatively 

sought his attorney’s counsel about immigration consequences 

before entering his guilty plea.

Although neither Ogunmowo’s declaration nor Kaplan’s 

affidavit flushed out the likelihood of success at trial or set forth 

Ogunmowo’s exposure if he went to trial and was convicted on all 

charges,10 we conclude Ogunmowo nonetheless established 

 

10 It appears 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 enhancement 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 (onethird the midterm) for possession for sale of a controlled 

substance (Health and Saf. Code, § 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 count 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, there could be no conviction for both 

the attempt crimes and the completed crimes. (See In re
18

prejudice without these factors. His declaration makes clear 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, regardless 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 from

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 entitled to our deference 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, 1989 information we received 

from the superior court as part of the file we requested.
19

about immigration consequences. The fact that the court advised 

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 can 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) 227 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 responding 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 

lawful permanent resident of the United States. Ogunmowo 

reasonably relied on Kaplan’s advice—which was unequivocal 

and tailored 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 that his plea might have 

immigration consequences without conducting any investigation 

(trial counsel’s version)].)

The trial court similarly questioned the credibility of 

Kaplan’s affidavit because Kaplan apparently remained silent 

when the court that took 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 immigration 

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 guilty 

plea because of his status as a lawful permanent resident of the 

United States. And 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 guilty 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) that Kaplan’s 

performance was deficient in misadvising him about the 

immigration consequences of his guilty plea and (2) that Kaplan’s 

incorrect advice prejudiced him in that there is a reasonable 

probability he would not have pleaded guilty if properly advised. 

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 matter 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.