Filed 2/7/18

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF 

CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION EIGHT

THE PEOPLE,

Plaintiff and Respondent,

v.

ARNULFO R. LANDAVERDE,

Defendant and 

Appellant.

 B282107

 (Los Angeles County

 Super. Ct. No. BA161254)

APPEAL from an order of the Superior Court of Los 

Angeles County, Drew E. Edwards, Judge. Affirmed.

Michael J. Codner 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 Michael Katz, 

Deputy Attorneys General, for Plaintiff and Respondent.

* * * * * *
2

We affirm the denial of appellant’s motion to vacate his 

1998 plea of guilty to committing a lewd act with a child under 

the age of 14 in violation of Penal Code section 288, subdivision 

(a).

1 This motion, which was brought pursuant to the 

procedural mechanism set forth in section 1473.7, was based 

on the substantive allegation that appellant’s Sixth 

Amendment right to the effective assistance of counsel was 

violated by his trial counsel’s supposed failure to research and 

advise him of the immigration consequences of that plea.2

We conclude that (1) section 1473.7 provided a 

procedural vehicle through which appellant could litigate the 

validity of his plea; (2) appellant’s counsel’s failure to advise 

him of the immigration consequences of his plea did not 

constitute deficient professional performance under the thencontemporary standard; and, (3) appellant has failed to 

demonstrate that he suffered any legally cognizable prejudice

from the alleged deficient professional performance.

BACKGROUND

According to the federal immigration court, appellant

entered the United States in 1989. In July 1998, appellant

pled guilty to one count of committing a lewd act with a minor 

(§ 288, subd. (a).) This crime carries a three-, six-, or eightyear state prison sentence. The victim was 13 years old.

 

1 Undesignated statutory citations are to the Penal Code.

2 Although the record is equivocal on this point, for 

purposes of this appeal, we will assume that appellant’s trial 

counsel did not advise him of the immigration consequences of 

his plea.
3

Pursuant to his plea agreement, appellant was granted 

probation for five years under conditions that included the six 

days in county jail, which he had already served, performance 

of 200 hours of community service, completion of a counseling

program, staying away from the victim, not dating girls under 

the age of 18, and registering as a sex offender.

In 2007, appellant was placed in federal removal 

proceedings. The immigration judge concluded as follows: 

“Although [appellant] was convicted of an aggravated felony, 

because he was not sentenced to five years incarceration his 

conviction does not automatically bar him from withholding of 

removal under either 241(b) or the Convention Against 

Torture. In a situation such as this the Court has to evaluate 

the crime to determine whether or not it constitutes a 

particularly serious crime.”

The immigration judge summarized the facts in the 

probation officer’s report as follows: Appellant “was aware of 

the age of the victim, . . . they engaged in sexual intercourse 

after dating for three months, and . . . they went out five to 10 

times before having sex. And that he took her to an apartment 

where they voluntarily engaged in sexual intercourse and that 

he used an assumed name with the victim.” When appellant

asked the victim’s mother if he could marry the victim, the 

victim’s mother called the police. In the immigration 

proceeding, appellant denied that he was guilty of any lewd 

act. The immigration judge noted that appellant also denied 

committing a theft notwithstanding his theft conviction.
4

In 2016, appellant moved to withdraw his guilty plea 

pursuant to section 1016.5.3 (People v. Landaverde (Apr. 19, 

2017, B276912) [nonpub. opn.].) In his declaration in support 

of that motion, appellant averred that “[n]either the Court nor 

my attorney advised me that by pleading guilty, I would or 

could be removed from the country and/or lose my ability to 

fight for my legal residence.” Appellant further averred that 

he would not have pled guilty had he known the potential 

immigration consequences and “would have insisted on taking 

the case to trial . . . .” Appellant also averred that during the 

immigration proceedings he received ineffective assistance of 

counsel because his counsel “improperly conceded my crime 

qualifying as a particularly serious crime.”

We affirmed the denial of appellant’s motion to vacate 

pursuant to section 1016.5. (People v. Landaverde, supra, 

B276912.) We concluded that the record showed that appellant

was properly advised of the immigration consequences of his 

plea under section 1016.5. (People v. Landaverde, supra, 

B276912.) Specifically, the trial court had informed him: “ ‘If 

you are not a citizen, you are hereby advised that a conviction 

of the offense for which you have been charged may have the 

consequences of deportation, exclusion from admission to the 

United States, or denial of naturalization pursuant to the laws 

of the United States.’ ” (Ibid.)

Based on an almost identical declaration, in February 

2017, appellant filed a motion alleging that his plea must be 

 

3 On our own motion, we take judicial notice of the record 

in appellant’s prior appeal, case No. B276912.
5

vacated under section 1473.7. He argued 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.” The trial court denied 

appellant’s current motion to vacate his plea, and this appeal 

followed.

DISCUSSION

1. Procedure

Section 1473.7, which became effective on January 1, 

2017, provides that a person who is no longer imprisoned may 

move to vacate a judgment if 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), italics added.) As the italicized language provides, 

a defendant making such a claim is required to demonstrate 

that he or she suffered “prejudicial error.”

The legal effect of section 1473.7 is procedural. Motions 

for relief based on alleged violations of immigration protections 

are almost always made years or even decades after the 

underlying criminal convictions. Commonly, they are brought 

only after removal proceedings or other adverse immigration 

actions are initiated by the federal government. This passage 

of time, often referred to as a lack of “due diligence,” has, by 

itself, created insurmountable procedural bars that have 
6

foreclosed virtually all avenues of collateral attack on criminal 

judgments, regardless of the merits of the underlying action.

This is clearly demonstrated by two of the leading 

California Supreme Court cases in this area. Applying the 

traditional rule that postconviction relief must be sought with 

“reasonable diligence” from the time that the defendant 

became aware, or should have become aware, of the issue that 

underlies the challenge (see People v. Shipman (1965) 62 

Cal.2d 226, 230), our Supreme Court held in People v. Kim 

(2009) 45 Cal.4th 1078, that petitions for writ of error corum 

nobis, the legal equivalent of a motion to vacate a plea, must be 

brought within a “reasonable time” of the defendant becoming 

aware of the issue. (Id. at p. 1096.) Noting that the defendant 

in that case must have been aware of his immigration status at 

the time he entered his plea, the Supreme Court ruled that the 

“reasonable” time for seeking postconviction relief began to run 

from the time the defendant was informed in court of 

immigration consequences. (See, e.g., id. at pp. 1098-1099.)

People v. Villa (2009) 45 Cal.4th 1063 did not deal 

directly with a timing issue characterized as “due diligence”

but, rather, applied a limitation on relief that resulted 

indirectly from the passage of time. Villa’s holding is that 

section 1473, subdivision (a)’s, requirement that a person 

seeking habeas corpus be “unlawfully imprisoned or restrained 

of his or her liberty” renders habeas corpus unavailable to a 

defendant who has completed his or her state sentence but who 

is in federal immigration custody pending removal or other 

immigration proceedings. This, too, had the effect of placing a 

time-based limitation on the seeking of relief and created a 
7

substantial bar to challenging the effectiveness of counsel in 

immigration cases.

These two cases have repeatedly been cited as erecting

fatal procedural bars to relief for defendants who face adverse 

immigration consequences stemming from past criminal 

convictions and are seeking judicial relief from alleged defects 

in those convictions. (E.g., People v. Aguilar (2014) 227 

Cal.App.4th 60; People v. Mbaabu (2013) 213 Cal.App.4th 

1139; People v. Hyung Joon Kim (2012) 212 Cal.App.4th 117; 

People v. Gari (2011) 199 Cal.App.4th 510.)

Section 1473.7 was enacted to remove those barriers. 

Subdivision (a) of section 1473.7, eliminates the “imprisoned or 

restrained” requirement of section 1473, subdivision (a)(1), in 

immigration cases. Section 1473.7, subdivision (b), now allows 

motions to vacate pleas or to otherwise seek relief based on 

alleged errors related to immigration issues to be made “with 

reasonable diligence” after the later of the following: (1) the 

moving party receives a notice to appear in immigration court 

or some other notice from immigration authorities alleging a 

criminal conviction as a basis for removal; or, (2) the date of 

finality of a removal order based on a criminal conviction.

These are both significant changes in the law and create

a greatly expanded procedural window for defendants to seek 

relief in immigration cases. There has been no argument that 

appellant does not fall within the purview of section 1473.7 

and that his challenge to his underlying conviction is 

procedurally barred. We hold that section 1473.7 applies to 

appellant’s action and that there is no procedural bar to his 

bringing it.
8

2. Ineffective Assistance of Counsel

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. A defendant who seeks to vacate a conviction on 

this ground must still establish two things: (1) that counsel’s 

performance was deficient in that it fell below an objective 

standard of reasonableness and (2) that he or she was 

prejudiced by that deficient performance. (Strickland v. 

Washington (1984) 466 U.S. 668, 687-688 (Strickland); People 

v. Williams (1997) 16 Cal.4th 153, 215.) Section 1473.7, under 

which this action was brought, seemingly codifies this 

requirement by placing the burden on the defendant to 

establish cause for relief by a preponderance of the evidence.

(§ 1473.7, subd. (e).) Although existing case law does not use 

the phrase “preponderance of the evidence” in its formulation 

of the test for ineffective assistance of counsel, section 1473.7’s 

requirements essentially track the showings that were 

required prior to the enactment of section 1473.7. (See In re 

Cordero (1988) 46 Cal.3d 161, 180.)

a. Prong One: Deficient Performance of Trial 

Counsel

The United States Supreme Court’s decision in Padilla v. 

Kentucky (2010) 559 U.S. 356 (Padilla), forms the basis for 

appellant’s argument that his trial counsel’s performance was 

defective. In Padilla, the United States Supreme Court ruled 

that defense attorneys have an affirmative obligation to 

provide competent advice to noncitizen criminal defendants 

regarding the potential immigration consequences of guilty or 

no contest pleas.
9

Prior to Padilla, the immigration ramifications of guilty

or no contest pleas were generally considered indirect or 

“collateral” consequences of those pleas, about which a 

defendant need not be advised. (People v. Superior Court 

(Zamudio) (2000) 23 Cal.4th 183, 198; People v. Limones (1991) 

233 Cal.App.3d 338, 344; People v. Barocio (1989) 216 

Cal.App.3d 99, 107-108.)4 Therefore, failure to advise a 

defendant about those ramifications could not support a claim 

of ineffective assistance of counsel under the first “prong” of 

the Strickland analysis because such a failure did not fall 

below a general standard of reasonableness.

Padilla changed this. The effect of this change was 

discussed in Chaidez v. United States (2013) 568 U.S. 342. In 

Chaidez, the United States Supreme Court held that Padilla

had had the effect of suddenly changing the nature of 

immigration issues from being “collateral consequences” of 

pleas to something unique, roughly akin to direct 

 

4 Based on local statutes, California, along with a handful 

of other jurisdictions, eventually adopted a modified approach 

that allowed relief based on claims of ineffective assistance of 

counsel when an attorney affirmatively misadvised a 

defendant about the immigration consequences of a plea 

because legally incorrect advice fell below that reasonableness 

standard, but retained the traditional rule that failure to 

advise at all did not fall below the standard. (In re Resendiz 

(2001) 25 Cal.4th 230, abrogated by Padilla, supra, 559 U.S. 

356, 369-370.)

This exception to the general rule is inapplicable to the 

case at bench because appellant does not allege that his trial 

counsel affirmatively misadvised him.
10

consequences. However it was characterized, the United 

States Supreme Court ruled that Padilla had created a new

affirmative obligation on trial counsel to understand and 

accurately explain the immigration consequences of a plea to a 

defendant prior to the entry of that plea where no such duty

had existed before. This rule was not based on prevailing 

professional standards but, rather, on a determination that 

immigration consequences were potentially so profound that 

trial counsel had an obligation to accurately advise their 

clients about them. Therefore, the court in Chaidez held that, 

under the rules set out in Teague v. Lane (1989) 489 U.S. 288, 

the Padilla ruling could not be applied retroactively to cases, 

such as appellant’s, that were final at the time of the Padilla 

decision.

The effect of this is that appellant’s trial counsel had no 

affirmative obligation to advise him of the immigration 

consequences of his plea at the time that plea was taken. 

Therefore, his failure to do so did not fall below the thencontemporary reasonable objective standard of practice. Thus, 

appellant has failed to satisfy the first prong of the Strickland 

test and his claim of ineffective assistance of counsel must fail.

Perhaps in recognition that the Padilla ruling does not 

apply retroactively to his case, appellant also argues that 

California imposed an independent pre-Padilla duty on trial 

counsel to inform their clients of the immigration consequences 

of their pleas. This argument is unavailing.

Appellant’s reliance on recently enacted sections 1016.2 

and 1016.3, which were intended to codify both the Padilla 

requirements and any existing California decisional law, is 

misplaced. These provisions cannot apply to the case at bench 
11

for two reasons. First, these statutes, which were added in 

2015 by Assembly Bill No. 1343 (2015-2016 Reg. Sess.), were, 

by their terms, enacted to codify the Padilla ruling (§ 1016.2, 

subd. (h)). This would include the restriction on retroactivity, 

which occurred in 2013 in the Chaidez decision, under the 

familiar rule that the Legislature is presumed to be aware of 

decisional law and to have enacted statutes in light of that 

decisional law. (People v. Giordano (2007) 42 Cal.4th 644, 

659.)

Second, section 3 creates a strong presumption that 

changes to the Penal Code are to be applied prospectively only, 

unless it is “ ‘very clear’ ” from either the language of the 

statute or extrinsic sources that the Legislature intended 

retroactive application. (People v. Brown (2012) 54 Cal.4th

314, 324.) Sections 1016.2 and 1016.3 contain no such 

statement of legislative intent and, given their repeated 

references to the Padilla decision, it is clear that the 

Legislature did not intend that sections 1016.2 and 1016.3 

apply retroactively.

Appellant’s argument is also based on language in the 

introduction to section 1016.2, subdivision (a), referencing both 

Padilla and a trio of pre-Padilla California decisions. 

However, an examination of the three pre-Padilla cases cited 

in section 1016.2, subdivision (a), as defining California law on 

counsel’s obligations, demonstrates that there was, in fact, no 

such independent duty.

In People v. Soriano (1987) 194 Cal.App.3d 1470, the 

defendant’s trial counsel, in response to repeated questions 

about potential immigration consequences, advised him that 

his plea “might” have adverse consequences, similar in 
12

language to that required by section 1016.5. This advice was 

erroneous and trial counsel had undertaken no effort to obtain 

accurate information. The holding in Soriano was that this 

erroneous advice constituted ineffective assistance of counsel 

because, when asked, trial counsel had an obligation to 

research further and provide accurate information. Soriano 

does not stand for the proposition that, in the absence of 

inquiry from the defendant, defense counsel had an affirmative 

obligation to research and advise the defendant of his 

immigration consequences.

People v. Barocio, supra, 216 Cal.App.3d 99 similarly did 

not create an independent pre-Padilla duty to advise 

defendants of immigration consequences of their pleas. In 

Barocio, the defendant’s trial attorney failed to seek a judicial 

recommendation against deportation. There was no issue 

about counsel’s advice to the defendant. Indeed, the court in 

Barocio specifically held that while section 1016.5 imposed a 

duty on the court to warn of the possible immigration 

consequences of a plea, counsel had no corresponding duty 

because immigration concerns were “collateral consequence[s]” 

of the plea. (Barocio, at pp. 107-108.) The only deficiency 

found in Barocio was trial counsel’s failure to advise the 

defendant of the right to a recommendation against 

deportation and the case was remanded to the trial court for 

counsel to seek a recommendation against deportation.

Finally, in People v. Bautista (2004) 115 Cal.App.4th 229, 

there was expert evidence presented to the court that an 

“immigration neutral” plea bargain was generally available to 

defendants who were similarly situated to the defendant in 

that case. This expert testimony established that defense 
13

counsel’s admitted failure to investigate such an “immigration 

neutral” disposition fell below the reasonable standard of 

practice. Again, there is no suggestion in Bautista that trial 

counsel had a pre-Padilla duty to research and explain 

immigration consequences to their clients. Appellant has 

presented no evidence that such an “immigration neutral” 

disposition was available in his case and, from the comments of 

the immigration court judge, it appears that escaping a fiveyear prison sentence gave appellant a significant advantage 

under the then-prevailing immigration law.

Because appellant’s trial counsel had no duty in this prePadilla case to research and advise appellant of the potential 

immigration consequences of his plea, appellant has failed to 

carry his burden of establishing the first prong of the 

Strickland test, that trial counsel’s performance fell below an 

objectively reasonable standard.5

 

5 The California Supreme Court’s decision in People v. 

Patterson (2017) 2 Cal.5th 885 does not alter this result. In 

Patterson, the defendant pled guilty on March 13, 2013.

Therefore, Patterson’s case occurred three years after the 

Padilla decision, meaning that his trial counsel did have the 

obligation created by Padilla to properly advise him. His trial 

counsel did not know the immigration consequences and did 

not advise him of those consequences, a clear violation of the 

requirements of Padilla. Our Supreme Court held that the fact 

that the defendant was advised under section 1016.5 did not 

substitute for the required advisement by counsel and did not 

act as a bar to his setting aside his plea. Patterson provides no 

authority for the proposition that counsel had an obligation to 

research and advise on immigration consequence prior to the 

Padilla decision.
14

b. Prong Two: Prejudice

The United States Supreme Court recently examined the 

second prong of the Strickland analysis, prejudice, in the 

context of an immigration case in Lee v. United States (2017) 

___ U.S. ___ [137 S.Ct. 1958] (Lee). While recognizing that 

determination of prejudice is to be made on a case-by-case 

basis in light of all of the circumstances (137 S.Ct. at p. 1966), 

the United States Supreme Court examined a number of 

factors in determining whether the defendant in Lee was 

prejudiced by his counsel’s plainly inadequate representation.

The first, but not determinative, factor was the likelihood 

of success at trial. In Lee, the defendant had essentially 

confessed to the crime, which rendered his chances at trial 

“grim,” in the words of the court. In the case at bench, there is 

no confession, but the victim’s credibility about appellant’s 

actions was bolstered by the fact that the then-23-year-old 

appellant asked for a 13-year-old girl’s hand in marriage. 

Moreover, after hearing appellant’s statement, the 

immigration court judge found him to be not credible. A jury 

could well have reached the same conclusion.

The second factor that the United States Supreme Court 

examined in Lee was a comparison of the potential 

consequences after a trial and the consequences that flowed 

from a plea. The Lee opinion is vague about the benefit that 

the defendant received except to say that it was a reduced 

prison sentence. In the case at bench, however, appellant, who 

had sexual intercourse with a 13-year-old girl and was 

convicted of committing a lewd act with a child under the age 

of 14, received significant benefits from his plea agreement. 

He was granted probation with only six days of local custody, 
15

which he had already served, and some community service,

and was spared what could have been a mandatory state 

prison term (§ 1203.066, subd. (a)(8)), ranging from three to 

eight years.

The final factor that the United States Supreme Court 

examined in Lee was the importance of immigration 

consequences to the defendant. The defendant in Lee 

repeatedly asked his attorney about immigration consequences 

and was erroneously assured that there were none. The 

defendant in Lee balked when the judge who was taking his 

plea gave him an admonition that parallels the requirements 

of section 1016.5. He proceeded with the plea only when his 

trial counsel again assured him that he would not be removed.

None of these actions are present in the case at bench. Indeed, 

immigration consequences apparently only became important 

to appellant nine years after his plea when he learned that he 

was to be removed.

Based on an evaluation of all of the circumstances in the 

case at bench, we do not believe that appellant has carried his 

burden of establishing prejudice.

As the United States Supreme Court noted in both 

Padilla and Lee, “[s]urmounting Strickland’s high bar is never 

an easy task.” (Padilla, supra, 559 U.S. at p. 371; see Lee, 

supra, 137 S.Ct. at p. 1967.) It is important to recognize that

while appellant has a significant interest in the outcome of the 

case, there is also a strong societal interest in the finality of 

cases, an interest that can only be overcome upon the clear 

demonstration of a miscarriage of justice. If that was not the 

case, literally thousands of cases would be subject to being 

vacated and, in many cases, rendered immune from 
16

prosecution. Such a result would be particularly egregious in 

the circumstances of this and similar cases where a defendant 

is attempting to hold his or her trial counsel to a standard that 

not only did not exist at the time of his plea but which had 

been specifically rejected by appellate courts.

DISPOSITION

Appellant has not carried his burden of establishing 

either deficient performance or prejudice. The order denying 

appellant’s motion to vacate his 1998 guilty plea is affirmed.

HALL, J.*

WE CONCUR:

BIGELOW, P. J.

RUBIN, J.

 

* Judge of the Los Angeles Superior Court, assigned by the 

Chief Justice pursuant to article VI, section 6 of the California 

Constitution.