People v. Landaverde

Filed 2/7/18 CERTIFIED FOR PUBLICATION IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION EIGHT THE PEOPLE, B282107 Plaintiff and Respondent, (Los Angeles County Super. Ct. No. BA161254) v. ARNULFO R. LANDAVERDE, Defendant and Appellant. 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. ****** 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 then- contemporary 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 eight- year 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. 2 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, . . ...

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Source: All recent Immigration Decisions In All the U.S. Courts of Appeals