People v. Ogunmowo

Filed 5/9/18 CERTIFIED FOR PUBLICATION IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION ONE THE PEOPLE, B283427 Plaintiff and Respondent, (Los Angeles County Super. Ct. No. A990468) v. AKINTUNDE HAKEEM OGUNMOWO, Defendant and Appellant. 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. __________________________________ 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 1 Penal Code 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. 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. 2 controlled substance [cocaine]) in exchange for a negotiated two- year prison term. According to his affidavit, Kaplan had a “good recollection” of Ogunmowo’s criminal case, based on his review of the file (at the time he made his affidavit) and “the unique circumstances involved in [the] case.” In 1989, when he represented Ogunmowo, Kaplan was aware Ogunmowo was a Nigerian native who had recently received his “green card.” Ogunmowo expressed to Kaplan his concern regarding the effect of a conviction on his immigration status. In 1989, Kaplan understood that “immigration issues were considered collateral to any criminal court representation.” Thus, Kaplan believed he “had no obligation to investigate” this collateral consequence of the plea. Accordingly, he did not investigate, inform himself about or seek to protect Ogunmowo from any immigration consequences of the plea. Nonetheless—as stated in his own words in his affidavit—he “advised Mr. ...

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