People v. Olvera

Filed 6/28/18 CERTIFIED FOR PUBLICATION IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION SIX THE PEOPLE, 2d Crim. No. B281767 (Super. Ct. No. 2005030430) Plaintiff and Respondent, (Ventura County) v. EFRAIN OLVERA, Defendant and Appellant. Efrain Olvera appeals an order denying his motion to vacate judgment and withdraw his 2005 plea of no contest to one count of conspiracy to transport cocaine for sale. (Pen. Code,1 § 182, subd. (a)(1); Health & Saf. Code, § 11352, subd. (b).) He contends his trial counsel rendered ineffective assistance in 2005 when he did not advise him of the immigration consequences of his plea or attempt to negotiate an immigration-neutral disposition. Olvera’s motion was timely under a new statute that allows him to move to vacate a plea that has unexpected immigration consequences as a result of ineffective assistance if 1 All statutory references are to the Penal Code unless otherwise stated. the motion is brought with “due diligence” after deportation proceedings commence. (§ 1473.7.) But Olvera does not demonstrate that his counsel’s performance was deficient. (Strickland v. Washington (1984) 466 U.S. 668, 688 (Strickland).) We therefore affirm. FACTUAL AND PROCEDURAL HISTORY Olvera immigrated from Mexico in 1995. He is a permanent legal resident. He moved to Oxnard in 1998, married in 2001, and bought a business and a home. He and his wife have a daughter who is a citizen of the United States. In 2005, Olvera pled no contest to transporting cocaine for sale in exchange for “time served” and three years of formal probation. The charge arose from an investigation into a drug trafficking organization that was led by two other men, during which officers executed a warrant at Olvera’s home. Officers seized a black fanny pack containing a pound of cocaine and camera batteries. Olvera denied the pack was his, and said the pack was left in his garage by a friend. When he entered his plea, Olvera signed a form with boilerplate language about immigration consequences: he acknowledged that the law concerning the effect of “a criminal offense of any kind on my legal status as a non-citizen will change from time to time,” so “I hereby expressly assume that my plea . . . will, now or later, result in my deportation, exclusion from admission or readmission,” and “denial of naturalization and citizenship.” He acknowledged that his attorney “has gone over this form with me.” His attorney represented that he “explained the direct and indirect consequences of this plea,” to Olvera. At the change of plea hearing, Olvera again acknowledged that he went over the form with his attorney and 2 an interpreter. There was no specific colloquy about immigration consequences. The charge to which Olvera pled is an aggravated felony under federal immigration law. It triggers mandatory removal. (8 U.S.C. § 1101(a)(43)(B), (U).) In support of his motion to vacate, Olvera acknowledges that his attorney reviewed the plea form with him, but declares he does not “recall discussing the specific ...

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