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People v. Ogunmowo

California Court of Appeals, Second District, First Division

May 9, 2018

THE PEOPLE, Plaintiff and Respondent,
v.
AKINTUNDE HAKEEM OGUNMOWO, Defendant and Appellant.

          APPEAL from an order of the Superior Court of Los Angeles County No. A990468, 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.

          CHANEY, J.

         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 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. 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 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.

         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).[4] The 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 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 ...


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