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, . . . 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.




                                3
       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.




                               4
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




                                5
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




                               6
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.




                               7
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.




                                8
       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.




                                9
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 then-
contemporary 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




                               10
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




                               11
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




                               12
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 five-
year prison sentence gave appellant a significant advantage
under the then-prevailing immigration law.
      Because appellant’s trial counsel had no duty in this pre-
Padilla 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.




                               13
       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,




                               14
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




                               15
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.




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