Recently, at the Riverside Courthouse in Riverside County, I obtained a dismissal on behalf of my client for his Penal Code section 490.5 and Penal Code section 853.7 misdemeanor convictions from 2001.
The court file for my client’s conviction has been destroyed and, therefore, we were unable to obtain a transcript of the plea or any documents referencing the conviction. The only record of the conviction available for was reference to the conviction in my client’s California Department of Justice (“DOJ”) Criminal History Information.
Based on the lack of record evincing that our client was provided the complete immigration advisements required by Penal Code section 1016.5, we filed a motion to withdraw the plea. We argued that the only record of conviction available – my client’s DOJ – was void of any reference as to whether my client was provided the Penal Code section 1016.5.
The prosecution filed an opposition to our written motion, arguing that at the time of my client’s plea he would have had to sign a plea form that advised him of the immigration consequences and he would have had to place his initials next to the immigration advisement. The opposition argued that based on the habit and custom in Riverside County this plea form would have been completed. Further, the opposition argued that the client has failed to establish reasonable diligence in seeking relief.
At the hearing on the motion, the prosecution submitted on their moving papers and the judge granted the motion over the opposition. The judge then proceeded to dismiss the case pursuant to Penal Code section 1385 – in the interests of justice.
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