Recently, in Los Angeles County at the San Fernando Courthouse I successfully litigated a Penal Code § 1016.5/1473.7 motion arguing that our client was not properly advised of the immigration consequences of his conviction for Penal Code § 273.5(a) (a misdemeanor) in 2000.
We began handling this client’s matter by investigating what, if any, post-conviction relief may be available for our client. During our investigation, we discovered that our client had very unique immigration circumstances. Our client was born in Hong Kong, China in 1957 when Hong Kong was under British Colonial rule. Our client was educated in India and arrived in the United States in 1980 when he obtained Lawful Permanent Resident status. Despite having been born in Hong Kong, China considered our client a “non-Chinese ethnic minority” ineligible for Chinese citizenship. Our client was rendered virtually stateless until he was able to obtain British citizenship in 2012, despite never having resided in the United Kingdom. Based on his conviction in the present offense, our client was unable to obtain United States citizenship. Moreover, our client faced deportation to Britain, a country he was not born in, had never resided in, and had no ties to.
The only document relevant to the conviction still available in this matter was the court docket. According to the docket, our client was advised of “citizenship.” However, this purported advisement fails to satisfy the requirement of Penal Code section 1016.5. Thus, we filed a Penal Code section 1016.5 motion to withdraw the plea on those grounds.
In response to our motion, the People filed an opposition arguing that our client received the Penal Code section 1016.5 advisement, as required. To support their contention, the People attached a blank waiver form that they argued would have been used at the time of the client’s plea. This proffered waiver form included a Penal Code section 1016.5 admonishment.
In response, we filed a supplemental motion maintaining our position that there was no proof that our client was properly advised per Penal Code section 1016.5. In this motion, we argued that in the alternative, the client failed to meaningfully understand the immigration consequences of his conviction pursuant to Penal Code section 1473.7 and the conviction should be vacated as a result.
To support our motion, we argued that it is unclear from the record what waiver form was used or whether it contained a valid Penal Code section 1016.5 advisement. We further argued that the People have failed to prove whether the version of the waiver form the People argued was used, was in fact the waiver form that was completed by our client. And, in any event, whether our client initialed the advisement box.
Prior to the final hearing on the motion, we provided the People with an equities package detailing our client’s strong ties to the United States and his reputation as a hardworking and selfless man. We detailed the immigration consequences our client is currently suffering as a result of the conviction and requested to renegotiate the plea to a Penal Code section 243(e)(1) offense.
Based on the arguments we made in the written motions and our client’s unique immigration status, the People were persuaded by our arguments and agreed to withdraw the plea pursuant to Penal Code section 1016.5 and renegotiate the offense to a Penal Code section 243(e)(1) conviction.
This victory will bring our client one step closer to obtaining United States citizenship! A great result!
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