Recently, at the San Fernando Courthouse in Los Angeles County, I obtained a dismissal on behalf of my client for his 1992 Health & Safety Code section 11352(b) felony conviction.
In this matter, we began by investigating what documents pertaining to the offense were still in existence. We determined that the manual docket for the plea date was available. According to this manual docket, our client was only advised on the “possible effects of plea on any alien or citizenship and probation or parole status.” This purported advisement fails to satisfy the requirements of Penal Code section 1016.5 as a matter of law. Therefore, we filed a Penal Code section 1016.5 motion arguing that the plea should be vacated because there is no evidence in the court file to establish that the complete and accurate immigration advisement required by Penal Code section 1016.5 was administered at the time of the plea.
At the initial hearing on the motion, the district attorney wanted time to search his stored file to see if any documentation regarding the immigration advisement was available. The district attorney filed a written opposition to our motion after discovering the transcript of the plea in his file. According to the transcript of the plea, our client was advised that the plea “could have the effect of your being deported or denied naturalization or citizenship.”
Based on the transcript of the plea, our office filed a reply to the prosecution’s opposition to our motion arguing that the transcript makes clear that our client was not adequately advised as required by Penal Code section 1016.5. We argued that according to the transcript, our client was not advised that he may be excluded from admission to the United States.
In response, the district attorney wrote a supplemental motion analyzing the recent (now unpublished) opinion regarding Penal Code section 1473.7, People v. Landaverde. We filed a response detailing why the People v. Landaverde opinion is inapplicable to the case at hand. We further filed an additional supplement to our motion with a signed affidavit from our client’s immigration attorney, indicating that the offense renders him inadmissible to the United States.
At the hearing on our motion, we detailed why the immigration advisement provided in the transcript of the plea failed to meet the requirements of Penal Code section 1016.5. The Penal Code section 1016.5 motion was granted by the judge, vacating the conviction, and the case was subsequently dismissed pursuant to Penal Code section 1382.
When my client hired our office, the Department of Homeland Security had commenced deportation proceedings against him and he was subject to removal based on the offense. With this dismissal, our client now has an opportunity to seek relief in immigration court.
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