Recently, in Los Angeles County at the Torrance Courthouse I successfully litigated a Penal Code § 1473.7 motion arguing that our client failed to meaningfully understand the immigration consequences that would result from his 1986 Health & Safety Code § 11359 conviction.
After investigating the matter and consulting with our client’s immigration attorney regarding our client’s immigration goal, we first filed a petition pursuant to Health & Safety Code § 11361.8 (Proposition 64) to reduce the felony offense to a misdemeanor.
In this matter, the Tahl form from the date of the plea was available and advised our client that conviction of the offense “may have the consequences of deportation, exclusion from admission to the United States, or denial of naturalization.” The immigration consequences our client would suffer as a result of his plea were a factually certainty since it was a conviction for a crime involving controlled substances. Therefore, we filed a motion pursuant to Penal Code section 1473.7.
In our motion we argued that although our client was advised that his conviction “may have” immigration consequences, he was never advised that his conviction was a crime involving controlled substances and, as such, the immigration consequences of his conviction were a certainty. As a result of the advisement he received, our client was led to believe that immigration consequences were within the realm of possibility but not a certainty.
Accordingly, we argued our client failed to meaningfully understand and knowingly accept the immigration consequences of his plea as a result of not knowing that those consequences would certainly flow from the conviction and not just “may” occur.
After filing the motion, the prosecution requested to see equities for our client in order to potentially discuss an equitable resolution. We wrote an equities letter to the prosecution, evincing our client’s proof of employment, his commitment to his wife and three kids, and the fact that he has had no other criminal convictions since 1986.
The prosecution reviewed the equities package and offered to vacate the plea and allow our client to plead to Health & Safety Code section 11357(b), as an infraction. I discussed this potential disposition with my client’s immigration attorney and he indicated this would assist in alleviating the immigration consequences the client was suffering from the original felony offense.
At the final hearing on the motion, we won the motion to vacate the plea pursuant to Penal Code section 1473.7 and we were able to renegotiate with the DA to a lesser related offense that would not cause my client immigration consequences!
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