Post-Conviction Relief: Penal Code section 490.5 - Petty Theft Conviction and Penal Code section 853.7 -Willfully Violating Promise to Appear Offenses Vacated Pursuant to Penal Code section 1016.5 & Dismissed per Penal Code section 1385

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.


The information in this blog post (“post”) is provided for general informational purposes only, and may not reflect the current law in your jurisdiction. No information contained in this post should be construed as legal advice from Escovar Law, APC or the individual author, nor is it intended to be a substitute for legal counsel on any subject matter. No reader of this post should act or refrain from acting on the basis of any information included in, or accessible through, this Post without seeking the appropriate legal or other professional advice on the particular facts and circumstances at issue from a lawyer licensed in the recipient’s state, country or other appropriate licensing jurisdiction. The information on this website is a communication and is for informational purposes only. The facts of every case are unique and nothing on this page or on this website should be taken as legal advice for any individual case or situation. The information on this website is not intended to create an attorney-client relationship and viewing of this information does not create an attorney-client relationship. The result portrayed in this advertisement was dependent on the facts of this case. Results will differ if based on different facts.