Post-Conviction Relief: 1980 Health & Safety Code section 11360 Controlled Substance Offense – Vacated per Penal Code section 1016.5 & Dismissed per Penal Code section 1382

Recently, at the Clara Shortridge Foltz Courthouse in Los Angeles County, I obtained a dismissal on behalf of my client for his 1980 Health & Safety Code section 11360 “Marijuana for Sales” felony conviction.

In this matter, we began by filing a petition to reduce the offense to a misdemeanor pursuant to Health and Safety Code section 11361.8 (“Proposition 64”).

Once the offense was reduced to a misdemeanor, we began investigating what documents pertaining to the offense were still in existence. We determined that the transcript of the plea for the matter still existed and only advised our client of the deportation consequence of his conviction. According to the transcript of the plea, our client was not advised of the consequence of denial of naturalization or exclusion from admission to the United States. This advisement failed to satisfy the requirements of Penal Code section 1016.5 as a matter of law because per the statute defendants are to be advised of all three consequences.

We then 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.

After filing the motion, we provided the prosecution with an equities package highlighting the age of the conviction (38 years old), the young age our client was at the time of the offense, our clients character as a family-man and a hard worker, and the fact that he is now suffering immigration consequences as a result of the offense.

After reviewing the equities, the prosecution submitted on the motion and the court granted the motion. The prosecution then announced unable to proceed and the case was dismissed pursuant to Penal Code section 1382.

With this result, our client now has a better opportunity to stay united with his family and watch his two children graduate from the colleges they are currently attending.


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