Post-Conviction Relief: Health & Safety Code section 11359(a) (Possession of Marijuana for Sales) Controlled Substance Offense – Vacated per Penal Code section 1016.5 & Dismissed per Penal Code section 1382:

Recently, at the Central Courthouse in Los Angeles County, I was able to vacate my client’s plea pursuant to Penal Code section 1016.5 and dismiss the charge pursuant to Penal Code section 1385 (in the interests of justice) for his 1991 Health & Safety Code section 11359(a) (marijuana for sales) felony conviction.

In this matter, we began by filing a petition pursuant to Health and Safety Code section 11361.8 (“Proposition 64”) to reduce our client’s felony offense to a misdemeanor. After this petition was granted, we continued to investigate what, if any, post-conviction relief may be available to our client.

After researching what documentation was still in existence evincing the record of the conviction in this case, we determined that the docket in this matter failed to comply with the requirements of Penal Code section 1016.5 as a matter of law. The court reporter’s notes had been destroyed so we were unable to obtain a transcript of the plea. However, the docket was still in existence and, according to this docket, our client was advised of the “possible effects of plea on any alien/citizenship/probation/parole status.” This advisement fails to satisfy the requirement of Penal Code section 1016.5. Therefore, based on the documents in the court file, we argued that there was no evidence in the court file to show that the complete and accurate immigration advisement was provided as required by Section 1016.5.

At the time of filing our motion, we provided the prosecution with an equities package detailing the fact that our client has received no other criminal conviction besides this offense, is employed full-time, has been deported to Mexico because of this offense and is currently separated from his children.

At the first hearing on the motion, the prosecution agreed to submit on the motion and dismiss the offense pursuant to Penal Code section 1382 if our client completed 26 Narcotics Anonymous (“NA”) meetings and had no new offenses.

After putting the matter over to allow our client to complete the NA meetings, we provided the requested documentation to the prosecution and the prosecution submitted on our motion. The judge proceeded to vacate the conviction pursuant to Penal Code section 1016.5 and dismiss the case pursuant to Penal Code section 1385.

With this result, our client is one step closer to petitioning for immigration relief and returning to his family in the United States.


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