Post-Conviction Relief: Domestic Violence Penal Code section 273.5 Offense - Dismissed

Recently, at the Van Nuys Courthouse in Los Angeles County, I obtained a complete dismissal (per Penal Code section 1382) on behalf of my client for his 1995 Penal Code section 273.5(a) Felony Domestic Violence conviction.

In our motion pursuant to Penal Code section 1016.5, we argued that the court was required to maintain a record that our client received the complete and accurate immigration advisement that he may be deported, excluded from admission to the United States, or denied naturalization as a result of his conviction.

The only record in the court file related to an

immigration advisement showed that our client was advised of “the possible effects on any alien/citizenship/probation/parole status.” However, we argued that this advisement failed to satisfy the requirements of Penal Code section 1016.5 as a matter of law. Further, through our investigation, we discovered that the court reporter’s notes for the plea date were destroyed and were no longer available. Therefore, there was no record in the file that the court complied with the mandated immigration advisement at the time of our client’s plea.

On the first hearing on our motion, the court and the district attorney assigned to the matter requested we submit further proof of the prejudice our client was suffering from this conviction. Our office then wrote and filed a significant supplemental motion outlining the following: (1) how the offense charged subjects our client to immigration prejudice, (2) the fact that our client has no other criminal history, (3) our client’s employment history, (4) his community ties and other equitable factors.

At the final hearing on the motion, the court determined that the original court failed to maintain a record that the mandated immigration advisement was provided to our client at the time of his plea. The court withdrew the plea pursuant to Penal Code section 1016.5 and vacated the conviction. The district attorney then announced that he was unable to proceed on the charges and our client’s case was dismissed pursuant to Penal Code section 1382.

Our client is a homeowner and is married with three children. The charged offense placed him at risk of deportation and other immigration consequences and, with this result, he now has the opportunity to attempt to stay united with his family.

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