Post-Conviction Relief! Penal Code § 273.5(a) “Domestic Violence” Offense Vacated Per Penal Code § 1473.7 Motion and Charge Renegotiated to Penal Code § 243(e)(1) – Immigration Neutral Offense!

Recently, in Los Angeles County at the San Fernando Courthouse our office successfully litigated a Penal Code § 1473.7 motion arguing that our client failed to meaningfully understand the immigration consequences that would result from his 2001 Penal Code section 273.5(a) “Domestic Violence” conviction.

Our client is currently a lawful permanent resident and this conviction to a crime involving domestic violence was prohibiting him from naturalizing as a United States citizen.

In 2009 our client had hired another attorney to attempt to seek post-conviction relief on his behalf. This attorney filed a motion to withdraw the plea pursuant to Penal Code section 1016.5. This motion was denied based on the fact that, according to the advisement provided in the waiver form, our client had been advised that if he was not a citizen the offense could cause him immigration consequences. Thus, our client did not meet the statutory requirements to succeed on a Penal Code section 1016.5 motion.

When our client hired our office in 2019, we began by investigating what documents were still in existence relating to the plea. Due to the age of the case, the court file had been destroyed and the transcript of the plea could not be prepared. The only information that we had relating to the plea was the 2009 Penal Code section 1016.5 hearing transcript in which it was stated that our client completed the waiver form advising him that immigration consequences “could” result.

We determined that a Penal Code section 1473.7 motion was applicable. In our motion, we argued that a Penal Code section 273.5 offense is categorically prejudicial offense for immigration purposes because it results in mandatory and permanent deportation and denial of naturalization. We also argued that our client failed to mitigate the charge by seeking to negotiate to an immigration neutral plea such as Penal Code section 243(e)(1).

After filing the motion, we presented the prosecution with an equities package demonstrating the successful career and homelife our client has created. We provided documentation showing that our client owned his own successful plumbing business, that he owned a home, and that he was an active volunteer in his community.

At the first appearance on the motion, the prosecution requested additional time to attempt to gather the police reports for the underlying offense. After reviewing the police reports and considering our equities package, the prosecution agreed to submit on our motion to vacate the Penal Code section 273.5(a) offense and allow our client to re-enter a plea to Penal Code section 243(e)(1).

At the final hearing, the court granted our motion to vacate the offense and our client entered the new plea to the immigration neutral charge. After years of attempting post-conviction relief, our client can now seek to naturalize as a United States citizen.

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