Post-Conviction Relief! Penal Code § 1473.7 Motion to Vacate 1999 Health & Safety Code § 11359(Possession of Marijuana for Sales) Controlled Substance Offense Granted and Re-Negotiated to Immigration Neutral Plea!

Recently, in San Diego County, at the Chula Vista 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 1999 Health and Safety Code § 11359 conviction for possession of marijuana for sale (controlled substance offense).

In this matter, the offense was dismissed pursuant to Penal Code § 1203.4 in 2006, and when our client retained our office for post-conviction relief, our office began by investigating what, if any, post-conviction relief may be available to our client. To start, our office filed a petition pursuant to Health and Safety Code § 1170.18 (“Proposition 47”) to reduce the felony conviction to a misdemeanor.

After this petition was granted and our client’s conviction was successfully reduced to a misdemeanor, our office decided to file a Penal Code § 1473.7 Motion to Vacate. From our research our office determined that, even though at first glance the Tahl waiver available in the record appeared to have advised our client of the immigration consequences of the plea, our client had failed to meaningfully understand the consequences of his plea. The record shows that a Spanish language interpreter did not go over the waiver form with our client, as supported by fact that the waiver form is not signed by a Spanish language interpreter. Since our client is not an English speaker, a Spanish interpreter was necessary at time of the plea. Without an interpreter present, our client failed to meaningfully understand the immigration consequences of his 1999 Health & Safety 11359, marijuana for sale, controlled substance conviction.

Furthermore, in our motion we also argued that our client was not aware of reasonable alternative dispositions that would not have resulted in the immigration consequences he is currently facing, such as a negotiated plea to Penal Code § 32. Since our client was unaware of this possibility, he failed to attempt to negotiate for an immigration-friendly plea.

After extensive negotiation in this matter, the prosecution agreed to allow our client to withdraw his plea to the controlled substance offense and re-enter a plea to Penal Code § 32.

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