Post-Conviction Relief! Penal Code section 484(a) “Petty Theft” Offense Vacated Per Penal Code § 1473.7 Motion and Renegotiated to Penal Code section 490.1 as an Infraction!

Recently, in Los Angeles County at the Van Nuys 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 her 2010 Penal Code section 484(a), “Petty Theft” conviction.

Our client previously held Temporary Protected Status (“TPS”) which was withdrawn as a result of this offense. Also, our client had been issued a Notice to Appear in Removal Proceedings based on her conviction to this offense and was facing imminent deportation.

After investigating the case we determined that the case file was destroyed pursuant to Government Code section 71008 and the waiver form purportedly signed at the time of the plea was no longer available. The transcript of the plea did not provide an oral immigration advisement but indicated that our client had read and signed the waiver form. The docket alleged that our client was advised at the time of her plea that if she was not a citizen, conviction of the offense will have the consequences of deportation, exclusion from admission, and denial of naturalization.

In our motion to vacate the plea pursuant to Penal Code section 1473.7 we argued that the entry in the docket purporting that our client was advised the offense will cause immigration consequences was not supported by the transcript of the plea and that no waiver form was available to corroborate the docket’s entry either. In fact, we argued that the majority of waiver forms that were in use at the time of the plea simply stated that a non-citizen may or could be deported, excluded from admission, or denied naturalization as a result of the plea.

We further argued that the purported advisement fails to accurately advise our client of the certain and permanent immigration consequences of her conviction. Our client was not advised that her conviction to a crime involving moral turpitude would deem her deportable and permanently inadmissible to the United States.

Prior to the hearing on the motion, the prosecution called our office and informed us that they had reviewed the motion and were going to submit on vacating the plea. We were then able to negotiate to a Penal Code section 490.1 offense as an infraction, which would assist our client with her immigration case.

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