Post-Conviction Motion Pursuant to Penal Code section 1473.7 Granted for a Client and Dismissed in the Interests of Justice Pursuant to Penal Code section 1385!

Recently, in Los Angeles County at the Clara Shortridge Foltz Courthouse we successfully litigated a post-conviction motion on behalf of our client.

Our client had pled to a Penal Code section 647(b) misdemeanor offense in 2006. For federal immigration purposes, a Penal Code section 647(b) offense is considered a crime involving moral turpitude. Further, federal law specifically deems a person inadmissible if convicted of a crime involving prostitution and this conviction can prevent someone from qualifying for lawful permanent residency.

At the time that our client hired our office he was in removal proceedings based on this offense and was not eligible for Cancellation of Removal under INA § 240A(b) based on this conviction to a crime involving moral turpitude.

When we obtained the copy of the court file for this matter, the transcript of the plea was still in existence and did not contain an oral Penal Code section 1016.5 advisement. However, according to the docket the client was purportedly advised that the conviction “will” cause immigration consequences and the docket indicated that a waiver form was filed at the time of the plea. In our motion we argued that the entry in the docket is not supported by the transcript of the plea and there was no waiver form available to corroborate the docket’s entry either. We argued that, in fact, 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. Thus, if in fact a waiver form was used, and if in fact our client was advised of the immigration consequences and initialed the form, it is highly probable that he was only put on notice that his plea may or could cause immigration consequences - not will.

We argued that even if our client was given this advisement it still fails to accurately advise our client of the certain and permanent immigration consequences of his conviction. Our client was not advised that his conviction to an offense involving prostitution would deem him permanently inadmissible to the United States.

After reviewing our motion, the prosecutor contacted our office and agreed to submit on the motion to vacate the plea and agreed to dismiss the charge pursuant to Penal Code section 1385, in the interests of justice.

This is a great victory for our client and will better his opportunity to be eligible for cancellation of removal!


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