Two Post-Conviction Motions Pursuant to Penal Code section 1473.7 Granted for a Client in One Day and Dismissed Pursuant to Penal Code section 1382!

Recently, in San Diego County at the Central Courthouse we successfully litigated two post-convictions motions on behalf of one client.

At the time that our client hired our office, his convictions were barring him from obtaining naturalization as a United States citizen. Our client had two separate cases in which he pled to Health and Safety Code section 11550 dating back to 1989.

When we attempted to obtain the court file for this matter, the court file had been destroyed and no record of the convictions could be located. The only record of the convictions for these matters was our client’s California Criminal History Information from the Department of Justice (“DOJ”).

In 2018, we filed motions to vacate the convictions pursuant to Penal Code section 1016.5, as there was no record in existence demonstrating that our client had received the immigration advisement required by Section 1016.5. The city attorney’s office opposed the motion, arguing that our client lack due diligence in seeking relief. The city attorney’s office was open to reaching an equitable resolution if our client completed a drug program. Thus, we took the motion off calendar for our client to complete such a program.

Once our client completed the program, we filed a Penal Code section 1473.7 motion, alleging that our client failed to meaningfully understand the immigration consequences of his conviction. A Penal Code section 1473.7 motion does not require the same standard of diligence as a motion seeking relief under Penal Code section 1016.5 and, based on recent appellate court opinions, provides more avenues for relief.

After filing the motion, we provided the prosecution with a mitigation package showing that our client had no other criminal convictions, was employed, and proof that our client had completed the drug program.

We received a written response from the city attorney’s office indicating that they were not going to oppose our motion, stating that the motion was “unwinnable” for them.

At the hearing on the motion, the city attorney did not oppose our motion and the court vacated the convictions pursuant to Penal Code section 1473.7. After vacating the convictions, the city attorney’s office moved to dismiss the charges based on Penal Code section 1382, unable to proceed.

This is a great victory for our client and will better his opportunity to obtain citizenship!


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