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!
DISCLAIMER:
The information in this blog post (“post”) is provided for general informational purposes only, and may not reflect the current law in your jurisdiction. No information contained in this post should be construed as legal advice from Escovar Law, APC or the individual author, nor is it intended to be a substitute for legal counsel on any subject matter. No reader of this post should act or refrain from acting on the basis of any information included in, or accessible through, this Post without seeking the appropriate legal or other professional advice on the particular facts and circumstances at issue from a lawyer licensed in the recipient’s state, country or other appropriate licensing jurisdiction. The information on this website is a communication and is for informational purposes only. The facts of every case are unique and nothing on this page or on this website should be taken as legal advice for any individual case or situation. The information on this website is not intended to create an attorney-client relationship and viewing of this information does not create an attorney-client relationship. The result portrayed in this advertisement was dependent on the facts of this case. Results will differ if based on different facts.