Post-Conviction Relief! Health and Safety Code section 11357(b) Controlled Substance Offense Vacated Per Penal Code § 1473.7 Motion!

Recently, in Los Angeles County at the Compton 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 2012 infraction-controlled substance conviction.

In 2012, our client was issued an infraction citation for allegedly violating Health and Safety Code section 11357(b), “Possession of Marijuana Under 28.5 Grams”. Our client paid for the citation prior to appearing for his arraignment date, thereby entering a guilty plea to the charge.

Our client recently consulted with immigration counsel to adjust his status in the United States. Our client was informed by his immigration attorney that he would need to consular process in order to obtain lawful status in the United States. His immigration attorney advised him that this controlled substance offense, despite it being an infraction, would be considered a “conviction” for federal immigration purposes and he would be ineligible for consular processing. Our client then hired our office to investigate whether post-conviction relief may be available for his matter.

Our office began by investigating what courthouse would currently handle this matter as the original courthouse had closed since the citation had been issued. We discovered that the Compton Courthouse would handle this matter and we attempted to obtain all documents relating to this conviction from the courthouse.

Our office was informed that this would be handled by the traffic division and that the Court would have to grant a motion to re-open the offense before we could proceed with seeking post-conviction relief. We then filed a motion to re-open and the court allowed us to file a motion to vacate the conviction pursuant to Penal Code section 1473.7.

In our motion, we argued that our client failed to meaningfully understand that his conviction to an infraction-controlled substance offense would cause him immigration consequences. We argued that our client was not provided any advisement that the conviction would, or even could, cause him immigration consequences. We argued that had our client understood that the offense would cause his denial of naturalization and other adverse immigration consequences he would not have mailed in payment for the charge and would have appeared at his arraignment and set the matter for a bench trial or attempted to negotiate to an immigration neutral offense.

The court granted our motion and vacated the conviction!

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