Post-Conviction Relief! Health and Safety Code section 11350 “Possession of a Controlled Substance” Offense Vacated Per Penal Code § 1473.7 Motion and Charge Completely Dismissed Pursuant to Penal Code section 1385!

Recently, in Los Angeles County at the Clara Shortridge Foltz 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 2001 Health and Safety Code section 11350 “Possession of a Controlled Substance” conviction.

Our client hired our office to attempt to seek post-conviction relief on her behalf. Our client pled to the Health and Safety Code section 11350(a) conviction in 2001 and was placed on Deferred Entry of Judgment (“DEJ”) for eighteen (18) months. In 2002, our client was terminated from the DEJ program based on non-compliance with the program and was placed on Proposition 36. In 2006, our client successfully completed the Proposition 36 program and her plea was set aside and dismissed pursuant to Penal Code section 1210.1. Despite the fact that our client successfully completed the program and her case was formally dismissed, the offense continues to cause our client federal immigration consequences. Thus, our office filed a motion to vacate the criminal offense pursuant to Penal Code section 1473.7.

Our motion focused on the amendments to the Statute that took effect in January of 2019. According to the amendments, Section 1473.7(e)(2) was added to the code and states that “[t]here is a presumption of legal invalidity for the purposes of paragraph (1) of subdivision (a) if the moving party pleaded guilty or nolo contendere pursuant to a statute that provided that, upon completion of specific requirements, the arrest and conviction shall be deemed never to have occurred, where the moving party complied with these requirements, and where the disposition has been, or potentially could be, used as a basis for adverse immigration consequences.” We argued that our client successfully completed the program and her plea was set aside and dismissed pursuant to Penal Code section 1210.1 – thus, pursuant to the amendment, there is a presumption that our client’s plea in this matter was legally invalid.

At the hearing on the motion, we informed the prosecution that there is a presumption of legal invalidity in this matter due to our client’s completion of the Proposition 36 program. The prosecution had reviewed our motion and intended to submit on our moving papers. We submitted the matter to the court and the court granted our motion, vacated our client’s plea, and the offense was dismissed pursuant to Penal Code section 1385, in the interests of justice.

This is an amazing result for our client and will allow our client to move forward with her immigration goals!

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