Post-Conviction Relief: 1995 Penal Code section 211 Robbery Offense with an Enhancement pursuant to Penal Code section 12022(a)(1) – Vacated per Penal Code section 1016.5

Recently, at the Clara Shortridge Foltz Courthouse in Los Angeles County, I obtained a dismissal on behalf of my client for his 1995 Penal Code section 211, “Robbery,” felony conviction, with an enhancement pursuant to Penal Code section 12022(a)(1).

Although this conviction was twenty-four (24) years old, this offense was causing him dire immigration consequences as it was considered a crime of moral turpitude and a crime of violence to the federal immigration authorities.

Our office began by investigating what documents existed from the conviction. We determined that the court file was destroyed and that the court reporter’s notes were destroyed as well. The only record of the plea date still available was the docket which was void of any reference to whether our client was advised of the immigration consequences of his conviction.

Based on the existing court file, there is no evidence or any other sources to establish that the defendant was advised of the immigration consequences as required by Penal Code §1016.5.(See People v. Dubon (2001) 90 Cal. App. 4th 944, 955).

Therefore, due to the lack of record that our client was properly advised pursuant to Penal Code section 1016.5, we filed a motion to withdraw the plea pursuant to that Section.

The prosecution orally opposed our motion at the hearing date. However, after oral argument by both parties, the court ruled that we had made a sufficient showing under the statute that our client was not advised of the immigration consequences of his conviction.

The court then granted the motion and allowed our client to withdraw his plea. However, the prosecution wants to move forward with continual prosecution of our client for the underlying charges. Our office looks forward to zealously advocating for our client!

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