Post-Conviction Relief! Health and Safety Code § 11351.5 “Possession with the Intent to Sell” Offense Vacated Per Penal Code § 1473.7 Motion and Charge Completely Dismissed Pursuant to Penal Code section 1382 – Unable to Proceed!

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 his 1994 Health and Safety Code section 11351.5, “Possession with Intent to Sell” controlled substance conviction.

A conviction under Health and Safety Code section 11351.5 is considered an aggravated felony for federal immigration purposes and subjects our client to deportation pursuant to 8 U.S.C. section 1227(a)(2)(A)(iii). Further, this conviction is considered a crime involving controlled substances and further subjects our client to deportation pursuant to 8 U.S.C. 1127(a)(2)(A)(i)(II) and exclusion from the United States pursuant to 8 U.S.C. section 1182(a)(2)(A)(i)(I), as a matter of law.

When our client hired our office in 2019, we began by investigating what documents were still in existence relating to the plea. We discovered that the transcript of the plea was still in existence and advised our client that if he was not a citizen then the plea “may” cause his deportation, denial of naturalization, and exclusion from admission to the United States.

We determined that a Penal Code section 1473.7 motion was applicable. In our motion, we argued that the controlled substance offense charged is a categorically prejudicial offense for immigration purposes because it results in mandatory and permanent deportation and denial of naturalization. We also argued that our client failed to mitigate the charge by seeking to negotiate to an immigration neutral plea such as Penal Code section 32.

At the first appearance on the motion, the prosecution requested additional time to consider our moving papers and the motion was sent out to a different department for hearing. At the next hearing, the prosecution indicated that they read the moving papers and would submit on our moving papers given the precedential case law. Thus, the court granted the motion and the underlying offense was dismissed pursuant to Penal Code section 1382, unable to proceed.

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