Post-Conviction Relief! Health and Safety Code § 11359(a) “Possession of Marijuana for Sale” Offense Vacated Per Penal Code § 1473.7 Motion and Charge Renegotiated to Immigration Neutral Plea!

Recently, in San Diego County at the South County 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 2002 Health and Safety Code section 11359(a), “Possession of Marijuana for Sale” controlled substance conviction.

After this conviction, our client had been residing in Mexico. Our client grew a business in Mexico, became married, and has three United States citizen children. Unfortunately, our client’s youngest son developed a brain tumor and our client wanted to relocate his family to the United States in order to provide his son better medical treatment. However, this controlled substance sales conviction caused our client to be deemed permanently inadmissible to the United States so our client was prohibited from entering. Our client hired our office to attempt to seek post-conviction relief on his behalf.

At the time of our client’s plea in 2002, our client was advised that this conviction may result in deportation, denial of naturalization, and denial of any citizenship or denial or re-entry. However, in our motion, we argued that our client should have been advised that the offense would result in mandatory and permanent deportation, denial of naturalization, and exclusion from admission. Further, our client was unaware that he could seek to negotiate to other immigration neutral convictions that would not cause him the immigration prejudice he is currently facing.

After review of our moving papers, the prosecution agreed to submit on the motion to vacate the controlled substance charge but wanted our client to re-enter a plea to a Penal Code section 32 offense. After consulting with immigration counsel, the immigration attorney advised our office that because of our client’s unique immigration status and need to come to the United States on the temporary basis, a Penal Code section 32, “Accessory After the Fact” conviction may still harm our client because of the nature of the underlying offense.

Thus, we attempted to re-negotiate with the prosecution to a Penal Code section 415, “Disturbing the Peace” offense. The prosecution was initially unwilling to renegotiate to this offense; however, after providing supplemental documentation to the prosecutor handling the motion, including a declaration from immigration counsel explaining the immigration circumstances, she agreed to allow our client to re-plea to the Penal Code section 415 offense.

This is a great result for our client and he will now be allowed to seek to enter the United States and seek medical treatment for his son!

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