Post-Conviction Relief! Penal Code § 245(a)(1) “Assault with a Deadly Weapon” Offense Vacated Per Penal Code § 1473.7 Motion and Charge Renegotiated to Penal Code § 236 “False Imprisonment” – Immigration Neutral Offense!

Recently, in Los Angeles County at the East Los Angeles 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 2008 Penal Code section 245(a)(1), “Assault with a Deadly Weapon” conviction.

Our client is not a United States citizen and immigrated to the United States from Mexico when he was approximately twelve (12) years old after an earthquake devastated his pueblo. Our client is now fighting against his imminent deportation back to Mexico and is unable to naturalize as a United States citizen as a result of this conviction.

A conviction under Penal Code section 245(a)(1) 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 moral turpitude 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 court file had been destroyed and the transcript of the plea could not be prepared. The only information that we had relating to the plea was the docket for this matter which stated that our client was purportedly advised that if he was not a United States citizen his conviction “will have the consequences of deportation, exclusion from admission to the United States, or denial of naturalization pursuant to the laws of the United States.”

We determined that a Penal Code section 1473.7 motion was applicable. In our motion, we argued that a Penal Code section 245(a)(1) offense is 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 236.

At the first appearance on the motion, the prosecution requested additional time to consider our moving papers. Prior to the next court hearing, the prosecution indicated that they would submit on our motion if our client entered a renegotiated plea to Penal Code section 236.

At the final hearing, the court granted our motion to vacate the offense and our client entered the new plea to the immigration neutral charge. With this change in charge, our client can now seek to naturalize as a United States citizen.

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