Two Penal Code section 1473.7 Motions Granted on Same Day for Two Different Defendants

Recently, in Los Angeles County at the Clara Shortridge Foltz Courthouse, attorney Steve Escovar successfully litigated two Penal Code § 1473.7 motions on behalf of two different clients.

First Victory:

One client had pled in 2002 to a violation of Health and Safety Code section 11366, “Operating a Drug House.” Based on the conviction, our client was permanently banned from naturalizing as a United States citizen and was subjected to mandatory deportation and permanent inadmissibility. Our motion to vacate the 2002 conviction pursuant to Penal Code section 1473.7 argued that our client was not provided accurate advice regarding the certainty and mandatory nature of the immigration consequences that would result from her conviction.

Along with our motion, we provided the prosecution with an equities package demonstrating our client’s full-time job, United States citizen children, volunteer work in the community, and the dire immigration consequences that she is suffering as a result of the offense.

The prosecutor handling the motion presented our motion and documentation to her supervisor and they agreed to submit on our motion. At the hearing on the motion, the drug offense was entirely vacated and the underlying charge was completely dismissed pursuant to Penal Code section 1385, in the interests of justice!

Second Victory:

The second motion granted today was for another client’s 1985 Health and Safety Code section 11351, “Possession of Cocaine” offense. Our client had previously hired a different attorney in 2001 to litigate a motion to vacate the offense pursuant to Penal Code section 1016.5 arguing that the immigration advisement was defective for not advising our client at the time of his plea that his offense could cause denial of naturalization. This motion was denied because the court ruled that our client had failed to sufficiently prove he was prejudiced, as required by the statute. Our client appealed this ruling and the denial was upheld on appeal.

When our client hired our office, we filed a Penal Code section 1473.7 motion outlining the current state of the law and differentiating the different standard of “prejudice” required for relief under the recently enacted Penal Code section 1473.7 statute.

The prosecuting attorney was opposed to our motion given the circumstances of the underlying offense (high quantity of narcotics – approximately 1 kilogram of cocaine, high value of currency seized - $74,000, death of an associate during law enforcement execution of a search warrant). Mr. Escovar moved forward with litigating the motion and he clearly outlined during oral argument that the standard for granting relief in regard to prejudice under Penal Code section 1473.7 is different than the standard under Penal Code section 1016.5. Mr. Escovar argued that our client was entitled to relief under the new statute. The motion was ultimately granted by the court and the prosecutor agreed to allow our client to re-plea to the immigration safe charge of Penal Code section 32. The prosecutor also agreed to reduce the felony to a misdemeanor and dismiss the charge pursuant to Penal Code section 1203.4.

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