Post-Conviction Relief! Penal Code § 273.5(a) “Domestic Violence” Misdemeanor Offense Vacated Per Penal Code § 1473.7 Motion and Charge Renegotiated to an Immigration Neutral Plea!

Recently, in San Bernardino County at the San Bernardino Courthouse our office successfully litigated a highly-contested Penal Code § 1473.7 motion to vacate a plea arguing that our client failed to meaningfully understand the immigration consequences that would result from his 1996 Penal Code § 273.5(a) “Domestic Violence” offense.

During our initial evaluation to determine whether post-conviction relief may be available to our client, we were able to obtain the plea waiver form and court minutes for the date of our client’s plea. We discovered that our client entered his initial “no contest” plea to the charges under highly unusual circumstances - our client was in-custody and appeared via a video conference from the jail facility, without defense counsel, without evidence that a Spanish language interpreter was assisting him, and without a prosecutor present to potentially negotiate the case. Further, there was no evidence that our client was provided the mandatory immigration advisement pursuant to Penal Code section 1016.5 prior to entering this plea.

Less than a week after our client entered this no contest plea to the charges, our client’s plea was withdrawn (without evidence of a Penal Code section 1018 motion to withdraw the plea being heard) and our client was present in-custody in court and again re-entered a no contest plea to the domestic violence charges. This time, our client completed a plea waiver form. After reviewing this waiver form, we discovered that the waiver form was not validly executed and our client did not sign in the appropriate location to acknowledge that counsel went over the form, that he understood the form’s contents, and that he agreed to waive his rights. Further, the waiver forms immigration advisement only advised our client that immigration consequences “may result,” not that they “will result” due to the nature of the domestic violence charge and the fact that the federal government considers this offense a categorically deportable and excludable crime.

We filed a motion arguing to vacate the plea under both Penal Code section 1016.5 and Penal Code section 1473.7. In our motion we argued that given that the waiver form was not validly and properly executed, there is no evidence to establish that our client was provided the immigration advisement mandated in Penal Code section 1016.5. We further argued that in the alternative, even if the waiver form is deemed to be validly executed (despite the clear errors in its execution), our client’s plea must still be vacated under Penal Code section 1473.7 given that our client failed to meaningfully understand the actual immigration consequences of his plea since he was not advised that due to the nature of the charge, immigration consequences will result and that these consequences would be mandatory and permanent.

The prosecution filed a written opposition to our motion arguing that the waiver form was validly executed, that the immigration advisement provided via this waiver form was sufficient, and that our motion should be denied for lack of prejudicial error.

Our office filed a reply to the prosecution further outlining the appellate opinions that have been decided since the enactment of Penal Code section 1473.7 and how case precedent supports our argument. We further provided the prosecution with an equities package demonstrating our client’s good behavior since this offense, his work history and other factors in his favor.

A week prior to oral argument on our motion, the appellate court issued the opinion in People v. Ruiz, further strengthening our argument that our client should have been advised at the time of his plea that immigration consequences will result and that they will be mandatory.

After filing this supplement, the prosecution contacted our office and offered to submit on the motion if our client re-pleas to an immigration neutral charge. We agreed to this disposition and at the hearing our client’s plea was vacated and re-pled to the immigration safe charge!

This is an amazing result achieved from a highly litigated motion!

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