Two Post-Conviction Motions to Vacated Granted at Torrance Courthouse in One Morning for Two Different Clients!

Attorney Steve Escovar had a successfully day in court and was able to achieve victories on two different post-conviction motions to vacate pleas for two different clients!


In the first case, our office filed a motion to vacate a plea pursuant to Penal Code section 1473.7 on behalf of our client that pled guilty in 1990 to a felony violation of Health and Safety Code section 11350(a), possession of a controlled substance.

We began our representation by filing a Petition to reduce the offense to a misdemeanor pursuant to Proposition 47. After the Petition was granted, and the offense was reduced to a misdemeanor, we filed the motion to completely vacate the charge pursuant to Penal Code section 1473.7.

The prosecution filed written opposition to our motion, arguing that our client was provided the statutorily required immigration advisement pursuant to Penal Code section 1016.5; that we failed to establish that our client was provided ineffective assistance of counsel; that our client failed to exercise reasonable diligence in filing the motion for relief; and that our client’s self-serving declarations were insufficient to establish the appropriate grounds for relief.

In our written response, we provided appellate authority demonstrating that, for purposes of a Penal Code section 1473.7 motion, the standard Penal Code section 1016.5 immigration advisement is insufficient; that for purposes of Penal Code section 1473.7, a defendant is not required to prove ineffective assistance of counsel; that our client exercised due diligence in requesting relief as the statute was recently enacted; and that our client would be present to testify to the statements made in the declaration.

At the hearing on the motion, after strenuous oral argument by attorney Steve Escovar, the court granted the motion and our client’s plea was vacated and completely dismissed pursuant to Penal Code section 1473.7. Our client had a “Notice to Appear” in immigration court because of this offense and this victory will allow him to seek cancellation of removal!

Victory #2:

On the second matter, we filed a motion pursuant to Penal Code section 1473.7 arguing that our client’s sentence for his 1999 Penal Code section 136.1(a)(2), Dissuading a Witness, felony offense caused him dire immigration consequences that could be avoided with a minor modification to the sentence.

In 1999, our client pled no contest to the offense and was sentenced to serve 330 days in the county jail, credit for time served, with two years of state prison suspended. According to our client’s immigration attorney, a conviction for a Penal Code section 136.1(a)(2) offense with a sentence of one year or more is considered an aggravated felony for immigration purposes and subjects our client to deportation and denial of naturalization. According to our client’s immigration attorney, even though our client’s two-year state prison sentence was suspended, it remains an aggravated felony for federal immigration purposes. In order to avoid removal proceedings based on his conviction for the offense, our client needed the sentence to be modified to strike the two year suspended state prison sentence.

In our motion, we argued that our client failed to meaningfully understand the immigration consequences of his sentence because he was unaware that the sentence to two years of state prison suspended would cause him mandatory negative immigration consequences, despite the fact that he only actually served 330 says in the county jail and the suspended two years in state prison was never actually imposed.

We provided the prosecution with an equities package detailing our client’s work history, family, and community involvement. After review of our motion and the equities package, the prosecution agree to submit to our motion and allow for the sentence modification striking the two years of state prison suspended. This is an amazing result for our client that will assist him in avoided deportation and other negative immigration consequences from the offense!

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