Recently, in Los Angeles County, attorney Steve Escovar successfully litigated a Penal Code section 1016.5 Motion to withdraw our client’s felony conviction from 1995 for a violation of Health and Safety Code section 11352(a), “Transportation for Sale of a Controlled Substance.”
The Health and Safety Code section 11352 offense is considered a crime involving controlled substances for federal immigration purposes and constitutes an aggravated felony. Thus, this conviction causes our client mandatory and permanent immigration consequences.
After we received a copy of the court file for this matter, it was clear that there was insufficient proof in the court file that our client was properly advised of the immigration consequences of his offense, as statutorily required pursuant to Penal Code section 1016.5. According to the court reporter’s office, the court reporter notes for the date of the plea have been destroyed pursuant to Government Code section 69955(e) and, therefore, no transcript of the plea was available. Further, the docket for the court date was manually handwritten and only advised of the “possible effects of plea on any alien/citizenship/probation/parole status,” which fails to satisfy the advisement requirements of Penal Code section 1016.5. Therefore, we filed a motion to withdraw our client’s plea pursuant to Penal Code section 1016.5.
After reviewing our motion, the prosecution submitted and the court granted our motion to withdraw the plea. The prosecution then announced they were “unable to proceed” and the case was dismissed pursuant to Penal Code section 1382.
This is a great result for our client that will now allow him to move forward with his immigration matter!
DISCLAIMER:
The information in this blog post (“post”) is provided for general informational purposes only, and may not reflect the current law in your jurisdiction. No information contained in this post should be construed as legal advice from Escovar Law, APC or the individual author, nor is it intended to be a substitute for legal counsel on any subject matter. No reader of this post should act or refrain from acting on the basis of any information included in, or accessible through, this Post without seeking the appropriate legal or other professional advice on the particular facts and circumstances at issue from a lawyer licensed in the recipient’s state, country or other appropriate licensing jurisdiction. The information on this website is a communication and is for informational purposes only. The facts of every case are unique and nothing on this page or on this website should be taken as legal advice for any individual case or situation. The information on this website is not intended to create an attorney-client relationship and viewing of this information does not create an attorney-client relationship. The result portrayed in this advertisement was dependent on the facts of this case. Results will differ if based on different facts.