Post-Conviction Relief: 1995 Health and Safety Code section 11352(a)- “Transportation for Sale of a Controlled Substance” Felony Offense - Vacated Per Penal Code section 1016.5 and Completely Dismissed Per Penal Code section 1382,”Unable to Proceed”!

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!

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