Post-Conviction Relief! Health and Safety Code § 11351(a) “Possession for Sale of a Controlled Substance” Felony Offense Vacated Per Penal Code § 1473.7 Motion and Charge Renegotiated to Immigration Safe Offense

Recently, at the San Fernando Courthouse in Los Angeles County, Attorney Steve Escovar was able to successfully litigate a post-conviction Penal Code section 1473.7 Motion to vacate our client’s Health and Safety Code section 11351(a), “Possession for Sale of a Controlled Substance” conviction from 1989.

In 2008, our client had hired other legal counsel to attempt to vacate his conviction for immigration purposes. Unfortunately, the motion was denied. Given changes in law and the subsequent enactment of Penal Code section 1473.7, we believed that our client had a viable renewed motion to vacate the conviction under Penal Code section 1473.7.

After reviewing the court file for this matter and the transcript of the plea proceedings, it was clear that our client was advised on the record that if he was not a citizen the plea could be used to deny naturalization, exclusion from the country, and deportation. However, in our motion we argued that given that this was a controlled substance offense, our client should have been advised that the immigration consequences were mandatory and permanent.

After we filed our motion, the appellate decision of People v. Josefina Ruiz (2020) 49 Cal. App. 5th 1061 was decided and significantly supported the argument that we made in our original moving papers. Thus, we filed a supplement to our motion citing People v. Josefina Ruiz for the proposition that our client should have been advised that immigration consequences will result and that these consequences will be permanent.

At the final hearing on the motion, the court agreed with our position and granted our motion to vacate the plea pursuant to Penal Code section 1473.7. We were then able to negotiate with the prosecution to allow our client to plea to an immigration neutral plea as opposed to the Health and Safety Code section 11351(a) offense currently charged.

This is a great result for our client, especially in light of the fact that he was previously unsuccessful with seeking post-conviction relief!

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