Post-Conviction Relief: 1991 Penal Code section 182(1)(4) – “Conspiracy,” Insurance Code section 556(a)(1)(3)(4) – “Making a Fraudulent Insurance Claim,” and Insurance Code section 1871.1 – “Insurance Fraud,” Felony Offenses - Vacated Per Penal Code sectio

Recently, at the Clara Shortridge Foltz Courthouse in Los Angeles County, I successfully litigated a Penal Code section 1016.5 Motion to withdraw three of my client’s felony convictions from 1991 for violations of Penal Code section 182(1)(4) – “Conspiracy,” Insurance Code section 556(a)(1)(3)(4) – “Making a Fraudulent Insurance Claim,” and Insurance Code section 1871.1 – “Insurance Fraud.”

At the start of our representation, we requested the court file from archives to determine whether our client may have a viable motion for post-conviction relief. According to the archive documents, the only record from the date of the plea was the manual handwritten docket, court notes, and the “Abstract of Judgment.” According to the manual docket, our client was only advised of the “possible effects of plea on any alien/citizenship/probation/parole status.” However, pursuant to People v. Dubon (2001) 90 Cal. App. 4th 944, 955, this purported advisement does not satisfy the requirement of Penal Code section 1016.5 as a matter of law. Thus, we filed a motion to withdraw the plea pursuant to Penal Code section 1016.5.  

After filing the motion, the prosecution filed an “Opposition” to our request for relief. In the motion, the prosecution argued that our client was not entitled to relief because our client failed to demonstrate due diligence in seeking relief. In making this argument, the prosecution argued that subsequent convictions the defendant pled to in other cases, at which he was properly advised of the immigration consequences, demonstrate that the defendant would have pled to the offenses at hand had he been properly advised of the immigration consequences.

After receiving the “Opposition,” attorney Steve Escovar spoke to the Supervising District Attorney and the Handling Deputy District Attorney and was able to negotiate to have them submit on the motion to vacate and withdraw the pleas and to completely dismiss the charges in the interest of justice pursuant to Penal Code section 1385.

This is a great result for our client that will now remove the permanent and mandatory immigration consequences that he was subjected to as a result of his prior pleas to these felony offenses!


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