Post-Conviction Relief: Health and Safety Code section 11359(a)- “Possession of Marijuana for Sales” Felony Offense - Vacated Per Penal Code section 1016.5 and Renegotiated to Immigration Neutral Offense!

Recently, in Sacramento County, attorney Steve Escovar successfully litigated a Penal Code section 1016.5 Motion to withdraw our client’s felony conviction from 2000 for a violation of Health and Safety Code section 11359(a), “Possession of Marijuana for Sales.”

The Health and Safety Code section 11359 offense is considered a crime involving controlled substances for federal immigration purposes and constitutes an aggravated felony. Thus, this conviction causes our non-citizen client mandatory and permanent immigration consequences, including deportation from the United States.

Our office began our representation by requesting a copy of the court file. According to the court file, the minute order from the date of the plea indicates that our client was only advised regarding “rights regarding citizenship.” The court reporter notes for the date of the plea had been destroyed and, thus, we were unable to obtain a transcript of the plea proceedings. Therefore, it was our belief that our client had a strong Penal Code section 1016.5 motion to vacate the plea, given that there was no evidence that our client was properly admonished regarding the immigration consequences of his plea, as required by Penal Code section 1016.5, prior to entering his plea in 2000.

We filed our motion to vacate the conviction with the court and the prosecution. After the first court hearing, we entered into settlement discussions with the prosecution. The prosecution agreed that they lacked proof that our client was properly admonished pursuant to Penal Code section 1016.5. Thus, the prosecution agreed to submit on our motion to vacate and withdraw our client’s plea to the controlled substance offense.

When a motion is granted pursuant to Penal Code section 1016.5, the case is returned to its original status, meaning that our client was now facing open controlled substance charges. We were able to negotiate with the prosecution to allow our client to plea to a misdemeanor immigration neutral offense that would not cause him the same dire immigration consequences that his plea to Health and Safety Code section 11359 was previously causing our client.

This is a great result for our client that now alleviates the controlled substance conviction from his record!

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