Conviction Vacated Over the District Attorney's Objection

At the Metropolitan Courthouse, Los Angeles Superior court we litigated a Penal Code section 1473.7 motion on a conviction for a violation of Penal Code section 484-Petty Theft from 1995. On the original charging document, the client was accused of violating Penal Code section 459-second degree commercial burglary, as a misdemeanor. Instead of pleading to the immigration safe 459, the client pled to the 484 which is a “Crime Involving Moral Turpitude” (CIMT)(i.e. the conduct involves a readiness to do evil, or demonstrates a dishonest character).

This case is an example of not needing to allege Ineffective Assistance of Counsel (IAC). Even though one could argue that pleading a client from an immigration safe charge such as a 459, to an immigration prejudicial crime such as 484, is ineffective assistance of counsel, Penal Code section 1473.7 does not require the defendant to allege IAC. Thus, even if it may be present it need not be alleged.

The Deputy District Attorney on this case was the Deputy in Charge of the courthouse (DIC) and she was opposed to the motion and argued against the relief that we sought. Fortunately, we had a very intelligent judge who had read our motion and had researched the case law. The judge found that we had met our burden of proof and that the motion was “well taken” and he granted the motion, vacated the previous guilty plea and conviction. The DDA then stated she was “unable to proceed” with the prosecution and I made a motion to dismiss per Penal Code section 1382 and it was granted. We had our order ready for the judge to sign and for the clerk to seal, it was conformed and we walked out with a complete victory!