Recently, Escovar Law, APC represented a client with 4 cases. In the first case, Mr. Escovar persuaded the court to recall a bench warrant and dismiss the Penal Code Section 484 charge by litigating an informal Serna motion. In the second case, Steve Escovar filed a written 1473.7(a)(1) motion, the judge granted the motion, and the client’s conviction was vacated and dismissed per Penal code Section 1385. The 1995 conviction exposed the client to serious adverse immigration consequences, making out-of-custody post-conviction relief a material step for the client’s immigration status adjustment. The client has since retained Escovar Law, APC for the third case.
First Case: Bench Warrant Recalled
In the first matter, at the Larson Justice Center Superior Court of California, County of Riverside (Indio, California), Mr. Escovar persuaded the court to recall a bench warrant and subsequently litigated an oral informal Serna motion.
What is a Serna Motion?
Mr. Escovar litigated an oral informal Serna motion arguing that the client’s Speedy Trial Rights under the United States and California Constitution had been violated due to unnecessary delays which damaged the client’s chance to have a fair trial.
According to the Serna case, the Right to a Speedy Trial attaches with either the filing of the accusatory pleading or with arrest of the defendant, whichever is first. Serna v. Superior Court (1985) 40 Cal.3d 239. Additionally, when an offense is charged as a misdemeanor, the filing of the complaint or the earlier arrest triggers the defendant’s Sixth Amendment right to a speedy trial. Id.
Second Case: 1995 Petty Theft Conviction
In the second case, at the same courthouse, Mr. Escovar represented the client who was convicted in 1995 of violating Penal Code Section 484, 490.5 Misdemeanor Petty Theft. The original charging document and court file had since been destroyed.
Crime Involving Moral Turpitude —Immigration Consequences
According to the Code of Federal Regulations Section 316.10(a)(1) “An applicant for naturalization bears the burden of demonstrating that, . . . he or she has been and continues to be a person of good moral character,” a conviction of a Crime Involving Moral Turpitude (CIMT) may present serious immigration obstacles and consequences.
As a result of the 1995 conviction on the client’s record, the client was facing deportation, exclusion from admission to the United States, denial of naturalization, and permanent separation from the client’s loved ones.
What is a Motion to Vacate Under Penal Code § 1473.7(a)(1)?
Under Penal Code Section 1473.7(a)(1), a person who is no longer in criminal custody may file a motion to vacate a conviction or sentence if the conviction or sentence is legally invalid due to prejudicial error damaging the moving party's ability to meaningfully understand, defend against, or knowingly accept the actual or potential adverse immigration consequences of a conviction.
Mr. Escovar filed and argued a 1473.7(a)(1) motion to vacate the client’s conviction on the grounds that the conviction was not legally valid. Escovar persuaded the court that a prejudicial error damaged the client’s ability to meaningfully understand the immigration consequences of the client’s guilty plea with an analysis of the contemporaneity factors of the client’s particular case.
California Penal Code Section 1385 Dismissal
Escovar Law obtained a written court order that the client’s matter was vacated per 1473.7(a)(1) and dismissed under California Penal Code Section 1385. This result is another example of Escovar Law, APC striving to be the best law firm for vacating convictions under Penal Code Section 1473.7(a)(1).
Result for Case One: Bench Warrant Recalled and Case Dismissed.
In the first case, the bench warrant was recalled, then Mr. Escovar successfully litigated an oral informal Serna Motion and the case was dismissed.
Result for Case Two: Conviction Vacated and Case Dismissed.
In the second case, the conviction was vacated under Penal Code Section 1473.7(a)(1) and dismissed pursuant to Section 1385. The client has hired Escovar Law, APC for the third matter.
There are no guarantees and results may vary depending on the specific facts of each case.
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