In 2008, on the evening of the Academy Awards show (traditionally in late February or early March), our client and the mother of his unborn child got in an argument.
Our client was not a U.S. citizen, but was a permanent resident with a valid green card. He was born in Iran and came to the United States at age five in 1980 with his parents just after the fall of the Shah in the Iranian Revolution. He thereafter went to and graduated from Santa Monica High School.
Our client wanted to visit with the mother of his child, but the mother was at her home in Playa Del Rey watching the Academy Awards with another man, with whom she was in a romantic relationship. Our client was angry about this, fearing he would never see his child and not be part of his or her life. The woman apparently did not share the same hopes for the future.
Our client went over to the woman’s condominium and kicked open the door, breaking the front door’s lock in the process. He then began yelling at the woman, telling her she was not smart to abandon him in favor of another man and a few other derogatory terms.
Several officers from the LAPD Pacific Division came and arrested our client, who was later charged in the Airport Courthouse with first-degree residential burglary (Penal Code § 459), criminal threats (Penal Code § 422), felony vandalism (Penal Code § 594) and obstructing or evading arrest (Penal Code § 148(a)(1)), a misdemeanor.
The client first opted for the services of a public defender, but later hired private counsel, who negotiated a plea bargain on the first day of trial. The client agreed to and did plea no contest to a felony violation of Penal Code § 422, which is a strike, in exchange for a state prison sentence of two years.
On the same day, in a different courtroom in the same courthouse, the client agreed to a plea bargain to a misdemeanor violation of Penal Code § 243(e)(1), battery upon a co-habitant or spouse, arising from a separate domestic violence event. In this separate case, our client was placed on three years of informal probation. His same attorney negotiated both plea bargains.
Our client then served his time in prison and was ordered deported due to the conviction for criminal threats, which was an aggravated felony due to the sentence being one year or longer.
The deportation, however, was stayed due to the Convention Against Torture, which bars deportation to certain countries that are well understood for the government to allow or instigate torture those deported back to their home country. Iran, Iraq, Eritrea, Mali, Vietnam, Cameroon, El Salvador and many other countries have varying forms of risk for those deported back to such countries.
Our client, however, continued to suffer discrimination is finding a business loan and a home loan due to his immigration status (as well as being a convicted felon). He called up Greg Hill & Associates one day and spoke with Greg about his criminal history. An immigration attorney had recommended that the client ask to vacate each of his convictions arising in six separate cases. Greg questioned whether this was really necessary, as the cost would be lower if he did not seek such relief in every case, several of which were not crimes involving moral turpitude (CIMT). The client double-checked on this with the immigration attorney, so Greg proceeded to work on all six cases, each of which were at the Airport Courthouse.
Greg vacated the convictions in five of the six cases without too much problem In the sixth case, however, the judge at the Airport Courthouse took an active interest in evaluating the motion and our client’s entire criminal history in detail.
It took over one year of hearings and multiple filings and hours of argument to finally reach what was acceptable to the prosecutor, the judge and our client: our client would not have his conviction vacated under Penal Code § 1473.7(a)(1) (as the judge strongly suggested she would deny the motion), but she agreed to resentence him to 364 days in county jail under Penal Code § 1170(h), with credit for time served, and no probation. This resolution nicely changed the conviction from being an aggravated felony to just another crime and our client would no longer face deportation.
We submit this summary for the reader’s consideration because if the judge indicates he or she will deny the motion for whatever reason, consider resentencing to a shorter term that changes the conviction from an aggravated felony to one that is not, or consider pleading to an alternative charge if the prosecution will stipulate to vacate the conviction.
For more information about motions to vacate under Penal Code § 1473.7(a)(1), please click on the following articles: