1987 Conviction for Selling Drugs, Van Nuys, Vacated

More than thirty-six years ago, on August 21, 1987, our client was arrested in Los Angeles County and later charged in the Van Nuys Superior Court with violating Health & Safety Code § 11351, possession of a controlled substance for sale, to wit cocaine. Our client was not a U.S. citizen. He had come to the United States from Columbia at age 16, alone, to make a better life.

Eight years later, in 1987, however, our client, then age 24, was found literally “holding the bag” containing a controlled substance that his girlfriend and co-defendant had handed him to carry into a restaurant. The bag contained more than 100 grams of a controlled substance.

After being arrested and going to court at the Van Nuys Superior Court, our client entered into a guilty plea to the charge on December 22, 1987. He was then sentenced to three years in state prison. After serving his time, he was deported back to Colombia, where he remained through 2023.

Before our client entered his plea, the judge did not warn him under Penal Code § 1016.5 that a conviction for the offense that he was entering a plea to would cause him adverse immigration consequences. His attorney also did not tell him this.

At the time he entered into the plea, all our client was concerned with, ironically, was avoiding a longer term in state prison.

In the eight years before his plea that led to his deportation, our client laid deep roots in the United States. He worked as a painter for the City of Glendale, painting house numbers on the curbs in front of each house for about three years, before he opened his own business as a gardener, pool cleaner and plumber. All the while (from 1981 to 1987), he attended Glendale High School to gain his high school diploma and improve his English proficiency. After graduating from high school, he attended UCLA to study business administration until being arrested in this case with his girlfriend. The life he envisioned in the United States ended.

At the time, he considered himself an American, not a Colombian. He had many deep friendships developed in the United States that he did not want to abandon.

Before he entered his plea in this case, he did not know the conviction would bar him from staying in the United States or becoming a U.S. citizen. His attorney never explained any of this to him. If he had known this, he would have asked his attorney to try to resolve the case so there were no adverse immigration consequences, for example to Penal Code § 32 (accessory after the fact), or simple possession without the type of controlled substance identified in the plea (Health & Safety Code § 11350), and if this were not possible, as a last resort, he would have joined his co-defendants in trial.

Indeed, a conviction for a violation of Health & Safety Code § 11351 is regarded as “drug trafficking,” is an aggravated felony and a crime involving moral turpitude for purposes of the federal Immigration and Nationality Act (INA). One convicted of an aggravated felony is presumptively deportable. 8 U.S.C.S. §§ 1227 (a)(2)(A)(iii) [“Any alien who is convicted of an aggravated felony at any time after admission is deportable”]; 1228(c) [“An alien convicted of an aggravated felony shall be conclusively presumed to be deportable from the United States”]; United States v. Palomar-Santiago (2021) ____ U.S. ____, 141 S. Ct. 1615, 1619, 209 L.Ed.2d 703, 707; Moncrieffe v. Holder (2013) 569 U.S. 184, 187, 133 S. Ct. 1678, 185 L.Ed.2d 727 [a noncitizen convicted of a crime classified as an “ ‘aggravated felony’ ” is not only deportable, but also ineligible for discretionary forms of relief].).

In 2023, his daughter in Miami called us to ask what we could do for her father, now age 60, who still wanted to live in the United States, particularly now because his daughter lived here and had a daughter of her own.

Greg listened to the client’s daughter explain what had happened and Greg explained that the client could request to have his plea in this case vacated under Penal Code §§ 1016.5(a) and 1437.7(a)(1).

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