Motion to Vacate Denied, PC 245(b) with Gang Allegations

In 2018, our client, then age 30, entered a no contest plea in Long Beach Superior Court to violating Penal Code § 245(b), assault with a semiautomatic firearm, and admitted the Penal Code § 186.22(b)(1)(B) enhancement allegation. He was thereafter sentenced to eleven years in state prison, to be served at a maximum of fifty percent. He had nearly a year of actual credit already and thereafter served approximately one more year before being released.

Lost in the significant plea bargaining efforts to resolve this case was an individualized warning to our client by his then-counsel that he would face mandatory, permanent and unavoidable adverse immigration consequences for his plea.

Since he had been living in the United States for sixteen years, our client did not believe the immigration warnings applied to him. Our client was born in the Philippines and with his sister (his parents were already here), came to the United States at age 14 in 2002 under an H-4 visa through his father. At the time he entered his plea, he was a not a U.S. citizen, but he was lawfully in the United States. Our client therefore did not regard the immigration warnings as applying to him because he lawfully entered the United States on an H-4 visa.

When he entered his plea, he followed the advice of his attorney to enter a no contest plea, trusting him that he if he actually faced mandatory, permanent and unavoidable adverse consequences, he would have told him so.

Moreover, our client had been in court and observed the judge or prosecutor give a similar admonition to every person entering a plea, even those who appeared to be obvious U.S. citizens. Our client regarded the admonition “script” the judge or prosecutor would read as mandatory to give to each defendant entering a plea, regardless of whether it actually applied, and that it often did not actually apply to a defendant. Our client did not believe it in fact applied to him because he was not in the United States illegally.

However, once our client completed his prison term, he was transferred to federal custody in Otay Mesa for removal proceedings due to his conviction in this case. He was shocked and confused.

He then consulted with an immigration attorney and explained that before entering his “no contest” plea in this case, he had no discussion with his then-attorney about any immigration-neutral alternative resolutions and was unaware that there were any mandatory, permanent and unavoidable adverse immigration consequences.

His immigration attorney then suggested he discuss a motion to vacate his conviction. The client then called Greg Hill & Associates and discussed his underlying conviction. Greg knew the judge involved was one who had denied every motion to vacate filed in her courtroom or assigned to her, so Greg warned the client that the motion would be viewed with skepticism and that the motion would most likely be denied, regardless of its merits. However, the client had no choice, as the motion was already filed months ago and he could not now file a peremptory challenge to the judge.

The client first filed his own motion to vacate under Penal Code § 1473.7(a)(1) and was assigned a public defender. The public defender bluntly told our client that his motion had no merit.

Our client then fired the public defender and, after speaking with Greg Hill, hired him.

Greg then appeared in court with the client seven times before an actual hearing on the motion. The judge first and foremost asked Greg to resubmit the motion with more case law and a declaration from our client.

The judge also required prior counsel to come to court to testify as to what he did or did not advise our client, which required our client to waive the attorney-client privilege in writing first.
Greg then drafted a waiver of the attorney-client privilege that the client signed.

At the hearing on the motion, prior counsel for our client testified that he and the client discussed his immigration consequences of a conviction at length, repeatedly. However, he also advised the client that if he were subject to deportation proceedings, he should retain an attorney to fight the deportation order, which our client regarded as meaning that deportation was not necessarily certain.

Our client then testified and stated he and his attorney never discussed the immigration consequences of the plea. His attorney did not know our client was in the United States legally on an H-4 visa. His attorney strongly urged the client to accept the plea bargain, so he followed his advice.

The judge then questioned our client and asked what happened in the underlying case and how he was sentenced. Our client described the basic facts and what he understood of the sentencing.

The judge then issued her ruling, stating that she found our client lacked credibility because his description of the crime and his sentence omitted extremely important facts and glossed over his involvement.

We find this manner of evaluating credibility to be unfair because our client did not have the legal training, education or experience of the judge, so his explanation of the facts and sentencing was not going to comport with the judge’s view of the facts or sentencing. It was a technique the judge used that we think was an abuse of discretion.

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