More than eighteen years ago, in September 2003, an officer from the Glendale Police Department arrested our client, then age 19, on suspicion of violating Vehicle Code § 23109(a) after he allegedly observed our client speeding alongside another car eastbound on Glenoaks Boulevard in the City of Glendale.
Our client had no passengers. He was traveling over the speed limit alongside another car moving at about the same speed, which police believed constituted street racing.
In January 2004, our client entered a nolo contendere plea in the Glendale Courthouse to an amended charge for violating Vehicle Code § 23109(c).
Our client was born in Korea and, with his parents, immigrated to the United States at age 6 in 1990. At the time he entered his plea, he held a valid green card was a lawful permanent resident.
According to the docket, at the time he entered his plea, he was admonished that “if you are not a citizen, you are hereby advised that a conviction of the offense for which you have been charged will have the consequences of deportation, exclusion from admission to the United States, or denial of naturalization pursuant to the laws of the United States.” The admonishment omitted the mention of denial of amnesty.
Since our client had been granted a green card and he had been in the United States for 13 years, he did not believe the immigration warnings applied to him. Moreover, he was too intimidated by his public defender to ask her for her time to answer any questions he had.
He therefore followed all her advice, which was to enter a nolo contendere plea to the Vehicle Code § 23109(c) charge, trusting her that she knew what was best for him. He was not aware of any immigration consequences to him personally. Moreover, he had been in court and observed the judge give a similar admonition to every person entering a plea, even those who were obvious U.S. citizens. Our client regarded the admonition “script” the judge read as mandatory for the judge to give to each defendant entering a plea, regardless of whether it applied, and that it often did not apply to each defendant. Our client did not believe it applied to him.
Our client then was placed on three years of informal probation, with no jail time, and an obligation to pay a court fine of $150, plus penalties and assessments, and take a safe driving course. He paid the fine, did the safe driving course and successfully completed his probation.
Eighteen years later, when he contacted an immigration attorney about becoming a U.S. citizen, the immigration attorney told him he needed to have the reckless driving conviction vacated and to contact a criminal defense attorney.
The client then called Greg Hill & Associates and spoke with Greg Hill. He described the facts of the case and how he entered the plea without knowing there were any adverse immigration consequences to him because at the time, he was a permanent resident. He was permanently in the U.S., in other words, so he could not be deported, or so he thought.
Greg then explained what a motion to vacate a conviction under Penal Code § 1473.7(a)(1) was for and, based on what the client had told him, that he could indeed have the motion filed and ruled upon by the judge in the Glendale courthouse.
The client then retained Greg Hill & Associates, who then prepared the motion to vacate, filed it and served the motion on the Glendale District Attorney’s office, as well as the prior former defender, who was now living in Washington State and practicing law up there.
A hearing date was set on the motion and Greg appeared in court for the hearing. The District Attorney opposed the motion, arguing that our client was not credible and that the immigration warning meant our client knew there were immigration consequences from the plea.
The judge rejected such arguments, citing to People v. Patterson (2017) 2 Cal.5th 885, at 889, that the judge’s reading of the admonition did not substitute for the advice of counsel about immigration consequences. The judge granted the motion, which made our client very happy.
For more information about motion to vacate issues under Penal Code § 1473.7(a)(1), please click on the following articles: