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Health & Safety Code § 11359 Conviction Vacated, Torrance
Almost twenty-three years ago, on January 10, 2001, our client, then twenty-eight years old, entered a guilty plea to violating Health & Safety Code § 11359, possession of marijuana for sale. He was thereafter sentenced to sixteen months in state prison, concurrent with resolution of two other cases, one in Torrance Superior Court and one in Inglewood Superior Court.
As might be expected, our client’s goal in reaching a global settlement of all three matters was to minimize his time in custody.
Lost in the effort to resolve all three cases concurrently was any warning to our client by his then counsel (who had since passed away), that he would face adverse immigration consequences for his plea. Indeed, the U.S. Supreme Court would not tackle this thorny issue for more than another decade when it issued its ruling in Padilla v. Kentucky (2010) 559 U.S. 356, mandating that criminal defense counsel must advise defendant of the immigration consequences of the charges faced. Our client had emigrated to the U.S. from Jamaica eleven years earlier.
In addition, the judge taking the plea did not properly advise our client of the immigration consequences because he told him that that “if you are not a citizen, you are hereby advised that a conviction of the offense for which you have been charged may have the consequences of deportation, exclusion from admission to the United States, or denial of naturalization pursuant to the laws of the United States.”
Since our client had been granted a B-1 visa and he had been in the United States for 11 years before his plea in 2001, he did not believe the immigration warnings applied to him. At the time he entered his plea, he was a not a U.S. citizen.
Moreover, he had been in court and observed the judge 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 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 because he was not in the United States illegally.
In 2022, however, our client applied for a permanent resident card. However, due to his conviction (not only in this case), his application was denied.
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 (RIP) about any immigration-neutral alternative resolutions and was unaware that there were any adverse immigration consequences.
The client did so and spoke with Greg about his three cases and how this one case affected his immigration status.
Our office then prepared, filed and served the motion to vacate the conviction for violating Health & Safety Code § 11359.
A hearing date was set almost three months after the date the motion was filed, which was unusual.
Despite having such time to review the motion before the hearing, when Greg appeared in court for the hearing, the assigned District Attorney said she had not read the motion. She then read through it and said she would not agree to vacate the conviction unless our client pled to possession of marijuana as a misdemeanor for personal use. Greg pointed out that this was no longer illegal if the amount was less than 28 grams, post-Prop 64.
The District Attorney responded, “Oh yeah, that’s right” and continued reading the motion. She finished reading it and said she had no objection to vacating the conviction.
The judge then called for a hearing on the motion and the People announced that they were not opposing the motion. The judge then granted the motion, vacating the conviction.
The judge then asked the People if they were able to proceed with prosecution anew and the People said they were unable to proceed. Greg then made a motion to dismiss under Penal Code § 1382, which the judge granted.
As might be expected, our client’s goal in reaching a global settlement of all three matters was to minimize his time in custody.
Lost in the effort to resolve all three cases concurrently was any warning to our client by his then counsel (who had since passed away), that he would face adverse immigration consequences for his plea. Indeed, the U.S. Supreme Court would not tackle this thorny issue for more than another decade when it issued its ruling in Padilla v. Kentucky (2010) 559 U.S. 356, mandating that criminal defense counsel must advise defendant of the immigration consequences of the charges faced. Our client had emigrated to the U.S. from Jamaica eleven years earlier.
In addition, the judge taking the plea did not properly advise our client of the immigration consequences because he told him that that “if you are not a citizen, you are hereby advised that a conviction of the offense for which you have been charged may have the consequences of deportation, exclusion from admission to the United States, or denial of naturalization pursuant to the laws of the United States.”
Since our client had been granted a B-1 visa and he had been in the United States for 11 years before his plea in 2001, he did not believe the immigration warnings applied to him. At the time he entered his plea, he was a not a U.S. citizen.
Moreover, he had been in court and observed the judge 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 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 because he was not in the United States illegally.
In 2022, however, our client applied for a permanent resident card. However, due to his conviction (not only in this case), his application was denied.
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 (RIP) about any immigration-neutral alternative resolutions and was unaware that there were any adverse immigration consequences.
The immigration attorney then recommended that the client contact Greg Hill & Associates.
Greg then explained what a motion to vacate a plea under Penal Code § 1473.7(a)(1) would argue and also how Penal Code § 1016.5(a) would also apply.
A hearing date was set almost three months after the date the motion was filed, which was unusual.
Despite having such time to review the motion before the hearing, when Greg appeared in court for the hearing, the assigned District Attorney said she had not read the motion. She then read through it and said she would not agree to vacate the conviction unless our client pled to possession of marijuana as a misdemeanor for personal use. Greg pointed out that this was no longer illegal if the amount was less than 28 grams, post-Prop 64.
The District Attorney responded, “Oh yeah, that’s right” and continued reading the motion. She finished reading it and said she had no objection to vacating the conviction.
The judge then called for a hearing on the motion and the People announced that they were not opposing the motion. The judge then granted the motion, vacating the conviction.
The judge then asked the People if they were able to proceed with prosecution anew and the People said they were unable to proceed. Greg then made a motion to dismiss under Penal Code § 1382, which the judge granted.
The client and his family were very happy with this ruling, as it was the last of the three cases, all of which were no longer barriers to him becoming a U.S. citizen. Our office had vacated all convictions in each of the three cases.
