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Motion to Vacate 4 Robbery Convictions Abandoned by Client
More than twenty-nine years ago, in 1993, the Whittier Police Department arrested our client, then age 19, on suspicion of violating Penal Code § 211 in four instances, each involving elderly Asian citizens. Our client allegedly used a knife in concert with two other people. Far less than $10,000 was stolen in each robbery, but in one robbery, our client stabbed a victim and in another robbery, our client’s accomplice sliced a woman’s arm, permanently disabling her (in 2024, she remained without the use of her arm).
Three weeks after his arrest, on October 22, 1993, our client entered guilty pleas to four counts of violating Penal Code § 211 and “pled in the open” for sentencing to the judge handling the cases. In 1994, the judge then sentenced our client to nine years in state prison. This took place in the Norwalk Courthouse.
Our client was represented by the public defender’s office at the time. Our client, born in Mexico and brought to the U.S. when age 3 by his parents, had no idea he would be subject to deportation orders when he finished his prison term. He thought he would return to his family home with his mom, dad and his siblings.
In 2024, 25 years after our client had finished serving his time, our client went to an immigration attorney and asked if he could become a U.S. citizen. In 1991, before his four convictions, he had become a lawful permanent resident.
The immigration attorney told him he could not and recommended that he try to vacate the four convictions for robbery from 1993. He told our client they “had to be vacated.”
The client, now age 50, then called Greg Hill & Associates and explained his situation. Greg first got the docket from the downtown Los Angeles archives and called the client back to explain what the docket showed, in handwriting.
Greg explained that the docket did not indicate that any immigration warning was given by the court prior to the pleas being entered, as required by Penal Code § 1016.5(a).
Moreover, since the client had been granted a permanent resident card and had been in the United States for 16 years, if such immigration consequence warnings had been given, our client said he believes he would not have believed they applied to him because he was in the United States legally. In addition, at that young age (19), he was too intimidated by his public defender to ask him to answer any questions he had. He therefore followed all his advice, which was to enter guilty pleas to the four Penal Code § 211 charges, trusting him that he knew what was best for him. Id.
Greg then explained to the client how if the motion were granted, the case would start all over and, while the client would certainly get credit for the time he served in state prison, there was no guarantee that the prosecution would simply dismiss the case based on being unable to proceed.
Greg explained how the victims may still be alive and able to testify in court and the prosecution may still be able to prove the robbery all over again.
However, Greg said he would seek to resolve the case on immigration-neutral charges and with little or no additional time in custody, but the only immigration-neutral alternative charge that was similar to robbery was burglary (Penal Code § 459), which the prosecutor could refuse to amend the complaint to allege.
The client said he understood this and retained our office. Greg Hill then prepared, filed and served the motion to vacate under Penal Code §§ 1016.5(a) and 1437.7(a)(1).
The prosecutor assigned to the case investigated whether the victims of the crimes were still alive and all four were. Moreover, all four had given sworn testimony under oath in 1993 and were subject to cross examination. So, if the victim(s) could not recall certain things that the transcript addressed, the transcript could substitute for testimony and be read.
In other words, the prosecutor acknowledged the lack of immigration warnings and the way the convictions were obtained violated our client’s right to enter into a plea intelligently, but she was fully capable of convicting our client all over.
Nonetheless, Greg negotiated a plea bargain wherein the prosecution would stipulate to vacate the convictions and the client would enter pleas to three counts of felony violations of Penal Code § 459 with a stipulation that no victim was present and the amount taken was less than $10,000. This would avoid making the convictions crimes of moral turpitude and not aggravated felonies.
However, the prosecutor wanted our client to still perform 240 hours of community service as part of the new deal because one of the victims was permanently disabled by the client’s crimes and another one was stabbed by him.
This plea bargain was reached after six court appearances over eight months. It was extremely intense to get such a deal for our client to allow him to become a U.S. citizen.
However, our client refused to agree to the deal. He stated he would rather be deported back to Mexico than perform 30 days of community service because he already served seven years in state prison. Our client was angry that the prosecutor still wanted him to do community service after more than 30 years and the prison time that he served.
The judge was amazed at our client’s refusal to accept the deal. The prosecutor also commented, “Usually, I do not negotiate at all on these types of motions if I can retry and reconvict the defendant, but here, I agreed to a good deal for your client.”
The motion was then taken off calendar without a ruling.
Three weeks after his arrest, on October 22, 1993, our client entered guilty pleas to four counts of violating Penal Code § 211 and “pled in the open” for sentencing to the judge handling the cases. In 1994, the judge then sentenced our client to nine years in state prison. This took place in the Norwalk Courthouse.
Our client was represented by the public defender’s office at the time. Our client, born in Mexico and brought to the U.S. when age 3 by his parents, had no idea he would be subject to deportation orders when he finished his prison term. He thought he would return to his family home with his mom, dad and his siblings.
In 2024, 25 years after our client had finished serving his time, our client went to an immigration attorney and asked if he could become a U.S. citizen. In 1991, before his four convictions, he had become a lawful permanent resident.
The immigration attorney told him he could not and recommended that he try to vacate the four convictions for robbery from 1993. He told our client they “had to be vacated.”
The client, now age 50, then called Greg Hill & Associates and explained his situation. Greg first got the docket from the downtown Los Angeles archives and called the client back to explain what the docket showed, in handwriting.
Greg explained that the docket did not indicate that any immigration warning was given by the court prior to the pleas being entered, as required by Penal Code § 1016.5(a).
Moreover, since the client had been granted a permanent resident card and had been in the United States for 16 years, if such immigration consequence warnings had been given, our client said he believes he would not have believed they applied to him because he was in the United States legally. In addition, at that young age (19), he was too intimidated by his public defender to ask him to answer any questions he had. He therefore followed all his advice, which was to enter guilty pleas to the four Penal Code § 211 charges, trusting him that he knew what was best for him. Id.
Greg then explained to the client how if the motion were granted, the case would start all over and, while the client would certainly get credit for the time he served in state prison, there was no guarantee that the prosecution would simply dismiss the case based on being unable to proceed.
Greg explained how the victims may still be alive and able to testify in court and the prosecution may still be able to prove the robbery all over again.
However, Greg said he would seek to resolve the case on immigration-neutral charges and with little or no additional time in custody, but the only immigration-neutral alternative charge that was similar to robbery was burglary (Penal Code § 459), which the prosecutor could refuse to amend the complaint to allege.
The client said he understood this and retained our office. Greg Hill then prepared, filed and served the motion to vacate under Penal Code §§ 1016.5(a) and 1437.7(a)(1).
The prosecutor assigned to the case investigated whether the victims of the crimes were still alive and all four were. Moreover, all four had given sworn testimony under oath in 1993 and were subject to cross examination. So, if the victim(s) could not recall certain things that the transcript addressed, the transcript could substitute for testimony and be read.
In other words, the prosecutor acknowledged the lack of immigration warnings and the way the convictions were obtained violated our client’s right to enter into a plea intelligently, but she was fully capable of convicting our client all over.
Nonetheless, Greg negotiated a plea bargain wherein the prosecution would stipulate to vacate the convictions and the client would enter pleas to three counts of felony violations of Penal Code § 459 with a stipulation that no victim was present and the amount taken was less than $10,000. This would avoid making the convictions crimes of moral turpitude and not aggravated felonies.
However, the prosecutor wanted our client to still perform 240 hours of community service as part of the new deal because one of the victims was permanently disabled by the client’s crimes and another one was stabbed by him.
This plea bargain was reached after six court appearances over eight months. It was extremely intense to get such a deal for our client to allow him to become a U.S. citizen.
However, our client refused to agree to the deal. He stated he would rather be deported back to Mexico than perform 30 days of community service because he already served seven years in state prison. Our client was angry that the prosecutor still wanted him to do community service after more than 30 years and the prison time that he served.
The judge was amazed at our client’s refusal to accept the deal. The prosecutor also commented, “Usually, I do not negotiate at all on these types of motions if I can retry and reconvict the defendant, but here, I agreed to a good deal for your client.”
The motion was then taken off calendar without a ruling.
This summary is offered, however, to exemplify how even a client with four convictions for robbery (a strike) may be able to renegotiate an immigration-neutral disposition, even if the original charges can be proven again.
