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Motion to Vacate Granted, 2004 Conviction Orange County

More than eighteen years ago, in 2004, the Orange County Sheriff’s Department arrested our client on suspicion of stealing three phones from AT & T, his employer, a violation of Penal Code § 487(b)(3) as a misdemeanor.  About seven months later he entered a guilty plea to the charge.

Our client was born in Vietnam.  He came to the U.S. at age 3 in 1980.  In January of 1980, he became a lawful permanent resident.  He thereafter attended kindergarten, elementary school, middle school and high school in the Westminster and Garden Grove area.  He later attended Ventura Community College.  

At the time he entered his plea, he was a not a U.S. citizen, but he knew no one in Vietnam and had not been back there since leaving it 24 years earlier.  He considered himself an American although he not.  He spoke fluent English and his values were American values.

According to the docket, at the time he was arraigned, he was advised of the “possible” consequences of a plea affecting deportation and citizenship.  As the reader of this summary may be aware, “May” has been regarded by the Second Appellate District as an improper immigration admonition.  People v. Ruiz (2020) 49 Cal. App. 5th 1061, 1065 (finding error in 1991 guilty plea to a drug offense where the defendant was advised of possible, rather than mandatory immigration consequences).  

In such cases, “[d]efendants must be advised that they will be deported, excluded, and denied naturalization as a mandatory consequence of the conviction.” Id.; see also People v. Soto (3d App. Dist., June 6, 2022) 2022 DJDAR 5649 (“may” is improper).  

As the California Supreme Court has stated, there is a stark difference between an actual and a theoretical risk of deportation.  People v. Superior Court (Giron) (1974) 11 Cal.3d 793, at 797; see also U.S. v. Rodriguez (9th Cir. 1995) 797 F.3d 781, 790 [“Warning of the possibility of a dire consequence is no substitute for warning of a virtual certainty.  As Judge Robert L. Hinkle explained, ‘Well, I know every time that I get on an airplane that it could crash, but if you tell me it is going to crash, I’m not getting on.’”].

More than four months later, our client changed his plea to guilty.  The docket says nothing about any immigration warnings being given to him by the judge at that time.  

Since he was a permanent resident at that time and had been living in the United States for twenty-four years, our client believed that even if any immigration warnings were given to him, he would not have regarded the immigration warnings as applying to him.  As the Second Appellate District has recently stated in People v. Miguel Lopez (26 Sep 2022) (2022 WL 4462515), such disregard for the immigration warnings by a green card holder is “reasonable.”

Moreover, he was too intimidated by his counsel to ask him for his time to answer any questions he had.  He therefore followed all his advice, which was to enter a guilty plea to the charge, trusting him that he knew what was best for him.  

He was then sentenced to three years of informal probation, including 90 days of county jail, which he then completed.  

Our client, now age 45 (in 2022), called our office, explaining that he sought to have his conviction in this case vacated under Penal Code § 1437.7(a)(1) because he planned to apply for his citizenship and had been advised that he would be denied citizenship with this conviction on his record.  

He had been employed in a variety of jobs since age 18, the most recent being of five years in customer service at Verizon Wireless.  His employment helped support his wife and eleven year old autistic daughter.  He was now living in Oklahoma.

With this conviction, he faced deportation back to Vietnam. Consequently, he lived in constant fear of being detained and then deported at any time.

Had our client known of the adverse immigration consequences of such a conviction before agreeing to enter a guilty plea, he would not have voluntarily entered such a plea and would have instead told his attorney to continue negotiating for a civil compromise or an immigration-neutral resolution such as to misdemeanor trespassing or proceed to trial.

Greg Hill then explained how he could file a Motion to Vacate in the Santa Ana Superior Court to have the conviction vacated for the reasons stated above.  The client then retained Greg Hill & Associates and Greg prepared the motion, filing it in the “Central Justice Center” in Santa Ana and serving it to the Orange County District Attorney’s office.

The judge granted the motion and the People announced they were unable to proceed with the prosecution, so the judge dismissed the case under Penal Code § 1385 (“In the interests of justice).  The client was very happy.

For more information about motion to vacate issues, please click on the following articles:
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