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Criminal Defense Attorneys

Motion to Vacate Granted for Robbery (PC 211) Conviction

More than twenty-five years ago, in August 1996, the Los Angeles Police Department, Hollywood station, arrested our client on suspicion of violating Penal Code § 211, also known as robbery, after he forcefully took approximately $200 in cash from a man exiting a bank while counting his money.

About seven months later, our client entered a guilty plea to a violation of Penal Code § 211.

Our client was born in El Salvador.  He came to the U.S. at age 22 in 1990.  At the time he entered his plea, he was a not a U.S. citizen.

According to the docket (Exh. A), 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 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.”  The admonishment omitted the mention of denial of amnesty.  

The admonition to our client included the words “may,” rather than “will.”  While some courts regard such an admonition under Penal Code § 1016.5(a) as legally defective, “the exact language of the advisement is not crucial.” People v. Soriano (1987) 194 Cal. App. 3d 1470, 1475, 248 Cal. Rptr. 328.  

At the time, because he had been granted a workers visa card and he had been in the United States for six years, our client did not believe the immigration warnings applied to him.  Moreover, he was too intimidated by his public defender to ask for more time to answer any questions he had.  He therefore followed all the advice, which was to enter a guilty plea to the Penal Code § 211 charge, trusting that all was best for him.   

Our client was then sentenced to three years of formal probation, which he then completed.  In addition to serving 300 days in county jail, with credit for 300 days (200 days of actual custody and 100 days good time / work time), he was also required to pay a $200 restitution fine.

In 2021 our client was then 53 years old.  He wanted to apply for his permanent resident card and U.S. citizenship because his employer (a famous restaurant) told him he would be let go unless he was legally here.  

Our client was a professional cook and had been working as a cook for over 23 years.  Our client’s employment helps support his wife and two adult children (son, age 28, and daughter, age 21) as well as pay for his daughter’s university tuition.

In 2014, our client had paid an attorney $7,000 to file a motion to vacate the plea under Penal Code § 1016.5, but the judge denied the motion.  

In 2021, he then paid Greg Hill & Associates less than one third of this amount to vacate the conviction under Penal Code § 1437.7(a)(1).  When he described the facts of his case and the details of entering into the plea bargain, the client also explained that lived with constant anxiety that he would be arrested for not self-deporting and deported back to El Salvador, where he knew no one.  He would then be barred from re-entry to the United States and separated from his family.

Greg Hill & Associates then prepared such a motion to vacate the conviction, explaining the client’s mindset at the time of the conviction (People v. Mejia (2019) 36 Cal. App. 5th 859, 866 (“The key to the statute [Penal Code § 1473.7(a)(1)] is the mindset of the defendant . . . at the time the plea was taken.”), which was he had no idea that the conviction had any adverse immigration consequences.  

Moreover, the motion explained, our client 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 therefore 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 mistakenly did not believe it applied to him.  

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 public defender to continue negotiating for an immigration-neutral resolution (such as to misdemeanor grand theft or even felony commercial burglary) or proceed to trial.

Instead, however, not knowing there were immigration consequences to him personally, our client entered his guilty plea.  All he was concerned about, ironically, was getting out of court, and getting back to work to support his family.  The word “ironically” is used to emphasis that the immigration consequences of a plea, including deportation and exclusion, “may be more grave than the consequences that flow from the crime . . .” Kungyr v. United States (1988) 485 U.S. 759, 792, 108 S. Ct. 1537, 1557, 99 L. Ed. 2d 839.

Our office then filed and served the motion in the downtown Clara Shortridge Foltz courthouse at 210 West Temple Street.  After about four months of hearings on the motion, with the judge asking for more time to read the motion and research the law, and the District Attorney assigned to the case requesting the same thing, the judge granted the motion.

When our office telephoned our client right after the hearing to share the good news, the client began crying over the phone, tears of joy.  His daughter thanked us as well, saying her father was “over the moon” with happiness.

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