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Motion to Vacate Granted, Santa Ana, H & S 11360(a) in 1995
In 1995, our client, then twenty-four years old, entered a guilty plea to a violation of Health & Safety Code § 11360(a), possession of marijuana for sales or to transport.
In 1995, this offense was a “straight felony,” meaning the charge was always a felony. Now, in 2024, it was a misdemeanor punishable for no more than six months in county jail, with certain exceptions. One could be charged with violating 11360(a) as a felony only if one was a registered sex offender, one had a prior conviction for a “superstrike” offense as listed under Penal Code § 667(e)(2)(C)(iv) or one has been previously convicted of violating 11360(a) two or more times.
In our client’s case, he had no prior criminal history. He had been found in possession of five ounces (140 grams) of marijuana that his friend asked him to give (transport) to another person.
Before our agreed to plead guilty to violating § 11360(a), he did not know the deportation consequences of the conviction. He had not discussed deportation or any adverse immigration consequences of the conviction with his attorney.
This was not due to the attorney’s negligence. Indeed, the U.S. Supreme Court would not tackle these thorny issue for another 15 years when it ruled in Padilla v. Kentucky (2010) 559 U.S. 356 that criminal defense counsel must advise a noncitizen defendant of the immigration consequences of the charges faced.
Moreover, our client believed that after serving 120 days in jail, he would return to his family and then serve three years on formal probation. After this was completed, he thought he would no longer have to worry about this case or the conviction in any way. He did not know there were more consequences to his convictions than serving time in prison and then being on parole if he violated the terms of probation. He had no experience with the U.S. legal system or any education that would have suggested otherwise.
Our client had immigrated from Mexico to the United States eight years earlier, in 1987, when age 16. He had come to the United States with both his parents and his siblings. The family had no intention of ever returning to Mexico even to visit relatives who still lived there. The family was committed to starting a new life in the United States to escape the poverty and lack of economic opportunity in Mexico.
As is common in cases like this, our client entered into a plea bargain at his second appearance in court, less than a month after being arraigned. In other words, he regarded the legal process as uncomplicated and simple.
When being advised of the consequences of his plea, the judge did not advise him of the mandatory immigration consequences of his plea, a violation of Penal Code § 1016.5(a). The judge instead said the conviction “may” cause immigration consequences, rather than it “will” cause him to be deported, denied naturalization and denial of re-entry to the United States. In fact, it appeared that the judge was unaware that our client was not a U.S. citizen at the time.
Furthermore, because our client had been living in the United States for eight years and had no prior legal experience, he naively regarded his conviction (a first offense) as minor in nature and something that would be forgiven, perhaps even erased from his record, after he completed probation. After all, the United States was generally sympathetic and forgiving to those who make mistakes.
More importantly, he followed the recommendation of his attorney to plead guilty, trusting his attorney’s experience and expertise.
In 2024, he discovered that this plea, 29 years earlier, was a barrier to him becoming a U.S. citizen. He then called Greg Hill & Associates upon the advice of his immigration attorney.
The client explained his 1995 conviction and the surrounding circumstances. Greg then explained how a conviction such as his, without proper legal advice concerning the adverse immigration consequences was regarded as a mistake and eligible for being vacated due to a prejudicial error under Penal Code § 1473.7(a)(1). Greg also explained that the judge’s warning to him about the immigration consequences was legally invalid under Penal Code § 1016.5(a) because it warned our client that the plea “may” lead to certain adverse consequences, as if it was only possible, not a certainty.
The client then retained Greg Hill & Associates and we prepared, filed, served and then appeared at the hearing on the motion to vacate, both under Penal Code §§ 1473.7(a)(1) and 1016.5(a).
At the hearing on the motion in the Santa Ana Courthouse, the district attorney announced that she was not opposing the motion and the judge granted it. The prosecutor then announced that the People were unable to proceed with a prosecution, so the judge dismissed the case in the interest of justice under Penal Code § 1385.
In 1995, this offense was a “straight felony,” meaning the charge was always a felony. Now, in 2024, it was a misdemeanor punishable for no more than six months in county jail, with certain exceptions. One could be charged with violating 11360(a) as a felony only if one was a registered sex offender, one had a prior conviction for a “superstrike” offense as listed under Penal Code § 667(e)(2)(C)(iv) or one has been previously convicted of violating 11360(a) two or more times.
In our client’s case, he had no prior criminal history. He had been found in possession of five ounces (140 grams) of marijuana that his friend asked him to give (transport) to another person.
Before our agreed to plead guilty to violating § 11360(a), he did not know the deportation consequences of the conviction. He had not discussed deportation or any adverse immigration consequences of the conviction with his attorney.
This was not due to the attorney’s negligence. Indeed, the U.S. Supreme Court would not tackle these thorny issue for another 15 years when it ruled in Padilla v. Kentucky (2010) 559 U.S. 356 that criminal defense counsel must advise a noncitizen defendant of the immigration consequences of the charges faced.
Moreover, our client believed that after serving 120 days in jail, he would return to his family and then serve three years on formal probation. After this was completed, he thought he would no longer have to worry about this case or the conviction in any way. He did not know there were more consequences to his convictions than serving time in prison and then being on parole if he violated the terms of probation. He had no experience with the U.S. legal system or any education that would have suggested otherwise.
Our client had immigrated from Mexico to the United States eight years earlier, in 1987, when age 16. He had come to the United States with both his parents and his siblings. The family had no intention of ever returning to Mexico even to visit relatives who still lived there. The family was committed to starting a new life in the United States to escape the poverty and lack of economic opportunity in Mexico.
As is common in cases like this, our client entered into a plea bargain at his second appearance in court, less than a month after being arraigned. In other words, he regarded the legal process as uncomplicated and simple.
When being advised of the consequences of his plea, the judge did not advise him of the mandatory immigration consequences of his plea, a violation of Penal Code § 1016.5(a). The judge instead said the conviction “may” cause immigration consequences, rather than it “will” cause him to be deported, denied naturalization and denial of re-entry to the United States. In fact, it appeared that the judge was unaware that our client was not a U.S. citizen at the time.
Furthermore, because our client had been living in the United States for eight years and had no prior legal experience, he naively regarded his conviction (a first offense) as minor in nature and something that would be forgiven, perhaps even erased from his record, after he completed probation. After all, the United States was generally sympathetic and forgiving to those who make mistakes.
More importantly, he followed the recommendation of his attorney to plead guilty, trusting his attorney’s experience and expertise.
In 2024, he discovered that this plea, 29 years earlier, was a barrier to him becoming a U.S. citizen. He then called Greg Hill & Associates upon the advice of his immigration attorney.
The client explained his 1995 conviction and the surrounding circumstances. Greg then explained how a conviction such as his, without proper legal advice concerning the adverse immigration consequences was regarded as a mistake and eligible for being vacated due to a prejudicial error under Penal Code § 1473.7(a)(1). Greg also explained that the judge’s warning to him about the immigration consequences was legally invalid under Penal Code § 1016.5(a) because it warned our client that the plea “may” lead to certain adverse consequences, as if it was only possible, not a certainty.
The client then retained Greg Hill & Associates and we prepared, filed, served and then appeared at the hearing on the motion to vacate, both under Penal Code §§ 1473.7(a)(1) and 1016.5(a).
At the hearing on the motion in the Santa Ana Courthouse, the district attorney announced that she was not opposing the motion and the judge granted it. The prosecutor then announced that the People were unable to proceed with a prosecution, so the judge dismissed the case in the interest of justice under Penal Code § 1385.
The client was very happy with this result.
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