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 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.

As is common in cases like this, Mr. Huizar 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 immigration consequences of his plea, a violation of Penal Code § 1016.5(a). The judge apparently was unaware that Mr. Huizar was not a U.S. citizen at the time.

Furthermore, because Mr. Huizar had been living in the United States for eight years and had no prior legal experience, he naively regarded his conviction as minor in nature and something that would be forgiven after he completed probation (¶ 4, Huizar Dec.). More importantly, he followed the recommendation of his attorney to plea guilty, trusting his attorney's experience and expertise. ¹ Id.

These were two significant, consequential and severely prejudicial errors in the conviction.