Motion to Vacate Granted, Torrance, 2004 Drug Conviction

Over 19 years ago, in 2004, our client, then 28 years old, was arraigned on and entered a guilty plea the same day to violating Health & Safety Code § 11350(a).  He was thereafter placed on PC 1000 deferred entry of judgment drug diversion for 18 months with an order to cooperate with his probation officer in a plan for substance abuse counseling. 

Lost in the efforts to resolve this case quickly was an accurate individualized warning to our client, by his then-counsel, a public defender (whose name is excluded from this summary and who is now retired), that he would face mandatory, permanent and unavoidable adverse immigration consequences for his plea.  Instead, the public defender told our client that PC 1000 was “the best thing to do” in this case.

Since he had been living in the United States for 11 years as of 2004 and because of what his public defender told him after knowing he was not a U.S. citizen, our client did not believe the immigration warnings applied to him.  Actually, they did so apply, as he later found out. 

Our client was born in Mexico and came to the United States at age 17 in 1993 for better employment opportunities.  He did so in defiance of strong Hispanic culture to remain close to one’s family and to help one’s more senior family members.  In a sense, his family exiled him once he decided to leave for the United States.  By the time he entered his plea, he had not been back to Mexico even once, as his family ostracized him even though our client regularly mailed the family money from his job at Wendy’s, where ultimately he worked for 24 years.

Moreover, he had been in court and observed the judge or prosecutor give a similar admonition to every person entering a plea, even those who appeared to be obvious U.S. citizens.  Our client regarded the admonition “script” the judge read as mandatory to give to each defendant entering a plea, regardless of whether it actually applied, and that it often did not actually apply to a defendant.  Our client did not believe it in fact applied to him because his counsel had told him the plea was immigration safe. 

However, in 2023, our client consulted with an immigration attorney about applying for his green card and was told that his plea in this case would prevent issuance of a green card to him.  His immigration attorney then suggested he discuss a motion to vacate his conviction.

Our client, then age 47, next called up Greg Hill & Associates.  He spoke with Greg, who explained that he could file a motion to vacate his convictions in this case vacated under Penal Code §§ 1203.43(b) (specifically as to Prop 36 and PC 1000 pleas) and 1437.7(a)(1) because the client, when he entered his plea, did not know there were any adverse immigration consequences to such a plea.

Our office then prepared a motion to vacate the plea and used a court-certified Spanish interpreter to translate our client’s declaration concerning his state of mind at the time of entering his plea, as well as his deep ties to the United States to show objective proof that he was credible when saying, in 2004, he would not have agreed to such adverse immigration consequences from the plea if he had known they existed.  The declaration explained that he had a U.S. citizen daughter, then an infant, who was now a college freshman and he was in five-year relationship with a woman who would soon thereafter be his wife.

Our office also included a declaration from his wife explaining how she accompanied our client to court when he entered his plea to PC 1000 diversion and the two never discussed his being deported as a consequence of the plea.  

Our office then filed the motion at the Torrance Superior Court and served the District Attorney’s office there in the Torrance courthouse.

The motion was set for a hearing three months later and at the hearing, the District Attorney read the motion and stated that her office policy, under head District Attorney George Gascon, was to not oppose such a motion.

The judge also stated that she had read the motion in its entirety and decided to grant it.  

The case was then set for an arraignment after the conviction was vacated and the People announced they were unable to proceed due to the passage of almost 20 years.  Greg then made a motion to dismiss under Penal Code § 1382, which the judge granted.

They client and his wife were very happy, as our client could now become a U.S. citizen.