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Motion to Vacate Granted, Torrance, VC 2800.2, H & S 11359
More than twenty-four years ago, in January of 2000, our client, then twenty-seven years old, entered a guilty plea to two felonies for violating Vehicle Code § 2800.2(a), evading a police officer, as well as Health & Safety Code § 11359, transportation of marijuana.
He was thereafter sentenced to sixteen months in state prison, concurrent with resolution of two other cases, one in Torrance Superior Court and one in Inglewood Superior Court.
As might be expected, our client’s goal in reaching a global settlement of all three matters was to minimize his time in custody. At the time, he was represented by a well-known private criminal defense attorney who has since passed away.
Lost in the effort to resolve all three cases concurrently was any warning to our client by his then counsel (RIP) that he would face adverse immigration consequences for his pleas. Indeed, the U.S. Supreme Court would not tackle this thorny issue for more than another decade when it issued its ruling in Padilla v. Kentucky (2010) 559 U.S. 356, mandating that criminal defense counsel must advise defendant of the immigration consequences of the charges faced.
In addition, the judge taking the plea did not properly advise our client of the immigration consequences because he told our client that 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 admonition to our client included the words “may,” rather than “will.” Such an admonition, even if proper, does not establish defendant’s awareness of such adverse immigration consequences. People v. Patterson (2017) 2 Cal.5th 885, at 898; see also People v. Camacho (2019) 32 Cal. App. 5th 998, 1011, fn. 8.
Since he had been granted a B-1 visa and he had been in the United States for 11 years, our client did not believe the immigration warnings applied to him. Our client was born in Jamaica and with his aunt, he came to the United States at age 18 in 1990 under a B-1 visa, also known as a business visa. At the time he entered his plea, he was a not a U.S. citizen.
When he entered his plea, he followed the advice of his then-attorney to enter guilty pleas to both charges, trusting him that he knew what was best for him.
Moreover, he had been in court and observed the judge give a similar warning 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 did not believe it applied to him because he was not in the United States illegally.
About nine months later, he was released and reintegrated into society, growing a family in Inglewood and having several children, all who were U.S. citizens.
However, in 2023, our client applied for a permanent resident card, but due to his convictions (not only in this case), his application was denied.
He then consulted with an immigration attorney and explained that before entering his “no contest” plea in this case, he had no discussion with his then-attorney about any immigration-neutral alternative resolutions and was unaware that there were any adverse immigration consequences.
His immigration attorney then suggested he discuss a motion to vacate his conviction.
Greg listened to the client and explained that “the focus of the inquiry in a section 1473.7 motion is on the ‘defendant’s own error in . . . not knowing that his plea would subject him to mandatory deportation and permanent exclusion from the United States.’” Mejia, supra, at 871, quoting People v. Camacho (2019) 32 Cal. App. 5th 998, 1009. Here, that certainly took place.
Our office then prepared, filed and served a motion to vacate the two convictions under Penal Code §§ 1437.7(a)(1) and 1016.5(a). The motion was filed in the Torrance Superior Court.
He was thereafter sentenced to sixteen months in state prison, concurrent with resolution of two other cases, one in Torrance Superior Court and one in Inglewood Superior Court.
As might be expected, our client’s goal in reaching a global settlement of all three matters was to minimize his time in custody. At the time, he was represented by a well-known private criminal defense attorney who has since passed away.
Lost in the effort to resolve all three cases concurrently was any warning to our client by his then counsel (RIP) that he would face adverse immigration consequences for his pleas. Indeed, the U.S. Supreme Court would not tackle this thorny issue for more than another decade when it issued its ruling in Padilla v. Kentucky (2010) 559 U.S. 356, mandating that criminal defense counsel must advise defendant of the immigration consequences of the charges faced.
In addition, the judge taking the plea did not properly advise our client of the immigration consequences because he told our client that 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 admonition to our client included the words “may,” rather than “will.” Such an admonition, even if proper, does not establish defendant’s awareness of such adverse immigration consequences. People v. Patterson (2017) 2 Cal.5th 885, at 898; see also People v. Camacho (2019) 32 Cal. App. 5th 998, 1011, fn. 8.
Since he had been granted a B-1 visa and he had been in the United States for 11 years, our client did not believe the immigration warnings applied to him. Our client was born in Jamaica and with his aunt, he came to the United States at age 18 in 1990 under a B-1 visa, also known as a business visa. At the time he entered his plea, he was a not a U.S. citizen.
When he entered his plea, he followed the advice of his then-attorney to enter guilty pleas to both charges, trusting him that he knew what was best for him.
Moreover, he had been in court and observed the judge give a similar warning 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 did not believe it applied to him because he was not in the United States illegally.
Our client then was remanded and served his sentence in state prison.
However, in 2023, our client applied for a permanent resident card, but due to his convictions (not only in this case), his application was denied.
He then consulted with an immigration attorney and explained that before entering his “no contest” plea in this case, he had no discussion with his then-attorney about any immigration-neutral alternative resolutions and was unaware that there were any adverse immigration consequences.
His immigration attorney then suggested he discuss a motion to vacate his conviction.
Our client, then age 51, called up Greg Hill & Associates and spoke to Greg Hill about a motion to vacate his convictions in this case. The client explained what had happened and asked Greg what could be done.
Our office then prepared, filed and served a motion to vacate the two convictions under Penal Code §§ 1437.7(a)(1) and 1016.5(a). The motion was filed in the Torrance Superior Court.
The judge granted the motion and then, after much negotiating, our office negotiated a new plea bargain to just a violation of Vehicle Code § 2800.1(a), evading arrest as a misdemeanor, which does not have any adverse immigration consequences. The client was happy with this.
