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Motion to Vacate (PC § 1473.7(a)(1)) Granted, Compton

In 2010, when our client was just 20 years old, the Compton Police Department arrested him on five felony charges involving possession of a controlled substance (Ecstasy) for sales (Health & Safety Code § 11378), as well as possession of a firearm by a felon.  

Police believed our client had a prior felony conviction from about nine months earlier for violation of Penal Code § 245(a)(2) in another case, but this was not true.  Nonetheless, the case was a serious felony, as our client was found with over five hundred Ecstasy tablets for sale.

Sixteen days later, our client entered a plea to a violation of § 11378 and was deported back to Mexico shortly thereafter.  He entered the plea without any discussion with his attorney, a public defender, about the immigration consequences of the plea.

When deported, he was advised that he could not re-enter the United States for ten years.

Our client was born in Mexico and, with his parents, immigrated to the U.S. at age two in 1992.  At the time of the arrest in 2010, he had been living in California for over eighteen years.  He attended elementary school, middle school and Compton High School here.  Over these eighteen years, he had created a strong bond with the United States and had developed many friendships here from school, work and the local community that he did not want to abandon.

At the time of his plea, the money our client earned working in construction helped pay living expenses for his mom and his two younger siblings, then ages 6 and 9.

At the time of his plea, our client had no immediate family in Mexico and had not been there in eighteen years.  To be deported there would be the functional equivalent of being deported to some country where he knew no one, such as Romania or Japan.  

If he had been warned that he would be deported if he agreed to the plea bargain proposed, our client would have refused to so agree and would have told his attorney to keep negotiating for an immigration-neutral plea bargain, even if that meant he would stay in jail longer, or prepare for trial.

For example, our client would have agreed to plea to a violation of Penal Code § 32 as an accessory after the fact to someone else possessing a controlled substance, a violation of Health & Safety Code § 11351 (possession of a controlled substance) without specifying the type of controlled substance, or a violation of Health & Safety Code § 11379 (transportation of a controlled substance) without specifying the type of controlled substance at issue.

At the time he entered his plea in 2010, according to the docket, he was advised of the consequence of plea affecting deportation and citizenship.  However, when our client entered his nolo contendere plea with his then–defense counsel, our client was not aware of the adverse immigration consequences of his plea to him personally.  Such a warning by the judge, does not substitute for the advice of counsel.

Moreover, 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 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 this was his first and only conviction.  

Ten years after being deported, he returned to the United States and within weeks, contacted Greg Hill & Associates to discuss vacating the plea.  The client explained that he wanted to become a U.S. citizen and described his 2010 conviction and deportation.

Greg Hill & Associates then prepared a motion under Penal Code § 1473.7(a)(1) to vacate the client’s 2010 conviction, filed it in the Compton courthouse and served it on the Compton District Attorney’s office.

At the hearing on the motion to vacate, the district attorney assigned to the case agreed to stipulate to vacating the plea, but the client would have to plead to a misdemeanor possession of a controlled substance, Health and Safety Code § 11350.  Greg understood that such a plea would be regarded as immigration-neutral as long as no specific substance, i.e., Ecstasy or any other drug (other than marijuana), was specified.  Our client was very happy with this outcome.

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