Penal Code § 1473.7 Motion Granted, Van Nuys, Elder Abuse
The alleged victim was a borrower in her seventies who our client had bought a hospital bed for and then helped refinance her home. With the loan proceeds, the elderly homeowner agreed to pay back our client the price for the hospital bed, which was about $15,000.
The elderly homeowner / borrower’s son, who was a raging meth addict who believed our client had tricked his mom into believing she owed our client for the bed, reported our client to the police. However, the elderly homeowner told the police this was true and no fraud or trickery was involved. The police nonetheless believed her son and arrested our client.
About two years later, our client entered a nolo contendere plea to a violation of Penal Code § 368(e), count one, and was placed on five years of formal probation with an obligation to serve 120 days in county jail (credit for 93 days) and pay restitution in the amount of $93,578, which included interest on the money our client received for the bed and other fees allegedly included in the loan.
Our client was not then and is not now a U.S. citizen. He immigrated to the United States from Eritrea in 2000. At the time he entered his plea in 2006 (without an interpreter), he had a poor grasp of the English language.
He also was a lawful, permanent resident, so he did not believe the immigration warnings would apply to him. Moreover, he was too intimidated by his attorney to ask him for his time to answer any questions he had.
According to the docket, at the time he entered his plea, he was admonished that “if you are not a citizen, you are hereby advised that a conviction of the offense for which you have been charged will 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 admonishment omitted the mention of denial of amnesty.
When our client violated probation (for not making restitution payments), he was remanded to custody to serve three years in prison with credit for 148 days in actual custody and 28 days good time / work time. The judge then ordered probation to expire on October 10, 2011.
He hoped that with his conviction vacated (he had no other criminal history), he could secure a pastor license to serve as a youth pastor.
He also explained that his ties to the United States, by being here for over twenty years, were deep. All his brothers and sisters lived here in the Los Angeles area. Moreover (somewhat ironically), with the passage of Assembly Bill 2147, he could now use his valuable experiences gained through the California Department of Corrections and Rehabilitation as a fire camp crew member responding to wildfires to become a fireman. In addition, he had obtained a certificate in religious studies.
Greg explained how a motion to vacate a conviction under Penal Code § 1473.7 was considered. Greg explained that the client’s understanding of the immigration consequences on the day he entered his plea was the starting point. People v. Mejia (2019) 36 Cal. App. 5th 859, 866 (“[t]he key to the statute is the mindset of the defendant . . . at the time the plea was taken.”).