Prostitution Conviction Vacated under P.C. § 1473.7(a)(1)

In 2015, our client committed solicitation of prostitution in Hollywood and was later charged in the Clara Shortridge Foltz Courthouse with violating Penal Code § 647(b).

Less than a month after being arraigned, she entered a nolo contendere plea to this violation and was placed on one year of formal diversion. Her attorney that day, a private attorney, told her not to fight the charges because if she went to trial and lost, she would be deported. He told her that if she entered a plea to the charges, without trial, she would avoid deportation. She believed his advice and followed his suggestion.

At the time, our client was also concerned with avoiding jail, which the disposition did accomplish.

Our client was born in Mexico in 1988.  She came to the U.S. at age 5 in 1993 with her grandmother.  Our client’s mother had come to the United States earlier, in 1989, and in 1993, she rejoined her mother and her four other siblings in Santa Ana.  Her mother then had five more children in the United States, who by virtue of being born here, are U.S. citizens.

At the time she entered her plea 22 years later, our client was not a U.S. citizen and still is not.  She would not have entered pleas to a violation of Penal Code § 647(b) had she known her attorney’s advice was wrong and such a plea would someday bar her from becoming a citizen of the United States.

According to the case docket, at the time she entered her plea, the judge advised her of the consequences of plea affecting deportation and citizenship.  However, she 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 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 her because, as her attorney’s advised, she decided not to take the case to trial to avoid deportation.

Our client, now age 34, sought to have her conviction in this case vacated under Penal Code § 1437.7(a)(1) because earlier this year (2022), she attempted to get a green card and was advised that the conviction in this case barred her from becoming a permanent resident.  

Indeed, a conviction for violating § 647(b) is a crime involving moral turpitude.  Matter of W- (C.O. 1951) 4 I & N Dec. 401.  In Matter of W-, the former Immigration and Naturalization Service (INS) Central Office held that violation of a city (Seattle) ordinance relating to prostitution was a crime involving moral turpitude.  The decision was the first to recognize that engaging in prostitution is categorically a crime involving moral turpitude.  Despite the age of the decision, it has been recognized by both the Board and several Federal circuit courts as remaining good law in recent decisions.

Moreover, this conviction was our client’s second conviction for 647(b) (her first was in 2013 in Orange County), which posed additional, separate immigration problems for our client.  This is so because “[a]ny alien who at any time after admission is convicted of two or more crimes involving moral turpitude, not arising out of a single scheme of criminal misconduct, regardless of whether confined therefor and regardless of whether the convictions were in a single trial, is deportable.” 8 U.S.C. § 1227(a)(2)(A)(ii); see also Orellana v. Barr (9th Cir. 2020) 967 F.3d 927, 938 (holding that LPR’s [legal permanent resident] convictions for two counts of criminal stalking did not arise out of a single scheme of conduct); see also U.S.C. §§ 1101(f))(8) , 1101(a)(43)(U), 1427(a)(3) (must have good moral character to naturalize).

With this second conviction, in other words, our client faced deportation back to Mexico.  She lived in constant fear of being detained and then deported at any time.  

Had our client known of the adverse immigration consequences of this convictions before agreeing to enter her no lo contendere plea, she would not have voluntarily entered such a plea and would have instead told her attorney to continue negotiating for an immigration-neutral resolution (i.e., a pre-plea diversion program or a plea to Penal Code § 415, a crime not involving moral turpitude) or proceed to trial.

Instead, however, not knowing there were immigration consequences to her personally, our client entered her nolo contendere plea.  

She then called Greg Hill & Associates and explained the facts of her case, as well as her criminal history.  Her immigration attorney had recommended she call Greg Hill & Associates to discuss having her conviction in this case vacated under Penal Code § 1437.7(a)(1).

Greg then discussed the requirements for such a motion, which the client satisfied.  She then hired our firm and we prepared, filed and served the motion in the downtown Los Angeles Clara Shortridge Foltz criminal courts building.