Real Estate Fraud, 1473.7(a)(1) Motion to Vacate Granted
The case arose out of a fraudulent second mortgage loan initiated by our client’s employee, a loan processor, impersonating her mother (who had the same name), four years earlier, in 2007. In this case, there were three other defendants, one of which agreed to testify against our client.
The victim in the case was Wells Fargo Bank. At the time, our client was the owner of a debt consolidation, bankruptcy relief and real estate loan processing company. His loan officer proposed a second mortgage for her mom, who had the same name, to pull some cash out of the equity in the home. Her close friend, a notary, notarized signatures of a person our client always believed (falsely) was his loan officer’s mother.
The loan proceeds were transferred to our client’s corporate account and then he purchased a cashier’s check to transfer money to his loan processor’s mom. However, the loan processor cashed the check, never giving the money to her mom.
Wells Fargo was awarded restitution of $135,000. Of the restitution owed, our client paid $35,000 up front and approximately an additional $25,000 later. One additional term of probation was that Mr. Palmer perform 1,040 hours (130 days) of community service, which he fully completed without seeking an extension of time. The remainder of the restitution owed was converted to a civil judgment against him.
Our client was not and is not a U.S. citizen. He cannot renew his green card with the convictions at issue on his record. He also cannot become a U.S. citizen with the convictions on his record. He lived in constant fear of being detained and then deported at any time back to Mexico, a county he left in 1981 with his parents when he was 13 years old.
In speaking to his immigration attorney about renewing his green card and becoming a U.S. citizen, the immigration attorney recommended he contact a criminal defense attorney to vacate the conviction under Penal Code § 1473.7(a)(1).
The Client then called Greg Hill & Associates and explained the case facts and how the conviction was entered. Greg then explained how a motion to vacate a conviction under Penal Code § 1473.7(a)(1) could be filed based on our client entering into the plea and being convicted without knowing at the time that he could be deported, denied re-entry to the county and that he would be unable to renew his green card.
The client then retained Greg Hill & Associates and Greg prepared the Motion to Vacate under Penal Code § 1473.7(a)(1). The motion was then filed at the Clara Shortridge Foltz courthouse (formerly called CCB) and served to the district attorney’s office, as well as our client’s prior attorney.
The judge assigned to the matter then set a hearing date and Greg appeared with the client in court. The prosecutor assigned to the case was extremely angry to see the motion and regarded such a request as outrageous.
The prosecutor’s display of emotion caused the judge to be very calm and patient with listening to him explain why the motion should not be granted. The prosecutor’s only argument was that our client could not claim he did not know the immigration consequences because the judge, after giving the immigration admonition while taking the plea, found on the record that the plea was entered into knowingly, intelligently and voluntarily.
After the prosecutor argued this, the judge turned to Greg and asked for his response. Greg explained that this argument has been commonly asserted by prosecutors and in the case of People v. Patterson (2017) 2 Cal.5th 885, at 889, the California Supreme Court reversed the appellate court for agreeing with such an argument. The same result took place two years later, at the California appellate court level, in People v. Camacho (2019) 32 Cal. App. 5th 998.
Greg further argued that the critical inquiry for the judge was defendant’s state of mind at the time he entered the plea. People v. Mejia (2019) 36 Cal. App. 5th 859, 866 (“The key to the statute [Penal Code § 1473.7] is the mindset of the defendant . . . at the time the plea was taken.”).