Our client came to the United States from India at age 15. He had applied for an been issued a green card as a permanent resident. He went to a high school in Riverside County, taking ESL (English as a second language) classes.
At age 20 in 2006, he was on his computer in a computer chat room, flirting with a person he believed was a 13-year old girl. In fact, however, she was an employee of a civilian company called Perverted Justice that was organized and paid for by those seeking to identity and prosecute child predators. The employees of perverted justice would pose as 13-year old girls and arrange for a face-to-face meeting with the suspect (a sting operation), at which time they would turn over the case to the Riverside County Sheriff’s office to make the arrest.
Our client spoke with a person he believed was seven years younger than him. He told the girl he had a large penis and sent her a photograph of his erect penis. He asked her if she had ever “gone all the way” with a guy and she said she had not. She told him she was worried about her mom finding out. Our client told the decoy he had had sex with another 13-year-old girl and went “all the way” with her. The decoy then arranged a meeting with our client and our client was arrested after police found him sitting in his car outside the agreed-upon meeting place.
Our client was then charged with attempted lewd acts with a child under 14 (Penal Code §§ 664-288(a)) and two counts of attempted distribution of obscene material to a person under age 14 (Penal Code §§ 664 – 288.2(a)).
Our client hired a private criminal defense attorney who had taken a very similar case to jury trial in Riverside County and won, so he was confident in his abilities. Our client then agreed to also go to trial, never trying to negotiate any plea bargain before trial.
Our client was not aware that a conviction for any of the charges alleged would result in his being unable to renew his green card and being unable to become a U.S. citizen.
At trial, he was not guilty of attempted lewd acts on a child under age 14, but was found guilty of attempted distribution of harmful material to a . The judge sentenced our client to three years of formal probation with an obligation to serve 270 days in Riverside County Jail and register for life as a sex offender under Penal Code § 290.
In 2021, the client, now age 35, became aware of Penal Code § 1473.7(a)(1) and called Greg Hill & Associates to ask about vacating his plea because he certainly did not want to be deported back to India. He knew no one in India, as his entire family had moved to the United States, including his aunts and uncles.
Greg explained that since his conviction resulted from a trial, not a plea, the law did not currently apply, but an amendment to the law under Assembly Bill 1259 would become effective on January 1, 2022, and then a motion to vacate a sentence after a conviction at trial could be filed.
The client then retained Greg Hill & Associates to prepare, file and serve the motion. Our office filed the motion in late 2021, knowing it would be assigned a hearing date in early 2022 after the law became effective.
The hearing date for the motion was set in the first week in January 2022, making the client’s motion perhaps the first such motion in the courthouse, county or even state under the new expanded law on vacating a conviction from trial.
The motion for the client explained how the Penal Code § 1473.7(a)(1) had been expanded from only permitting a judge to vacate a conviction reached via a plea bargain to now, a sentence reached via a conviction at trial. The motion explained the very minor change in the statutory language.
The motion, through a declaration of our client, explained what our client’s mindset was at the time he decided to proceed to trial and how he had not discussed any immigration consequences with his attorney. See People v. Mejia (2019) 36 Cal. App. 5th 859, 866 (“The key to the statute [Penal Code § 1473.7(a)(1), is the mindset of the defendant . . . at the time the plea was taken.”).
In fact, our client believed that because he was a permanent resident with a valid green card that permanent literally meant permanent. His resident status could not change. So, he did not ask his attorney about any immigration consequences because, moreover, he was only 20 years old and intimidate by his attorney. See People v. Eun Sung Jung
(4th App. Dist. 2020) 59 Cal. App. 5th 842, 274 Cal. Rptr. 3d 93 (defendant’s own mistake in not asking her public defender constituted prejudicial error sufficient to vacate a conviction).
The judge denied the motion to vacate the conviction suffered by our client at trial. The judge stated that the reason was because we did not show our client was presented with an immigration-neutral plea bargain prior to trial that he rejected and, in error, went to trial. This was the prejudicial error that was required.
Greg was shocked and dismayed. Our client was never offered any plea bargain from the prosecution, let alone an immigration-neutral one, so the standard imposed by the judge seemed arbitrary. No published decision held this was required.
Moreover, using this logic, certain convictions would never be eligible for being vacated if such an immigration-neutral plea bargain was never offered. Greg argued that the same approach should be followed in evaluating a conviction reached by a plea bargain (the “mindset of defendant”) as a conviction from trial, but the judge refused to change his ruling.
We present this summary to show how, apparently, certain convictions will never be vacated even when defendant proceeded to trial without being aware of the adverse immigration consequences of a conviction. We firmly believe the judge engaged in judicial legislation, or making new law, when the statutory history and no reported decision on Penal Code § 1473.7(a)(1) imposed such a standard as he did.
For more information about motions to vacate under Penal Code § 1473.7(a)(1), including under the amendments from Assembly 1259, please click on the following articles: