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San Bernardino, Motion to Vacate Granted on H & S § 11379
Over sixteen years ago, in October of 2007, an officer from the San Bernardino County Sheriff’s Department arrested our client, then age 23, on suspicion of violating Health & Safety Code §§ 11379(a) (“Transportation or Selling of Methamphetamine”) and 11378 (“Possession of Methamphetamine with Intent to Sell”).
Our client had immigrated from South Korea to the United States at age six with his parents and three sisters. He was not a U.S. citizen, although he had a green card as a permanent resident.
According to the police report, when the undercover officer bought the methamphetamine, weighing close to five pounds (2.3 kilograms), he asked our client how he could later sell it and not worry about being arrested for dealing with an undercover officer, our client instructed him, “sell it to children – they’re not undercover cops.”
Our client thereafter was taken into custody, but posted bail and was released from jail.
He was shortly thereafter arrested on multiple federal charges of fraud involving a sophisticated identity theft scheme involving Verizon rebates for opening a new account. The federal authorities then took our client into federal custody and he was not permitted to post bail. Over the next few months, a plea and sentence were entered into in federal court, wherein our client agreed to and was sentenced to 14 months in federal prison and to pay back over $35,000 in restitution.
When he finished the sentence after 12 months, he was released and, curiously, not seized by federal immigration agents although the conviction was clearly an aggravated felony and a crime involving moral turpitude.
In the still pending San Bernardino County matter, our client then entered a nolo contendere plea to Health & Safety Code § 11379(a). Count two, an allegation our client violated Health & Safety Code § 11378, was dismissed. He was sentenced to sixteen days of county jail with credit for sixteen days and ordered to enroll in and complete a drug rehabilitation program.
In both the federal case and the state court case, our client used a public defender in each court.
Supervision of our client’s formal probation was then transferred from San Bernardino County to Los Angeles County in February 2011. Two years later, his probation ended early.
In mid-2022, our client tried to renew his green card and went to an immigration attorney to find out how to do this. She told him he should not do so because it would alert immigration authorities to his presence here and possibly lead to his deportation.
Instead, she recommended he call Greg Hill & Associates, which he did. He then discussed his state and federal cases with Greg Hill and his concern with being deported back to Korea, a country he had not visited since leaving 33 years earlier. He knew no one there.
Greg then explained how the law underlying a motion to vacate under Penal Code § 1473.7(a)(1) allowed a judge to order a conviction vacated, but that after this happened, the case would start all over.
This could be a bad situation or a good situation, depending on the charge(s), the amount of time that has passed since the original conviction and the status of the evidence needed to convict again.
Greg Hill then prepared, filed and served the motion to vacate in the Los Angeles Superior Court because the transfer of the case for probation was considered a transfer of the matter “for all purposes.” The motion discussed our client’s mindset when he entered the plea, not knowing it would lead to his deportation and that had he known, he would not have agreed to the plea bargain. He instead would have gone to trial or told his attorney to negotiate an immigration-neutral plea bargain instead.
In support of this claim, the motion explained how our client attended elementary school, middle school and high school here in California and developed many friendships, many which continue to the present. At the time he entered his plea, he had no immediate family remaining in Korea. He did not want to return to Korea because he knew no one there. He held a valid green card and was a lawful permanent resident, so he did not believe the immigration warnings applied to him. He was twenty-three years old at the time.
However, the judge assigned to the case in Norwalk Superior Court, after three hearings, decided she really should not rule on the prior plea and transferred the case to the San Bernardino Superior Court.
The transfer took nine months, inexplicably, due to clerical overload.
Finally, the matter was assigned a hearing date in the San Bernardino Superior Court and Greg was able to negotiate a stipulation to vacate the felony conviction for transportation for sales of methamphetamine (regarded as “drug trafficking” under immigration law) and instead enter a plea to a misdemeanor violation of Penal Code § 372.5, public nuisance, which has no adverse immigration consequences. The plea was a “terminal plea,” meaning no probation, no jail time and minimum court fines.
Our client had immigrated from South Korea to the United States at age six with his parents and three sisters. He was not a U.S. citizen, although he had a green card as a permanent resident.
According to the police report, when the undercover officer bought the methamphetamine, weighing close to five pounds (2.3 kilograms), he asked our client how he could later sell it and not worry about being arrested for dealing with an undercover officer, our client instructed him, “sell it to children – they’re not undercover cops.”
Our client thereafter was taken into custody, but posted bail and was released from jail.
He was shortly thereafter arrested on multiple federal charges of fraud involving a sophisticated identity theft scheme involving Verizon rebates for opening a new account. The federal authorities then took our client into federal custody and he was not permitted to post bail. Over the next few months, a plea and sentence were entered into in federal court, wherein our client agreed to and was sentenced to 14 months in federal prison and to pay back over $35,000 in restitution.
When he finished the sentence after 12 months, he was released and, curiously, not seized by federal immigration agents although the conviction was clearly an aggravated felony and a crime involving moral turpitude.
In the still pending San Bernardino County matter, our client then entered a nolo contendere plea to Health & Safety Code § 11379(a). Count two, an allegation our client violated Health & Safety Code § 11378, was dismissed. He was sentenced to sixteen days of county jail with credit for sixteen days and ordered to enroll in and complete a drug rehabilitation program.
In both the federal case and the state court case, our client used a public defender in each court.
Supervision of our client’s formal probation was then transferred from San Bernardino County to Los Angeles County in February 2011. Two years later, his probation ended early.
In mid-2022, our client tried to renew his green card and went to an immigration attorney to find out how to do this. She told him he should not do so because it would alert immigration authorities to his presence here and possibly lead to his deportation.
Instead, she recommended he call Greg Hill & Associates, which he did. He then discussed his state and federal cases with Greg Hill and his concern with being deported back to Korea, a country he had not visited since leaving 33 years earlier. He knew no one there.
Greg then explained how the law underlying a motion to vacate under Penal Code § 1473.7(a)(1) allowed a judge to order a conviction vacated, but that after this happened, the case would start all over.
This could be a bad situation or a good situation, depending on the charge(s), the amount of time that has passed since the original conviction and the status of the evidence needed to convict again.
Greg Hill then prepared, filed and served the motion to vacate in the Los Angeles Superior Court because the transfer of the case for probation was considered a transfer of the matter “for all purposes.” The motion discussed our client’s mindset when he entered the plea, not knowing it would lead to his deportation and that had he known, he would not have agreed to the plea bargain. He instead would have gone to trial or told his attorney to negotiate an immigration-neutral plea bargain instead.
In support of this claim, the motion explained how our client attended elementary school, middle school and high school here in California and developed many friendships, many which continue to the present. At the time he entered his plea, he had no immediate family remaining in Korea. He did not want to return to Korea because he knew no one there. He held a valid green card and was a lawful permanent resident, so he did not believe the immigration warnings applied to him. He was twenty-three years old at the time.
However, the judge assigned to the case in Norwalk Superior Court, after three hearings, decided she really should not rule on the prior plea and transferred the case to the San Bernardino Superior Court.
The transfer took nine months, inexplicably, due to clerical overload.
Finally, the matter was assigned a hearing date in the San Bernardino Superior Court and Greg was able to negotiate a stipulation to vacate the felony conviction for transportation for sales of methamphetamine (regarded as “drug trafficking” under immigration law) and instead enter a plea to a misdemeanor violation of Penal Code § 372.5, public nuisance, which has no adverse immigration consequences. The plea was a “terminal plea,” meaning no probation, no jail time and minimum court fines.
The client was very relieved to have this felony conviction vacated.
For more information about motions to vacate, please click on the following articles:
