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Santa Ana, 2007 Misdemeanor 273.5(a) Conviction Vacated

More than fifteen years ago, in May 2007, the Anaheim Police Department arrested our client on  suspicion of committing misdemeanor domestic violence, a violation of Penal Code § 273.5(a).  There were no visible injuries to the victim, our client’s girlfriend.  She told police that our client, then age 30, had pushed her during an argument in their apartment.  

About seven months later, while represented by the public defender, our client entered a guilty plea to a misdemeanor violation of Penal Code § 273.5(a).  The case was in the Fullerton Courthouse.
Our client was born in Vietnam.  He came to the U.S. at age 3 in 1980 with his parents.  When he came to the U.S., he was a lawful permanent resident.  He did not thereafter become a U.S. citizen and when he entered his plea, he was not a U.S. citizen.

However, since he was a permanent resident at that time and had been living in the United States for twenty seven years, he did not believe the immigration warnings given to him by the judge applied to him.  Moreover, he was too intimidated by his counsel to ask him for his time to answer any questions he had.  He therefore followed all his advice, which was to enter a guilty plea to the Penal Code § 273.5(a) charge, trusting him that he knew what was best for him. Id.  
He was then sentenced to three years of summary probation, which he then completed.  

A conviction for a violation of Penal Code § 273.5(a) is an aggravated felony for purposes of the federal Immigration and Nationality Act (INA) (Moncrieffe v. Holder (2013) 569 U.S. 184, 187-188; Sessions v. Dimaya (2018) 138 S. Ct. 1204, 1210-1211).  One convicted of an aggravated felony is presumptively deportable.  8 U.S.C.S. §§ 1227(a)(2)(A)(iii), 1228(c).  

Consequently, once our client learned about this, he was in constant fear of being detained and then deported at any time.

In early 2022, now age 44, the client came to Greg Hill & Associates to have his conviction vacated under Penal Code § 1473.7(a)(1).  

He described the facts to Greg Hill of how he was convicted of 273.5(a) and how he hoped to become a U.S. citizen.  

The client was now married and had an autistic daughter, now age 10.  He explained that had he known of the adverse immigration consequences of such a conviction before agreeing to enter a guilty plea, he would not have voluntarily entered such a plea and would have instead told his attorney to continue negotiating for an immigration-neutral resolution such as to misdemeanor trespassing or even misdemeanor battery or proceed to trial.

Greg Hill & Associates then prepared a motion to vacate the conviction under Penal Code § 1473.7(a)(1) and filed it in the Fullerton Superior Court, which then transferred the case to a judge in the Westminster Courthouse for a hearing.

At the hearing on the motion to vacate the conviction, the judge told Greg that he was inclined to grant the motion, but wanted more information about our client’s pre-plea contacts with the United States.  Greg explained that the client had lived in the United States for 27 years prior to the conviction.  He had gone to elementary, middle and high school here and worked in the United States for the 13 years prior to the conviction.

The judge requested that Greg submit a supplemental declaration stating such things as a way for the judge to better evaluate the client’s credibility that he would not have entered such a plea if he knew he would be deported as a consequence.  While Greg regarded the judge’s request as unusual, Greg certainly spoke to the client and he gave Greg the information needed for such a declaration, which we then prepared and filed with the court for that judge.

The judge had the case of In re Hernandez (2019) 33 Cal.App.5th 530, at 534, the Fourth Appellate District case in mind.  In Hernandez, the judge noted that defendant was brought to the U.S. from Mexico at age three.  At the time of her appeal in 2019, she had become a lawful permanent resident of the United States and had three minor children who were all citizens of the United States and of whom she was the sole caretaker after the death of their father.  She had no family left in Mexico. 

These facts factored into the determination that she would not have pleaded guilty if she had known it would lead to deportation.  Id., at 547-548; see People v. Patterson (2017) 2 Cal.5th 885, at 889 (“These considerations, along with any others that bear on defendant’s state of mind at the time of the plea, may assist courts in evaluating a later claim that the defendant would not have enter the plea had he or she understood the plea would render the defendant deportable.”); see also 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.”).

At the continued hearing on the motion to vacate, the judge granted the motion and the People announced they were unable to proceed with the case.  The client was extremely happy.

For more information about motion to vacate a conviction due to not being aware of the immigration consequences, please click on the following articles:
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