In 2002, our client was arrested and charged with a violation of Penal Code § 273.5(a) (domestic violence) as a felony; two charges of Penal Code § 136.1(b)(1) (dissuading a witness), both felonies; Penal Code § 422 (criminal threats), a felony strike; Penal Code § 501 (cutting a utility line), a felony; and two counts of Penal Code § 273a(b) (cruelty to a child by endangerment). In the underlying incident, his wife was the victim and she did not require medical attention.
Our client, then 27, was not a U.S. citizen. He was in the United States legally under a green card as a permanent legal resident. He was born in Mexico and came to the United States with his parents in 1993 when he was 17 years old.
The criminal case against our client was filed in the Santa Maria Superior Court in Santa Barbara County. Our client retained a local criminal defense attorney who, in 2003, had the client plea no contest to a violation of felony 273.5(a) and all other charges were dismissed. Our client served 120 days in county jail.
When entering the plea, our client signed a Tahl waiver form which included certain warnings about the immigration consequences of such a plea. However, our client did not regard such warnings as applying to him because he was a permanent resident under his green card.
The client’s marriage to the victim ended in divorce a year later and our client remarried.
In 2020, the client’s wife contacted our office, explaining that her husband was in U.S. Immigration and Customs Enforcement custody in federal prison in Adelanto. He was being deported for the 2003 conviction for his conviction for violating Penal Code § 273.5(a).
The wife was keen to have the conviction vacated and Greg discussed the case facts with her. The client was now 45 years old and had three daughters, age 4, 7 and 14. He still lived in Santa Maria and worked on a local ranch as a handyman.
The wife explained how the charge had been reduced to a misdemeanor under Penal Code § 17(b)(3) and then expunged under Penal Code § 1203.4. Greg explained that the court still retained jurisdiction to vacate the conviction. See Meyer v. Superior Court (1966) 247 Cal.App.2d 133) (court may grant a certificate of rehabilitation after an eligible sex offense is dismissed under § 1203.4).
In discussing the facts of the case, Greg explained that what the court would consider is whether there was a prejudicial error in the conviction such that the client’s ability to understand the immigration consequences was damaged. Usually, that is shown by the failure of an attorney to discuss the immigration consequences with the client. What mattered most was what our client believed or knew when he agreed to the plea bargain. See People v. Mejia (2019) 36 Cal. App. 5th 859, 866 (“[t]he key to the statute is the mindset of the defendant . . . at the time the plea was taken.”).
The client may have signed an immigration admonition and the judge may have warned our client under Penal Code § 1016.5 about the immigration consequences, but did not sanitize the plea from such a motion to vacate. Indeed, California law has held that “a defendant can pursue a claim for relief for ineffective assistance of counsel . . . notwithstanding that the trial court had properly advised the defendant under section 1016.5.” People v. Aguilar (2014) 227 Cal.App.4th 60, 72 [173 Cal.Rptr.3d 473].
Our office therefore prepared, filed and served a motion to vacate for the client in custody in Adelanto prison. The motion was filed in the Santa Maria Superior Court and served to the DA there. Because our client alleged his prior counsel did not properly advise him of the immigration consequences of the plea, we also served a copy of the motion to him so that he would have notice and an opportunity to respond, if he recalled the case.
The judge on the case set a hearing date on the motion. On that date, the prosecutor asked for four to six more weeks to oppose the motion because their office allegedly had not received the motion until that morning, due to Covid-19 issues in delivering mail.
The judge granted this continuance request and made some unusual comments about how such a motion was similar to a juvenile court request for sealing and how the law on that issue may be adverse to our motion.
Greg could tell the judge was not familiar with a 1473.7 motion and therefore negotiated an alternative resolution with the prosecutor, wherein the People conceded on the motion, meaning the conviction for 273.5(a) was vacated, but our client then would enter a plea instead to a misdemeanor violation of 243(e)(1) and there would be a stipulation that he only touched his ex-wife in an offensive manner, but did not hurt her at all. The stipulation further stated that no part of the police report was factually accurate.
A violation of Penal Code § 243(e)(1) is not a crime involving moral turpitude and the stipulation clarified that our client did not injure his then-wife. This would protect our client from the adverse immigration consequences.
We offer this summary to show how when there is a judge who seems eager to rule in an adverse manner, sometimes one can avoid that, as we did here.
For more information about a Motion to Vacate under Penal Code § 1473.7, please click on the following articles: