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Criminal Defense Attorneys

Torrance 1473.7 Motion Denied, Client Not Credible to Judge

Our client entered into a plea bargain in the Torrance Superior Court in the year 2000 to a violation of Health & Safety Code § 11359, transportation of marijuana for sale, a felony.  At the time, our client was 38 years old.  He was not a U.S. citizen, but he was a permanent resident with a valid green card.

A Postal Annex employee had noticed the client’s girlfriend sent a package via FedEx to Pennsylvania that smelled like marijuana.  The employee had alerted the Lawndale Sheriff’s Department, who then asked for the woman’s address, as she had sent the package via registered mail.

Police then went to the girlfriend’s house and observed our client loading his car up with similar packages for delivery by mail.  Police then followed our client to the same store and after he filled out similar registered mail postcards for his packages, police arrested him based on the obvious smell of marijuana.  Police, without getting a search warrant, opened the packages and confirmed the contents were marijuana.  The client was trying to mail over three pounds of marijuana.

The client retained the services of a female attorney in Inglewood who was later disbarred by the State Bar.  She filed a motion to suppress evidence based on a warrantless search of the packages, which was denied (we believe in error, although by a case thirteen years later; see Robey v. Superior Court (2013) 56 Cal.4th 1218 (summarized at Article 20 on this website).  She then negotiated a plea bargain for our client wherein he was sentenced to state prison for three years, suspended, and then placed on three years of formal probation with an obligation to perform 160 hours (20 days) of community service and submit to drug counseling for a year.

Our client’s attorney was aware that our client, a Jamaican by birth, was not a U.S. citizen and that he could be deported for this offense.  However, she told him that he would not be deported if he successfully completed probation and did not spend more than one year in jail or prison.

This advice was generally considered correct at the time, however, it was wrong.  Many criminal defense attorneys understood that this view of the immigration consequences of a plea was legally correct.

As our client found out in 2021, however, such advice was legally incorrect and he could not renew his green card.

The client then called up Greg Hill & Associates in 2021 and asked what he could do.  Greg asked him about his understanding of the immigration consequences of his plea when he agreed to the plea bargain.  Greg then explained what Penal Code 1473.7(a)(2) permitted, which is to allow a judge to vacate a conviction when there is a preponderance of the evidence that a prejudicial error took place in the conviction because at the time, defendant (the client) did not understand the immigration consequences of his plea and had he understood the consequences, he would not have agreed to such a plea bargain and instead would have told his attorney to continue negotiating for an immigration-neutral plea bargain or to prepare for trial.

As Greg explained, “[T]he key to the statute [Penal Code § 1473.7] is the mindset of the defendant . . . at the time the plea was taken.”  People v. Mejia (2019) 36 Cal. App. 5th 859, 866.

Greg then explained how he could prepare, file and serve such a motion to vacate the conviction.  The client then retained Greg Hill & Associates.

Our office then prepared the motion to vacate the conviction under Penal Code § 1473.7, explaining that the client agreed to the plea bargain in reliance upon incorrect legal advice and that had he known such a plea would result in him not being able to renew his green card, he would have instead insisted that his attorney continue negotiating a plea bargain to an immigration-neutral plea bargain or he would have simply gone to trial instead. 

The court set a hearing on the matter and at the hearing, the judge asked for our client to testify.  The judge in Torrance then asked our client many questions about the plea entered twenty-one years earlier.  Our client’s answers were hesitant and he answered, quite frankly, that he simply could not remember certain things.

The judge in Torrance then denied the motion, finding that our client lacked credibility because he could remember only certain things about the plea bargain.  Greg Hill argued that the judge was imposing his experience and training on what he would expect a person to believe, but our client was not a judge and had no legal education, so his memory and what he regarded as significant was necessarily quite different.

Moreover, when our client testified that he would have gone to trial instead of taking the plea bargain, the judge pointed out that the motion to suppress evidence was denied.  The judge asked our client if he really thought he could win at trial given the ruling on the motion to suppress.  Our client answered that he did think he would have won.  The judge found such testimony entirely lacking in credibility and merely self-serving.

Greg argued that the case law on point on this issue is not whether the client’s credibility is solid, but simply whether he would have accepted the plea bargain as he did. 

The judge disagreed and invited our client to appeal his ruling.  Unfortunately, such an appeal is not free and our client could not afford to file the appeal.  We consider this ruling by the judge simply wrong. 

Indeed, the U.S. Supreme Court has acknowledged that the consequences of trial and a plea are often similarly dire, however, trial always has a small chance of success, similar to a late-game “Hail Mary” pass that just might succeed, however unlikely.  Trial, after all, can be unpredictable and our client was deprived of that chance, however slim, based on his counsel’s advice.  Jae Lee v. United States (2017) 137 S. Ct. 1958.

We present this summary as a reminder that our criminal justice system is not perfect.  Judges make mistakes and can be influenced by factors that should not guide a ruling.  We also want to emphasize that there is risk in every motion that a particular judge will assume an appeal is financially possible for a defendant, when it often is not.

For more information about motions to vacate a conviction under Penal Code § 1473.7(a)(1), please click on the following articles:
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