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Criminal Defense Attorneys

Van Nuys Motion to Vacate 1994 Theft Convictions Granted

More than twenty-eight years ago, in October 1994, the Santa Clarita Sheriff’s Department arrested our client on suspicion of violating Penal Code §§ 502.7(a)(5) (obtaining telephone services by fraud), 502.8(d) (possession of illegal telephone equipment with intent to defraud others), 502.8(e) (use of telephone equipment with intent to avoid payment), and 484(e)(4) (theft of an access card with intent to defraud), each as a felony.

Our client was then arraigned two days later and bail was set at $235,000.  Our client, then age 25, did not post bail because he could not.

About a month later, on November 18, 1994, he then entered a guilty plea to violations of Penal Code §§ 502.7(a)(5) and 484(e)(4), both felonies.  He was released on a “time served” sentence and no restitution was ordered.  

Our client was born in Ontario, Canada.  He came to the U.S. at age 21 in 1989.  In June of 1991, or about three years before his arrest, he became a lawful permanent resident.   At the time he entered his plea, he was not a U.S. citizen, but had been in the United States for five years.  He is now 54 years old.

In 2022, he called our office to ask about having the two convictions vacated because he wanted to become a U.S. citizen.  He had a twenty-six year old daughter here, who was a U.S. citizen, who he supported and needed to be a U.S. citizen.

He explained what happened in 1994 and how he was a green card holder when he entered his plea, so being a permanent resident, he did not regard the immigration warnings, if given, as applying to him.  He was not here illegally.

Greg then went to the courthouse and got the docket for the case, which stated the judge told him the conviction “could” cause immigration consequences.  Such an admonition using the word “could,” instead of “would,” is improper and a violation of Penal Code § 1016.5.

In addition, our client, then in custody in the Los Angeles County jail for about a month, told us he did not remember having any discussion with his attorney about the immigration consequences of his plea.  Moreover, he was too intimidated by his counsel to ask him for his time to answer any questions, if he had any.  He therefore followed all his advice, which was to enter a no contest plea to the two felony theft charges, trusting him that he knew what was best for him. The client just wanted to get out of jail, and the two guilty pleas resulted in his release from jail, so he was happy.

However, he had been to an immigration attorney who told him that with these two convictions, he faces deportation back to Canada.  After all, a conviction for a violation of Penal Code § 484(e)(4) and Penal Code 502.7(a)(5) are aggravated felonies 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, he lived in constant fear of being detained and then deported at any time.

The client then retained Greg Hill & Associates and we then prepared, filed and served the motion to vacate the conviction under Penal Code § 1473.7(a)(1).  The motion explained how our client, at the time he entered his pleas over twenty-seven years ago, was not aware of the adverse immigration consequences of his pleas to him personally.  It further explained how if our client known of the adverse immigration consequences of such convictions before agreeing to enter a guilty pleas, he would not have voluntarily entered such pleas and would have instead told his attorney to continue negotiating for an immigration-neutral resolution such as to misdemeanor trespassing or proceed to trial.

Instead, however, not knowing there were immigration consequences to him personally, our client entered his no contest pleas.  All he was concerned about, ironically, was avoiding additional jail time.

The motion was filed in the Van Nuys Superior Court and without much resistance from the District Attorney, the judge granted the motion.  The District Attorney, in contrast to so many of her colleagues who oppose such motions vigorously, was not too concerned with losing such convictions because our client had no convictions since 1994.  

After the judge granted the motion, she announced her office was unable to proceed and asked the judge to dismiss the case under Penal Code § 1382.  Of course, our client was very happy with this result, as he no longer was a two-time felon and he could now become a U.S. citizen and stop the anxiety about being deported and separated from his daughter.

For more information about motions to vacate, please click on the following articles:
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"Thank you so much for putting so much effort in this case. We really appreciate it and we are happy that all turned out well." S.A., Torrance
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