Compton, Withdrawal of Plea from 2004, Deportation Averted
The wife realized in 2015, however, that her “victory” was actually a major defeat, as she and he both really lost because her husband was facing deportation proceedings to send him back to Mexico. She had never been employed here in the United States and her husband was her only financial support. Making matters more painful was the fact that the couple had a young child in elementary school here in Compton. If her husband was deported, they would all be forced to move back to Mexico and leave the United States.Overview: Withdrawal of plea to felony violation of Penal Code § 273.5 (domestic violence), plea in 2004, client facing deportation, plea withdrawn in 2015, deportation averted.
Because her husband worked so many hours, the wife (instead of her husband) called Greg Hill & Associates to ask if there was anything that our office could do to help. While a public defender represented the client in his quick plea at the arraignment in 2004, Greg recognized the issue that perhaps the immigration consequences of a plea to felony domestic violence were never explained.
The law on this subject is set fourth at Padilla v. Kentucky, a 2010 U.S. Supreme Court case, found at 559 U.S. 356. In Padilla, the Supreme Court held that a defendant has the Sixth Amendment right to effective assistance of counsel when discussing the immigration consequences of a conviction before entering a plea bargain.
Moreover, Penal Code § 1016.5(b) provides that a defendant may ask a judge to withdraw his or her plea if the immigration warnings are not present in the transcript of the proceedings (In 2018, Penal Code 1473.7 was codified, allowing a defendant to withdraw his plea if he did not understand that the immigration consequences of a plea applied to him, even if the judge recited the immigration consequences warning while taking the plea).
When Greg explained the issue to the client’s wife, she quickly said that the judge made this mistake in never explaining the immigration consequences to her husband.
Greg Hill thus obtained the docket report for the client’s case and looked to the date when the plea was entered. The minutes contained no mention of the immigration warnings having been given even by the judge. Greg could read there who the court reporter on that date was. Our office then contacted the reporter and ordered a copy of the transcript from the hearing in 2004.
The court reporter searched her records and responded to us that she had destroyed the records because they were over ten years old. She then signed a declaration under oath saying this.
The judge ruling on the motion was the same judge in Compton who took our client’s plea eleven years earlier. He could have easily refused to acknowledge a defective plea or insisted that he made no error in taking the plea, but to his great credit, he took neither of these routes. Instead, he looked to the motion, the declarations, his notes and granted the motion. Our office was very impressed with this judge and how he ruled on this motion.
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