Bellflower, Motion to Vacate Granted, Domestic Violence

More than nineteen years ago, in 2003, the Los Angeles Sheriff’s Department, Lakewood Station, arrested our client on suspicion of violating Penal Code § 273.5(a).

Two days later, at his arraignment, he entered a nolo contendere plea to a violation of Penal Code § 273.5(a), as a misdemeanor.

Before entering his “no contest” plea with adverse immigration consequences, he had no discussion with his public defender about any immigration-neutral alternative resolutions and was unaware that there were any adverse immigration consequences.

However, at the time he entered his plea, he was admonished that “if you are not a citizen, you are hereby advised that a conviction of the offense for which you have been charged may have the consequences of deportation, exclusion from admission to the United States, or denial of naturalization pursuant to the laws of the United States.”

This admonishment was legally defective by not warning our client that the conviction would have adverse immigration consequences. People v. Lopez (2022) 66 Cal. App.5th ___. Moreover, such an admonition, even if proper, does not establish defendant’s awareness of such adverse immigration consequences. People v. Patterson (2017) 2 Cal.5th 885, at 898; see also People v. Camacho (2019) 32 Cal. App. 5th 998, 1011, fn. 8.

Our client was born in Mexico and, with his parents, immigrated to the United States at age 13 in 1980 under an F-1 visa, also known as a student visa. At the time he entered his plea 23 years later, he was a not a U.S. citizen.

Since he had been granted an F-1 visa and he had been in the United States for 23 years, he did not believe the immigration warnings applied to him. Moreover, he was too intimidated by his public defender to ask her for her time to answer any questions he had. He therefore followed all of her advice, which was to enter a nolo contendere plea to the Penal Code § 273.5(a) charge, trusting her that she knew what was best for him.

Besides, he had been in court and observed the judge give a similar admonition to every person entering a plea, even those who appeared to be obvious U.S. citizens. Our client regarded the admonition “script” the judge read as mandatory for the judge to give to each defendant entering a plea, regardless of whether it applied, and that it often did not apply to each defendant. Our client did not believe it applied to him because he was not in the United States illegally.

He was then sentenced to three years of summary probation. He had been in custody for three days since his arrest and was released after his plea.

In 2023, now age 56 and living in Florida, our client sought to become a U.S. citizen and was told by his immigration attorney that he needed to have his conviction in this case vacated because he faces deportation back to Mexico, a country he left 43 years earlier.

Indeed, a conviction for a violation of Penal Code § 273.5(a), even as a misdemeanor, 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).

He then called Greg Hill & Associates and explained the circumstances of his conviction and his understanding of what was happening in court in 2003 at the time he was convicted. Greg explained how there seemed to be grounds to vacate the conviction both under Penal Code §§ 1437.7(a)(1) and 1016.5(a).

The client then retained Greg Hill & Associates and our office then prepared, served and filed the motion to vacate, arguing that the plea was legally invalid for the many reasons stated above.

The judge assigned to the case in the Bellflower Courthouse granted the motion and the District Attorney then announced the People were unable to proceed, so the judge dismissed the case under Penal Code § 1382.

---