Child Abuse (273d(a)), Motion to Vacate Denied, Santa Ana

The purpose and goal of posting case summaries is to educate our clients and potential clients. If the purpose was to brag or boast about our success, we would not post the following summary.

The following summary demonstrates how a judge may deny a motion to vacate when prior defense counsel fails to defend the client by actively seeking an immigration-neutral plea bargain, but never telling the client about this and consequently, not giving the client to make an intelligent, informed decision about adverse immigration consequences.

In 2017, our client, age 18 and his sister, age 13, were home one afternoon while their mom was working. Dad was not there. The younger sister wanted to leave the house to visit with friends, but her older brother told her no, as their mom forbid this.

The 13-year-old became frustrated and called the Santa Ana police, telling the police that our client punched her in the stomach, as she had injured herself during recess at school earlier and she had a bruise there from school.

Police came to the house and the 13-year-old showed police her bruise on her stomach. She also told police that our client told her he would kill her if she left the house.

The family had emigrated from Vietnam to the United States two years earlier. Our client did not know much English, but his sister, being younger, learned English quickly.

Police asked our client about the incident and, without a Vietnamese interpreter, he answered many questions. He said “yes, yes” to questions he did not understand. Our client was then arrested and later posted bond to leave the jail.

Four days later, in the Orange County Superior Court, our client was arraigned on three misdemeanor charges, including Penal Code § 245(a)(1) (Count 3), as well as two of the charges he ultimately was convicted of violating, Penal Code §§ 422(a) and 273d(a). At the arraignment, all three charges carried adverse immigration consequences if convictions were secured on such charges.

The family hired private counsel, whose name this summary will not reveal. Two months later, our client was in a jury trial. Our client was then convicted at trial of Penal Code §§ 273d(a) (Child Abuse) and 422(a) (Criminal Threats), both of which were crimes involving moral turpitude.

The judge sentenced our client to 180 days in county jail and four years of informal probation.

After our client completed probation, he asked his attorney if he could apply for a green card and she told him yes, but that his convictions might complicate his application.

Our client then spoke with an immigration attorney who told him he was disqualified from becoming a U.S. citizen because of these two convictions She advised the client to ask the judge to vacate the convictions (AB 1259 expanded Penal Code § 1473.7 to apply to convictions reached at trial).

The client and his family then came to Greg Hill & Associates. They explained that the client’s prior attorney spoke no English and never told him about any immigration consequences of the convictions. She never asked him if he really wanted to go to trial and risk deportation if convicted.

Greg then filed a motion to vacate the convictions because prior to agreeing to trial, our client was not aware and did not knowingly accept the immigration consequences of trial.

The Orange County District Attorney opposed the motion, producing emails from our client’s prior counsel to the DA, advising the DA that the charges had negative immigration consequences and that an immigration-neutral plea bargain was requested. But she did not suggest a plea instead to false imprisonment (Penal Code § 236) or battery (Penal Code § 242), for example. The DA’s office never responded to the emails and trial proceeded.

At the hearing on motion to vacate, Greg argued that such communication by our client’s former attorney to the DA’s office was not relevant to our client’s mindset in agreeing to go to trial unless the prior attorney discussed the adverse immigration consequences with the client and he agreed to go to trial nonetheless. Because our client never knew what his attorney knew, as the attorney did not speak English and the attorney did not speak Vietnamese, such knowledge from the attorney could not be imputed to the client.

At the hearing on the motion, Greg had our client’s sister, who acted as an interpreter throughout all discussions between the attorney and her brother not in court, testify that the attorney never discussed immigration consequences with our client.

Nonetheless, the judge denied the motion, finding that our client knew about the adverse immigration consequences before agreeing to trial because his attorney knew.

The motion was denied without prejudice, as the judge recognized his decision might be undercut by future appellate decisions on this issue.

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