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Immigration: What is the New Penal Code § 372.5?

On January 1, 2023, the California Legislature passed into law a new offense, Penal Code § 372.5, “public nuisance,” which the Legislature made available as an alternative violation to which non-U.S. citizens could plead to and avoid adverse immigration consequences, specifically in drug offenses.
As an attorney who has filed and litigated over 50 motions to vacate under Penal Code § 1473.7(a)(1) and Penal Code § 1016.5(a) for non-U.S. citizens, we regard this new law as a long-overdue solution to the predicament many of our clients have faced or will face.
However, it must be emphasized that the prosecution must agree to amend the complaint to allege this violation. The judge does not have the power to amend the complaint to add such a violation, only the prosecutor does.
The text of Penal Code § 372.5 states that this new section can be punished as an infraction, misdemeanor or felony (as a “wobbler”) and that it is would be alleged by the prosecution as a violation of Penal Code §§ 370/372.5 as an immigration-neutral disposition for non-citizens who otherwise may have been charged with: 1) cultivating; 2) manufacturing; 3) transporting; 4) giving away; 5) selling; or 6) unlawful possession of a controlled substance.
The new section seems to be codified as a solution to the often frustrating situation faced by those with a conviction or facing charges of violating:
  1. Health & Safety Code §§ 11358 (cultivation of marijuana);
  2. Health & Safety Code 11379.6 (manufacturing a controlled substance);
  3. Health & Safety Code § 11383(a) (possession with intent to manufacture PCP);
  4. Health & Safety Code § 11383.5 (possession with intent to manufacture methamphetamine or N-ethyl amphetamine);
  5. Health & Safety Code § 11383.5(b)(1) (possession with intent to manufacture methamphetamine;
  6. Health & Safety Code § 11383.5(b), (c) or (f) (possession of isomers or precursors with intent to manufacture a controlled substance);
  7. Health & Safety Code § 11352 (sale or transportation of a controlled substance);
  8. Health & Safety Code § 11351 (possession for sale of a controlled substance);
  9. Health & Safety Code § 11366 (maintaining a place for unlawfully selling or giving away illegal drugs (“Operating a Drug House”));
  10. Health & Safety Code § 11366.5(b) (controlling a space, house or room, for example as a landlord, property manager, or tenant for purposes of illegally manufacturing or selling illegal drugs);
  11. Health & Safety Code § 11366.7(b) (new law in 2022: illegally selling any item (i.e., chemical or drug) or device that will be used in the illegal manufacture, compounding, conversion, process or preparation of an illegal controlled substance for sale or distribution);
  12. Business & Professions Code § 4060 (illegal possession of medication without a prescription);
  13. Business & Professions Code § 4234 (illegally obtaining prescription drugs by forging or altering a prescription or signing a physician’s name);
  14. Health & Safety Code § 11373 (illegal possession of a narcotic or prescription drug by fraud, misrepresentation or deceit);
  15. Health & Safety Code § 11377 (possession of methamphetamine); and
  16. Health & Safety Code § 11350(a) (illegal possession of a controlled substance (most commonly heroin, cocaine, Oxycontin, Vicodin, LSD, ketamine and/or Xanax) without a prescription).
With this new crime codified, defense attorneys and prosecutors have a new way to resolve motions to vacate that involve any of the above drug offenses. When a motion to vacate is filed, prosecutors can agree (stipulate) to vacate the conviction and defendant can then enter into a terminal disposition (no jail, no probation) for a violation of Penal Code § 372.5 as an immigration-neutral, “safe” resolution.
We applaud the Legislature for passing this new law into effect, however, if experience is any gauge for predicting the future, we expect prosecutors and judges to resist resolving cases under § 372.5 and even immigration courts, ultimately and/or eventually, to look upon such resolutions with disfavor, just as the immigration courts apparently regard Penal Code § 1473.7(a)(1) motions (and later case dismissals) with skepticism now.
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