Irvine, Multiple Convictions for Grand Theft Vacated

The following summary concerns a client who we helped vacate convictions from more than one case. He, in fact, had four cases with multiple convictions for crimes involving moral turpitude and those considered aggravated felonies under immigration law, although many, if not all of the cases, were based on a breach of a contract, which is traditionally civil in nature.

The following summary is similar to the client’s other cases, insofar the victims certainly could have resolved the dispute in a civil breach of contract case, rather than through the police and the criminal justice system.

About thirteen years ago, between April and August 2009, our client allegedly violated Penal Code § 487(a) (Grand Theft), and committed five acts of violating Penal Code § 476a(a) (Writing or Passing Bad Checks), as well as violating Corporations Code § 25401 (Using Untrue Statement in Purchase / Sale of a Security).

Each charge carried with it a one-year Penal Code § 12022.6(a)(1) sentencing enhancement for “Taking, Damaging or Destruction of Property in the Commission of a Felony When the Loss Exceeds $65,000.” Id. The three charges of grand theft each carried a two-year “On Bail” sentencing enhancement under Penal Code § 12022.1(b) because our client was facing a separate case at the same time, with similar charges, and had posted a bail bond to remain out of custody while the charges were pending.

Five of the charges arose when our client breached a loan agreement with five individuals by not repaying each person the money he was contractually obligated to repay. The other five charges arose over payroll checks to employees that did not clear the company’s payroll account due to insufficient funds. These are typically civil actions, not criminal cases.

The victims in the case were individuals and a bank. Our client owned and operated a debt consolidation and bankruptcy relief company. Of the restitution owed, $99,379.00, he paid about 80% of the restitution owed, or approximately $80,000. The balance was converted to a civil judgement against him.

Our client is not a U.S. citizen. He was born in Mexico and, with his parents, immigrated to the U.S. at age thirteen in 1981. In 1984, he was given a green card as a permanent legal resident. . He has been living in California for over forty years.

Since arriving here, he created a strong bond with the United States. He attended U.C.L.A. for three years. He coached his two children’s soccer and baseball teams when they were young. They are now in their thirties. He then divorced and remarried and has a young daughter with his second wife.

At the time he entered his pleas, according to the docket, he was “advised of the possible consequence of plea affecting deportation and citizenship.”

When he entered his guilty pleas, our client was not subjectively aware of the adverse immigration consequences of his plea to him personally. He was a permanent resident with a valid green card at the time, so he did not believe his residency could be affected if he was a permanent resident. He did not believe he could be deported if he was a permanent resident. His attorney at the time even affirmed this to him.

Moreover, he was intimidated by his attorney and did not ask him any further questions. In Mexican culture, an attorney is highly respected, so he followed all his advice, which was to enter pleas to three of the charges, trusting him that he knew what was best for him.

In addition, our client had been in court and observed the judge read a similar script to every person entering a plea, even those who appeared to be obvious U.S. citizens. Our client regarded the admonition 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 a permanent resident with a valid green card.

Had our client known of the adverse immigration consequences of such pleas before agreeing to enter 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 or proceed to trial.

Instead, however, not knowing any better, our client eagerly entered his guilty pleas. All he was concerned about, ironically, was minimizing future time in custody and getting back to work. The word “ironically” is used to emphasize that the immigration consequences of a plea, including deportation and exclusion, “may be more grave than the consequences that flow from the crime . . .” Kungyr v. United States (1988) 485 U.S. 759, 792, 108 S. Ct. 1537, 1557, 99 L. Ed. 2d 839.

Our client, age 53 in 2021, then called Greg Hill & Associates, seeking to have his convictions in this case vacated under Penal Code § 1437.7(a)(1) because he wanted to renew his green card and become a U.S. citizen. He had no family in Mexico anymore.

The client explained the above facts to us and retained Greg Hill & Associates. Our office then prepared, filed and served a motion to vacate the convictions under 1473.7(a)(1). The motion was filed in the Newport Beach Harbor Justice Center court and after approximately five hearings, was granted. The People then announced they were unable to proceed with the case and dismissed it.

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