Inglewood, Motion to Vacate Felony H & S 11360 Conviction

On Christmas Eve, 1999, our client, then twenty-seven years old, was arrested by the Los Angeles Sheriff’s Department, Lennox Station on suspicion of violating Health & Safety Code § 11360(a), possession of marijuana for sales.  The arrest followed the discovery of close to three pounds of marijuana in his car that he was driving on Inglewood Avenue.

A felony complaint alleging this violation of California law was filed and in 2001, our client entered a guilty plea to this crime.  He was thereafter sentenced to twenty-four months in state prison (with credit for 105 days in custody based on 70 days of actual custody and 35 days good time / work time) to run concurrent with a 24-month sentence for violating Health & Safety Code § 11359 in a Torrance case and a 24-month sentence for violating § 11359 and Vehicle Code § 2800.2 in a third matter, also in Torrance. 

All three cases were pending concurrently and involved conduct from mid-August 1999 to late-December 2000. 

Since being released from prison, our client, now 51, turned his life around.  He has worked hard and resolved never to make the kinds of mistakes that led to the conduct at issue.  He lived in Inglewood with his wife and four daughters.

However, having such felonies exposed him to deportation back to Jamaica because our client was not a U.S. citizen.  No one in his family lived there anymore.  Our client had not been back to Jamaica since 1991.  Were he be deported there, he would be torn away from his four daughters, who were all U.S. citizens, and the life he built here in the U.S. 

In 2023, he spoke with an immigration attorney about becoming a U.S. citizen.  He had come to the United States on a B-1 Visa for business, but it had expired. 

The immigration attorney told him that his three felony convictions barred him from become a U.S. citizen because there were considered aggravated felonies due to the sentences being more than one year.  This is correct.  A violation of Health & Safety Code § 11360, 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).

The immigration attorney further advised the client to contact Greg Hill & Associates to discuss vacating the conviction under Penal Code § 1473.7(a)(1).

The next day, the client called Greg Hill & Associates and explained his convictions and what his immigration attorney advised.

Greg then asked the client questions about what was discussed between him and his immigration attorney before entering into the plea bargain and what the client knew about his exposure to deportation from the conviction.  The client explained that his attorney (now deceased) never discussed the immigration consequences of the conviction.

Greg commented that this failure was common, as it was not for another nine years that the U.S. Supreme Court issued its ruling in Padilla v. Kentucky, wherein the U.S. Supreme Court reversed a line of cases that said it was not ineffective assistance of counsel (IAC), in violation of the Sixth Amendment, if the attorney merely tells the non-citizen defendant to consult with an immigration attorney prior to taking the plea.  In Padilla, the U.S. Supreme Court said such handling of immigration consequences was IAC.  Instead, a criminal defense attorney must affirmatively try to resolve the case in a way to avoid adverse immigration consequences and must advise the client if there are certain adverse immigration consequences before the plea is taken.

Greg then went to the courthouse and got a copy of the docket to the case.  He discovered that the judge only warned the client that the conviction “may” cause deportation, denial of re-entry and denial of naturalization. 

Such an admonishment violated Penal Code § 1016.5(a).  As the California Supreme Court has stated, there is a stark difference between an actual and a theoretical risk of deportation.  People v. Superior Court (Giron) (1974) 11 Cal.3d 793, at 797; see also U.S. v. Rodriguez (9th Cir. 1995) 797 F.3d 781, 790 [“Warning of the possibility of a dire consequence is no substitute for warning of a virtual certainty.  As Judge Robert L. Hinkle explained, ‘Well, I know every time that I get on an airplane that it could crash, but if you tell me it is going to crash, I’m not getting on.’”].

The client then hired Greg Hill & Associates and our office prepared, filed and served the motion. 

Surprisingly, at the hearing on the motion, the District Attorney did not oppose the motion and the judge granted the motion.  Our client was extremely happy with this, as this was a “solid” felony insofar as he had close to three pounds of marijuana when arrested.