Motion to Vacate 273.5(a) Conviction Granted, Riverside

In 2005, our client came to the United States from Mexico for a better life.  He was twenty-five years old.  Once he came here, he met an American citizen and the two married.  The couple lived in Corona.

A year later, the two had their first child, a boy.  Five years later, they had their second child, also a boy.

Our client worked in a variety of jobs, mostly modest-paying work.  His wife also worked as a janitor at night.

In 2012, our client became a permanent resident, or green card holder.

In November, 2016, the two got into a rather serious argument and our client’s wife called the police, telling them that her husband hit her when in fact, he did not.  Nonetheless, our client was arrested and bail was set at $50,000 for felony domestic violence. 

 

Our client could not post bail, so he remained in custody.  He was desperate to get out of jail because he needed to work to pay the rent on the couple’s apartment and help out with all the other family expenses.

After three days, on a Tuesday, he was arraigned for a misdemeanor violation of Penal Code § 273.5(a), domestic violence causing traumatic injury to one’s spouse, and pleaded not guilty.  Our client barely spoke English, so a Spanish interpreter was used, but our client could not ask anyone about what was happening.  He had a hundred questions.

After the arraignment, no public defender came to visit him in jail and discuss the case facts, the defenses or the immigration consequences of the charge, if he was convicted.

At the first pre-trial hearing six days later, he was even more desperate to leave jail and so when the public defender told him he could leave jail if he pleaded guilty to domestic violence, he immediately did so.  Before doing so, he had no idea that a conviction for violation of Penal Code § 273.5(a) was both an aggravated felony (even though it was a misdemeanor) and a crime involving moral turpitude.

Before entering his guilty plea, no immigration-neutral plea bargain was proposed by the public defender to the prosecutor, such as a violation instead to Penal Code § 243(e)(1) (battery upon one’s spouse, not causing traumatic injury), Penal Code § 242 (simple battery, a misdemeanor), Penal Code § 236 (trespassing, a misdemeanor), or anything else.

Before our client entered into his plea, he signed a lengthy plea waiver form with many warnings about the consequences of a conviction.  All the warnings were in English and our client was told to quickly sign it.  The interpreter told him, “just sign it.  Don’t worry about it.  You will be released today if you do.”  The client did so.

When the client entered his plea, the judge also warned him about the fines, fees, taking a batterer’s class with fifty-two sessions, the immigration consequences and the consequences of violating the terms of probation.  Our client did not think all the warnings applied to him, particularly the immigration warning, because our client was a permanent resident.  He regarded the warnings as a “script” the judge had to read to anyone and everyone entering a plea.

The client was then released from jail and went home (and back to work).  He then completed the terms of probation. 

In early 2022, he applied for U.S. citizenship and was told he was ineligible due to this conviction.  He was shocked and confused.

The immigration attorney referred the client to Greg Hill & Associates, so he called our office and asked about filing a motion to vacate the conviction.  He discussed the matter with Greg in Spanish, as Greg does speak Spanish, but also with Sandra Perez, who learned Spanish before English, of our office supplementing the explanations in Spanish, as Greg’s Spanish is not as good as a native speaker’s Spanish.

The client hired Greg Hill & Associates to file a motion to vacate and our office did so.

The judge assigned to the case denied the motion, explaining that he was warned by the judge about the immigration consequences and he signed a plea waiver with the immigration warnings.  Greg explained to the judge that under People v. Patterson (2017) 2 Cal. 5th 885, the same exact reason was given by a judge in denying a motion to vacate and the California Supreme Court reversed the judge.  Greg also cited to People v. Camacho (2019) 32 Cal. App. 5th 998, wherein the court of appeal held that the judge’s warning is not advice of counsel and if defendant’s attorney did not warn the defendant of the adverse immigration consequences, there was a prejudicial error in the conviction sufficient to vacate the plea.

The judge said he was not changing his ruling, but sensing perhaps that he really was wrong, denied the motion without prejudice to allow Greg to bring the motion again.

Greg explained the ruling to the client, who was shocked at the judge ignoring the law.

However, Greg did not give up and refiled the motion a year later after the judge had been transferred to another court.  This time, the motion was granted, much to the relief of our client.

We offer this summary as a cautionary tale about Riverside County judges and how there are judges who bristle at the defendant who seeks to wipe away a conviction after he or she was told by the judge about the immigration consequences.  However, the law states that this is not enough for the conviction to be valid: the client must discuss such adverse immigration consequences with his or her attorney before entering the plea and the attorney must make the client aware of the client’s alternatives – going to trial.  The attorney should also attempt to resolve the case on immigration-neutral terms.

For more information about motions to vacate under Penal Code §§ 1473.7(a)(1), 1016.5(a) and 1473.7(a)(2), please click on the following articles: