Motion to Vacate Conviction, Downey, Petty Theft, 484(a)

Almost twenty-seven years ago, the Bell Police Department arrested our client on suspicion of  violating Penal Code § 484(a) (“Petty Theft”) and Vehicle Code § 10852 (“Tampering with a Vehicle”).  He had been suspected of taking something from an unlocked car.  

At the time, our client was nineteen years old.  He had immigrated to the United States from El Salvador when he was seven years old, with just his mom and brother.  He never knew his father,

Once he came to the U.S., he went to elementary school, middle school and high school here.  While he was in high school, in 1992, he applied for and was granted a green card, making him a permanent legal resident.

In just his second appearance in court, less than six weeks after his arrest, on December 1, 1995, he entered a nolo contendere plea to a violation of Penal Code § 484(a).  He was sentenced and placed on 24 months of informal, or summary, probation with a jail term of one day (credit for one day), ordered to pay $200 in restitution and stay one hundred yards away from the location of the crime.  At that time, our client had been in the United States for twelve years.

According to the docket of our client’s case, when he entered his plea, he was “advised that a conviction of the offense for which you have been charged may [emphasis added] have the consequences of deportation, exclusion from admission to the United States, or denial of naturalization pursuant to the laws of the United States.”  

The use of the word “may,” rather than “will” has been regarded by the Second Appellate District as an improper immigration admonition.  People v. Ruiz (2020) 49 Cal. App. 5th 1061, 1065 (finding error in 1991 guilty plea to a drug offense where the defendant was advised of possible, rather than mandatory immigration consequences).  In such cases, “[d]efendants must be advised that they will be deported, excluded, and denied naturalization as a mandatory consequence of the conviction.” Id.; see also People v. Soto (3d App. Dist., June 6, 2022) 2022 DJDAR 5649 (“may” is improper).

Moreover, since our client had been granted a permanent resident card and he had been in the United States for twelve years, he did not believe the immigration warnings applied to him.

In addition, at the time, he was too intimidated by his public defender to ask her to answer any questions he had.  He therefore followed all her advice, which was to enter a nolo contendere  plea to Penal Code §484(a), trusting that she knew what was best for him.

Our client, now age 45, recently learned that this conviction, as well as a second one for petty theft, bar him from becoming a U.S. citizen.  

His immigration attorney told him to call Greg Hill & Associates.  The client then called our office and spoke with Greg Hill about having his convictions in this case vacated under Penal Code § 1437.7(a)(1).  

The client explained that he has been employed for the last 24 years with the Los Angeles County Department of Mental Health.  His employment helped support his biological son and biological daughter, as well as his stepdaughter, for whom he became the legal guardian when her mother was deported back to Mexico.

With this conviction, he faced deportation back to El Salvador, a county he barely knew.  

At the time he entered his plea more than twenty-six years ago, the client explained, he was not aware of the adverse immigration consequences of his plea to him personally because he was never told so that it affected him personally.  He had been in court and observed the judge give a similar admonition to every person entering a plea, even those who appeared to be obvious U.S. citizens.  Our client regarded the admonition “script” the judge read 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.  

Had our client known of the adverse immigration consequences of such convictions before agreeing to enter a nolo contendere plea, he would not have voluntarily entered such a plea and would have instead told his public defender to continue negotiating for an immigration-neutral resolution or proceed to trial.

Instead, however, not knowing there were immigration consequences to him personally, our entered his nolo contendere plea.  All he was concerned about, ironically, was missing class and avoiding jail.

Our office then prepared, filed and served a motion to vacate the client’s conviction in this case vacated under Penal Code § 1437.7(a)(1).  The client wanted to become a U.S. citizen and stop living with the constant anxiety that he may be deported.