Motion to Vacate Denied, Long Beach, Attempted Robbery

The following summary is offered to educate the reader that not all judges are the same and illustrate how our legal system is administered by people, not machines.

In 2001, our client was 18 years old.  He had immigrated to the United States from Cambodia at age 7 and then settled in Long Beach with his parents, his two brothers and his sister.

The area where the family lived was in the heart of territory claimed by the “Little Rascal” criminal street gang and so our client, as a teenager, often thought about joining the gang.  Our client went to elementary school, middle school and high school in Long Beach alongside Little Rascal members.  His English was poor, so associating with those who spoke Cambodian often meant associating with Little Rascal members.

As a juvenile, he was arrested for vandalism and graffiti and was “punished” with Home on Probation (HOP). 

During high school, he dropped out to become an auto mechanic, a job wherein his poor English would not be a major factor.

At age 18, he was arrested for attempted robbery of a woman’s purse at a shopping mall in Westminster.  Our client was with his friend, who grabbed a woman’s purse.  The woman screamed and police at the shopping mall chased our client’s friend.  Our client ran, too, although he really did nothing.

Our client was eventually arrested after a foot chase and charged in adult court with attempted robbery (Penal Code §§ 211, 664) with a sentence enhancement for the crime being committed for the benefit of, to assist or promote a criminal street gang (Penal Code § 186.22).

When our client went to court on this case, he did not use an interpreter and his public defender never told our client that a conviction for attempted robbery had adverse immigration consequences.  Our client signed a plea form that advised him in writing that the conviction for which he was pleading would result in his deportation, denial of naturalization, denial of amnesty and denial of re-entry into the United States.  In completing the plea form, our client was told to just initial all the boxes on the form that did not have an “X” in them.  Our client had about two minutes to do this, as his public defender was in a hurry and urged our client to initial the boxes quickly.

When the client then entered his plea in court, according to the court’s docket report, the judge told our client that the conviction “may” result in adverse immigration consequences.  The judge did not tell him it would result in such consequences.

Our client then was placed on formal probation for three years.  Probation was then transferred to Long Beach.

Twenty-two years later, our client, now married and with a daughter, went to an immigration attorney for help in becoming a U.S. citizen.  

The immigration attorney looked at our client’s record and told him that his conviction in Westminster would bar him from becoming a citizen and actually made him subject to deportation.

The client was shocked and called Greg Hill & Associates.  The client explained the crime from 22 years earlier and Greg asked him about whether he was aware that the conviction would make him subject to deportation.  The client explained that he had no idea at the time and explained how his public defender rushed him through the plea. 

Greg asked the client is there was an immigration-neutral plea bargain offered to the client, i.e., to conspiracy (Penal Code § 32) or trespassing (Penal Code § 32), as he apparently was chased onto private property by police.

Greg then explained the legal standard involved in a motion to vacate a conviction under Penal Code § 1473.7(a)(1).

Our office then filed the motion in the Long Beach Superior Court, as it was the court that last had jurisdiction over the case, due to the fact that the Los Angeles County Probation Department supervised our client.

The judge assigned to the case, who has denied dozens of motions to vacate, refused to hear the motion, stating the Westminster court was the proper court to decide the motion because that is where the plea was entered.

Accordingly, Greg refiled the motion in the Westminster courthouse and was assigned a hearing date.  The judge in Westminster refused to rule on the motion and instead transferred it to Santa Ana, explaining to Greg that all motions to vacate on immigration grounds needed to be decided by one judge there.

Accordingly, Greg refiled the motion in Santa Ana Superior Court.  A hearing date was set and on that date, Greg appeared for the hearing on the motion.  The judge in Santa Ana, however, refused to decide the motion, stating the judge in Long Beach was the correct judge to rule on the motion. 

Accordingly, Greg filed the motion in Long Beach Superior Court again.  The same judge was assigned, the one who had a reputation of never granting a motion to vacate on immigration grounds.

After six months of delays (nine hearings), the judge finally ruled on the motion, denying it.  In explaining her ruling, she stated that she found our client “rolled the dice” in entering his plea with deportation consequences, knowing he may one day be deported, but that he took the plea for probation and risked being deported “recklessly and consciously” because the written plea form told him he would be subject to such consequences.

Our client testified that at the time he took the plea, he knew no one in Cambodia.  If he had known that he would be subject to deportation, he would have asked his attorney to try to negotiate an immigration-neutral plea bargain or, if that was not possible, to prepare for trial.  Our client testified he would never have agreed to the plea bargain if he knew it would result in his deportation.

Greg further argued that our client could not even read the form and, as our client testified, he was never read it by his attorney or the judge.  Therefore, there was a prejudicial error in the conviction and the conviction must be vacated.

The judge, however, stated on the record that she believed the public defender had read the form to our client and our client knew what he was doing when he agreed to the conviction.  It was mind-boggling to see a judge fabricate such facts and make such a ruling, knowing our client needed an interpreter and that he was only 18 years old and legally inexperienced at the time. 

To Greg, it appeared that the judge just wanted to deny the motion, regardless, so she made findings that the public defender in Orange County read the plea form to our client and that our client understood it, but decided to plea as he did with full awareness of the immigration consequences.  It was remarkable how there was no evidence to support the judge’s findings.

Sadly, our client did not have the money to appeal this mistake by the Long Beach judge, so he remains subject to deportation.

We present this summary to illustrate how judges are not perfect.  Judges can rule in unpredictable ways and since an appeal is not free, a judge like the one described above can be a problem when he or she refuses to follow the law and consider the client’s testimony.