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Motion to Vacate Judgement, Penal Code § 1473.7, Long Beach
Our client came to the United States with his wife and daughter in 2007 from Guatemala. At the time, he was 28 years old and knew very little English. His mom had come to the Los Angeles area about five years earlier and told him he should leave Guatemala for better job opportunities in the United States, so he did.
When he arrived in the United States, he lived in Harbor City and secured employment with a company that manufactured “dry-fit” T-shirts. Our client’s familiarity with Spanish and his older age helped him rise quickly to a supervisor of a group of about ten workers who worked in packaging and transport of the company’s T-shirts that sold for approximately $25 retail.
Some of the workers realized that the company had poor record-keeping of what they produced and what was shipped, so they began stealing t-shirts and selling them at swap meets at Alpine Village and in Gardena on the weekends. It should be noted that undercover police regularly go to such swap meets and quickly realized what was happening.
As the supervisor of the group, our client was questioned about the thefts. With perhaps a misguided sense of responsibility and an eagerness to make his employer happy that someone be accountable, he quickly apologized and took the blame for his employees, saying “this is all my fault.” The owners of the company indicated they were interested in prosecution, so our client was prosecuted for grand theft, Penal Code § 487(a). This was just one year after he had arrived in the United States and only months after he obtained his work visa.
Long Beach CourthouseOur client could not afford a private defense attorney and immediately entered into a plea bargain for a felony violation of Penal Code § 487(a) at the arraignment. At that time, he agreed to perform 60 days of community labor and pay back the full amount his employees stole, which was $8,000. Our client was never told by his public defender that to commit the crime, he needed knowledge of the theft taking place.
Our client’s public defender did work hard at resolving the case so our client faced no time in state prison or even county jail. However, the public defender never warned our client that a consequence of the conviction would be that he could be denied naturalization, subject to removal and barred from re-entering the United States.
During the plea bargain, however, the judge in Long Beach did advise the client that as a result of the conviction, our client faced certain immigration consequences. Our client, however, thought such warning were given to everyone and that such warnings did not apply to him because he had a work visa.
The client then proceeded to perform all sixty days of Cal-Trans and paid all restitution owed.
Nine years later, our client came to our office and asked if we could reduce his felony to a misdemeanor and have the conviction expunged. We replied that we could do so and prepared the motion to reclassify the case as a misdemeanor and have the conviction expunged under Penal Code § 1203.4.
The judge in Long Beach granted the motion to reclassify the case as a misdemeanor and have the conviction expunged.
Three months after this took place, the Department of Homeland Security instituted removal proceedings for his original felony conviction. As the reader of this summary may know, immigration courts only look at the original conviction, so for our client this was felony grand theft, which is a crime of moral turpitude.
The client then came to Greg Hill & Associates to ask what he could do. Greg explained to the client that Penal Code § 1473.7 permitted one convicted of a crime (even after 1203.4 relief) to vacate the judgment if one had not been aware that the immigration consequences applied to him or her. It did not matter if the judge had stated the immigration warnings if the client was led to believe such consequences were not applicable to him or her. The client replied that this was exactly what had happened to him. Greg and the client then discussed the effectiveness of counsel received by the client from the public defender and agreed that it was ineffective if the client was never even asked if he was a U.S. citizen, which he was never asked.
Greg Hill & Associates then prepared a motion to vacate the client’s plea to Penal Code § 487. While the motion was being prepared, Assembly Bill 2867 was passed, which greatly eased the burden for a petitioner seeking 1473.7 relief. Assembly Bill 2867 removed the requirement that a petitioner plead and prove ineffective assistance of counsel (IAC). 2867 also removed the requirement that one be facing pending removal proceedings.
The motion to vacate the judgement was then filed in the Long Beach Courthouse. The client did have to testify in court that he heard the immigration warnings when he entered the plea, but he did not believe at the time that he was subject to such consequences.
The judge granted the motion, finding that the judgement was reaching improperly.
The Long Beach District Attorney’s Office then decided not to refile the case, as our client had paid back the restitution ordered in full and did perform the full 60 days of Cal-Trans.
Our client was overjoyed, as the deportation proceedings to send him back to Guatemala were dismissed.
For more information about Penal Code § 1473.7 and vacating a judgment, please click on the following articles:
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