Santa Ana, Solicitation (PC 647(b)) Conviction Vacated

In 2012, our client was 24 years old and desperate to make money in any way possible.  She had been living in the United States for 19 years, ever since her grandmother brought her to the United States from Mexico to reunite with her mom and three other siblings, who had already immigrated here.

Our client was arrested on 17th Street, in the downtown area of Santa Ana, for solicitation of prostitution (Penal Code § 647(b)).  She went to court a few days later and since she had no prior criminal history, her attorney negotiated a delayed entry of judgment disposition, wherein she entered a guilty plea to the charge, but was not convicted in court if she could take a course on the dangers of prostitution and stay out of trouble for a full year.

Our client completed the course and stayed out of trouble for a full year and her plea was withdrawn and the case dismissed.

This appeared to be a successful end to the case.  However, since Ms. Morales was not a U.S. citizen, the guilty plea was regarded as a conviction in immigration court.  Moreover, her plea to solicitation of prostitution is a plea to a crime of moral turpitude, making her presumptively deportable. Matter of W- (C.O. 1951) 4 I & N Dec. 401. 

In Matter of W-, the former Immigration and Naturalization Service (INS) Central Office held that violation of a city (Seattle) ordinance relating to prostitution was a crime involving moral turpitude.  The decision was the first to recognize that engaging in prostitution is categorically a crime involving moral turpitude.  Despite the age of the decision, it has been recognized by both the Board and several Federal circuit courts as remaining good law in recent decisions.

The client learned this hard truth once she went to an immigration attorney in 2022, with her two young girls, ages 3 and 5 (U.S. citizens by birth), to explore becoming a U.S. citizen.  The immigration attorney then recommended she speak with Greg Hill about possibly vacating her conviction (really vacating her plea) and having the case dismissed.

The client called up Greg Hill and then had a meeting with him, wherein she discussed the case and Greg explained how a motion to vacate a conviction under Penal Code § 1473.7(a)(1). 

In the meeting, the client told Greg that her attorney, a well-respected attorney now, told her eleven years ago that if she entered a guilty plea, she would avoid deportation, but if she went to trial and was convicted, she would be deported.  Relying on such advice, she entered a guilty plea.

Greg then prepared a motion to vacate the conviction and as part of the process, requested and received the docket from the Orange County Superior Court.  In the docket, it was stated that the judge admonished the client that a conviction for the crime “may” have immigration consequences.

This warning by the judge was also legally invalid.  Under Penal Code § 1016.5, the judge must tell the defendant that a conviction for the crime will (not may) have immigration consequences.  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.’”].  Consequently, Greg added to the motion an additional argument to vacate the plea on this ground.

Greg then filed and served the motion.  Greg served the motion on our client’s prior counsel as a courtesy because the motion alleged legal fault on him.

At the hearing at the motion, to Greg’s surprise, the attorney who represented our client eleven years earlier showed up to court, angry at our client for signing a declaration that suggested shoddy legal advice to her.  He claimed that he never told her what she believed he told her and told Greg he felt obligated to defend himself.

Greg and the attorney then discussed the situation with the judge and Greg suggested that the judge simply rule on the motion only based on the motion’s argument that the judge’s admonition was legally defective.

The judge agreed and granted the motion.  This avoided an awkward hearing wherein prior counsel would attack the credibility of our client.  The client was very happy with this resolution and grateful that Greg had noticed an alternative, additional argument to vacate the plea to have the motion granted.

For more information about motion to vacate issues (Penal Code § 1473.7(a)(1)), please click on the following articles: