Santa Barbara, 2004 Conviction for H & S 11352 Vacated

Our client was born in Mexico in 1981.  At age 7 he came to the United States with his parents and three brothers.  The family settled in the Santa Barbara area.  Our client went to the third grade through high school in the Santa Barbara area schools, eventually dropping out of Dos Pueblos High School part way through his junior year to work.

The family grew to eight children, each attending the Santa Barbara area schools.  

Our client’s father had learned about the farming in the local area by being part of the Bracero program.  “The Bracero Program,” officially known as the Mexican Farm Labor Agreement, was a series of laws and diplomatic agreements, starting in 1942, between the United States and Mexico that allowed for Mexican nationals to work in the agricultural industry in the United States.  The program was originally created to meet a labor shortage in the farming industry caused by World War II.  In 1952, such workers were admitted with H-2 visas.  The program involved over five million Mexican farm workers in 24 states.  It ended in 1964.

In 2003, our client was arrested in Santa Barbara on suspicion of violating Health & Safety Code § 11352(a), a felony, also known as transportation of a controlled substance.  The client was driving with his wife and his wife has about 30 grams of cocaine in her purse.  Our client told the police officer it was his, not hers, and he was arrested.

Our client retained a well-known, respected local criminal defense attorney who recognized that (then) a violation of § 11352(a) was immigration-neutral as long as the type of controlled substance was not specified and that the defendant specify the controlled substance was “for personal use” only.  The client then entered the plea and the local criminal defense attorney ensured that the record not specify what type of controlled substance was involved and that the substance was “for personal use only.”

Our client was then placed on three years of formal probation with an obligation to attend 52 Narcotics Anonymous (NA) meetings and perform 120 hours of community service, both of which he did with no problems.

Ten years later, in 2014, federal immigration law changed to reclassify a violation of Health & Safety Code § 11352(a) as an aggravated felony and a crime involving moral turpitude. 

Our client was unaware of this change in the law, as he was working hard and had no convictions since 2004.

In 2022, however, he went to an immigration attorney to inquire about becoming a U.S. citizen.  The immigration attorney advised our client that this was impossible with his conviction for violating Health & Safety Code § 11352(a) nineteen years earlier.  The immigration attorney suggested that the client call Greg Hill & Associates to discuss having the conviction vacated.

The client called up Greg Hill & Associates and discussed the case facts with Greg Hill.  At first, the client explained that his prior attorney had tricked him into the plea and lied to him, but Greg explained that the law had changed for this particular crime, so his attorney’s advice at the time was legally sound.

Nonetheless, the conviction remained problematic for our client and Greg agreed that asking the judge to vacate the conviction would be a strong motion.  After all, at the time, no one knew that the law would change in ten years.

Moreover, after Greg looked into the court records on the client’s case, he saw that the judge gave an improper immigration admonition to the client.  The judge told the client that a conviction for a violation of Health & Safety Code § 11352(a) “may” have negative immigration consequences, including deportation, denial of naturalization, denial of re-entry and denial of amnesty.

Greg Hill & Associates therefore prepared, filed and served a motion to vacate the conviction under not only Penal Code § 1473.7(a)(1) for immigration consequences, but also under Penal Code § 1016.5 for an improper immigration warning.

The motion further explained how our client would never have entered into such a plea in 2004 had he known such a conviction would lead to his deportation.  After all, he had lived in the United States for 17 years of his 23 years and knew no one in Mexico at the time.  He would never have agreed to such a conviction and deportation back to a county he hardly knew.  No one in his family still lived there.

The judge in Santa Barbara Superior Court granted the motion to vacate, which made our client extremely happy.

For more information about motions to vacate, please click on the following articles: