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Torrance Motion to Vacate, Two 211’s from 1989, 236 Instead
More than thirty-four years ago, in November of 1988, the Torrance Police Department arrested our client, then age 18, on suspicion of committing two robberies in violation of Penal Code § 211. Our client had robbed a Pioneer Chicken of about $300 and a small Mexican restaurant of about $350, using an empty and broken handgun.
Less than two months later, in January 1989, he entered a guilty plea to two counts of violating Penal Code § 211. The file notes indicated no immigration warning was given to our client prior to his entering his plea. Our client was then sentenced to eight years and eight months in state prison based on a gun enhancement (Penal Code § 211 had a different sentencing triad in 1989 than now).
In 2022, the client, now age 52, came to Greg Hill & Associates and asked about vacating his convictions, as he wanted to become a U.S. citizen. After he had been released from prison, he was not deported, but his green card had expired and he was told not to try to renew it because it would alert Homeland Security to deport him for his convictions. It was better to do nothing.
However, our client hated living with the constant fear that he would be deported any day. He had a family now and two teenagers in college who relied upon him for financial support. Since leaving prison, he had worked for the same company in Seal Beach for 24 years.
Greg explained that a motion to vacate his convictions under Penal Code § 1473.7(a)(1) might be available, but Greg needed to know more about him and what he knew at the time he entered his plea.
Our client then explained that he was born in Mexico. He came to the U.S. at age 2 in 1972 with his parents. In 1975, he became a lawful permanent resident.
Our client explained that his public defender did not tell him he would be deported back to Mexico for such convictions, which were both an aggravated felony and a crime involving moral turpitude.
At the time our client entered his plea, he had no family in Mexico and had not been there since he left at age two. He had gone to kindergarten, elementary, middle and high school in the Torrance area. He had no friends in Mexico. Even his grandparents, aunts and uncles were in the United States.
Moreover, since our client had been granted a permanent resident card and had been in the United States for 16 years, if the judge had warned his about deportation due to the convictions, our client believed he would not have believed they applied to him as a permanent resident.
Our client also explained that when he was 18, he was too intimidated by his public defender to ask him to answer any questions he had. He therefore just followed all his advice, which was to enter a guilty plea to the two Penal Code § 211 charges, trusting him that he knew what was best for him.
Greg then asked the client what he would have done had he known of the adverse immigration consequences of such convictions before agreeing to enter guilty pleas. Would he had refused to enter the plea? Would he have told his public defender to try to negotiate something else, even if meant more time in prison, but not being deported? The client answered yes to both of Greg’s questions. What if the public defendant could not negotiate anything that was immigration-neutral? Would the client have agreed to go to trial? The client said yes.
Greg then said he could help the client and the client hired Greg Hill & Associates.
Over six months and eight appearances, Greg and the Torrance District Attorney discussed the arguments in the motion and eventually negotiated an immigration-neutral alternative plea wherein the District Attorney stipulated to our client withdrawing his plea to both 211 counts and allowing our client to instead enter a no contest plea to one count of false imprisonment, Penal Code § 236 with a no probation sentence of 364 days in county jail with time served. The conviction for violating Penal Code § 236 is neither an aggravated felony nor a crime involving moral turpitude.
Less than two months later, in January 1989, he entered a guilty plea to two counts of violating Penal Code § 211. The file notes indicated no immigration warning was given to our client prior to his entering his plea. Our client was then sentenced to eight years and eight months in state prison based on a gun enhancement (Penal Code § 211 had a different sentencing triad in 1989 than now).
In 2022, the client, now age 52, came to Greg Hill & Associates and asked about vacating his convictions, as he wanted to become a U.S. citizen. After he had been released from prison, he was not deported, but his green card had expired and he was told not to try to renew it because it would alert Homeland Security to deport him for his convictions. It was better to do nothing.
However, our client hated living with the constant fear that he would be deported any day. He had a family now and two teenagers in college who relied upon him for financial support. Since leaving prison, he had worked for the same company in Seal Beach for 24 years.
Greg explained that a motion to vacate his convictions under Penal Code § 1473.7(a)(1) might be available, but Greg needed to know more about him and what he knew at the time he entered his plea.
Our client then explained that he was born in Mexico. He came to the U.S. at age 2 in 1972 with his parents. In 1975, he became a lawful permanent resident.
Our client explained that his public defender did not tell him he would be deported back to Mexico for such convictions, which were both an aggravated felony and a crime involving moral turpitude.
At the time our client entered his plea, he had no family in Mexico and had not been there since he left at age two. He had gone to kindergarten, elementary, middle and high school in the Torrance area. He had no friends in Mexico. Even his grandparents, aunts and uncles were in the United States.
Moreover, since our client had been granted a permanent resident card and had been in the United States for 16 years, if the judge had warned his about deportation due to the convictions, our client believed he would not have believed they applied to him as a permanent resident.
Our client also explained that when he was 18, he was too intimidated by his public defender to ask him to answer any questions he had. He therefore just followed all his advice, which was to enter a guilty plea to the two Penal Code § 211 charges, trusting him that he knew what was best for him.
Greg then asked the client what he would have done had he known of the adverse immigration consequences of such convictions before agreeing to enter guilty pleas. Would he had refused to enter the plea? Would he have told his public defender to try to negotiate something else, even if meant more time in prison, but not being deported? The client answered yes to both of Greg’s questions. What if the public defendant could not negotiate anything that was immigration-neutral? Would the client have agreed to go to trial? The client said yes.
Greg then said he could help the client and the client hired Greg Hill & Associates.
Over six months and eight appearances, Greg and the Torrance District Attorney discussed the arguments in the motion and eventually negotiated an immigration-neutral alternative plea wherein the District Attorney stipulated to our client withdrawing his plea to both 211 counts and allowing our client to instead enter a no contest plea to one count of false imprisonment, Penal Code § 236 with a no probation sentence of 364 days in county jail with time served. The conviction for violating Penal Code § 236 is neither an aggravated felony nor a crime involving moral turpitude.
The client was very happy with this resolution.
For more information about motion to vacate issues, please click on the following articles:
