Recently, at the Long Beach Courthouse in Los Angeles County, I obtained a dismissal on behalf of my client for his 2002 Penal Code section 273.5, “Domestic Violence,” misdemeanor conviction.
Although this conviction was seventeen (17) years old, this offense was causing him dire immigration consequences as it was considered a crime of moral turpitude and a crime of domestic violence to the federal immigration authorities.
Our office began by investigating what documents existed from the conviction. We determined that the court file was destroyed on October 28, 2013 and that the court reporter’s notes were destroyed as well. The only record of the plea date still available was the docket which was void of any reference to whether our client was advised of the immigration consequences of his conviction.
Based on the existing court file, there is no evidence or any other sources to establish that the defendant was advised of the immigration consequences as required by Penal Code §1016.5.(See People v. Dubon (2001) 90 Cal. App. 4th 944, 955).
Therefore, due to the lack of record that our client was properly advised pursuant to Penal Code section 1016.5, we filed a motion to withdraw the plea pursuant to that Section.
The prosecution filed an opposition to our motion arguing that our motion was not timely made, that our client had failed to show prejudice, and that the fact that no record existed regarding the advisement was not dispositive.
After oral argument on the motion, the court granted the motion over the prosecution’s objection and the prosecution announced they were unable to proceed on the prosecuting the underlying criminal allegations. Thus, the court dismissed the charge pursuant to Penal Code section 1382, “Unable to Proceed.”
With this result, our client now has a better opportunity to stay united with his family and continue to live the life he worked hard to establish in the United States.
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