Post-Conviction Relief! Health and Safety Code section 11359 Possession of Marijuana for Sale Offense Vacated Per Penal Code § 1

Recently, in Los Angeles County at the Central Courthouse our office successfully litigated a joint Penal Code § 1016.5/1473.7 motion arguing that our client failed to meaningfully understand the immigration consequences that would result from his 2001 Health and Safety Code section 11359 conviction.

Our client recently received a notice to appear in immigration removal proceedings based on this offense and was unable to lawfully naturalize as a United States citizen. The Department of Homeland Security alleged that our client was removable from the United States for having been convicted of a controlled substance offense.

When our client hired our office, we began by reducing the offense to a misdemeanor pursuant to Proposition 64 (Health and Safety Code section 11361.8(f)).

After reducing the offense, we began to request and gather all documentation that was still in existence related to the plea. The transcript of the plea was still available and showed that at the time of the offense our client was advised the following during a multiple defendant plea: “there are consequences to pleading that you each must understand: if you are not a citizen of this country, you will be deported, denied amnesty, naturalization or reentry.”

Upon meeting with our client and discussing the circumstances surrounding his plea, we decided to file a motion to withdraw the plea based on Penal Code section 1016.5 and, in the alternative, Section 1473.7.

As to our argument based on Penal Code section 1016.5, we argued that based on the advisement our client received he was led to believe that any plea, regardless of the charge or sentence, will result in negative immigration consequences when, in actuality, immigration consequences only result upon a conviction to an immigration unsafe plea. Thus, we argued our client should have been properly advised per the language stated in Penal Code section 1016.5 that a conviction of the offense for which he had been charged may result in the enumerated immigration consequences.

We made an argument in the alternative that pursuant to Penal Code section 1473.7 our client’s plea should be vacated. We argued that advising our client that there are immigration consequences to pleading and not that the correct advisement that conviction of the offense charged may result in immigration consequences was a prejudicial error damaging our client’s ability to defend against the adverse immigration consequences.

At the time of filing the motion, we provided the prosecution with an equities package detailing our client’s long-term job, family in the United States, and proof of home ownership. Prior to the hearing on this motion, the prosecution contacted our office and, after negotiation, agreed to stipulate to vacating the plea pursuant to Penal Code section 1473.7.

With this result, our client should be eligible for cancellation of removal! This is an amazing result!

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