Recently, at the Central Courthouse in Los Angeles County, I obtained a dismissal on behalf of my client for her Health & Safety Code section 11350 (Possession of a Controlled Substance) offense from 2006. My client originally pled to the charges in 2006 and was sentenced to deferred entry of judgment. In 2007, our client was convicted of another criminal matter in Orange County and was terminated from deferred entry of judgment in this matter and sentenced to state prison for two years.
The transcript of the plea for this matter still exists and according to this transcript, no oral Penal Code section 1016.5 was given. In fact, according to this transcript, the court noted on the record that our client had not completed the waiver form prior to the court taking his plea and the court instructed him to complete it after the plea colloquy.
Based on the insufficient record showing that our client was provided the complete immigration advisements required by Penal Code section 1016.5 prior to his plea, we filed a motion to withdraw the plea. We argued that the court failed to advise our client prior to his plea that he could face deportation, denial of naturalization and exclusion from admission as a result of his plea. Within our motion we argued that, in the alternative, based on the plea colloquy and the completion of the waiver form after the plea was taken, our client failed to meaningfully understand the immigration consequences of his conviction pursuant to Penal Code section 1473.7.
At the first hearing on the motion, the prosecution wanted additional evidence of the immigration prejudice our client was suffering from based on the conviction. We then provided the prosecution with a declaration from our client’s immigration counsel showing that he is facing deportation and permanent exile from the United States.
The prosecution submitted on our motion and the judge granted the motion. The prosecution then dismissed the charge pursuant to Penal Code section 1385, in the interest of justice, and the case was dismissed!
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