Recently, at the Clara Shortridge Foltz Courthouse in Los Angeles County, I obtained a dismissal on behalf of my client for his 1989 Health & Safety Code section 11351, “Possession of a Controlled Substance for Sale,” felony conviction.
Although this conviction was thirty years old, this offense was causing him dire immigration consequences.
Our office began by investigating what documents existed from the conviction. We determined that the file is in storage, but only the file notes and one Docket sheet are available. The file did not contain any documents from the date of the plea, including a transcript. Additionally, the court reporter for the plea date is inactive and the transcripts are no longer available due to the age of the case.
Based on the availability of the contents in the 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.
At the final hearing on the motion, the motion was granted, and the charge was dismissed pursuant to Penal Code section 1385, in the interest of justice.
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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