Motion to Vacate a Conviction in Indio

True Examples of Successful Motion to Vacate

In 2006, Mr. Purple who has no legal status in this country, pled guilty to two separate violations of possession of methamphetamine. He was told by his public defender and the court that if he completed a drug program, the convictions would be dismissed as though they never happened.

Mr. Purple completed the intensive drug rehabilitation program, yet a number of years later was put into deportation proceedings.

He found out that even though the convictions were dismissed for state purposes, they remained convictions for federal purposes.

In 2019, Mr. Purple hired the Law Offices of Anastacio De La Cruz to vacate these convictions. After reviewing the court file, the client file, and the relevant law, Mr. De La Cruz noticed irregularities in the court paperwork and filed a motion to vacate under Penal Code Section 1473.7, alleging that Mr. Purple was prejudiced by the court and trial counsel’s misrepresentation about the conviction being dismissed as though it had never happened.

Further, Mr. De La Cruz argued that Mr. Purple had not been advised of the possible immigration consequences as required under Penal Code Section 1016.5.

After providing evidence contemporaneous to the time of the plea that client would not have accepted the plea agreement had he known that he would have been deported and separated from his family, the prosecution submitted and judge granted the motion vacating the convictions. Mr. Purple is now eligible in immigration court for Cancellation of Removal for Certain Non-Permanent Residents.

In another example in 2007, Mr. Green, upon the advice of his public defender, pled guilty to a form of child endangerment. Because the charge was reduced from a felony to a misdemeanor, he assumed he was safe for immigration purposes.

Mr. Green left the country several times over the years, raised his family, and for 11 years had no issues of any sort. Unfortunately, in 2018 he was detained due to this conviction while coming back into the United States after a family vacation. He contracted the Law Offices of Anastacio De La Cruz to represent him in post-conviction proceedings.

Mr. De La Cruz reviewed the file, the court records, and the relevant law before filing a motion to vacate the conviction under Penal Code Section 1473.7, alleging that client had his constitutional right to effective assistance of counsel violated. Mr. Green also alleged that his plea was not made knowing and voluntarily, as he did not fully understand the true immigration consequences of the plea.

After a day-long tightly contested hearing, the presiding judge granted the motion based on a legal defect that damaged the client's ability to enter into the plea bargain knowingly and voluntarily. Due to this huge win, removal (deportation) proceedings against Mr. Green were terminated and he continues to reside with his family.

Motion To Vacate Under Penal Code Section 1016.5

Penal Code Section 1016.5(a) states that if you are a non-citizen facing criminal charges, prior to accepting a guilty plea or no contest plea, the court is required to read to you the following advisement:

If you are not a citizen, you are hereby advised that conviction of the offense for which you have been charged may have the consequences of deportation, exclusion from admission to the United States, or denial of naturalization pursuant to the laws of the United States.

If the court has no record that you were advised of the immigration consequences of your plea, it will be presumed that you were not advised. This means the prosecution has the burden to prove that you were advised.

While the court is obligated to ensure the non-citizen defendant understands the consequences of how their plea could have immigration consequences, a defense counsel's duty extends much further.

If you do not think that you were advised as to the possible immigration consequences related to your plea by the court, it is important that you hire an attorney experienced in post conviction relief to help determine whether filing a motion to vacate the judgment and withdraw the plea under Penal Code Section 1016.5 might be appropriate.

Call (760) 610-0606 now to learn more.