Santa Ana, Motion to Vacate Conviction for VC 23103 Granted

In 2006, our client’s car was stolen, only to be found about a week later totaled and sitting in a salvage yard.  At the time, our client was 38 years old.  The police called him to notify him where his car was and so our client went there to gather his personal belongings from the car and see if the car could be fixed.

When our client arrived there, the tow lot employee there gave our client the car key and our client used it to enter the car and get some personal papers from inside.  He then left and reported the loss to his insurance company to file a claim and make a statement.  Our client had immigrated to the United States from Romania is 1994, twelve years earlier, but retained a thick Romanian accent.

Because our client had the car key and perhaps because of his Eastern European accent, the insurance company believed our client had committed insurance fraud and had orchestrated his car’s damage.  The insurance company therefore reported this to the police, who then arrested our client and the Orange County District Attorney charged him with violating Penal Code §§ 548 (“defrauding an insurer”), 550(a)(1) (“making false insurance claim”), 550(b)(1) (“making false or fraudulent claims or statements”) and 550(a)(5) (“making fraudulent claims”).

Our client was outraged, but did what he needed to do and that was hire good defense counsel and eventually resolved the case for a plea bargain to simple reckless driving, Vehicle Code § 23103(a) (not pursuant to a DUI charge, i.e., through Vehicle Code § 23103.5).  All the insurance fraud original charges were dismissed, which was vindication for our client.

When the client entered his plea, the judge read an immigration warning script that he read accepting the plea of every person, so it obviously did not apply to certain U.S. citizens.  Our client had a green card at the time and he did not believe the warnings applied to him because he was a permanent resident.  After all, he had the right to be here permanently, so he could not be deported, he thought.

However, he was still convicted of a crime and was placed on two years of informal probation and required to pay a court fine of $500, plus penalties and assessments.  When he completed probation, he had the conviction “expunged” under Penal Code § 1203.4.

In 2021, our client then decided to apply to become a U.S. citizen and went to an immigration attorney, who told our client that his conviction from 2006 was a problem because of the other charges also charged against him in the same case, all which involved dishonesty and were consequently crimes involving moral turpitude (CIMT) offenses.

The immigration attorney told our client to contact a criminal defense attorney to see if he could vacate the conviction for reckless driving and then have the case dismissed.

The client then called Greg Hill & Associates and spoke to Greg Hill about his case.  He described what had happened and what his immigration attorney had told him.  Greg then asked some questions about the client’s knowledge of the immigration consequences of his plea when he entered the plea, his ties to the United States at the time he took the plea in 2006 and when exactly he learned about vacating this plea would be something to look into.  The client also explained that at the time, he was married with a young child and was the president of a construction company with about 20 employees.  In other words, he had a lot of ties to the United States.  He also did not want to return to Romania.

Greg Hill & Associates then prepared a motion to vacate the conviction under Penal Code § 1473.7(a)(1), arguing to the court that when the client entered into the plea bargain to reckless driving in 2006, he did not meaningfully understand or knowingly accept the actual or potential immigration consequences of the plea.  Moreover, had he understood such consequences at that time, he would not have entered the plea and instead, would have asked his counsel to negotiate an immigration neutral plea bargain, or he would have requested an attorney to prepare for trial.  See People v. Mejia (2019) 36 Cal. App. 5th 859, 866 (“The key to the statute [Penal Code § 1473.7] is the mindset of the defendant . . . at the time the plea was taken.”).

Our office then filed the motion in the Santa Ana Superior Court and served the District Attorney’s office, as well as our client’s prior counsel.

The court then set a hearing date and Greg Hill appeared in court for the client on that day.  The District Attorney did not oppose the motion and the judge granted it.  Moreover, the People advised that they could not proceed with prosecuting the case, so Greg made a motion to dismiss the case under Penal Code § 1385.  They client was very happy with this result.

For more information about motions to vacate under Penal Code § 1473.7(a)(1), please click on the following articles: