Similarly, the lighter the sentence imposed, the less likely the offense will be regarded as serious, and the more likely a safe haven will be found.

 

Other

CRIM DEF - SENTENCE - PROBATION VIOLATION
Where a defendant has previously received a sentence of 364 days in custody for an offense that would be an aggravated felony with a one-year sentence imposed, any additional custodial sentence imposed as a result of a probation violation would be added to the original sentence and would transform the conviction into an aggravated felony. Defense counsel at the probation violation plea bargaining and sentencing stages should: (1)  Ask the court to vacate the original probation condition imposing the custodial sentence of 364 days;

(2)  Enter a waiver of credit for time previously served for the 364 days already served; and

(3)  As the court to impose a new probation condition of whatever time in custody will meet the prosecution and courts sense of an appropriate additional custodial sentence for the probation violation. (A new sentence of no more than 180 days in custody would enable the conviction to qualify under the sentence-imposed requirement of the Petty Offense Exception to inadmissibility for a crime of moral turpitude conviction if that is a relevant consideration for the defendant.)

Since the court explicitly vacates (even if not as legally invalid) the original 365 sentence order, that is effectively eliminated for immigration purposes.  Matter of Cota, 23 I. & N. Dec. 849 (BIA 2005); Matter of Song, 20 I. & N. Dec. 136 (BIA 1989); LaFarga v. INS, 170 F.3d 1213 (9th Cir. 1999).

POST CON RELIEF - STATE REHABILITATIVE RELIEF - FIREARMS CONVICTION IS NOT ELIMINATED BY CALIFORNIA EXPUNGEMENT FOR DEPORTATION PURPOSES
See § 4.27