Tooby's California Post-Conviction Relief for Immigrants

 

An alternative felony-misdemeanor is determined by whether the Legislature has expressly provided an alternative sentence, other than state prison, in the statute specifying the punishment for the offense.  If the statute expressly provides the court can impose a sentence of state prison or a county jail sentence up to one year, or a prison sentence or a fine, then the offense is considered an alternative felony-misdemeanor.  See § 9.18, infra.  These offenses are often initially punished as felonies, but can be reduced to misdemeanors “for all purposes” by any of the following means:

 

· The court imposes a “judgment” (i.e., a non-probationary sentence) other than imprisonment in the state prison.[25]

 

· The court, upon committing the defendant to the Youth Authority, designates the offense to be a misdemeanor.[26]

 

· The court grants probation without imposing a state prison sentence, and at that time, or upon application of the defendant or probation officer at a later time, declares the offense to be a misdemeanor.[27]

 

There is no time limit on this motion.  Therefore, at any time after probation is granted, the defendant can make an application for an order from the court declaring an alternative felony-misdemeanor to be a misdemeanor.  If this order is granted, the offense becomes a “misdemeanor for all purposes” under California law.[28]

 

            The Ninth Circuit has held that an alternative felony-misdemeanor, which was reduced to a misdemeanor after successful completion of probation, became at that time a misdemeanor with a one-year maximum sentence for purposes of the petty offense exception to inadmissibility under immigration law.[29]  This is also consistent with the rule that it is the final sentence that counts for immigration purposes, rather than the initial sentence.[30]

 

· If the prosecution files the charge as a misdemeanor, rather than as a felony, and the defendant is thereafter convicted, the offense is a misdemeanor for all purposes.[31]

 

· Prior to filing an order holding the defendant to answer in superior court, the magistrate can order that a felony-misdemeanor charge be considered a misdemeanor for all purposes.[32]

 

            If such a charge is declared a misdemeanor for all purposes under California law, by any of these means, it is a state misdemeanor conviction for all purposes, and cannot be considered a “felony” by the immigration authorities.

[25] Penal Code § 17(b)(1).

[26] Penal Code § 17(b)(2).

[27] Penal Code § 17(b)(3).

[28] Penal Code § 17(b).

[29] LaFarga v. INS, 170 F.3d 1213 (9th Cir. 1999).

[30] Matter of Cota-Vargas, 23 I. & N. Dec. 849 (BIA 2005); Matter of Martin 18 I&N 226 (BIA 1982)(correction of illegal sentence); Matter of H, 9 I&N 380 (BIA 1961)(new trial and sentence); Matter of J 6 I&N 562 (AG 1956) (commutation by Board of Pardons and Paroles).

[31] Penal Code § 17(b)(4).

[32] Penal Code § 17(b)(5).