Penal Code § 17(d) provides that certain common misdemeanors[101] constitute infractions if (a) the prosecutor files them as infractions (unless defendant objects), or (b) the court decides with the consent of the defendant that the offense is an infraction, in which event the case shall proceed as if the defendant had been arraigned on an infraction complaint.  Since no time limit is specified limiting the power of the court to declare a listed misdemeanor to be an infraction, the court may do so at any time.[102]

 

            Immigration law provides that for adjustment purposes, an infraction is a criminal offense punishable by a maximum sentence of five days or less.[103]

 

            Warning:  Infractions cannot be expunged pursuant to Penal Code § § x1203.4 and 1203.4a.  Therefore, if the client suffered a conviction for an infraction for which an expungement would be effective in removing the adverse immigration consequences, counsel should not reduce the misdemeanor to an infraction if expungement is desired.  On the other hand, now that expungements have limited value in reducing immigration consequences, this consideration may be irrelevant in many cases.

[101] Penal Code § 19(e) lists the following misdemeanors as reducible to infractions pursuant to Penal Code § 17(d): Penal Code § § 330 (gambling), 415 (disturbing the peace), 555 (trespass on posted property), 853.7 (failure to appear on Penal Code violation), 602(m) (trespass by driving); Business and Professions Code § 25658(b) (purchase of alcohol by minor); Vehicle Code § § 27150.1 (sale of unauthorized muffler), 40508 (failure to appear on Vehicle Code violation), 42005 (failure to attend court‑ordered traffic school), 14601.1 (driving on suspended license, based on failure to appear), and any other offense the Legislature makes subject to Penal Code § 17(b).  See Penal Code § 193.8(a)(adult registered vehicle owner allowing intoxicated minor to drive the vehicle under the influence), made reducible to an infraction under Penal Code § 19.8.

[102] The court has similar power to reduce a probation felony–misdemeanor to a misdemeanor, under Penal Code § 17(b)(3), at any time.  In another context, the Supreme Court pointed out that Penal Code § 1016.5 contains no time limit for the motion to vacate it created.  People v. Superior Court (Zamudio) (2000) 23 Cal.4th 183.

[103] See 8 C.F.R. § 245a.1(o), (p), and Comments, published at 53 Fed.Reg. 9,862-4 (March 28, 1988).

SAFE HAVEN -- CONTROLLED SUBSTANCES OFFENSES " SIMPLE POSSESSION OF LESS THAN ONE OUNCE OF MARIJUANA " PRACTICE ADVISORY
Angie Junck of the Immigrant Legal Resource Center, and Sara Edelstein, of the Santa Clara County Public Defenders Office, have published a Practice Advisory on the Immigration Consequences of a Plea to Calif. H&S 11357(b), Now an Infraction. See www.ilrc.org. After Jan. 1, 2011, California Health and Safety Code 11357(b), which prohibits possession of not more than 28.5 grams of marijuana, will be treated as an infraction. They point out that this has several immigration advantages: (1) A first conviction for simple possession will not trigger deportation under the less than one ounce exception to the controlled substances conviction ground of deportation. INA 237(a)(2)(B)(1), 8 U.S.C. 1227(a)(2)(B)(1). (2) It would, however, make a noncitizen inadmissible. This conviction would qualify for a waiver of inadmissibility of the controlled substances conviction/admission ground of inadmissibility. INA 212(a)(2)(A)(i)(II), 8 U.S.C. 1227(a)(2)(A)(i)(II). The waiver is under INA 212(h), 8 U.S.C. 1182(h). It may, however, be quite difficult to obtain a grant of this waiver. (3) Because Health & Safety Code 11357(b) is now an infraction, immigration advocates have an argument that it is not a conviction for immigration purposes, and therefore would not trigger deportation or inadmissibility. See Matter of Eslamizar, 23 I. & N. Dec. 684 (BIA Oct. 19, 2004)(Oregon violation held not a conviction, because of four factors: no possible jail sentence, no right to appointed counsel, no right to jury trial, and no right to proof beyond a reasonable doubt). A California infraction is similar, sharing the first three factors. It is different, however, because a California infraction must be proven beyond a reasonable doubt. It is therefore somewhat unclear whether a California infraction, such as this one, would not be considered a conviction under Eslamizar. Because courts have not yet ruled on this argument, however, criminal defense counsel must conservatively assume that an infraction will make noncitizens inadmissible. (4) Even if it is held to be a conviction for immigration purposes, a California infraction does not constitute a misdemeanor and therefore will not disqualify a noncitizen for Temporary Protected Status, which is not available if the noncitizen has a felony or two misdemeanor convictions. Alternative pleas include simple possession of a controlled substance under other statutes, Health & Safety Code 11350(a) or 11377(a) with the controlled substance unspecified; accessory after the fact, under Penal Code 32; driving under the influence of more than 0.08% alcohol, under Vehicle Code 23152(b); disturbing the peace, under Penal Code 415, or disorderly conduct offenses under Penal Code 647(c),(e), or (h).