Tooby's California Post-Conviction Relief for Immigrants

 

Having established that the Legislature determined it is proper for the parties to renegotiate a criminal disposition, after the defendant becomes aware of the immigration consequences, in order to avoid them in an appropriate case, and having established that the client has a reasonable factual case showing prejudice under the appropriate standard, it remains to show that the proposed disposition is appropriate in light of the totality of the circumstances of this case.

 

            It is proposed the Court may vacate the existing conviction, as being legally invalid.  The client agrees to enter a guilty plea to an amended felony charge of accessory after the fact to sale of a controlled substance, in violation of Penal Code § 32, on condition s/he receive a sentence of imposition of sentence suspended, four years felony probation, on condition of service of 360 days in custody, with credit for full satisfaction of the custody condition.  (Accessory after the fact is not considered an “aggravated felony” by the immigration courts unless a sentence of one year or more is imposed.[13])

 

            This proposed disposition is an appropriate exercise of prosecutorial discretion for the following reasons:

 

(1)    The client caused no difficulties while in prison, and performed very well on parole.

 

(2)    He led a completely law-abiding life during the 57 years before he committed the present offense, and the evidence shows he was completely inexperienced in drug dealing at the time of his arrest.

 

(3)    He has remained arrest-free during the more than nine years since he committed this offense.

 

(4)    It is highly unlikely that this 64-year-old gentleman will cause any law enforcement problems in the future.

 

(5)    His health is not good.  He is nearly 65 years of age, and suffers from diabetes, disabling arthritis, and was diagnosed with colon cancer, for which he underwent successful surgery in 1997.  He may also suffer from prostate cancer.  His doctors are checking periodically for recurrence.  He is currently suffering considerable pain in both knees, which may require surgery, followed by an extended and painful recovery in a wheelchair.

 

(6)    His innocent family, including his six children, and their families, and 13 (soon to be 14) grandchildren, would suffer emotional hardship if the client were permanently banished from his home and family in the United States.

 

(7)    He has already served the full amount of custody determined by the prosecution to be appropriate punishment for his offense, and the proposed alteration in his record of conviction will not diminish in any way the actual penal sanction he has already paid as a result of this offense.

 

(8)    The client has a reasonable case for relief under Penal Code § 1016.5 and Zamudio, and it would consume considerable judicial resources and cause public expense to pursue this litigation through a contested hearing and subsequent appeals.  This expense is unnecessary in light of the settlement reached by the parties.

 

(9)    If the client were to prevail, the prosecution would either lose the conviction in its entirety, or be forced to attempt to reconstruct a prosecution case relating to a 1991 transaction, and undergo considerable transaction costs in relitigating this closed case.

 

(10)          Under the proposed disposition, the client will now begin a four-year period of supervised felony probation, which gives court and prosecution considerably more social control (if it be necessary) over his activities than presently exists.

 

(11)          Moreover, there will be hanging time of two additional years, as well as the client’s knowledge that should he violate probation, and receive as little as an additional five days in custody, the new conviction and sentence will trigger mandatory deportation.[14]

 

For these reasons, we believe the proposed settlement of this litigation represents an appropriate resolution in light of the purposes of Penal Code § x1016.5, reconciling fairness to the client and his innocent family with the legitimate prosecution and public interests in law enforcement.

[13] In re Batista-Hernandez, 21 I. & N. Dec. 955 (BIA 1997).

[14] In re Batista-Hernandez, 21 I. & N. Dec. 955 (accessory after the fact with one year sentence imposed is an aggravated felony triggering mandatory deportation).