Motion to Vacate a Judgment in Orange County

California Penal Code 1016.5

Any criminal conviction can lead to serious consequences for any California resident. But, for non-citizens living in California, a criminal conviction can leave them facing the possibility of deportation. Unfortunately, many non-citizens in this situation wind up getting deported because they don't know that a run-in with the law can lead to a deportation. To make things more fair, the State of California enacted Penal Code 1016.5, a law that requires the court to inform defendants that a criminal conviction can lead to deportation.

If you or a loved one are a non-citizen residing in California who's facing a criminal charge, contact an OC defense lawyer at Law Office of Michael L. Guisti. You can reach us at (888) 478-8999.

Back to Top

What is PC 1016.5?

For non-citizens facing a criminal charge, Penal Code 1016.5 says that before the person enters a plea, the court has to inform them of the possibility of deportation for a conviction in their case. Here is what the court has to read to the accused person:

"If you are not a citizen, you are hereby advised that conviction of the offense for which you have been charged may have the consequences of deportation, exclusion from admission to the United States, or denial of naturalization pursuant to the laws of the United States."

Back to Top

OC Crimes That Lead to Deportation

A conviction for some crimes can lead to non-citizens being deported. Crimes that can lead to deportation fall into these five types:

1. "Moral turpitude" crimes (white collar crimes, fraud is the most common charge)
2. Aggravated felonies (murder, rape, grand theft, sexual abuse of a minor)
3. Drug crimes (possession, sale, or transport of drugs)
4. Gun crimes (buying or selling guns illegally)
5. Domestic violence (inflicting corporal injury on a partner)

Back to Top

What Does PC 1016.5 Do For Non-Citizens in Orange County?

For non-citizens facing a criminal charge, PC 1016.5 gives them the right to ask for extra time to reconsider a plea to their charges after being told the deportation possibility of a conviction. The law also allows non-citizens to ask for a judgment to be vacated or a guilty plea withdrawn if:

• The court didn't tell you about the immigration consequences of a conviction
• You appeal to the court that a conviction that leads to deportation, being not allowed to return to the U.S., or denied naturalization is unfair and not in your best interest

If the court doesn't have a record of someone being advised of deportation consequences of a guilty or no contest plea, a strong defense attorney will be able to show that you weren't advised of your rights under PC 1016.5. This could help you stay in the country.

Back to Top

Filing a Motion to Vacate a Judgment or Withdraw a Plea

Remember, filing a motion to vacate a judgment or withdraw your please doesn't mean that a conviction of your charges will just go away. The court has the legal power to decide whether to grant or deny your motion to vacate a judgment. To get your motion to vacate a judgment granted, you'll need to prove:

• The court didn't tell you about the immigration consequences you face for pleading guilty or no contest to a criminal charge
• A criminal conviction could lead to your deportation, not being allowed to return to the U.S., or denied naturalization
• You were prejudiced by the non-advisement

The last example is the most complex. To show that you were prejudiced by not being advised of your immigration status of a guilty plea, you'll need to prove that you would've entered a different plea if you knew the immigration consequences of your situation. There is no time limit to file a motion to vacate a judgment, but contacting an experienced attorney immediately is best.

Back to Top

Contact an Experienced OC Criminal Attorney

Anyone facing immigration problems because of a criminal conviction needs the help of a strong defense attorney. Law Office of Michael L. Guisti have helped many people stay in the U.S. Let us help you. Contact us today at (714) 530-9690 or (888) 478-8999.

Back to Top