PENAL CODE SECTION

Transcription

1 PENAL CODE SECTION. The California legislature recently enacted Penal Code section.. Penal Code section. allows a person whose case was dismissed after completing drug treatment pursuant to Penal Code section. to have a judge rule that the conviction was invalid and dismiss the case on that basis. Penal Code section. is intended to remove any immigration consequences from the conviction. However, you need to have the court dismiss the case under Penal Code section. in order to avoid immigration consequences. Specifically, the fact that the court already dismissed the case on other grounds will not get rid of the conviction for immigration purposes. Additionally, prior to you or anyone else completing deferred entry of judgment, the offense carries the same immigration consequences as a conviction of the drug offense on which it is based. If you have completed deferred entry of judgment in Fresno County, the case was dismissed as a result, and you are not a citizen of the United States, it is strongly recommended that you move the court to have the conviction set aside under Penal Code section.. 1. Please fill out the attached forms.. Make three copies.. Have a friend serve the District Attorney personally by delivering a copy of the motion and the proposed order (these are one document) on the District Attorney at their office, as indicated on the proof of service. You cannot serve the motion and proposed order yourself; you must have someone else do it for there to be legally valid service. You may go with your friend while he or she personally serves the District Attorney office. You do not need to serve the proof of service itself on the District Attorney. Although the proof of service form allows an option for serving the District Attorney by mail, it is recommended that you have a friend personally serve the motion and proposed order instead. Otherwise, there is a risk that the court won t grant your motion because it believes the District Attorney may not have been served.. Have the receptionist at the District Attorney s Office sign your proof of service.. Make one copy of the proof of service. You might want to use the copy machine on the th floor of the courthouse.. Go to the Criminal Department on the fourth floor of the main courthouse.. Provide the original signed motion and proposed order (these are one document) and the original proof of service to the clerk. The clerk will keep these documents.. Have the clerk stamp two copies of the motion and proposed order. The clerk should return these stamped copies to you. Attach your copy of the proof of service to one of the copies.. Wait for the court to grant your motion. It may take a few months.

2 , in Pro Per Name Petitioner SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF PEOPLE OF THE STATE OF CALIFORNIA, v., Defendant. Case No. MOTION TO WITHDRAW GUILTY OR NOLO CONTENDERE PLEA, ENTER NOT GUILTY PLEA, AND DISMISS THE COMPLAINT OR INFORMATION PURSUANT TO PENAL CODE SECTION TO: HONORABLE JUDGE OF THE SUPERIOR COURT: Name of judge, if known I,, pled guilty or nolo contendere, and was granted deferred entry of judgment pursuant to Penal Code section 00 et seq., for a violation of Section(s): Health and Safety Code Code

3 Penal Code section. states that the statement in Section 00., that successful completion of a deferred entry of judgment program shall not, without the defendant's consent, be used in any way that could result in the denial of any employment, benefit, license, or certificate constitutes misinformation about the actual consequences of making a plea in the case of some defendants, including all noncitizen defendants, because the disposition of the case may cause adverse consequences, including adverse immigration consequences [B]ased on this misinformation and the potential harm, the defendant s prior plea is rendered invalid. (Pen. Code., subd. (a).) Penal Code Section. further provides that [f]or the above-specified reason, in any case in which a defendant was granted deferred entry of judgment on or after January 1,, has performed satisfactorily during the period in which deferred entry of judgment was granted, and for whom the criminal charge or charges were dismissed pursuant to Section 00., the court shall, upon request of the defendant, permit the defendant to withdraw the plea of guilty or nolo contendere and enter a plea of not guilty, and the court shall dismiss the complaint or information against the defendant. If court records showing the case resolution are no longer available, the defendant's declaration, under penalty of perjury, that the charges were dismissed after he or she completed the requirements for deferred entry of judgment, shall be presumed to be true if the defendant has submitted a copy of his or her state summary criminal history information maintained by the Department of Justice that either shows that the defendant successfully completed the deferred entry of judgment program or that the record is incomplete in that it does not show a final disposition. For purposes of this section, a final disposition means that the state summary criminal history information shows either a dismissal after completion of the program or a sentence after termination of the program. (Pen. Code., subd. (b).) MOTION TO WITHDRAW GUILTY OR NOLO CONTENDERE PLEA, ENTER NOT GUILTY PLEA AND DISMISS THE COMPLAINT OR INFORMATION Case No.

4 During the period in which deferred entry of judgment was granted, defendant performed satisfactorily and the criminal charges or charges were dismissed pursuant to Penal Code section 00.. Therefore, pursuant to newly enacted Penal Code section., effective January 1, 0, the defendant respectfully requests permission to withdraw the plea of guilty or nolo contendere, enter a plea of not guilty, and also requests that this court dismiss the complaint or information. Dated: By: Defendant & Petitioner MOTION TO WITHDRAW GUILTY OR NOLO CONTENDERE PLEA, ENTER NOT GUILTY PLEA AND DISMISS THE COMPLAINT OR INFORMATION Case No.

5 ORDER Pursuant to Penal Code section., the court hereby permits the defendant to withdraw his or her plea of guilty or nolo contendere, enter a plea of not guilty, and dismisses the complaint or information against the defendant. Dated this day of, (Seal of Court) Judge of the Co. Superior Court MOTION TO WITHDRAW GUILTY OR NOLO CONTENDERE PLEA, ENTER NOT GUILTY PLEA AND DISMISS THE COMPLAINT OR INFORMATION Case No.

6 ,. " SUPERIOR COURT OF CALIFORNIA COUNTY OF FRESNO FOR COURT USE ONl Y X 0 Fresno 0 Clovis 0 Coalinga 0 Firebaugh 0 Fowler i 0 Van Neu Fitth SL 1 W. Elm SL 1 "O" St E. Merced Sl \ve. Clo..,it CA 1 Caalfnca CA Firebaugh CA Fowt«CA c:rno CA cr Kerman 0 Kingsburg Reedley 0 Sanger 0 Selma S. Madena Ave. 00 C'alifo1nla St. 1 a SL N' Sl 1 Selma SL Kerman CA :0 Kingsburg CA Reedley CA Sanglf CA Selma CA 1 PEOPLE OF THE STATE OF CALIFORNIA vs. OEFENOANT /APPELLANT: DECLARATION OF SERVICE CASE NUMBER: DIRECT IONS: A copy of this document must b mailed to the district attorney/city attorney at the address listed b1law. YOU MAY NOT PERFORM THE MAILING YOURSELF. You must have a party who I at Inst years old complete th information below and mall th documenj by first class mall, postage prepaid, or personally delivered. The orlglnal must be filed with the court. (Type Name DI O.clanntJ declares as follows: 1 am over the age of eighteen (1) years and not a party to this action. I am a resident of or employed in the county in which the mailing described below took place. My D Business D Residence address is 1. 0 MAIL DELIVERY On, I served a copy of this copy of it in the United Slates mail at (City OI' Po~tal ArH} postage thereon fully prepaid, and the envelope addressed as shown below: ~------~--~ ~----~- Penal Code section. motion District Attorney, 0 Tulare St., Suite 00, Fresno, CA 1 by depositing a, enclosed in a sealed envelope with. 0 PERSONAL DELIVERY (Personal service is recommended. Please have receptionist at DA office sign proof of receipt.) Receipt of copy of Dated: Signature: Type or Print Name: Penal Code section. motion acknowf edged. 1 declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct.. Executed on I at, California.