Criminal Defense of Immigrants
§ 8.24 1. Conviction of Serious Offense
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Generally speaking, the prosecution will favor a plea to a more serious offense, as opposed to a minor one. This can give rise to favorable opportunities in some cases to negotiate non-deportable dispositions. For example, in California, the offense of dissuading a witness (without force or malice or intent to obstruct justice) can be a misdemeanor or a felony. If it is a felony, it is considered a “strike” under California’s Three Strike law, and will double any later prison sentence, and can, with one other serious conviction, even trigger a sentence of 25 years to life for a third felony conviction. Prosecutors are generally pleased to obtain a disposition to such a serious and significant criminal offense. This offense, however, is a “safe haven” for immigration purposes since it does not constitute a crime of violence, aggravated felony, or even a crime involving moral turpitude. The fact that it is a strike may motivate some prosecutors to allow a plea to this offense as an alternative to a domestic violence charge, or even a sex offense.
Since prosecutors favor obtaining pleas to serious offenses, the chances of obtaining their agreement to a safe haven are greater if a safe haven can be found that carries a maximum possible sentence as great as, or at least equal to, the sentence for the offense charged or the offense to which a plea is proposed by the prosecution. In other words, counsel should look for a substitute offense with the largest possible maximum term in custody that the client can tolerate because the chances are greatest that the prosecution will agree to such a proposed disposition as an alternative to a deportable offense.
 California Penal Code § 136.1(b). See N. Tooby & J. Rollin, Safe Havens: How to Identify and Construct Non-Deportable Convictions, § 9.14 (2005).