Tooby's California Post-Conviction Relief for Immigrants

(A)

General Rule.  If a conviction or sentence is dismissed, even in part, on a ground of legal invalidity, it arguably no longer exists to trigger adverse immigration consequences.  See § 6.60, supra.  Counsel seeking a dismissal order, for the purpose of eliminating the immigration effects of a conviction, must therefore present to the court at least one ground of legal invalidity, that was in existence at the time the conviction arose, and seek the court's order granting the dismissal in part for that reason. 

            Dismissal orders under Penal Code § 1385 are frequently granted on various grounds of legal invalidity, or as a remedy for violations of constitutional rights.  In fact, the "interests of justice" standard under which they are granted explicitly "requires consideration of the constitutional rights of the defendant and the interests of society. Courts are empowered to fashion a remedy for deprivation of a constitutional right to suit the needs of the case."[400]  "Dismissal of a pending prosecution is the well-established remedy for violations of constitutional rights."[401]  "[I]f the defendant has been denied . . . any . . . substantial right which cannot be remedied, the trial court may then properly dismiss in the interests of justice."[402] 

                 For a comprehensive discussion of grounds of legal invalidity of a conviction, see Chapter 7, infra.  For a discussion of grounds of legal invalidity of a sentence, see § § 8.38-8.50, infra.

[400] People v. Orin (1975) 13 Cal.3d 937, 945, 120 Cal.Rptr. 65; People v. Thorbourn (2004) 121 Cal.App.4th 1083, 1088, 18 Cal.Rptr.3d 77; People v. Superior Court (Flores) (1989) 214 Cal.App.3d 127, 144, 262 Cal.Rptr. 576, citing In re Pfeiffer (1968) 264 Cal.App.2d 470, 477.

[401] California Criminal Defense Practice § 51.20[2][a], p. 51-45 (Erwin, Millman, Monroe, Sevilla, & Tarlow, eds. 2009).

[402] Id. at § 51.20[3], p. 51-52, citing People v. Davis (1971) 20 Cal.App.3d 890, 898, 98 Cal.Rptr. 71.