If an offense is on the list given above, and the noncitizen has received a sentence imposed of one year in custody, either in the form of a state prison sentence or a custody order as a condition of probation, it is necessary to reduce or vacate that sentence in order to avoid the most serious immigration consequences any conviction can have.  Once the original sentence has been vacated, it is necessary to persuade the court to (a) suspend imposition of sentence (so that no prison sentence is ordered), and to require service of 360 days in custody or less as a condition of probation, or (b) impose a sentence of less than one year as a straight judgment.

 

            Two techniques by which courts may be persuaded to enlarge the category of offenses in which to impose 360-day sentences are: (a) waiving pre-sentence credit for time served, in return for a sentence of less than one year in custody; and (b) obtaining sentences of less than one year on each of a number of different counts, even if they are ordered to be served consecutively.

Ninth Circuit

SENTENCE " MISDEMEANOR " PENAL CODE 18.5 -- RETROACTIVITY SENTENCE " REDUCTION OF FELONY TO MISDEMEANOR " RETROACTIVITY OF NEW LEGISLATION AMELIORATING PUNISHMENT
People v. Babylon, 39 Cal.3d 719 (1985) (where a statute defining a criminal offense was amended while the case was on appeal, narrowing the scope of the offense so that the defendants could no longer be said to have violated the statute, and there was no savings clause allowing prosecution under the former statute, defendants case must be dismissed, even assuming defendants acts did violate the former statute). CPCN: 8.9 [one yr sent imposed] CPCN: 8.22A [maximum sentence imm con]