Tooby's California Post-Conviction Relief for Immigrants

Penal Code § 17(d) provides that certain common misdemeanors[101] constitute infractions if (a) the prosecutor files them as infractions (unless defendant objects), or (b) the court decides with the consent of the defendant that the offense is an infraction, in which event the case shall proceed as if the defendant had been arraigned on an infraction complaint.  Since no time limit is specified limiting the power of the court to declare a listed misdemeanor to be an infraction, the court may do so at any time.[102]

            Immigration law provides that for adjustment purposes, an infraction is a criminal offense punishable by a maximum sentence of five days or less.[103]

            Warning:  Infractions cannot be expunged pursuant to Penal Code § § x1203.4 and 1203.4a.  Therefore, if the client suffered a conviction for an infraction for which an expungement would be effective in removing the adverse immigration consequences, counsel should not reduce the misdemeanor to an infraction if expungement is desired.  On the other hand, now that expungements have limited value in reducing immigration consequences, this consideration may be irrelevant in many cases.

[101] Penal Code § 19(e) lists the following misdemeanors as reducible to infractions pursuant to Penal Code § 17(d): Penal Code § § 330 (gambling), 415 (disturbing the peace), 555 (trespass on posted property), 853.7 (failure to appear on Penal Code violation), 602(m) (trespass by driving); Business and Professions Code § 25658(b) (purchase of alcohol by minor); Vehicle Code § § 27150.1 (sale of unauthorized muffler), 40508 (failure to appear on Vehicle Code violation), 42005 (failure to attend court‑ordered traffic school), 14601.1 (driving on suspended license, based on failure to appear), and any other offense the Legislature makes subject to Penal Code § 17(b).  See Penal Code § 193.8(a)(adult registered vehicle owner allowing intoxicated minor to drive the vehicle under the influence), made reducible to an infraction under Penal Code § 19.8.

[102] The court has similar power to reduce a probation felony–misdemeanor to a misdemeanor, under Penal Code § 17(b)(3), at any time.  In another context, the Supreme Court pointed out that Penal Code § 1016.5 contains no time limit for the motion to vacate it created.  People v. Superior Court (Zamudio) (2000) 23 Cal.4th 183.

[103] See 8 C.F.R. § 245a.1(o), (p), and Comments, published at 53 Fed.Reg. 9,862-4 (March 28, 1988).