Helping Good People Regain Control of Their Future
When Charged With a Crime
August 2018 eNewsletter Issue no. 21
California Law Helps Non-Citizens Avoid Collateral Immigration Consequences in Low Level Drug Cases
In an article published this month in the San Diego Criminal Defense Blog, Stefano L. Molea, a San Diego criminal defense lawyer and partner at the Law Office of David P. Shapiro, provides useful information regarding the consequences of low-level drug crimes for immigrants in California. The article focuses on AB 208 which was signed into law late last year. Under prior law, those who qualified for pretrial diversion were required to enter a guilty plea and then complete a drug program. If successful, the case would be dismissed without any conviction. But if the defendant was involved in an immigration proceeding, officials would consider the guilty plea and use it as a basis to take action against their status. Under pre-existing law, this immigration consequence would be an issue even when the defendant had successfully completed the pretrial diversion program.
 
Together with Penal Code 1203.43 the new laws benefit immigrants in two ways: first, diversion would involve the entry of a plea of not guilty at the outset of the case; and second, a guilty plea previously entered as part of a pretrial diversion case can be rendered invalid with the proper motion. The upshot of AB 208 is that noncitizen defendants eligible for pretrial intervention are now permitted to take advantage of the program without the threat of negative immigration consequences looming over them.
Immigration Status and Courtroom Testimony
Immigration officers are trolling courthouses across the country in search of undocumented immigrants, and this is having a profound effect on the justice system. In addition to courthouse arrests, the issue is affecting ongoing criminal trials. Last year, for example, in a domestic violence case in San Francisco, the mother of a domestic violence victim testified in court against the defendant. During her testimony, she was asked in front of the jury if her statements were designed to obtain a special visa reserved for victims and witnesses in domestic violence cases. While the judge ruled the statement inadmissible and told the jury not to consider it, the damage had been done, and the result was a hung jury. The woman refused to testify at the retrial, citing fear that her immigration status would again be raised in a public courtroom. In May of this year, California enacted SB 785. The new law requires an in camera (private) ruling from the judge on the issue of relevancy before a witness can be questioned concerning his or her immigration status in open court.
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This newsletter is for meant for informational and marketing purposes only, and should not be relied on as legal advice. Viewing and/or use of the newsletter, including sending email or submission of forms, does not create or constitute an attorney-client relationship. Any endorsement, testimonial or other statement contained in or referred to in this newsletter is not a guarantee, a warranty or a prediction of a particular result in your case. David P. Shapiro and Stefano L. Molea are active members of the State Bar of California and are admitted to practice law in any and all California state courts and in the Southern District of California federal courts.