Post-Conviction Relief to Remove Potential Immigration Consequences

Legislature Enacts Post-Conviction Relief to Remove Potential Immigration Consequences After a Penal Code Section 1000 Plea

Last week I wrote about the immigration consequences that may attach to an “expunged” conviction. This week I offer better news. The California Legislature has addressed the immigration consequences that attach to certain convictions and will offer relief to some noncitizens who may be facing deportation due to a previous conviction on a deportable offense.

The first of these Legislative remedies concerns those who have pleaded guilty under a deferred entry of judgment as set forth in Penal Code section 1000 et seq. When a person is arrested on a first-time non-violent drug offense in California, he or she is often given the opportunity under this section to enter a plea of guilty, with that plea being “suspended” by the court and ultimately dismissed by the court if the defendant successfully completes a drug rehabilitation program. However, as with the other California statutes that provide for dismissal of a prior conviction, the federal government considers a deferred entry of judgment and dismissal under Penal Code 1000 rehabilitative relief only and it is, as far as the federal government is concerned, still a conviction with the same liabilities for a noncitizen for immigration purposes.

The statutory construction of Penal Code 1000 et seq. requires the defendant to plead guilty, even though the plea is not actually entered at that time and there is a restraint attached to the plea because the defendant is required to successfully complete the drug rehabilitation program. The federal government interprets this to mean that because the defendant pleaded guilty and there was a restraint imposed, it is still a drug conviction for immigration purposes. Furthermore, the wording of the statute (at Penal Code §1000.4) which provides that upon successful completion of the deferred entry of judgment program, the record of the arrest cannot be used in any way to deny the defendant any “employment, benefit, license, or certificate,” is misleading as it suggests that the statute is rehabilitative in nature. For this reason, even those who have successfully completed the PC 1000 deferred entry program are still considered deportable by the federal government.

Last year, the California Legislature enacted Penal Code 1203.43. This statute allows the court to invalidate a PC 1000 conviction. The reasoning behind the Legislature’s efforts is that the defendant who pleads guilty pursuant to PC 1000 is advised by the statute that his or her plea of guilty will not be considered a conviction “for any purpose” if the defendant successfully completes the requirements of the deferred entry of judgment program. When a person pleaded guilty under this advisement, he or she was provided with statutory misinformation about the consequences of his or her plea because and therefore, under the law, the plea invalid.

A person who pleaded guilty pursuant to Penal Code section 1000 who, after successfully completing the deferred entry of judgment program, had the charges dismissed under Penal Code section 1000.3 may now petition the court pursuant to Penal Code section 1203.43. This petition directs the court to permit the defendant to withdraw the plea of guilty and enter a plea of not guilty and thereafter to dismiss the charges This effectively makes it as if the charges against the defendant never happened. This relief is available to any individual who was granted a deferred entry of judgment since January 1, 1997. For those that have successfully completed the PC 1000 requirements, the state courts are required to grant this request.

Next week, I will discuss other post-conviction relief the California Legislature has recently enacted.

The Penal Code 1203.43 process is quite simple and does not even require a court hearing. If you would like to discuss this post-conviction relief or any other criminal matter, you may contact Orange County criminal defense attorney William Weinberg at his Irvine office at 949-474-8008 or email him at