Just took on a case involving a Salvadorian National who had lawful status in the U.S. under TPS, (Temporary Protected Status). One of the requirements to maintain TPS status is that any alien cannot be convicted of a felony, or two misdemeanors.
Our client received two misdemeanor conviction, one of which was a conviction for Possessing an Assault Weapon, in violation of Penal Code § 12280(b).
We have two questions surrounding this conviction, one was the weapon actually an assault weapon under the statute, and two did our client receive the required advisement of any immigration consequences of taking a plea for possession.
The current state of the law within California was decided in People v. Superior Court (Zamudio), (2000) 23 Cal. 4th 183.In its decision, the California Supreme Court handed down a far-reaching decision concerning any post-conviction motion to vacate a conviction, specifically under Penal Code section 1016.5. The Court held that in order for a defendant to prevail on a motion to vacate, the defendant must show prejudice stemming from the trial court's failure to give the required advise concerning one or more of the 3 potential immigration consequences of a conviction: deportation, exclusion, and denial of naturalization, all in violation of 1016.5.
So our plan is to use a 1016.5 motion to get on the calendar and then to also argue the actual gun in questions was not in fact an assault weapon under the criminal statute.