Uribe & Uribe APLC

who qualifies for relief under penal code section 1203.43?

If you have completed deferred entry of judgment, the case was dismissed as a result, and you are not a citizen of the United States, it is strongly recommended that a criminal defendant prosecutes a motion to have the conviction set aside under Penal Code section 1203.43. 

Effective January 1, 2016, a California drug law will help defendants avoid catastrophic immigration consequences for minor offenses. 

Anyone who has successfully completed deferred entry of judgment (DEJ) will be able to withdraw the plea, in a way that is expected to work for immigration purposes. To withdraw the plea, the person only needs to show that DEJ was successfully completed and the case was dismissed. There is no requirement to show prejudice. People who previously completed DEJ, and those who complete DEJ in the future, will qualify for this relief. 

Why was Penal Code Section 1203.43 enacted?

Section 1000 et seq. of the Penal Code provides that if a defendant performs satisfactorily during the DEJ period, the charges are dismissed, the guilty plea is not a conviction “for any purpose,” and no denial of employment, certificate, or benefits may flow from the incident. Unfortunately, this is not true for noncitizen defendants. Federal immigration law employs its own definition of a “conviction.” See 8 USC §1101(a)(48)(A). Because the defendant pleaded guilty and some penalty or restraint was imposed, such as a court fine, even a successfully completed DEJ is a very damaging drug “conviction” for immigration purposes. All noncitizens, including long-time lawful permanent residents, become deportable, inadmissible, and subject to mandatory detention without bond, based on the disposition. Thousands of noncitizens already have been deported based on a successfully completed DEJ, and thousands more are at current risk of deportation.

Penal Code Section 1203.43

Penal Code section 1203.43 allows a person whose case was dismissed after completing drug treatment pursuant to Penal Code section 1203.43 to have a judge rule that the conviction was invalid and dismiss the case on that basis. Penal Code section 1203.43 is intended to remove any immigration consequences from the conviction. However, you need to have the court dismiss the case under Penal Code section 1203.43 in order to avoid immigration consequences. Specifically, the fact that the court already dismissed the case on other grounds will not get rid of the conviction for immigration purposes. Additionally, prior to you or anyone else completing deferred entry of judgment, the offense carries the same immigration consequences as a conviction of the drug offense on which it is based. 

Penal Code  Section 1000 

The language of Penal Code Section 1000 is clear. The Legislature finds and declares that the statement in Section 1000.4, that “successful completion of a deferred entry of judgment program shall not, without the defendant’s consent, be used in any way that could result in the denial of any employment, benefit, license, or certificate” constitutes misinformation about the actual consequences of making a plea in the case of some defendants, including all noncitizen defendants, because the disposition of the case may cause adverse consequences, including adverse immigration consequences. (2) Accordingly, the Legislature finds and declares that based on this misinformation and the potential harm, the defendant’s prior plea is invalid.

How do these Penal Codes work together? 

In order to benefit from these penal codes, an immigrant defendant facing a drug charge must successfully complete the "PC 1000" program. Once the program is completed then the immigrant defendant can petition the court for relief through Penal Code section 1203.43. 

Deferred Entry of judgment and immigration consequences

Immigration law will give effect to an order that eliminates a conviction due to a legal defect in the proceedings, but it will not give effect to “rehabilitative relief” like P.C. § 1000.3 that dismisses charges because the defendant completed program requirements.1 Section 1203.43(a) works for immigration purposes because the order is based on a legal defect in the proceedings: the fact that the DEJ statute provided “misinformation about the actual consequences of making a plea,” such that the plea shall be withdrawn as legally “invalid.” This is an important distinction since federal immigration law requires that the conviction be vacated for constitutional grounds. 

What is DEJ?

Under Deferred Entry of Judgment or what is commonly referred to as DEJ, the defendant agrees to enter a guilty plea and then is given from 18 to 36 months to complete a drug program. The program, which could be completed in less than six months, might include classes, attendance at Narcotics Anonymous/ Alcoholics Anonymous, counseling, or other requirements. If the client successfully completes the requirements, the statue provides that he or she will have an entirely clean slate: the court will dismiss the charges, there is no conviction "for any purposes," the person is legally entitled to deny that the arrest and diverson occurred, and no denial of any license, employment, or benefit may flow from the incident. See Penal Code sections 1000.1(d), 1000.3, 1000.4. 

DEJ and Non Citizens

For non citizens this statutory promise does not apply. Under federal immigration law a successfully completed DEJ plea remains an extremely damaging drug conviction. It causes deportability and inadmissibility, triggers mandatory immigration detention without possibiity of bond, and makes it impossibile for a spouse or a child of U.S. citizen to get lawful status. 

How Can Penal Code Section 12034.43 Help? 

Since the implementation of DEJ in 1997, thousands of non citizen defendants in California who have succesfully completed DEJ and pled guilty have suffered adverse immigration consequences. Section 12034.43 provides a simple way for immigrants to eliminate their DEJ convictions for immigration purposes, the plea must be withdrawn for cause, based on some legal error in the proceedings. 

In Penal Code section 1203.43 the Legislature acknowledges that the DEJ statute misinformed defendants, including all non- citizens, about the consequences of the guilty plea, and for that reason deems the plea legally "invalid." Withdrawal of the guilty plea is thus for cause, based on this legal defect.