What you need to know about California Penal Code § 1473.7 to vacate a conviction

What you need to know about California Penal Code § 1473.7 to vacate a conviction

If you have been convicted and are at risk of being deported in San Diego, California, call us today at (619) 746-8879

California Penal Code § 1473.7 has been in effect since January 1, 2017. It provides people who are no longer in criminal custody with a legal vehicle that allows them to challenge unlawful convictions and file a motion to vacate a judgment in a criminal case.

According to Immigrant Legal Resource Center, “this law has provided a critical opportunity for noncitizens to challenge convictions when the noncitizen failed to meaningfully understand, knowingly accept, or defend against the immigration consequences of a crime”.

What can Penal Code § 1473.7 be based on?

This motion can be based on a prejudicial error that damaged the defendant’s ability to understand meaningfully, defend against or knowingly accept the potential immigration consequences of pleading guilty or no contest. Additionally, it can be based on newly discovered evidence of actual innocence.

Besides providing a needed opportunity for noncitizens to challenge convictions, it enables both citizens and noncitizens to raise claims of actual innocence. Thanks to this law, they are able to do so even if custody has ended.

This Section provides immediate relief for people who fear that immigration enforcement is as severe as ever. People have also realized that having a “clean slate” after a conviction is an important issue.

Vacating a judgment

If new evidence of innocence is found, this can be used as grounds for a motion to vacate under PC §1473.7. This can be the result of new scientific tests, someone else admitting to committing the crime, or the discovery of new facts that call key evidence into question.

Another way to vacate a judgment can be based on prejudicial error. This must have been an error that damaged the defendant’s ability to “meaningfully understand, defend against, or knowingly accept the actual or potential adverse immigration consequences of a plea of guilty or nolo contendere (“no contest”)”, as stated by the Judicial Council of California.

The grounds for a motion to vacate based on prejudicial error are:

• The defense counsel violated the duty to investigate and also advise accurately the defendant about the specific immigration consequences of a plea;
• The defense counsel failed to defend against immigration consequences of a plea by attempting to plea bargain to pursue an immigration-safe disposition;
• And the defendant did not understand the immigration consequences of a conviction.

Immigrants do not need to wait for a “notice to appear” (summons to immigration court) to file a 1473.3 motion, they can do so at any time. They can even do so when they apply for a Green Card, naturalization of other immigration benefits.

If the court grants the motion, the sentence or conviction will be vacated, as if it never existed. The court may grant the motion without a hearing, provided that the prosecuting agency agrees to this. The immigrant may then withdraw the plea entered in the underlying criminal case. However, unless the district attorney decides to drop the charges, the person must still answer for them. This will require a new plea agreement or trial. The immigrant will be allowed to negotiate a new plea with fewer immigration consequences.

If the motion is denied you can appeal.

Important changes as of January 2019

It is important to note that as of January 2019, this law was amended to clarify prior discrepancies and provide more practical assistance to the moving party requesting the relief. See People v. Morales, 25 Cal.App.5th 502 (2018).

First, the courts have clarified that the only jurisdictional requirement is the moving party still not be in criminal custody. Next, the motion must be interpreted in the “interests of justice” by evaluating the disproportionate impact the criminal conviction has on the client’s immigration status. Furthermore, 1473.7 relief is available to someone who has already obtained other forms of post-conviction relief (for example, an expungement). Finally, the courts used to require a formal finding of ineffective assistance of counsel. Now, courts only require a showing the moving party-defendant failed to meaningfully understand the consequences of his/her guilty plea. 

At Kannan Law, we also practice criminal defense, so we can fully understand and help if you are someone whose immigration status may be affected by a criminal conviction. Contact us today!