Criminal Defense Lawyers

Motion to Vacate Judgment – Penal Code 1473.7 PC

Motion to Vacate Judgment – Penal Code 1473.7 PC

California Penal Code 1473.7 PC permits people who are no longer in criminal custody to file a motion to vacate a judgment in a criminal case. The motion can either be based on:

• A prejudicial 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, no contest, or
• Newly discovered evidence of sincere innocence.

Penal Code 1473.7 became effective on January 1, 2017. Prior to that, most people could only challenge a conviction or sentence within a short period of time – for instance, by filing a habeas corpus petition while still in custody.

Once they were freed from custody, either from jail, prison, parole or probation, they lost their ability to challenge their conviction.

But under PC 1473.7, a motion was to be made with “reasonable diligence” after the defendant receives a Notice to Appear in immigration court or after a deportation order is finalized.

For better understanding of Penal Code 1473.7 motions to vacate, see the topics presented below by the California criminal defense attorneys from Spodek Law Group:

1. Is PC 1473.7 necessary?
2. Vacating based on recently discovered evidence.
3. Vacating based on prejudicial error.
4. How long does it take to file a PC 1473.7 motion?
5. Am I qualified for a hearing on my motion?
6. Is it mandatory to personally appear in court?
7. What happens after my motion is granted?
8. Can one appeal if the motion is denied?
9. Is there any other scenario for vacating a conviction or sentence?

1. Is PC Penal Code 1473.7 necessary?

Before it became effective, people had limited options for challenging their conviction. The most common method applied in challenging the constitutionality of a conviction or sentence was to file a habeas corpus petition.

Rather, a petition for habeas corpus could only be filed while the defendant was still in custody – that is, jail, prison, on probation or parole.

Once someone was erased from the system, the courts no longer had authorization to consider a habeas petition.

As a result, many people had no means to fight back once they were released. In some cases, people wouldn’t even know that the conviction had made them deportable until after several years.

There was no way to go back into court to erase the conviction – even if they entered pleas without a clue or even a slight understanding of the immigration consequences or if the sole complaining witness altered his or her testimony.

2. Vacating based on recently discovered evidence

Recent evidence of innocence is one of the grounds for a motion to vacate under PC 1473.7.

The evidence might include:

• Results of new scientific tests, such as DNA testing;
• A different party admitting to the crime; or
• The discovery of facts that question the key evidence — such as widespread fraud or contamination by a crime lab or the police.

3. Vacating based on a prejudicial error

Penal Code 1473.7 permits a court to vacate a conviction or sentence in case of a “prejudicial error.”

To be regarded prejudicial, an error must have 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 “no contest”.

Scenarios for a motion to vacate based on prejudicial error

Particularly, the scenarios that can lead to a motion to vacate due to prejudicial error are:

• Defense counsel breached the duty to investigate and accurately advise the defendant about the specific immigration consequences of a plea;
• Defense counsel failed to defend against immigration consequences of a plea by attempting to plea bargain for an immigration-safe alternative disposition; or
• The defendant failed to meaningfully understand the immigration consequences of a conviction (for instance, because of violation of the right to an interpreter).

The legal meaning of “prejudice”

Regardless of the specific ground(s) for a 1473.7(a) (1) motion, the defendant must be able to prove that the error prejudiced the defendant.

The defendant doesn’t need to show that He or she actually could have achieved a more favorable verdict or plea bargain.

Rather, prejudice is established if the defendant can establish that:

• He or she would not have pleaded guilty absent with the error, or
• A decision to reject the plea bargain would have been logical under the circumstances.

4. How long does it take to file a PC 1473.7 motion?

Motions under Penal Code 1473.7 must be filed with “reasonable diligence” only after the later of the following:

• The date on which the immigrant receives a notice to appear in immigration court based on the conviction or sentence period; or
• The date on which a removal order, based on the conviction or sentence, becomes final.

“Reasonable diligence” means without undue delay after the immigrant   realizes, or reasonably could have discovered, the evidence supporting the motion to vacate.

However, immigrants do not need to wait for issuance of a notice to appear in order to file a 1473.3 motion. They can file a motion at any time, including when applying for a green card, naturalization, or other immigration benefit.

5. Am I qualified for a hearing on my motion?

Yes. Unlike habeas petitions, in which it may be denied without a hearing, all 1473.7 motions are entitled to hearings before a judge.

6. Is it mandatory to appear in court personally?

It is not necessary. An alien who is in immigration custody or has already been deported is not mandated to appear personally as long the immigrant’s lawyer is present.

7. What happens after my motion is granted?

Once the court grants the motion, the conviction or sentence will be vacated immediately and vanish, as if it never existed. The court then allows the immigrant to withdraw the plea he or she entered in the criminal case.

However, in some cases, the District Attorney refuses to drop the original charges, and the immigrant must still answer for them. This includes a new plea agreement or trial.

But the immigrant will be credited for time already served. Most importantly, the immigrant will have the chance to negotiate a new plea that may have less drastic immigration consequences.

8. Can one appeal if the motion is denied?

Yes. An order allowing or denying a PC 1473.7 motion to vacate can be appealed by either the immigrant or the government.

9. Is there any other scenario for vacating a conviction or sentence?

Yes. Penal Code 1473.7 is not the only scenario for challenging a criminal conviction. In addition to a petition for habeas corpus, other ways of challenging a criminal conviction include, but are not limited to:

• Direct appeal of the criminal conviction:
• Penal Code 1018, which allows a defendant to withdraw a plea for “good cause” within the first six months of judgment;
• Penal Code 1016.5, which allows a court to vacate a sentence if the trial court failed to issue the statutory notice about potential immigration consequences;
• Penal Code 1203.43, which vacates a drug conviction pursuant to deferred entry of judgment (DEJ);
• Penal Code 1385, which allows the court to dismiss a criminal case in the interests of justice; and
• Penal Code 1473.6, which provides for a post-conviction vacation of judgment for victims of the Rampart scandal.

Give the California criminal defense attorneys at Spodek Law Group a call today.  We will provide you with a free, confidential consultation in office or by phone. We serve many clients in the, the San Fernando Valley, Pasadena, San Bernardino, Rancho Cucamonga, Long Beach, Riverside, San Diego, Oakland, the San Francisco Bay area, Orange County, Sonoma County, Ventura, Sacramento, San Jose, the greater Los Angeles area and throughout the Golden State.