Sat. Jul 13th, 2024

How to Vacate a Criminal Conviction in California – Penal Code 1473.7 PC

Motion to Vacate a Criminal Conviction

HOW TO VACATE A CONVICTION – CALIFORNIA PENAL CODE 1473.7 PC

A motion to vacate judgment is a written request for the court to overturn a criminal conviction. It is filed in California based on state law found at Penal Code 1473.7 PC. This law allows people that are no longer in custody to file a motion to vacate a judgment in a criminal case. The motion is primarily based on a few main issues.

First, a prejudicial error damaged a defendant’s ability to reasonably understand, defend, or knowingly accept the adverse immigration consequences of a plea of guilty or nolo contendere, known as “no contest.” Secondly, the motion could be based on newly discovered evidence of actual innocence.

This law went into effect at the beginning of 2017. Before, individuals convicted of crimes that wanted to vacate their judgments mostly filed habeas corpus petitions.

The problem with habeas corpus petitions is that they are only available if the defendant is in custody. Once the defendant is released from custody, they cannot file a habeas petition.

Because of this, individuals who were released from custody had no legal avenue to request the court to vacate a conviction. This also led to immigration consequences for some as certain convictions can make a non-citizen deportable.

This led to deportations even when there was reason to overturn the original conviction because there was no way for the court to consider the case again. Our Los Angeles criminal defense lawyers will review this topic in more detail below in this article.

WHAT ARE THE LEGAL REASONS TO VACATE A JUDGMENT?

There are three main legal reasons why a judgment can be vacated under California law under Penal Code 1473.7, they include:

  • The conviction or sentence is legally invalid because of a prejudicial error in the proceedings. The error must have caused the defendant to have less ability to understand, defend against, or accept potential negative immigration consequences. If a conviction is found to be legally invalid, then it can result in a finding of ineffective assistance of counsel;
  • Newly discovered evidence is available that tends to prove the defendant’s actual innocence;
  • The defendant was convicted or sentenced based on race, ethnicity, or national origin.

A prejudicial error includes violations by defense counsel that include failing to properly advise the defendant on potential immigration consequences and failing to seek a plea bargain to avoid immigration consequences.

To be prejudicial, an error must have damaged their ability to meaningfully understand, defend against, or knowingly accept the adverse immigration consequences of a guilty plea.

A typical scenario includes a situation where defense counsel violated their duty to advise the defendant about the specific immigration consequences of a plea. Newly discovered evidence includes DNA evidence, another person claiming guilt, or widespread illegal activity by the police or crime lab.

A defendant can demonstrate that the proceedings prejudiced them if it’s shown that an error harmed them in the case. If the defendant can show that they would not have pled guilty without the error or would not have rationally accepted a plea bargain, then prejudice is established.

All motions filed under Penal Code 1473.7 PC are entitled to a hearing before a judge.  You are not required to personally appear in court as long as your defense lawyer attends the hearing.

IS A MOTION TO VACATE UNDER PC 1473.7 THE ONLY OPTION?

No, there are other ways to have a criminal conviction vacated; they include:

  • Appeals;
  • A plea withdrawal under Penal Code 1018 PC;
  • A drug conviction vacation under a deferred entry of judgment under Penal Code 1203.4 PC;
  • A sentence vacated under Penal Code 1016.5 PC if the court did not provide the defendant with adequate information about potential immigration consequences;
  • A dismissal in the interests of justice under Penal Code 1385 PC.

It is essential to understand all potential options to vacate a judgment if you face possible deportation due to a criminal conviction.

WHAT ARE THE BENEFITS OF GETTING A CONVICTION VACATED?

If a defendant is successful in their motion to vacate the judgment, then the conviction will be erased from the individual’s criminal record. If a plea were entered, that plea would be withdrawn.

This does not mean that the case will be dismissed. The case will only be rejected if the prosecutor agrees to dismiss it. The prosecutor may offer a different plea deal or nothing, and the case will be set for trial.

Any time spent in custody will count as time served for the defendant if a plea is taken or a conviction of any kind results. If the defendant’s motion to vacate is denied, then they have the right to appeal to a higher court. The prosecutor also has the right to appeal if the motion to vacate is granted.

WHEN CAN A MOTION VACATE JUDGMENT BE FILED?

A motion to vacate judgment must be filed with reasonable diligence after the later of:

  • The date when the individual is given notice of a date in immigration court due to the conviction or sentence; or
  • The date when a deportation order is finalized due to the conviction or sentence.

An individual does not have to wait until either of the two above circumstances. The individual can file a motion to vacate judgment while applying for an immigration benefit such as citizenship or permanent resident status.

The fundamental right supporting Penal Code 1473.7 PC is the right to counsel, guaranteed by the Sixth Amendment and Fourteenth Amendment to the United States Constitution and article I, section 15 of the California Constitution.

This right includes a guarantee that the defendant will receive effective representation. Put simply, PC 1473.7 allows someone facing deportation to vacate the conviction causing immigration issues if their lawyer failed to warn them about such consequences.  This usually occurs after they accept a plea bargain. source

 


California Code, Penal Code – PEN § 1473.7

 

(a) A person who is no longer in criminal custody may file a motion to vacate a conviction or sentence for either of the following reasons:

(1) The conviction or sentence is legally invalid due to prejudicial error damaging the moving party’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.  A finding of legal invalidity may, but need not, include a finding of ineffective assistance of counsel.

(2) Newly discovered evidence of actual innocence exists that requires vacation of the conviction or sentence as a matter of law or in the interests of justice.

(b)(1) Except as provided in paragraph (2), a motion pursuant to paragraph (1) of subdivision (a) shall be deemed timely filed at any time in which the individual filing the motion is no longer in criminal custody.

(2) A motion pursuant to paragraph (1) of subdivision (a) may be deemed untimely filed if it was not filed with reasonable diligence after the later of the following:

(A) The moving party receives a notice to appear in immigration court or other notice from immigration authorities that asserts the conviction or sentence as a basis for removal or the denial of an application for an immigration benefit, lawful status, or naturalization.

(B) Notice that a final removal order has been issued against the moving party, based on the existence of the conviction or sentence that the moving party seeks to vacate.

(c) A motion pursuant to paragraph (2) of subdivision (a) shall be filed without undue delay from the date the moving party discovered, or could have discovered with the exercise of due diligence, the evidence that provides a basis for relief under this section.

(d) All motions shall be entitled to a hearing.  Upon the request of the moving party, the court may hold the hearing without the personal presence of the moving party provided that it finds good cause as to why the moving party cannot be present.  If the prosecution has no objection to the motion, the court may grant the motion to vacate the conviction or sentence without a hearing.

(e) When ruling on the motion:

(1) The court shall grant the motion to vacate the conviction or sentence if the moving party establishes, by a preponderance of the evidence, the existence of any of the grounds for relief specified in subdivision (a).  For a motion made pursuant to paragraph (1) of subdivision (a), the moving party shall also establish that the conviction or sentence being challenged is currently causing or has the potential to cause removal or the denial of an application for an immigration benefit, lawful status, or naturalization.

 

(2) There is a presumption of legal invalidity for the purposes of paragraph (1) of subdivision (a) if the moving party pleaded guilty or nolo contendere pursuant to a statute that provided that, upon completion of specific requirements, the arrest and conviction shall be deemed never to have occurred, where the moving party complied with these requirements, and where the disposition under the statute has been, or potentially could be, used as a basis for adverse immigration consequences.

(3) If the court grants the motion to vacate a conviction or sentence obtained through a plea of guilty or nolo contendere, the court shall allow the moving party to withdraw the plea.

(4) When ruling on a motion under paragraph (1) of subdivision (a), the only finding that the court is required to make is whether the conviction is legally invalid due to prejudicial error damaging the moving party’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.  When ruling on a motion under paragraph (2) of subdivision (a), the court shall specify the basis for its conclusion.

(f) An order granting or denying the motion is appealable under subdivision (b) of Section 1237as an order after judgment affecting the substantial rights of a party.

(g) A court may only issue a specific finding of ineffective assistance of counsel as a result of a motion brought under paragraph (1) of subdivision (a) if the attorney found to be ineffective was given timely advance notice of the motion hearing by the moving party or the prosecutor, pursuant to Section 416.90 of the Code of Civil Procedure. source

 

 


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Zauseta v. Zauseta (2002) 102 Cal.App.4th 1242

S.F. Human Servs. Agency v. Christine C. (In re Caden C.)

Ian J. v. Peter M


 

 

 

 

 


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Abuse & Neglect The Reporters  (Police, D.A & Medical & the Bad Actors)

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When is a Joinder in a Family Law Case Appropriate?

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Punsly v. Ho (2001) 87 Cal.App.4th 1099

Zauseta v. Zauseta (2002) 102 Cal.App.4th 1242

S.F. Human Servs. Agency v. Christine C. (In re Caden C.)

Ian J. v. Peter M


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How Your Texts Can Be Used As Evidence?

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The Decision Briefing Merits After the San Jose Decision

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Appealing/Contesting Case/
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Cal. Code Civ. Proc. § 1008 Motion to Reconsider

Penal Code 1385Dismissal of the Action for Want of Prosecution or Otherwise

Penal Code 1538.5Motion To Suppress Evidence in a California Criminal Case

CACI No. 1501 – Wrongful Use of Civil Proceedings

Penal Code “995 Motions” in California –  Motion to Dismiss

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Suppression Of Exculpatory Evidence / Presentation Of False Or Misleading Evidence – Click Here

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Cleaning Up Your Record

Penal Code 851.8 PCCertificate of Factual Innocence in California

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Cleaning Up Your Criminal Record in California (focus OC County)

Governor Pardons Click Here for the Details

How to Get a Sentence Commuted (Executive Clemency) in California

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At issue in Rosenfeld v. New Jersey (1972) was whether a conviction under state law prohibiting profane language in a public place violated a man's First Amendment's protection of free speech. The Supreme Court vacated the man's conviction and remanded the case for reconsideration in light of its recent rulings about fighting words. The man had used profane language at a public school board meeting. (Illustration via Pixabay, public domain) Epic Parents SCOTUS Ruling Parental Right$ Help Click Here

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The Parental Rights Amendment is currently in the U.S. Senate, and is being introduced in the U.S. House.