Penal Code 1473.7 is a powerful tool in California law to reverse the adverse immigration consequences of some criminal convictions, such as deportation, denial of naturalization, denial of amnesty, and exclusion from entering the United States. The law looks for people who would not have taken a plea deal if they knew it had specific immigration consequences.
Penal Code section 1473.7, which went into effect in California law on January 1, 2017, allows individuals who are no longer in criminal custody to petition the court to withdraw their guilty or no-contest pleas because of “prejudicial error” affecting their ability to understand the negative immigration consequences of their plea. That means that the individual needs to show the court that he or she probably would have rejected the plea deal if he or she knew of the immigration issues. If the court agrees with you, the judge will let you withdraw your not guilty plea or no-contest plea. The prosecutor will then decide whether to continue with your case or dismiss it.
Basically, one the judge grants your plea withdrawal, you are no longer guilty of the particular charge you plead guilty to. Now the case becomes an open criminal case, and you can fight the case or work out another deal.
A motion to vacate a conviction in California usually means that the defendant is asking the trial judge to take away his or her guilty or nolo contendere plea because his or she did not fully understand the potential immigration consequences of their plea bargain. But Penal Code section 1473.7 also allows a defendant to file a motion to vacate a guilty or nolo contendere plea because of new evidence of actual innocence or because the conviction or sentence violated the Racial Justice Act.
For example, if your defense counsel discovers new evidence that shows that shows your conviction or sentence is factually or legally invalid, he or she can ask the judge to take back your guilty plea and judgment. A great example is newly discovered evidence, such as DNA from the crime lab, that shows that you are innocent.
If the court grants your motion to vacate, the judge will remove your conviction and sentence and substitute it for a not guilty plea. You can then work out a new plea with the prosecutor or fight your case at trial.
To win your motion to vacate, you need to show a “reasonable probability” that you would have rejected the plea deal if you knew of the negative immigration consequences. Courts look at things like your ties to the United States, the importance you placed on avoiding deportation, your priorities in seeking a plea bargain, whether there was reason to believe that you could have got an immigration-friendly offer, your remaining ties, if any, to your home country, your immigration status when you took the plea, your criminal history, and your employment history.
Basically, the court wants to know if you are someone who is well-connected to the United States who is not experienced with the legal system and has plans of remaining here because your family is here, your work is here, or there is something else that makes the United States your home. But someone who knows that they have no legal status, who is experienced in the legal system, and has few times to the United States likely would not qualify.
According to the law, the judge in trial court must find that your petition is timely so long as you filed it when you are no longer in criminal custody for that case.
But the court can find it untimely if you did not file it “with reasonable diligence” after the later of either you got a notice to appear in immigration court due to that conviction or after notice of a final removal order based on the conviction. So if you're already in immigration custody, a court might find that you're too late to file the motion. But you absolutely still can try to file the motion.
Essentially, you and your attorney need to file the petition without undue delay when you realize the criminal, conviction or sentence you have might cause you adverse immigration consequences. If you have any concerns regarding your conviction, you should contact an experienced criminal-defense or immigration attorney promptly to go over your situation.
You do. PC 1473.7(e)(1) says that the person filing the motion to vacate has to show by a “preponderance of the evidence” that they qualify for relief. A preponderance of the evidence means more likely than not.
At the hearing on your motion to vacate, the judge will review you and your attorney's motion and supporting documents. Either you or the prosecution may call witnesses or submit documents or other exhibits to the judge.
Sometimes a defense attorney may want to call the lawyer who represented you when you pleaded guilty to show the judge that the lawyer gave you ineffective assistance of counsel by not advising you correctly about your deal. But it is not necessary for you or your lawyer to prove that the last lawyer provided ineffective assistance of counsel to win your motion to vacate.
If you win your motion to vacate, the judge must allow you to withdraw your guilty or no-contest plea. (PC 1473.7(e)(3)) The judge will issue an order granting your motion. The prosecutor will then either dismiss your case or continue to prosecute you for the original alleged crime. You and your lawyer might then work out a new deal with the prosecutor or set the case for trial.
Under state law, a habeas petition asks the judge reviewing the motion to release you from custody or from the sentence imposed for your criminal conviction. A person ordinarily files a habeas corpus petition when they are still in custody. But section 1473.7 only applies after a person has been released from custody for that particular case.
Under California law, a person who already filed a habeas corpus petition may still file a motion to vacate later when they are released from custody. (People v. Jung (2020) 59 Cal.App.5th 842, 855.)
If you have any questions about whether you qualify for a motion to vacate under PC 1473.7, you should contact an experienced, criminal-defense attorney today. Immigration consequences can be very complicated, especially in light of the intricacies of California criminal law. You need someone highly qualified to represent you.
Here at the Olen Firm, we have extensive experience in navigating the negative immigration consequences of criminal convictions. We invite you to call us at 213-999-8380 for a free consultation about your case.
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