California Penal Code § 1473.7 PC allows people who are no longer in criminal custody to file a motion to vacate a conviction or sentence. The motion can be based on either:
- A prejudicial error which 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"); or
- Newly discovered evidence of actual innocence.
Penal Code § 1473.7 became effective on January 1, 2017. Before then, 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.1
Once they were released from custody – that is, from jail, prison, parole or probation – they lost their ability to challenge their conviction.
But under PC 1473.7, a motion need only be made with “reasonable diligence” after the defendant receives a Notice to Appear in immigration court or after a removal (deportation) order becomes final.2
To help you better understand Penal Code §1473.7 motions to vacate, our California criminal and immigration lawyers discuss the following, below:
- 1. Why is PC Penal Code §1473.7 necessary?
- 2. Vacation based on newly discovered evidence
- 3. Vacation based on prejudicial error
- 3.1. Grounds for a motion to vacate based on prejudicial error
- 3.2. The legal meaning of “prejudice”
- 4. How long do I have to file a PC 1473.7 motion?
- 5. Am I entitled to a hearing on my motion?
- 6. Do I need to appear in court personally?
- 7. What happens if my PC 1473.7 motion is granted?
- 8. Can I appeal if my motion is denied?
- 9. Is there any other basis for vacating a conviction or sentence?
Penal Code §1473.7 became effective on January 1, 2017. Before then, people had limited options for challenging their conviction. The most common method of challenging the constitutionality of a conviction or sentence was to file a habeas corpus petition.
But a petition for habeas corpus could only be filed while the defendant was in custody – that is, while he or she was still in jail or prison, or on probation or parole.
Once someone was released from the system the courts were no longer authorized to consider a habeas petition.3
As a result, many people had no remedy once they were released. In some cases, people wouldn't even know that the conviction had made them deportable until many years later.
There was no way to go back into court to erase the conviction – even if they entered pleas without understanding the immigration consequences or if the sole complaining witness recanted his or her testimony.
New evidence of innocence is one grounds for a motion to vacate under PC §1473.7.
Such evidence might include:
- Results of new scientific tests, such as DNA testing;
- Another person admitting to the crime; or
- The discovery of facts that call key evidence into question -- such as widespread fraud or contamination by the police or a crime lab.
Penal Code §1473.7 allows a court to vacate a conviction or sentence if there was “prejudicial error.”
To be 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 nolo contendere (“no contest”).
Specifically, the scenarios that can lead to a motion to vacate due to prejudicial error are:
- Defense counsel violated 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).4
Regardless of the specific ground(s) for a §1473.7(a)(1) motion, the defendant must prove that the error prejudiced the defendant.
The defendant does not need to show that he/she actually could have obtained a more favorable verdict or plea bargain.
Rather, prejudice is shown if the defendant can establish that:
- The defendant would not have pleaded guilty absent the error, or
- A decision to reject the plea bargain would have been rational under the circumstances.5
Motions under Penal Code §1473.7 must be filed with “reasonable diligence” 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; or
- The date on which a removal order based on the conviction or sentence becomes final.6
“Reasonable diligence” means without undue delay after the immigrant discovers, or reasonably could have discovered, the evidence supporting the motion to vacate.
However, immigrants do not need to wait for a notice to appear in order to file a 1473.3 motion. They can do so at any time, including when applying for a green card, naturalization, or other immigration benefit.
Yes. Unlike habeas petitions, which may be denied without a hearing, all 1473.7 motions are entitled to hearings before a judge.7
Not necessarily. An alien who is in immigration custody or has already been deported does not need to appear personally as long the immigrant's lawyer is present.8
If the court grants the motion, the conviction or sentence will be vacated. It will be as if it never existed. The court will then allow the immigrant to withdraw the plea he or she entered in the underlying criminal case.9
However, unless the district attorney agrees to drop the original charges, the immigrant must still answer for them. This means a new plea agreement or trial.
But the immigrant will get credit for time already served. More importantly, the immigrant will have the opportunity to negotiate a new plea that may have less drastic immigration consequences.
Yes. An order granting or denying a PC 1473.7 motion to vacate can be appealed by either the immigrant or the government.10
Yes. Penal Code §1473.7 is not the only basis for countering a criminal conviction. In addition to a petition for habeas corpurs, 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 six months of judgment;
- Penal Code §1016.5, which allows a court to vacate a sentence if the trial court failed to provide 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.
At risk of deportation for a criminal conviction? Call us for help…
If you or someone you know is facing immigration consequences for a criminal conviction, we invite you to contact us for a free consultation.
Our California criminal and immigration attorneys have many ways to help you challenge your conviction so you can stay in the country.
Call us at (855) 396-0370 or complete the form on this page to schedule your consultation with a lawyer.
But remember -- to vacate a conviction, you must act without undue delay. So don't wait – call us today.
- See California Penal Code §1473.
- Penal Code §1473.7(b).
- See People v. Picklesimer (2010) 48 Cal. 4th 330; People v. Villa 45 Cal.4th1063 (2009).
- Penal Code 1473.7 (a)(1).
- See Strickland v. Washington, 466 U.S. 668 (1984) (ineffective assistance of counsel); Missouri v. Frye, 132 S.Ct. 1399 (2012) (ineffective assistance of counsel in plea bargaining); People v. Superior Court (Zamudio), 23 Cal. 4th 183, 199 (2000) (court's failure to provide a mandatory immigration advisement); In re Resendiz, 25 Cal.4th 230, 253-254 (2001) (affirmative misadvice); Padilla v. Kentucky, 559 U.S. 356, 372 (2010).
- Penal Code §1473.7(b).
- Penal Code §1473.7(d).
- Penal Code §1473.7(e)(3).
- Penal Code §1473.7(f).