What is a Penal Code 1473.7 Motion?

Penal Code 1473.7 provides non citizen immigrant defendants who are no longer in criminal custody with a legal vehicle to challenge the unlawful conviction. This law provides an important opportunity for non-ctizens to challenge convictions when the noncitizen defendant failed to meaningfully understand, knowingly accept, or defend against the immgiration consequences of a criminal conviction. This law provides immigrant defendants prejudiced by an uninformed plea of guilty a remedy from harsh immigration consequences such as deportation, exclusion from admission, or denial of naturalization. 

Penal Code Section 1473.7 offers a remedy for immigrant defendants that are facing adverse immigration consequences who do not qualify for other forms of relief. For instance an immigrant defendant who did not understand the adverse consequences of plea but a review of the Court file does show that the court advised the immigrant defendant persuant to PENAL CODE SECTION 1016.5 he or she can still make a claim persuant to Penal Code Section 1473.7. Penal Code Section 1473.7 is also provided a remedy where a writ of HABEAS CORPUS RELIEF or CORAM NOBIS cannot since it is a statutory remedy that was enacted by the California Legislature to provide a remedy for those who were previously without one.  

The Right to bring a motion under section 1473.7

Section 1473.7 was enacted in 2017. It authorized a defendant to "prosecute a motion to vacate a conviction" that is "legally invalid due to prejudicial error damaging the moving party's ability to meaningfully understand, defend against, or knowingly accept the actual or potentially adverse immigration consequences of a plea." (Former section 1473.7(a)(1).)

In 2018, the Legislature passed Assembly Bill No. 2867 to modify section 1473.7. This new law, effective January 1, 2019, made it easier to retroactively challenge convictions based on the ground that the defendant was not properly advised of the immigration consequences. Before the passage of Assembly Bill No. 2867, Courts had ruled that defendants filing section 1473.7 motions and claiming their counsel erred on immigration advisements had to meet the standards required by Strickland v. Washington (1984). Effective in 2019, the Strickland requirement was eliminated in the People v. Camacho decision. Now the trial court may set aside a conviction based on counsel's immigration advisement errors without a "finding of ineffective assistance of counsel." Instead a defendant need only show that there were "one or more" errors that "were prejudicial and damaged [a defendants] 'ability to meaningfully understand, defend against, or knowingly accept the actual or potential adverse immigration consequenes of [his or her] plea.  

Actual Innocence

Section 1473.7 also creates a vehicle to enable both noncitizens and U.S. citizens to raise claims of actual innocence, even after custody has ended. Penal Code Section 1473.7 creates a vehicle to vacate a criminal conviction or sentence with no custody requirement or time limit. Before the enactment of Penal Code Section 1473.7 under California Law immigrant defendants facing harsh immigration consequences would have limited options. Immigrant defendants in this situation would have to make arguments in HABEAS CORPUS or CORAM NOBIS writs and then hope that he or she would be granted a court hearing to argue the motion.

The problem with this is that these writs Habeas Corpus and Coram Nobis writs are limited in scope. For instance a Habeas Corpus writ is only available to defendant's who are currently in constructive or actual custody. The reasoning behind this expressed by he California Supreme Court is that the Court no longer has jurisdiction over the criminal defendant if the custody element is not there. Now with Penal Code Section 1473.7 the "custody" requirement is not necessary to make a similar type of argument.

As an alternative immigrant defendants turned to a writ of coram nobis as a way around the custody obstacle. This was no easy feat since in 2009 the California Supreme Court in People v. Kim held that claims of ineffective assistance of counsel (because of bad immigration advice) could not be raised in coram nobis petitions.    

This motion may be made on two general grounds:

(1) legal invalidity due to a prejudicial error damaging the defendant's ability to knowingly accept or defend against the actual or potential adverse immigration consequences of a plea of guilty or nolo contendere, or

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

the prejudice element in a §1473.7(a)(1) claim

All the grounds raised in §1473.7(a)(1) must be accompanied by proof of prejudice to the defendant. The immigration- related portion of Penal Code §1473.7(a)(1) applies 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 defendant has been shown to establish prejudice by demonstrating that “it is reasonably probable he would have not pled guilty if properly advised. A defendant need not establish that he “would have achieved a more favorable outcome” had he decided not to plea guilty. Rather, the focus of the inquiry is on “what the defendant would have done.” There is no requirement to show that the defendant would “have insisted on going to trial.” In the case where there is evidence that would have caused the defendant to “expect or hope a different bargain would or could have been negotiated,” the defendant can establish prejudice if he can show he would have rejected the plea offer in the hope that he “might thereby negotiate a different bargain, or failing in that, go to trial.” In People v. Patterson, it was held that, “to establish that he was prejudiced by counsel’s alleged errors, the defendant must show “that a reasonable probability exists that, but for counsel’s incompetence, he would not have pled guilty”.

Amendments to Penal Code Section 1473.7

To ensure consistent application of the law and the full realization of the statute's intent, the California Legislature approved amendments to the Statute. Effective January 2019, the California Legislature clarified, "A finding of legal invalidity may, but need not, include a finding of ineffective assistance of counsel." See section 1473.7(a)(1).  

Criminal Custody 

Criminal custody is the only jurisdictional requirement in Penal Code 1473.7a(1) motion. A criminal court can excercise jurisdiction over any Section 1473.7 claim brought while the non citizen immigrant defendant is no longer in actual or constructive custody. This amendment is in line with the reasoning in People v. Morales (2018) decision. The decision in Morales held that the moving party (the party making the motion) must not necessarily be in immigration removal proceedings in order to bring forth a motion. In Mr. Morales situation he was in the process of applying for a U-Visa (a visa granted for those that are victims of crimes) when he sought Penal Code Section 1473.7 relief. The court found since Mr. Morales was seeking relief so that he can avoid an adverse ruling on his U-Visa application he is able to seek the remedy offered in Penal Code Section 1473.7.

Interpreted in the Interest of Justice

A motion brought forth under Penal Code Section 1473.7 must be interpreted by the Court in the "interests of justice" and consistent with California Penal Code Section 1016.2. California Penal Code Section 1016.2 describes the severe and disproportionate impact that criminal consequences can have for noncitizen defendants and the damage that deportations can cause to U.S. citizen family members and communities. By including a specific citation to Section 1016.2 in the findings and declarations, the Legislature encourages courts to review Penal Code section 1473.7 motions with the stated purpose of mitigating the disporprotionate and unjust ongoing consequences of the convicted crime. 

Relief Available Even if Other Forms of Post Conviction Relief Have Been Granted 

In line with the interest in Courts have jurisdiction over a Section 1473.7 motion, even if the moving party has already received a Section 17(b) reduction or Section 1203.4 expungement. This amendment is consistent with established case law. Meyer v. Superior  (1966).

Legal Invalidity

A Penal Code Section 1473.7 claim can be made based on the defendant's subjective inability to "meaningfully understand" or "knowingly accept" the immigration consequences of a plea. This means that there can be any number of grounds for legal invalidity that are not limited to a claim of ineffective assistance of counsel. 

How Does Penal Code Section 1473.7 Work?

An immigrant defendant can raise a claim if: (1) his or her attorneys violated the duty to investigate and accurately advise the defendant about the specific immigration consequences of the plea; (2) defense counsel failed to defend against immigration consequences of the plea by attempting to plea bargain for an immigration- safe alternative disposition; and (3) the immigrant defendant failed to meaningfuly understand the immigration consequences of a conviction. In short the immigrant defendat must not fully understand the adverse immigration consequences that would befall him or her in acceptance of the plea agreement. 

Proof of Prejudice

Like in a Penal Code Section 1016.5 motion upon making a Section 1473.7 motion to vacate a conviction there is a requirement that prejudice be shown. Prejudice is shown if a non citizen defendant can show in their motion that he or she would not have accepted the negotiated plea had they known about the adverse immigration consequences.

In related contexts in particular when a non citizen defendant is making an ineffective assistance of counsel claim in a Penal Code Section 1473.7 motion, courts have held that prejudice is shown if the immigrant defendant establishes it was reasonably probable he or she would not have pled guilty absent the error or that "a decision to reject the plea bargain would have been rational under the circumstances. See Strickland v. Washington (1984).

In order to establish "prejudicial error" under section 1473.7, a person need only show by a preponderance of the evidence: 1) he did not "meaningfully understand" or "knowingly accept" the actual or potential adverse immigration consquences of the plea; and 2) had he understood the consequences, it is reasonably probable he would have instead attempted to defend against the charges. 

California Penal Code §1473.7 

See below for the statutory language of Penal Code Section 1473.7

SECTION 1. The Legislature finds and declares all of the following: (a) The Legislature enacted Section 1473.7 of the Penal Code to provide people no longer in criminal custody, or after the specified period in which to move for withdrawal of a plea has elapsed, with the opportunity to raise a claim of legal invalidity based on actual innocence or failure to meaningfully understand, defend against, or knowingly accept the immigration consequences of a conviction. (b) It is the intent of the Legislature to provide clarification to the courts regarding Section 1473.7 of the Penal Code to ensure uniformity throughout the state and efficiency in the statute’s implementation. (c) This measure shall be interpreted in the interests of justice and consistent with the findings and declarations made in Section 1016.2 of the Penal Code. (d) The State of California has an interest in ensuring that a person prosecuted in state court does not suffer penalties or adverse consequences as a result of a legally invalid conviction. (e) It is the intent of the Legislature that courts have the authority to rule on motions filed pursuant to Section 1473.7 of the Penal Code, provided that the individual is no longer in criminal custody. Consistent with case law interpreting other statutes that authorize postconviction relief, including Meyer v. Superior Court (1966) 247 Cal.App.2d 133 (interpreting subdivision (b) of Section 17 of the Penal Code) and People v. Tidwell (2016) 246 Cal.App.4th 212 (interpreting Section 1170.18 of the Penal Code), a motion for relief pursuant to Section 1473.7 of the Penal Code shall be heard and may be granted, notwithstanding a prior order setting aside an adjudication of guilt or a prior order dismissing or reducing one or more charges under any provision of law. Immigrant Legal Resource Center Amendments to Cal. Pen. C. § 1473.7 www.lirc.org September 2018 5 SEC. 2. Section 1473.7 of the Penal Code is amended to read: 1473.7. (a) A person who is no longer imprisoned or restrained may prosecute 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 a 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) A (1) Except as provided in paragraph (2), a motion pursuant to paragraph (1) of subdivision (a) shall be filed with reasonable diligence after the later of the following: 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: (1) (A) The date 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. removal or the denial of an application for an immigration benefit, lawful status, or naturalization. (2) (B) The date Notice that a final removal order has been issued against the moving party, based on the existence of the conviction or sentence, becomes final. sentence that the moving party seeks to vacate. 

It is not necessary to show ineffective assistance of counsel

The Court in Camacho recognized that the errors need not amount to a claim of ineffective assistance of counsel, it follows that courts are no limited to the Strickland test of prejudice, whether there was reasonable probability of a different outcome in the original proceedings absent the error. See Strickland 466 U.S. at 694 as cited by Camacho. The Camacho Court cites the following controlling cases in its prejudice analysis; In Martinez, the court concluded that because “the defendant’s decision to accept or reject a plea bargain can be profoundly influenced by the knowledge, or lack of knowledge, that a conviction in accordance with the plea will have immigration consequences …, and because the test for prejudice considers what the defendant would have done, not what the effect of that decision would have been, a court ruling on a §1016.5 motion may not deny relief simply by finding it not reasonably probable the defendant by rejecting the plea would have obtained a more favorable outcome. Instead the defendant may show prejudice by “convincing the court that he would have chosen to lose the benefits of the plea bargain despite the possibility or probability deportation would nonetheless follow.” See also Lee v. United States (2017) )__ U.S.__ [137 S. Ct. 1958] (Lee); Ogunmowo, supra, 23 Cal. App. 5th at 78 – 80. The principles found in Martinez and Lee apply equally to a prejudice analysis under §1473.7. See Ogunmowo, supra, 23 Cal. App. 5th at p. 78. As the United States Supreme Court pointed out, “[C]ommon sense (not to mention our precedent) recognizes that there is more to consider than simply the likelihood of success at trial. The decision whether to plead guilty also involves assessing the respective consequences of a conviction after trial and by plea. Lee, supra, 137 S. Ct. at 1966. For instance, in Lee, the court found that the defendant had demonstrated a reasonable probability that he “would have rejected any plea leading to deportation- even if it shaved off prison time- in favor of throwing a ‘Hail Mary’ at trial.” The Court there reasoned, Mr. Lee lived in the United States for decades [since leaving his home country], had established businesses, and maintains a family with an American citizen wife, and American born children. The Camacho court offers a test, in applying the rules established to determine prejudice. The considerations include age the defendant was brought to the United States, whether the defendant was educated in the United States, travel outside the United States, as well as community and family ties, marital status, children, and employment status. 

penal code Section 1016.5 warning does not preclude relief

A defendant can be granted section 1473.7 relief notwithstanding the Penal Code §1016.5 warning he or she received from the judge during the plea hearing. The California Supreme Court has explained, “[d]efense counsel clearly has far greater duties toward the defendant than has the court taking a plea.” In re Resendiz (2001) abrogated on other grounds by Padilla, 559 U.S. 356. To “construe §1016.5 as a categorical bar to immigration-based ineffective assistance claims ‘would deny defendants [who prove incompetence and prejudice] a remedy for the specific constitutional deprivation suffered.” (rejecting the State’s suggestion that a §1016.5 warning should shield pleas from collateral attack). California Penal Code §1016.5(a) requires that “[p]rior to acceptance of a plea of guilty or nolo contendere to any offense punishable as a crime under state law . . . the court shall administer . .  . [an] advisement on the record” about immigration consequences to the defendant. If good advice had come from a defendant's own attorney—someone who he held in a position of trust and whose job it was to look out for his interests—it would have likely had a different effect. See People v. Resendiz, (explaining that defense counsel has an obligation to “assist the defendant,” after conducting a reasonable investigation, and “owes the client a duty of loyalty,” whereas the court does not); People v. Soriano, (noting that “a defendant may reasonably expect that before counsel undertakes to act at all he will make a rational and informed decision on strategy and tactics founded on adequate investigation and preparation”. The court’s warning about immigration advise came at a stage in the plea-bargaining process when he had already decided to plead guilty.

The warning was effectively a post-hoc formality for a bargain that had already been struck. The California Legislature did not intend, with §1016.5, to replace the role of a defense attorney. In fact, “[b]oth commentary and statute are concerned with the self-evident proposition that a defendant’s in-court responses to rights advisement should not be made ‘off-the-cuff.’ Instead, they should reflect informed decisions he has reached after meaningful consultation with his attorney.” People v. Soriano. “[T]hat a defendant may have received [a] valid §1016.5 advisement from the court does not entail that he has received effective assistance of counsel in evaluating or responding to such advisements.” People v. Resendiz. Many defendant's  rely on professional advice and her or his attorneys maintain a duty to provide accurate advice. People v. Ogunmowo. When one reviews the wording of penal code §1016.5, one can see that it does not touch on this important role of defense counsel at all. It certainly cannot mitigate or cure any prejudice resulting from counsel’s failure to fulfill this duty. Perhaps for these reasons, California courts have considered immigrants’ claims of ineffective assistance of counsel claims even where they were provided with the required §1016.5 warning. See, e.g., Resendiz; Soriano, (granting habeas petition for ineffective assistance of counsel despite adequate §1016.5 warning); Bautista, (granting evidentiary hearing after finding ineffective assistance due to counsel in the absence of any allegation that court had failed to provide §1016.5 warning). See also People v. Padilla, (granting remand based on ineffective assistance of counsel despite noting that Kentucky courts provided notice of possible immigration consequences on its standard plea form). In People v. Patterson the California Supreme Court reaffirmed the right of an immigrant defendant to withdraw the guilty plea is unaware of the immigration consequences of the conviction at the time of the plea.

A criminal court’s general advisement of potential immigration consequences is no substitute for defense counsel’s unique legal duty to provide case- specific advice about and defense from, the immigration consequences of a conviction. See generally People v. Patterson (2017) (holding that a section 1016.5(a) advisement does not bar section 1018 relief because, unlike defense counsel’s duties, it does not inform the defendant of the actual immigration consequences which may be a material matter in deciding whether a noncitizen will plead guilty. In sum, the Court has full authority to a motion to vacate notwithstanding that he received a §1016.5 warning.