Penal code 1473.7 provides people who are no longer in criminal custody with a legal motioon to challenge old, unlawful convictions. This law provides an important opportunity for noncitizens to challenge convictions when the noncitizen 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 hope for immigrant defendants that are facing adverse immigration consequences who do not qualify for PENAL CODE SECTION 1016.5 relief, because the court record shows that the defendant was advised of immigration consequences properly or in turn do not qualify for a writ of HABEAS CORPUS RELIEF or CORAM NOBIS.  

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.  

Now the California Legislature in all of its wisdom recognized that this left an entire population of Californians suffering a wrong without a remedy.

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 in order to make a similar motion for relief would have to do so in a HABEAS CORPUS or CORAM NOBIS writ. The problem with this is that these 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. 

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. 

Criminal Custody 

Criminal custody is the only jurisdictional requirement. Penal Code 1473.7a(1). A criminal court can excercise jurisdiction over any Section 1473.7 claim brought while the individual is no longer in actual or constructive custody.  This amendment is in line with the reasoning in People v. Morales,25 Cal.App. 5th 502 (2018). The decision in Morales held that the moving party muyst be in immigration removal proceedings in order to bring forth a motion. 

Interpreted in the Interest of Justice

The new findings and declarations require courts to interpret Section 1473.7 motions in the "interests of justice" and consistent with California Penal Code Section 1016.2. Section 1016.2 describes the severe and disproportionate impact that crimina 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 section 1473.7 motions with the stated purpose of mitigating the disporprotionate and unjust ongoing consequences of crimes. 

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

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 Court, 247 Cal.App. 2d 133 (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 inefective 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.

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. Although courts have yet to interpret this requirement when applying the new law, in related contexts courts have held that prejudice is shown if the immigrant defendant establishes it was reasonably probable he or she would not have pleaded 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).

California Penal Code §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. (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. At Upon the request of the moving party, the court may hold the hearing without the personal presence of the moving party if counsel for the moving party is present and the court 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) In granting or denying the motion, the court shall specify the basis for its conclusion. 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. Immigrant Legal Resource Center Amendments to Cal. Pen. C. § 1473.7 www.lirc.org September 2018 6 (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 1237 as 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.