California Penal Code 1473.7 PC is the statute that allows you to file a motion to vacate a judgment in a criminal case based on prejudicial error or newly discovered evidence.
In other words, suppose you were wrongfully convicted of a crime in California. In that case, you can file a motion to vacate judgment to overturn your conviction or sentence.
Notably, the “error” needs to have impacted your ability to reasonably understand, defend against, or knowingly accept the negative immigration consequences of a plea of guilty or no contest (nolo contendere).
A wrongful conviction can have long-term consequences, such as being forced to serve jail time and losing employment opportunities. For non-citizen aliens, a criminal conviction can lead to immigration consequences, including deportation and denial of naturalization.
PC 1473.7 says, “(a) A person who is no longer in criminal custody may file a motion to vacate a conviction or sentence for any 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 conviction or sentence. A finding of legal invalidity may but need not include a finding of ineffective assistance of counsel.
(2) Newly discovered evidence of actual innocence requires vacating the conviction or sentence as a matter of law or in the interests of justice.
(3) A conviction or sentence was sought, obtained, or imposed based on race, ethnicity, or national origin in violation of subdivision (a) of Section 745.
(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) or (3) 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 or Section 745.
(d) All motions shall be entitled to a hearing. Upon the moving party's request, the court may hold the hearing without the personal presence of the moving party if it finds a 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.”
Motion to Vacate Judgment – Quick Facts
Penal Code 1473.7 PC was effective on January 1, 2017. Prior to this law, most people could only challenge a conviction or sentence by filing a habeas corpus petition while still in custody.
After they were released from custody, they lost their ability to challenge the conviction. However, with a PC 1473.7 motion, you must only file it with reasonable diligence after receiving a notice to appear in immigration court, or the removal order becomes final, which is deportation.
There are some essential facts you should know about Penal Code 1473.7 PC motion to vacate judgment, such as the following:
- A motion to vacate judgment is a written request for the court to overturn a criminal conviction.
- If the court grants the motion, the conviction and sentence will be erased from your record as if it never occurred.
- Before this law was enacted in 2016, the only way to vacate a judgment was to file a habeas corpus petition.
- A motion to vacate judgment was part of Assembly Bill No. 813 to address the collateral consequences of non-citizen defendants with criminal convictions impacting immigration.
- PC 1473.7 PC expanded the grounds for filing a motion to vacate the judgment to help people challenge wrongful convictions and seek justice.
- The two primary legal grounds for filing a motion to vacate are prejudicial error and newly discovered evidence.
What is a Prejudicial Error?
A prejudicial error could include prosecutor or juror misconduct to ineffective defense counsel.
PC 1473.7(a)(1) says, “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 conviction or sentence. A finding of legal invalidity may, but need not, include a finding of ineffective assistance of counsel.”
Simply put, if you were wrongfully persuaded to plead “guilty” or “no contest” to the criminal charge because the courts or your attorney failed to ensure that you understood the consequences the plea could have on your future, especially your immigration status.
What is Newly Discovered Evidence?
When filing a motion to vacate the judgment based on the discovery of new evidence, it means you are claiming innocence due to unknown or unavailable evidence at the time of the trial, such as the following:
- Results of DNA testing.
- Discovery of new information that could challenge crucial evidence.
How Long Do You Have to File a Motion to Vacate Judgment?
To file a PC 1473.7 motion to vacate the judgment, you must submit a written request to the court with detailed information about the alleged prejudicial error or newly discovered evidence.
You must demonstrate that you exercised reasonable due diligence in discovering the error or new evidence and were unaware of it during the trial. In other words, the burden of proof is your responsibility.
Suppose you are filing a motion to vacate based on prejudicial error. In that case, you are expected to file promptly with “reasonable diligence,” meaning no unnecessary delay, after:
- You receive notice to appear in immigration court about conviction or
- After your removal order becomes final.
If you don't file the motion with reasonable diligence, the court could determine that your motion was untimely filed and deny it.
What Happens After the Motion is Filed?
After your lawyer files a PC 1473.7 motion to vacate the judgment, the legal process will normally proceed as follows:
- The court schedules a hearing to present evidence and arguments supporting your vacate motion. Notably. You are not required to appear at this hearing; your lawyer will argue on your behalf.
- After considering the arguments and evidence, the judge decides whether to grant or deny the motion. If granted, the judgment will be vacated, and the court might order a new trial, dismiss the charges, or impose other remedies. If denied, the original judgment will remain in place.
- If the motion is denied, you can appeal the decision to a higher court. The appellate court examines the case details to determine if errors were made during the lower court's decision-making process.
What Happens If the PC 1437.7 Motion is Granted?
If the court grants the motion, the conviction or sentence will be vacated as it never happened. You can then withdraw the plea you entered in the underlying criminal case.
However, unless the prosecutor agrees to dismiss the original charges, you must still deal with them through a new plea agreement or trial. This means you could negotiate a new plea that might have a lesser impact on immigration consequences.
Notably, if the motion to vacate is granted, you are not necessarily clear of the charges. Vacating judgment overturns the conviction and sentence, and your case is sent back to the arraignment, where you entered your plea of “guilty” or “no contest.”
If the District Attorney does not drop the charges, you can enter a plea of “not guilty” and receive a new trial. If you spent time in custody, it would count as time served if a plea is taken or a conviction of any kind results. You can contact us for a free case review by phone or through the contact form. Cron, Israels & Stark is based in Los Angeles, California.
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