On February 16, 2018, Assembly member Lorena Gonzalez Fletcher introduced AB-2867 to the 2017-2018 California Legislature. AB-2867 seeks to make significant amendments to Penal Code section 1473.7 - recently enacted on January 1, 2017. This bill has already passed the 1st committee, 1st chamber, and 2nd committee and is expected to pass the 2nd chamber.
As Penal Code section 1473.7 currently stands, there is “an explicit right for a person no longer imprisoned or restrained to file a motion to vacate a conviction or sentence based on 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, or based on newly discovered evidence of actual innocent, as specified.”
If passed, proposed AB-2867 will make multiple changes to the existing law. To begin, currently the statute provides jurisdiction to file a motion to those who are “no longer imprisoned or restrained.” AB-2867 will expand jurisdiction to any person who is “no longer in criminal custody.” Therefore, a person no longer in criminal custody but currently on probation will be able to file a Penal Code section 1473.7 motion to vacate a conviction.
It is the intent of the Legislature in amending Penal Code section 1473.7 “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.” (AB-2867, Section 1). As Penal Code section 1473.7 motions have been litigated and interpreted at the trial court level, the prosecution has argued, and some courts have imposed, a requirement that the moving party prove ineffective assistance of counsel. AB-2867 provides clarification to this issue by specifying that, “a finding of legal invalidity may, but need not, include a finding of ineffective assistance of counsel.”
A further hurdle that has been imposed for those seeking to vacate a conviction under Section 1473.7 is the timeliness issue. AB-2867 addresses this issue by adding the following language to Section 1473.7: “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.”
“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.”
Proposed AB-2867 also adds language permitting the court to grant the motion to vacate without a hearing if the prosecution has no objection to the motion.
The suggested amendments to Penal Code section 1473.7 will provide further clarification and interpretation to issues that have arisen in the litigation of motions under this section since its passage. AB-2867 is still under review in the California Legislature and is subject to further amendments. However, it appears that the Legislature is attempting to expand who is eligible to seek relief under this Section.