On September 14, 2018, the California Court of Appeal certified for publication a new appellate opinion analyzing issues pertaining to Penal Code section 1473.7.
In 2015, the defendant in People v. Cruz-Lopez, 2018 Cal. App. LEXIS 823, out of the Superior Court of Marin County, admitted to allegations contained in a motion filed by the district attorney to revoke probation for being found in possession of methamphetamine for sale, as well as possession of marijuana, resisting arrest, and attempting to destroy evidence. For his admission to the probation violations, Mr. Cruz-Lopez was sentenced to state prison for three years, execution of sentence suspended, and he was placed on probation for five years.
In March of 2017, Mr. Cruz-Lopez filed a motion pursuant to Penal Code section 1473.7 seeking to vacate his admission to a violation of probation in 2015. In his motion, the defendant argued that he did not recall discussing the immigration consequences of the underlying case at the time of his plea.
At the hearing on the motion, the defendant called an immigration attorney to testify. The immigration attorney, Christopher Todd, testified that Mr. Cruz-Lopez’ sentence imposed on the probation violation made the previous crime an aggravated felony, rendering a permanent resident removable and ineligible for almost all relief under the INS laws. Todd further testified that the ESS sentence becomes an issue with INS whereas an ISS sentence would not. The trial court denied the motion.
In its opinion, the appellate court stated that Penal Code section 1473.7 provides standing to challenge a conviction for persons unable to assert habeas or Section 1016.5 relief. In order to obtain relief under this statute, the appellate court clarified that the individual cannot be in custody or under restraint. A person currently under a probationary grant is under constructive custody and Section 1473.7 is not applicable to a person under probation at the time the motion is presented.
The appellate court further noted that the defendant’s Section 1473.7 motion alleges that he did not understanding the immigration consequences of his probation violation admission, not the consequences of the underlying guilty plea. The court determined that this aspect of criminal proceedings is not covered by Section 1473.7 and a revocation of probation does not encompass the admonitions required in a guilty plea.
Mr. Cruz-Lopez also alleged his trial counsel was deficient in failing to advise him of the immigration consequences at the time of his probation violation. This contention was dismissed by the appellate court.
Ultimately, the appellate court held that Mr. Cruz-Lopez is not a person entitled to relief under Section 1473.7 since he is currently on probation and he failed to establish any Strickland error with trial counsel.
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 Penal Code section 1473.7 became effective on January 1, 2017 and states, in pertinent part, as follows:
(a) A person no longer imprisoned or restrained may prosecute 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.
(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 motion pursuant to paragraph (1) of subdivision (a) shall be filed with reasonable diligence after the later of the following:
(1) 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.
(2) The date a removal order against the moving party, based on the existence of the conviction or sentence, becomes final.
(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.