What is a Penal Code section 1473.7 Motion?

Penal Code section 1473.7 became effective on January 1, 2017 and provides a procedure for people no longer in criminal custody to file a motion to vacate a conviction or sentence.[1] A motion pursuant to Penal Code section 1473.7 can be made on either of the following two grounds: (1) a prejudicial error damaged the defendant’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 (2) newly discovered evidence of actual innocence.

This motion may provide immigration relief for defendants that failed to meaningfully understand the immigration consequences of a conviction and are now suffering immigration prejudice.

There are timing requirements to litigate a Section 1473.7 motion. A motion pursuant to Penal Code section 1473.7 must be filed with “reasonable diligence” after the defendant has received 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 date a removal order becomes final.[2]

Upon granting a motion pursuant to Penal Code section 1473.7, the plea will be vacated and the conviction will no longer exist. After the conviction is vacated under this Section, the defendant may still need criminal representation to seek a dismissal, set the matter for a jury trial, or negotiate an alternate plea agreement that does not cause immigration consequences.

DISCLAIMER:

The information in this blog post (“post”) is provided for general informational purposes only, and may not reflect the current law in your jurisdiction. No information contained in this post should be construed as legal advice from Escovar & Avila, LLP or the individual author, nor is it intended to be a substitute for legal counsel on any subject matter. No reader of this post should act or refrain from acting on the basis of any information included in, or accessible through, this Post without seeking the appropriate legal or other professional advice on the particular facts and circumstances at issue from a lawyer licensed in the recipient’s state, country or other appropriate licensing jurisdiction. The information on this website is a communication and is for informational purposes only. The facts of every case are unique and nothing on this page or on this website should be taken as legal advice for any individual case or situation. The information on this website is not intended to create an attorney-client relationship and viewing of this information does not create an attorney-client relationship. The result portrayed in this advertisement was dependent on the facts of this case. Results will differ if based on different facts.

 

[1] Visit the following link for a video discussing California Penal Code section 1473.7 motions. https://www.youtube.com/watch?v=oP91w3El4k0

[2] For the full-text of Penal Code section 1473.7 visit:

http://codes.findlaw.com/ca/penal-code/pen-sect-1473-7.html

Categories: