NEW Fifth Appellate Opinion Analyzing Recently Enacted Penal Code section 1473.7

On July 24, 2018, the California Court of Appeal filed the fifth appellate case analyzing issues pertaining to Penal Code section 1473.7.[1] In 2002, the defendant in People v. Ruben Anaya Morales, 2018 Cal. App. LEXIS 649, out of the Superior Court of San Mateo County, pled no contest to one felony count of possession for sale of a controlled substance, methamphetamine, a violation of Health and Safety Code section 11378. After Mr. Morales served his sentence, he voluntarily departed the United States to Mexico in the face of deportation and reentered the United States shortly thereafter.

In May of 2017, Mr. Morales filed a motion to vacate his plea pursuant to Penal Code section 1473.7. Mr. Morales was not faced with removal proceedings; rather, he filed the motion in an effort to obtain legal status in the United States via a “U visa” based on his participation in the prosecution of a crime to which he was a victim in 2009.

At the trial court level, Mr. Morales filed a motion to vacate his judgment based on the theory that his trial counsel rendered ineffective assistance in 2002 for failing to advise him that his conviction would cause him to be deported or bar him from ever coming into the United States again.

The trial court denied the motion finding that the motion was not “triggered” by removal proceedings, which the court held was required by subdivision (b) of Section 1473.7. Mr. Morales appealed arguing that the trial court misconstrued the requirements of Section 1473.7 and imposing the requirement of removal proceedings was wrong.

In its opinion, the appellate court stated that the trial court’s understanding of Section 1473.7 as requiring removal proceedings to prosecute a motion under the section “is contradicted by the plain language of section 1473.7, subdivision (a)(1).” According to the appellate court, Subdivision (a)(1), “authorizes a noncitizen to pursue a motion to vacate a conviction due to an error that has compromised his or her ability to address ‘adverse immigration consequences’ without limitation.” The appellate court went on to confirm that “Subdivision (a)(1) broadly authorizes a noncitizen to prosecute a motion when faced with ‘actual or potential adverse immigration consequences’ where error has prejudiced his or her ability to understand or defend against them.” Thus, one does not need to be in removal proceedings to “trigger” the statute.

Overall, the court of appeal determined that Mr. Morales had authority under Section 1473.7 to prosecute his motion and the case was remanded to the superior court for further proceedings.

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[1] 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.

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