Effective January 1, 2019 - Amendment to Penal Code section 1473.7 Makes a Presumption of Legal Invalidity in Certain Cases (AB-2867)

As previously discussed in a former blog post, Governor Jerry Brown recently approved Assembly Bill No. 2867 which made noteworthy amendments to Penal Code section 1473.7. [1] The amendments to Penal Code section 1473.7 are set to take effect on January 1, 2019.

Penal Code section 1473.7(a)(1) allows a person to file a motion to vacate a conviction if the conviction is legally invalid due to a prejudicial error damaging the party’s ability to meaningfully understand, defend against, or knowingly accept the actual or potential adverse immigration consequences of a plea.

As amended, Penal Code section 1473.7(e)(2) will now provide a presumption of legal invalidity for purposes of Section 1473.7(a)(1) if “the moving party pleaded guilty or nolo contendere pursuant to a statute that provided, upon completion of specific requirements, the arrest and conviction shall be deemed never to have occurred, where the moving party complied with these requirements, and where the disposition under the statute has been, or potentially could be, used as a basis for adverse immigration consequences.”

This new amendment will provide a presumption that the plea is legally invalid in cases in which the defendant pled to an offense and successfully completed programs such as Proposition 36 and a Deferred Entry of Judgment Program.

It is clear that the California Legislature wants to expand the ability for defendants to seek post-conviction immigration relief for offenses in which they were led to believe would be dismissed and deemed never to have occurred that are now causing immigration prejudice.

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[1] Visit the following link for the full text: https://leginfo.legislature.ca.gov/faces/billTextClient.xhtml?bill_id=201720180AB2867

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