Penal Code section 1473.7 Appellate Opinion in People v. Gonzalez Recently Depublished

On September 27, 2018, the California Court of Appeal certified for publication the case of People v. Gonzalez (2018) 27 Cal.App.5th 738, an appellate opinion analyzing issues pertaining to Penal Code section 1473.7.[1]

In its opinion, the court of appeal determined that Mr. Gonzalez failed to satisfy the first prong of the Strickland analysis as required for an IAC claim. At the time of Mr. Gonzalez’ plea, his trial counsel had no affirmative obligation to advise the defendant of the immigration consequences of his plea. As such, his representation of Mr. Gonzalez did not fail below the then-contemporary reasonable objective standard of practice. Thus, the court upheld the denial of the motion.

On October 30, 2018, various different organizations sent in requests calling for the depublication of the appellate opinion in People v. Gonzalez. On January 23, 2019, the petition for review was denied and the Report of Decisions was directed not to publish in the “Official Appellate Reports” the opinion of People v. Gonzalez (2018) 27 Cal.App.5th 738.

When there is a decision to depublish a Court of Appeal opinion it does not mean that the Supreme Court has overruled the Court of Appeal’s ruling. “Depublication” means that the depublished opinion is not longer precedential and cannot be cited as authority in other matters.

The decision to depublish People v. Gonzalez and deny Supreme Court review is significant in that now the Supreme Court has more time to gain a broader perspective on how the statute is being litigated and applying relief before confirming the appellate court’s interpretation and its broader application of the statute.

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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.