NEW Appellate Opinion Analyzing Penal Code section 1473.7

On July 26, 2019, the California Court of Appeal certified for publication a new appellate opinion analyzing issues pertaining to Penal Code section 1473.7.[1]

In 2016, the defendant in People v. Nicolas Dejesus, 2019 S.O.S. 3656, out of the Superior Court of Los Angeles County, admitted to allegations of assault with a firearm (Penal Code section 245(a)(2)) in exchange for the high term of four years in state prison. The Prosecution dismissed a shoplifting charge (Penal Code section 459.5) and a firearm enhancement (Penal Code section 12022.5).

In July of 2018 Mr. DeJesus filed a motion pursuant to Penal Code Section 1473.7 seeking to vacate his no contest plea to the assault with a firearm allegation while on parole. In his motion, Mr. DeJesus contends that he received ineffective assistance of counsel because his trial attorney at the time, failed to take his case to trial, review other video evidence of the incident, and investigate an alternate, immigration safe plea.

In its opinion, the appellate court ruled Mr. DeJesus is not eligible for relief pursuant to Penal Code section 1473.7 because he remained in “constructive custody.” The appellate court clarified that in order to obtain relief under this statute, the individual cannot be in custody or under restraint. A person currently under parole, like Mr. DeJesus, is under constructive custody, and Section 1473.7 is not applicable to a person under parole at the time the motion is presented.

Mr. DeJesus argued that his trial attorney’s refusal to take his case to jury trial damaged his ability to meaningfully defend against the immigration consequences of his plea. However, the appellate court determined that despite the defendant reporting his attorney’s threat of abandonment to the trial court, he failed to provide testimony or a declaration on behalf of the trial attorney as evidence to support his argument.

On the issue of prejudice, the court clarified that under the Section, a defendant must demonstrate, “by a preponderance of evidence that he would never have entered the plea if he had known that it would render him deportable.” However, the appellate court found that Mr. DeJesus’s wish to vacate his conviction under Section 1473.7 was not based on his deportability, but on the belief that he was not guilty.

Ultimately, the appellate court held that Mr. DeJesus is not a person entitled to relief under Section 1473.7 since he is currently on parole. It also held that his claim of prejudicial error is not supported by the substantial evidence. Additionally, he failed to show by a “preponderance of the evidence” that his plea was legally invalid.


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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.