Is a Penal Code § 1473.7 Motion to Vacate a Conviction or Sentence Only Available to Non-Citizens Suffering Adverse Immigration Consequences from a Conviction?

While the California Legislature has placed great focus on providing avenues of relief to non-citizen defendants suffering unwitting immigration consequences from a conviction, a wrongfully convicted defendant seeking to vacate a conviction based on “Actual Innocence” lacked a clear jurisdictional avenue to vacate the conviction once no longer in criminal custody.

Many post-conviction relief motions available to defendants in California are focused on providing a mechanism to vacate a conviction or sentence that is currently causing, or has the potential to cause, unexpected adverse immigration consequences to non-citizen defendants. For example, Penal Code section 1016.5, allows a non-citizen defendant to petition the court to vacate a judgment and withdraw a plea if, at the time of the plea, the defendant was not advised that the conviction “may have the consequences of deportation, exclusion from admission to the United States, or denial of naturalization pursuant to the laws of the United States.” (Penal Code § 1016.5(b)). To afford relief to a defendant under Penal Code section 1016.5, the defendant must demonstrate that he is prejudiced by any failure of the court to provide the immigration advisement as proscribed in Penal Code section 1016.5(a) – meaning, the defendant must be suffering from, or have the potential to suffer from, one of the delineated immigration consequences. (People v. Superior Court (Zamudio) (2000) 23 Cal. 4th 183, 199).  

Penal Code section 1473.7, which took effect on January 1, 2017, provided another mechanism for a non-citizen defendant to vacate a conviction or sentence if the defendant made a sufficient showing that he failed to “meaningfully understand, defend against, or knowingly accept the actual or potential adverse immigration consequences of a plea of guilty or nolo contendere.” (Penal Code § 1473.7(a)(1)). A defendant seeking relief under this Section of the Statute need not necessarily be innocent of the underlying criminal charge since the focus of a motion under this Section is on the defendant’s understanding regarding the immigration consequences of the conviction, not his culpability regarding the criminal charges.

 However, in addition to providing a way for non-citizen defendants to petition to vacate a conviction, Penal Code section 1473.7 also provides a clear jurisdictional avenue for a wrongfully convicted defendant to petition the court to vacate a conviction or sentence as a matter of law. (Penal Code § 1473.7(a)(2)). Penal Code section 1473.7(a)(2) states that a person no longer in criminal custody may file a motion to vacate a conviction or sentence if “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.” Thus, for example, a defendant that has actual evidence showing that he was innocent of the charges he was convicted of could use this Statute to file a motion seeking relief from the conviction. This evidence could include eyewitness statements exculpating the defendant, location data showing the defendant was not at the scene of the crime, DNA evidence, or other evidence procured through advances in technology that may not have been available at the time of the defendant’s conviction.

According to this Section, the moving party must establish, by a preponderance of the evidence, that newly discovered evidence of actual innocence exists. (Penal Code § 1473.7(e)(1)). Further, for procedural purposes, this motion must 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.” (Penal Code § 1473.7(c)).

Since its enactment, appellate litigation concerning Penal Code section 1473.7 has been focused on clarifying the procedure and requirements for granting relief under the “immigration section” of the Statute. However, recently, the Fourth Appellate District Court of Appeal issued the first opinion regarding a motion brought under the “actual innocence” section. In People v. Perez, 2020 Cal. App. LEXIS 315, the defendant filed a motion to vacate his two prior gang participation convictions under Section 1473.7(a)(2) arguing that changes in the law now rendered them invalid given the California Supreme Court opinion in People v. Rodriguez (2012) 55 Cal. 4th 1125, changing the circumstances under which a defendant can be found guilty of street terrorism. The trial court denied the motion and the defendant appealed. In its opinion, the Court of Appeal upheld the denial stating that the defendant failed to state what new evidence was discovered. According to the Court of Appeal, the publication of the new appellate opinion in People v. Rodriguez is not “newly discovered evidence” as the term is used in Section 1473.7(a)(2) and, thus, the defendant did not put forward any newly discovered evidence to demonstrate his eligibility for relief.

Despite the defendant being unsuccessful in obtaining relief under Section 1473.7(a)(2), this Court of Appeal opinion provides more clarity into what evidence a defendant must offer to support a motion alleging actual innocence and clearly demonstrates that this Section can be used to seek relief for a wrongfully convicted defendant.


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 Law, APC 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.