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Penal Code 1473.7 Motion to Vacate a Judgement

What Is Penal Code 1473.7?

Penal Code 1473.7 is a rule of criminal procedure that allows individuals who were charged and convicted of a crime—but who are no longer in custody—to ask the court to vacate the judgment against them. The main thrust of PC 1473.7 is to provide conviction relief to qualifying individuals who, while not in physical criminal custody, face immigration consequences stemming from their conviction.

Prior to PC 1473.7 becoming law, those who were still in criminal custody as a result of a conviction could petition the court for relief through a writ of habeas corpus. However, because “custody” is a required element for any petition for writ of habeas corpus, those who had served their sentence and were no longer incarcerated were ineligible for relief. Penal Code 1473.7 changes this, conferring eligibility to qualifying individuals who are no longer in criminal custody.

When Can You File a PC 1473.7 Motion?

Penal Code 1473.7 provides three situations in which the court can grant relief and vacate a judgment against a petitioner:

  1. The petitioner’s conviction or sentence is legally invalid because they were unable to meaningfully understand, defend against, or knowingly accept the actual or potential adverse immigration consequences of a conviction or sentence.
  2. The petitioner presented newly discovered evidence of actual innocence that requires the conviction or sentence to be vacated.
  3. The petitioner’s conviction or sentence was sought, obtained, or imposed on the basis of their race, ethnicity, or national origin.
How Long Do You Have to File a Motion to Vacate Judgement?

Unlike many other forms of post-conviction relief, the timeline for filing a Motion to Vacate Judgment under PC 1473.7 is somewhat more relaxed. In fact, in a 2021 appellate opinion, the Fourth District explained the timeline as “strikingly generous.”

Under PC 1473.7(b), a Motion to Vacate is considered timely if the petitioner is not in criminal custody and it was filed with “reasonable diligence” following one of the following two events:

  1. The petitioner receives notice from immigration authorities that their conviction or sentence may be the basis for removal or the denial of an application for an immigration benefit, lawful status, or naturalization.
  2. The petitioner receives notice that a final removal order has been issued against them based on the conviction or sentence they are trying to vacate.

Of course, there is plenty of room for interpretation when it comes to determining what constitutes “reasonable diligence.” For example, the court in People v. Hernandez (5th District Court of Appeal Case Nos. F084272, F084329) found that the petitioner acted with reasonable diligence when there was a 30-month delay between the petitioner’s deportation and when he filed his Motion to Vacate. However, the court explained that every case would depend on the unique facts presented.

What Happens if You Are Successful in a PC 1473.7 Motion?

If you are successful in a motion under California Penal Code 1473.7, the court will vacate your conviction or sentence, which can have several significant consequences. Vacating the Conviction or Sentence: The primary outcome of a successful PC 1473.7 motion is that the court officially nullifies your conviction or sentence. This means that legally, the conviction is treated as though it never occurred.

Potential for Re-Trial: Vacating a conviction does not necessarily mean you are entirely off the hook. Depending on the circumstances, the prosecution may decide to re-try you on the same or similar charges.

Removal of Certain Consequences: A successful motion can lead to the removal of various penalties and disabilities that come with a conviction. For example, it can eliminate certain barriers to employment, restore rights that were stripped as a result of the conviction, and potentially alleviate adverse immigration consequences, such as deportation or ineligibility for naturalization.

Potential Adjustment of Immigration Status: For non-citizens, vacating a conviction that was based on incorrect legal advice or a misunderstanding of the plea's immigration consequences can be crucial. It can lead to a reassessment of their immigration status and may prevent deportation or other immigration penalties.

Relief from Fines and Restitutions: Depending on the specific case and original sentencing, the court’s decision to vacate the conviction might also relieve the individual from the obligation to pay certain fines or restitutions.

How Can an Attorney Help in Preparing a Motion to Vacate Judgement?

Once you determine that you are likely eligible to file a Motion to Vacate, it is essential that you enlist the help of an experienced Los Angeles criminal appeals lawyer. Motions to Vacate rest at the intersection of criminal and immigration law, meaning they are both high-stakes and exceedingly complex.

The first thing your California appellate attorney will do is assess your eligibility. This will typically involve a detailed review of the record to uncover facts supporting your position that you are eligible to file the Motion to Vacate. Depending on the situation, this may require your attorney to interview your former trial attorney to better understand the conversations they had with you leading up to your trial. After all, one of the most used eligibility criteria is trial counsel’s failure to adequately advise clients of the immigration consequences of a plea or conviction.

An experienced Los Angeles criminal appeals lawyer will also be able to effectively prepare your Motion to Vacate, ensuring that it complies with all procedural requirements. Because this is a relatively new area of the law, your lawyer will also scour all recent appellate opinions to account for any new or emerging trends that may impact the selected strategy. And, of course, if your motion leads to a hearing, having an attorney to articulate your arguments and challenge opposing viewpoints can be indispensable. In short, they will deliver a compelling case for why your judgment should be vacated.

Are You Interested in Learning More About Motions to Vacate under PC 1473.7?

If you were previously convicted of a crime and recently learned that your conviction or sentence resulted in previously unknown immigration consequences, a Motion to Vacate under PC 1473.7 is something to look into. At Power Trial Lawyers, our dedicated team of Orange County criminal defense attorneys has experience helping clients navigate criminal defense cases in court. We’re immediately available to discuss your situation during a free consultation. To learn more, give Power Trial Lawyers a call at 213-800-7664 or connect with us through our secure online contact form.

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