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Last Updated on: 19th March 2023, 01:34 am
Motion to Vacate Judgment – Penal Code 1473.7 PC
California Penal Code 1473.7 PC permits people who are no longer in criminal custody to file a motion to vacate a judgment in a criminal case. The motion can either be based on:
Penal Code 1473.7 became effective on January 1, 2017. Prior to that, most people could only challenge a conviction or sentence within a short period of time – for instance, by filing a habeas corpus petition while still in custody.
Once they were freed from custody, either from jail, prison, parole or probation, they lost their ability to challenge their conviction.
But under PC 1473.7, a motion was to be made with “reasonable diligence” after the defendant receives a Notice to Appear in immigration court or after a deportation order is finalized.
For better understanding of Penal Code 1473.7 motions to vacate, see the topics presented below by the California criminal defense attorneys from Spodek Law Group:
1. Is PC Penal Code 1473.7 necessary?
Before it became effective, people had limited options for challenging their conviction. The most common method applied in challenging the constitutionality of a conviction or sentence was to file a habeas corpus petition.
Rather, a petition for habeas corpus could only be filed while the defendant was still in custody – that is, jail, prison, on probation or parole.
Once someone was erased from the system, the courts no longer had authorization to consider a habeas petition.
As a result, many people had no means to fight back once they were released. In some cases, people wouldn’t even know that the conviction had made them deportable until after several years.
There was no way to go back into court to erase the conviction – even if they entered pleas without a clue or even a slight understanding of the immigration consequences or if the sole complaining witness altered his or her testimony.
2. Vacating based on recently discovered evidence
Recent evidence of innocence is one of the grounds for a motion to vacate under PC 1473.7.
The evidence might include:
3. Vacating based on a prejudicial error
Penal Code 1473.7 permits a court to vacate a conviction or sentence in case of a “prejudicial error.”
To be regarded prejudicial, an error must have damaged the defendant’s ability to meaningfully understand, defend against, or knowingly accept the actual or potential adverse immigration consequences of a plea of guilty or “no contest”.
Scenarios for a motion to vacate based on prejudicial error
Particularly, the scenarios that can lead to a motion to vacate due to prejudicial error are:
The legal meaning of “prejudice”
Regardless of the specific ground(s) for a 1473.7(a) (1) motion, the defendant must be able to prove that the error prejudiced the defendant.
The defendant doesn’t need to show that He or she actually could have achieved a more favorable verdict or plea bargain.
Rather, prejudice is established if the defendant can establish that:
4. How long does it take to file a PC 1473.7 motion?
Motions under Penal Code 1473.7 must be filed with “reasonable diligence” only after the later of the following:
“Reasonable diligence” means without undue delay after the immigrant realizes, or reasonably could have discovered, the evidence supporting the motion to vacate.
However, immigrants do not need to wait for issuance of a notice to appear in order to file a 1473.3 motion. They can file a motion at any time, including when applying for a green card, naturalization, or other immigration benefit.
5. Am I qualified for a hearing on my motion?
Yes. Unlike habeas petitions, in which it may be denied without a hearing, all 1473.7 motions are entitled to hearings before a judge.
6. Is it mandatory to appear in court personally?
It is not necessary. An alien who is in immigration custody or has already been deported is not mandated to appear personally as long the immigrant’s lawyer is present.
7. What happens after my motion is granted?
Once the court grants the motion, the conviction or sentence will be vacated immediately and vanish, as if it never existed. The court then allows the immigrant to withdraw the plea he or she entered in the criminal case.
However, in some cases, the District Attorney refuses to drop the original charges, and the immigrant must still answer for them. This includes a new plea agreement or trial.
But the immigrant will be credited for time already served. Most importantly, the immigrant will have the chance to negotiate a new plea that may have less drastic immigration consequences.
8. Can one appeal if the motion is denied?
Yes. An order allowing or denying a PC 1473.7 motion to vacate can be appealed by either the immigrant or the government.
9. Is there any other scenario for vacating a conviction or sentence?
Yes. Penal Code 1473.7 is not the only scenario for challenging a criminal conviction. In addition to a petition for habeas corpus, other ways of challenging a criminal conviction include, but are not limited to:
Give the California criminal defense attorneys at Spodek Law Group a call today. We will provide you with a free, confidential consultation in office or by phone. We serve many clients in the, the San Fernando Valley, Pasadena, San Bernardino, Rancho Cucamonga, Long Beach, Riverside, San Diego, Oakland, the San Francisco Bay area, Orange County, Sonoma County, Ventura, Sacramento, San Jose, the greater Los Angeles area and throughout the Golden State.
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