A Year's Experience With Penal Code Section 1473.7

• Publication year: 2017
• Author: By Jeffrey A. Aaron

A YEAR'S EXPERIENCE WITH PENAL CODE SECTION 1473.7

By Jeffrey A. Aaron^*

Over a year ago, Governor Brown signed into law a bill which created the new Penal Code (P.C.) §1473.7.¹ Essentially, the law allows a person whose liberty is no longer restrained to file a motion to vacate a conviction or sentence under two circumstances.² The first, subsection (a)(1), occurs when the person could not "meaningfully understand, defendant against, or knowingly accept" actual or potential immigration consequences of a plea of guilty or nolo contendere due to a prejudicial legal error.³The second, subsection (a)(2), occurs when there is newly discovery evidence of actual innocence which requires vacating the sentence as a matter of law or in the interests of justice.⁴

Interestingly enough, this new statute does not tie the timeliness of the motion pursuant to subjection (a)(1) to the date of sentencing, which is typical of habeas corpus petitions.⁵ Rather, the person must file the motion to vacate the conviction or sentence with "reasonable diligence" after whichever occurs later: either the date that the immigration court asserts that the conviction or sentence is a basis for removal, or the date that a removal order predicated on the conviction or sentence becomes final.⁶ If successful, the moving party would be permitted to withdraw the plea of guilty or nolo contendere.⁷

Only two cases have considered the new law.

In People v. Fuentes, No. G051066, 2016 WL 6996226, (Cal. Ct. App. Nov. 30, 2016),⁸ the defendant had been convicted of Health & Safety Code §11352 and successfully completed probation and expunging the conviction. Years later, he was served with a notice of removal in immigration court, and filed a nonstatutory motion to vacate his guilty plea. The Fourth District, Division 3, held that he could not receive relief because he was no longer in constructive custody.⁹ Indeed, despite his having expunged the conviction, he was still not relieved of the immigration consequences.¹⁰ The Court noted that the Legislature had provided a solution. P.C. §1373.7, wrote the Court, "in essence provides Fuentes the means to obtain the relief he sought in the trial court, namely to withdraw his guilty plea."¹¹ The Court went on to say that "nothing suggests it is inadequate or unavailing to afford Fuentes the opportunity he seeks to withdraw his plea on Sixth Amendment grounds,"¹² although it seems an open question whether the federal courts will honor these orders vacating the...