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Post Conviction Relief


California Penal Code§ 1473.7 allows you to vacate an old California 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)(l )). 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.

Penal Code §1473.7 allows a court to vacate a conviction or sentence if there was "prejudicial error." To be 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 nolo contendere ("no contest"). The defendant must prove that the error prejudiced the defendant. The defendant does not need to show that he/she actually could have obtained a more favorable verdict or plea bargain. Prejudice is shown if the defendant can establish that: The defendant would not have pleaded guilty absent the error, or a decision to reject the plea bargain would have been rational under the circumstances

Specifically, the scenarios that can lead to a motion to vacate due to prejudicial error are:

  • Defense counsel violated the duty to investigate and accurately advise the defendant about the specific immigration consequences of a plea;
  • Defense counsel failed to defend against immigration consequences of a plea by attempting to plea bargain for an immigration-safe alternative disposition; or
  • The defendant failed to meaningfully understand the immigration consequences of a conviction (for instance, because of violation of the right to an interpreter).

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." 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.

If the court grants your request to withdraw your guilty plea, the court will then vacate your conviction and it will appear as though the conviction never occurred.


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