Motion to Vacate a Conviction or Sentence in California

Post Conviction Relief under California Penal Code 1473.7 PC

Unlike other post conviction relief options, a motion to vacate a conviction or sentence under California Penal Code § 1473.7 PC can be filed while in custody or after you have been released. Daryl Anthony, Orange County criminal defense lawyer, is an expert on this type of post conviction relief and has already helped numerous individuals challenge their convictions in order to clean their record and/or not be deported. The motion can be based on either:

A prejudicial error which 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”); or
Newly discovered evidence that can prove innocence.

A motion to vacate a conviction or sentence under Penal Code § 1473.7 became effective on January 1, 2017. It is a brand new tool that can be used to challenge a conviction like never before. Prior to this, there was a very small window of opportunity to challenge a conviction, and most people could only accomplish this by filing a habeas corpus petition while still in custody.

Without this new motion, once people were released from custody, all rights for challenging their conviction were lost. Penal Code 1473.7 will open doors for many people, and a motion need only be made with “reasonable diligence” after the defendant receives a Notice to Appear in immigration court or after a deportation order becomes final.

1. Why is PC Penal Code §1473.7 Motion to Vacate a Conviction or Sentence necessary?

Effective January 1, 2017, Penal Code §1473.7 gave people an unprecedented opportunity to challenge a conviction that would otherwise be a permanent part of your criminal record. Before then, if you were still in custody, you could challenge a conviction with a habeas corpus petition; however, many people do not know that you must file that while still in custody. Once you are released, a habeas corpus petition is no longer an option.

At the end of the day, many people were left with no options of post conviction relief. Some convictions will even make people eligible for deportation, and in some cases, people don’t even know it until it is too late. Too late meaning that it is too late to file a habeas corpus petition.

However, with a Motion to Vacate a Conviction or Sentence in California now available as an option for post conviction relief, Daryl Anthony has been helping numerous individuals in Orange County and across Southern California.

2. Post conviction relief in California based on newly discovered evidence

New evidence of innocence is one qualification for successfully filing a motion to vacate a conviction or sentence under PC §1473.7.

3. Post conviction relief in California based on prejudicial error

A Motion to Vacate a Conviction or Sentence can also be granted if there is “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 no contest.

4. How long do I have to file a Motion to Vacate a Conviction or Sentence?

“Reasonable diligence” is the time period defined to file motions under Penal Code §1473.7. The “reasonable diligence” refers to after the later of the following:

The date on which the immigrant receives a notice to appear in immigration court based on the conviction or sentence; or
The date on which a removal or deportation order based on the conviction or sentence becomes final.

In short, as long as you file the motion in a reasonable amount of time that it would take to discover evidence supporting your motion, you will not have any problems. Additionally, individuals do not need to wait for any notices to file their motion. A motion to vacate a conviction or sentence under California Penal Code §1473.7 can be filed at any time.

5. Am I entitled to a hearing on my Motion to Vacate a Conviction or Sentence?

Yes. All motions under Penal Code §1473.7 are entitled to hearings before a judge.

6. Do I need to appear in court personally?

Not necessarily. If you are in custody or have already been deported, Daryl Anthony can appear in court on your behalf.

7. What happens if my motion is granted?

If the court grants the motion, the conviction or sentence will be vacated. Your record will be clean of the plea and conviction as if it had never happened.

Should the district attorney choose to drop the original charges, the incident will be concluded. If criminal charges are still pursued, the individual being charged will still need to enter a new plea or have a new trial. Credit for time served will be granted, and the individual will have an opportunity to have Daryl Anthony negotiate a new plea agreement that could result in lesser consequences. In many cases, Daryl Anthony can use time served or other tools to allow for relief from harsher punishment. Additionally, negotiated lesser consequences could mean that you would no longer be deported.

8. Is there an appeal for denied Motions to Vacate a Conviction or Sentence?

Yes, a denied motion can be appealed by either the immigrant or the government.