WHAT IS A PENAL CODE 1473.7 MOTION?
Penal Code 1473.7 provides noncitizen immigrant defendants who are no longer in criminal custody with a legal vehicle to challenge the unlawful conviction. This law provides an important opportunity for non-citizens to challenge convictions when the noncitizen defendant failed to meaningfully understand, knowingly accept, or defend against the immigration consequences of a criminal conviction. This law provides immigrant defendants prejudiced by an uninformed plea of guilty a remedy from harsh immigration consequences such as deportation, exclusion from admission, or denial of naturalization.
Penal Code Section 1473.7 offers a remedy for immigrant defendants that are facing adverse immigration consequences and do not qualify for other forms of relief. For instance, an immigrant defendant who did not understand the adverse consequences of a plea but a review of the Court file does show that the court advised the immigrant defendant pursuant to PENAL CODE SECTION 1016.5 he or she can still make a claim pursuant to Penal Code Section 1473.7. Penal Code Section 1473.7 is also provided a remedy where a writ of HABEAS CORPUS RELIEF or CORAM NOBIS cannot since it is a statutory remedy that was enacted by the California Legislature to provide a remedy for those who were previously without one.
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On January 1, 2017, California Penal Code section 1473.7 went into effect, providing noncitizens who are no longer in criminal custody with a legal vehicle to challenge old, unlawful convictions. In essence, Penal Code section 1473.7 provides a remedy for immigrant defendants who did not meaningfully understand the immigration consequences of a conviction at the time of their plea, even if the prejudicial error was their own misunderstanding of the adverse immigration consequences of the plea.
Penal Code section 1473.7 provides an opportunity for noncitizens to challenge convictions when a noncitizen defendant fails to meaningfully understand, knowingly accept, or defend against the immigration consequences of a crime. In 2018 the California Legislature amended Penal Code section 1473.7 since some courts mistakenly interpreted section 1473.7(a)(1) to apply solely to claims of ineffective assistance of counsel, ignoring the statutory language that a claim could be made based on the defendant’s subjective inability to “meaningfully understand” or “knowingly accept” the immigration consequences of a plea. Instead, it was found that the law must be interpreted in the interests of justice and in accordance with the findings and declarations of California Penal Code section 1016.2.
Penal Code section 1016.2 describes the severe and disproportionate impact that criminal consequences can have on noncitizen defendants and the damage that deportations can cause to United States citizen family members as well as to their surrounding communities. See below for more about Penal Code section 1016.2 and the protections that it provides to noncitizen defendants.
The experienced post-conviction relief attorneys at Uribe & Uribe APLC can provide expert advice for noncitizens with concerns related to a criminal conviction on their record and how the conviction will impact his or her immigration status. Before one begins the post-conviction process it is important to determine whether one qualifies for a post-conviction vehicle that will allow the noncitizen or immigrant defendant to vacate his or her conviction. If you or a loved one is in need of post-conviction relief to vacate a criminal conviction that is now causing adverse immigration consequences it is important to engage competent counsel capable of guiding you through the post-conviction process.
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Section 1473.7, subdivision (a)(1), allows anyone not in criminal custody to file a motion to vacate a conviction if “the conviction or sentence is legally invalid due to prejudicial error damaging the moving party’s ability to meaningfully understand, defend against, or knowingly accept the actual or potential adverse immigration consequences of a plea of guilty…” The statute mandates “all motions shall be entitled to a hearing,” and empowers the courts to hold such a hearing outside the presence of the moving party only if “it finds good cause as to why the moving party only if “it finds good cause as to why the moving party cannot be present.” See section 1473.7, subdivision (d). They did so by enacting section 1473.7, which “created an explicit right for a person no longer imprisoned or restrained.” Under this provision, a court “shall” vacate a conviction or sentence upon a showing, by a preponderance of the evidence, of “prejudicial error damaging the moving party’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.” See Penal Code section 1473.7(e)(1), (a)(1). A finding of prejudicial error under this provision may, but need not, be based on ineffective assistance of counsel. If the motion is meritorious, “the court shall allow the moving party to withdraw the plea.”
If you feel that you may qualify for relief from adverse immigration consequences please contact Uribe & Uribe APLC to schedule a consultation.
Relevant Case Law:
People v. Lopez; B315320; set for publication on September 26, 2022 California Appellate 2nd District, Division 2
In People v. Lopez, Mr. Lopez pled guilty in 1998 to one count of 2nd-degree robbery for using a replica .45 caliber handgun to rob convenience stores. He was sentenced to two years of state prison. On appeal, the California Appellate Court reversed the Los Angeles Superior Court’s decision to deny Penal Code section 1473.7 relief. In its denial, it was held that Mr. Lopez’s declaration set forth a reasonable basis for his erroneous belief that he would suffer no adverse immigration consequences because he was a lawful permanent resident which he thought would shield him from any adverse consequences. Further, the appellate court observed that Mr. Lopez’s lawyer never asked about his immigration status and never told him that a robbery conviction would subject him to mandatory deportation. Even though Mr. Lopez’s attorney’s conduct did not equate to ineffective assistance of counsel pursuant to the Strickland analysis, it was recognized that his attorney’s conduct, amongst other things, contributed to Mr. Lopez’s misunderstanding causing him to suffer prejudice. The Appellate Court went on to recognize that prejudice means “demonstrating a reasonable probability that Mr. Lopez would have rejected the plea if he had correctly understood its actual and or potential immigration consequences. The Court of Appeal also considered the totality of circumstances noting that Mr. Lopez showed prejudice in his misunderstanding of the immigration consequences associated with this plea since he was young and inexperienced, with no prior record; he got no advice from his lawyer; he assumed his lawful permanent resident status would protect him; he had no ties to Mexico and strong ties to the US.
People v. Manzanilla (2022) 80 Cal. App. 5th 891
In People v. Manzanilla (2022), Mr. Manzanilla pled guilty in 2014 to a misdemeanor violation of Penal Code section 273.5 (corporal injury to a spouse) and was sentenced to 365 days in jail. Unbeknownst to Mr. Manzanilla, under federal immigration law, this sentence made him an aggravated felon subjecting him to mandatory deportation. Seeking to vacate the conviction to avoid deportation Mr. Manzanilla filed a penal code section 1473.7 motion in the Los Angeles Superior Court. The lower court denied the petition and the Court of Appeal reversed. The appellate court held that the defense counsel failed to advise the defendant that his plea would subject him to mandatory deportation and observed that the defense counsel failed to seek an immigration-safe plea. Finally, it was recognized that Mr. Manzanilla’s attorney’s conduct caused Mr. Manzanilla’s misunderstanding that he would face mandatory deportation if he pled.
People v. Josefina Ruiz (2020) 49 Cal App. 5th 1061
The decision in Ruiz considers the question as to whether an immigrant advised pursuant to Penal Code §1016.5 that a plea of guilty “may” or “will” may make her deportable when considering a guilty plea for a violation of Health and Safety Code §11351.5. Ms. Ruiz moved to vacate her 1991 conviction for possession for sale of cocaine base (Health and Saf. Code, §11351.5.) a plea that the Ruiz court reasoned will render the defendant subject to mandatory removal. In Ruiz, the petitioner claimed that her trial counsel did not advise her that a mandatory consequence of her plea would make her “permanently ineligible to ever become a legal resident of the United States.” Ms. Ruiz initialed an advisement in the written plea agreement stating, “I understand that if I am not a citizen of the United States, the conviction for the offense charged may have the consequence of deportation, exclusion from admission to the United States, or denial of naturalization pursuant to the laws of the United States. The decision in Ruiz finds that Ms. Ruiz was not provided adequate immigration advisement considering the nature of the conviction that he was pleading to wit the sale of cocaine base. The Ruiz court reasoned that “under section 1016.5, subdivision (a) defendants must be advised: “If you are not a citizen, you are hereby advised that conviction of the offense for which you have been charged may have the consequence of deportation, exclusion from admission to the United States, or denial of naturalization pursuant to the laws of the United States” but the California Supreme Court has held, however, that the words “may have” in a section 1016.5 immigration advisement are not adequate immigration advisement for defendants charged with serious controlled substance offenses, instead defendants must be advised that they will be deported, excluded, and denied naturalization as a mandatory consequence of the conviction. See People v. Patterson. “A defendant entering a guilty plea may be aware that some criminal convictions may have immigration consequences as a general matter, and yet be unaware that a conviction for specific charged offense will render the defendant subject to mandatory removal.” See People v. Patterson, see also People v. Espinoza (2018).
People v. Camacho (2019) 32 Cal. App. 5th 998
The Camacho Court recognizes that as first enacted, Penal Code Section 1473.7 provides in relevant part that “a person no longer imprisoned… may prosecute a motion to vacate a conviction … that is legally invalid due to a prejudicial error damaging the moving party’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.” Section 1473.7, subdivision (e)(1), which remains unchanged, provides: “The court shall grant the motion to vacate the conviction or sentence if the moving party establishes, by a preponderance of the evidence, the existence of any ground for relief specified in subdivision (a).” In the two years that followed the enactment of Penal Code Section 1473.7, courts uniformly assumed, that moving parties who claim prejudicial error caused by having received erroneous or inadequate information from counsel, must demonstrate that counsel’s performance fell below an objective standard of reasonableness under prevailing norms, as well as a reasonable probability of a different outcome if counsel has rendered effective assistance. Those courts either expressly or impliedly followed the guidelines enunciated in Strickland v. Washington (1984), People v. Espinoza (2018), People v. Tapia (2018), People v. Olvera (2018), People v. Ogunmowo (2018), and People v. Perez (2018). It is important to note that the rule established in Penal Code Section 1473.7 like any other statute is based upon statutory interpretation by judges who apply the law to the facts of a petitioner’s particular case. Where a party moves to vacate their conviction under section 1473.7, the moving party is required only to show that one or more of the establoished errors were prejudicial and damaged his ‘ability to meaningfully understand, defend against, or knowingly accept the actual or potential adverse immigration consequences of his plea.” See People v. Camacho. The decision in Camacho provides insight into how the law can be applied to help immigrant defendants seeking post conviction relief. Thus, in order to make a prima facie showing of entitlement to relief, a party must allege (1) some error, and (2) that the alleged error prejudiced their ability to meaningfully understand, defend against, of knowingly accept the plea. An error may prejudice a moving party “when there is a reasonable probability that the person would not have pleaded guilty- and would have risked going to trial (even if only to figuratively throw a ‘Hail Mary’}- had the person known that the guilty plea would result in mandatory and dire immigration consequences.” People v. Mejia (2019).
People v. Mejia (2019) 36 Cal.App. 5th 828
In People v. Mejia (2019) the California Appellate Court held that to establish prejudicial error under Penal Code section 1473.7, a defendant need only prove by a preponderance of the evidence: “(1) [he] did not ‘meaningfully understand’ or ‘knowingly accept’ the actual or potential adverse immigration consequences of the plea; and (2) had [he] understood the consequences, it is reasonably probably [he] would have instead attempted to ‘defend against’ the charges.” The prejudicial errors include Mr. Mejia’s own misunderstanding of the long-term immigration consequences of his plea as well as the absence of specific immigration advice from his own attorney and the trial court regarding how this conviction would affect his long-term prospect of becoming a United States citizen.
People v. Vivar (2020) 11 Cal. App. 5th 510
In People v. Vivar (2019) the court there noted that a ‘prejudicial error’ for purposes of Penal Code section 1473.7 occurs when there is a reasonable probability that the person would not have pled guilty had he or she has known that the guilty plea would result in mandatory and dire immigration consequences. The question Court in Mr. Vivar’s case considered whether he would have received a more favorable outcome in the case overall or whether he would have been convicted of the same crimes even if he had proceeded to trial. Instead, the focus of the appellate court was whether, if aware of its immigration consequences, Mr. Vivar would have rejected the plea. The appellate court ruled overturning the lower court that Mr. Vivar need only show contemporaneous evidence demonstrating a reasonable probability that but for the alleged error, he would not have entered a guilty plea. Further, it was held that in order to prevail on the motion, he must show prejudice if he can convince the court “he would never have entered the plea if he had known that it would render him deportable.” In its reasoning, the Court of Appeal determined that the trial counsel failed to advise Mr. Vivar of “the certain immigration consequences of his plea.” Because of this failure counsel’s representation was deemed to be “constitutionally deficient.” In closing the appellate court determined Mr. Vivar was prejudiced within the meaning of section 1473.7, subdivision (a)(1).
The Right To Bring A Motion Under Section 1473.7
The Right To Bring A Motion Under Section 1473.7
Section 1473.7 was enacted in 2017. It authorized a defendant to “prosecute a motion to vacate a conviction” that is “legally invalid due to prejudicial error damaging the moving party’s ability to meaningfully understand, defend against, or knowingly accept the actual or potential adverse immigration consequences of a plea.” (Former section 1473.7(a)(1).)
In 2018, the Legislature passed Assembly Bill No. 2867 to modify section 1473.7. This new law, effective January 1, 2019, made it easier to retroactively challenge convictions based on the ground that the defendant was not properly advised of the immigration consequences. Before the passage of Assembly Bill No. 2867, Courts had ruled that defendants filing section 1473.7 motions and claiming their counsel erred on immigration advisements had to meet the standards required by Strickland v. Washington (1984). Effective in 2019, the Strickland requirement was eliminated in the People v. Camacho decision. Now the trial court may set aside a conviction based on counsel’s immigration advisement errors without a “finding of ineffective assistance of counsel.” Instead, a defendant need only show that there were “one or more” errors that “were prejudicial and damaged [defendants] ‘ability to meaningfully understand, defend against, or knowingly accept the actual or potential adverse immigration consequences of [his or her] plea.
Defendants who lack United States citizenship sometimes face not only penal sanctions but also harsh immigration consequences if convicted. Because of this, pleas accepted in the shadow of deficient advice about the risks of deportation can have “dire” repercussions. People v. Superior Court (Giron) Section 1473.7 offers a remedy in the form of permission to withdraw a plea. But it’s a remedy available only to some: those who have completed their sentences and who suffered a prejudicial error that damaged their ability to meaningfully understand, defend against, or knowingly accept the plea’s actual or potential immigration consequences. Penal Code section 1473.7. A moving party demonstrates prejudice by showing that in the absence of the error regarding immigration consequences, it’s reasonably probable the moving party would not have entered the plea.
Actual Innocence
Actual Innocence
Section 1473.7 also creates a vehicle to enable both noncitizens and U.S. citizens to raise claims of actual innocence, even after custody has ended. Penal Code Section 1473.7 creates a vehicle to vacate a criminal conviction or sentence with no custody requirement or time limit. Before the enactment of Penal Code Section 1473.7 under California Law immigrant defendants facing harsh immigration consequences would have limited options. Immigrant defendants in this situation would have to make arguments in HABEAS CORPUS or CORAM NOBIS writs and then hope that he or she would be granted a court hearing to argue the motion.
The problem with this is that these writs Habeas Corpus and Coram Nobis writs are limited in scope. For instance, a Habeas Corpus writ is only available to defendants who are currently in constructive or actual custody. The reasoning behind this expressed by the California Supreme Court is that the Court no longer has jurisdiction over the criminal defendant if the custody element is not there. Now with Penal Code Section 1473.7, the “custody” requirement is not necessary to make a similar type of argument.
As an alternative immigrant defendant turned to a writ of coram nobis as a way around the custody obstacle. This was no easy feat since in 2009 the California Supreme Court in People v. Kim held that claims of ineffective assistance of counsel (because of bad immigration advice) could not be raised in coram nobis petitions.
This motion may be made on two general grounds:
- 1Legal invalidity due to a prejudicial error damaging the defendant’s ability to knowingly accept or defend against the actual or potential adverse immigration consequences of a plea of guilty or nolo contendere, or
- 2Newly discovered evidence of actual innocence exists that requires vacation of the conviction or sentence as a matter of law or in the interest of justice.
AMENDMENTS TO PENAL CODE SECTION 1473.7
To ensure consistent application of the law and the full realization of the statute’s intent, the California Legislature approved amendments to the Statute. Effective January 2019, the California Legislature clarified, “A finding of legal invalidity may, but need not, include a finding of ineffective assistance of counsel.” See section 1473.7(a)(1).
Criminal Custody
Criminal custody is the only jurisdictional requirement in the Penal Code 1473.7a(1) motion. A criminal court can exercise jurisdiction over any Section 1473.7 claim brought while the noncitizen immigrant defendant is no longer in actual or constructive custody. This amendment is in line with the reasoning in the People v. Morales (2018) decision. The decision in Morales held that the moving party (the party making the motion) must not necessarily be in immigration removal proceedings in order to bring forth a motion. In Mr. Morales’s situation, he was in the process of applying for a U-Visa (a visa granted for those that are victims of crimes) when he sought Penal Code Section 1473.7 relief. The court found since Mr. Morales was seeking relief so that he can avoid an adverse ruling on his U-Visa application he is able to seek the remedy offered in Penal Code Section 1473.7.
Interpreted in the Interest of Justice
A motion brought forth under Penal Code Section 1473.7 must be interpreted by the Court in the “interests of justice” and consistent with California Penal Code Section 1016.2. California Penal Code Section 1016.2 describes the severe and disproportionate impact that criminal consequences can have on non-citizen defendants and the damage that deportations can cause to U.S. citizen family members and communities. By including a specific citation to Section 1016.2 in the findings and declarations, the Legislature encourages courts to review Penal Code section 1473.7 motions with the stated purpose of mitigating the disproportionate and unjust ongoing consequences of the convicted crime.
Relief Available Even if Other Forms of Post Conviction Relief Have Been Granted
In line with the interest in Courts have jurisdiction over a Section 1473.7 motion, even if the moving party has already received a Section 17(b) reduction or Section 1203.4 expungement. This amendment is consistent with established case law. Meyer v. Superior (1966).
Legal Invalidity
A Penal Code Section 1473.7 claim can be made based on the defendant’s subjective inability to “meaningfully understand” or “knowingly accept” the immigration consequences of a plea. This means that there can be any number of grounds for legal invalidity that is not limited to a claim of ineffective assistance of counsel.
Developing Case Law
It Is Not Necessary To Show Ineffective Assistance Of Counsel
It Is Not Necessary To Show Ineffective Assistance Of Counsel
The Court in Camacho recognized that the errors need not amount to a claim of ineffective assistance of counsel, it follows that courts are not limited to the Strickland test of prejudice, whether there was a reasonable probability of a different outcome in the original proceedings absent the error. See Strickland 466 U.S. at 694 as cited by Camacho.
The Camacho Court cites the following controlling cases in its prejudice analysis; In Martinez, the court concluded that because “the defendant’s decision to accept or reject a plea bargain can be profoundly influenced by the knowledge, or lack of knowledge, that a conviction in accordance with the plea will have immigration consequences …, and because the test for prejudice considers what the defendant would have done, not what the effect of that decision would have been, a court ruling on a §1016.5 motion may not deny relief simply by finding it not reasonably probable the defendant by rejecting the plea would have obtained a more favorable outcome. Instead, the defendant may show prejudice by “convincing the court that he would have chosen to lose the benefits of the plea bargain despite the possibility or probability deportation would nonetheless follow.” See also Lee v. United States (2017) )__ U.S.__ [137 S. Ct. 1958] (Lee); Ogunmowo, supra, 23 Cal. App. 5th at 78 – 80. The principles found in Martinez and Lee apply equally to a prejudice analysis under §1473.7. See Ogunmowo, supra, 23 Cal. App. 5th at p. 78.
As the United States Supreme Court pointed out, “[C]ommon sense (not to mention our precedent) recognizes that there is more to consider than simply the likelihood of success at trial. The decision whether to plead guilty also involves assessing the respective consequences of a conviction after trial and by plea. Lee, supra, 137 S. Ct. at 1966. For instance, in Lee, the court found that the defendant had demonstrated a reasonable probability that he “would have rejected any plea leading to deportation- even if it shaved off prison time- in favor of throwing a ‘Hail Mary’ at trial.” The Court there reasoned, Mr. Lee lived in the United States for decades [since leaving his home country], had established businesses, and maintained a family with an American citizen wife, and American-born children. The Camacho court offers a test, in applying the rules established to determine prejudice. The considerations include the age the defendant was brought to the United States, whether the defendant was educated in the United States, travel outside the United States, as well as community and family ties, marital status, children, and employment status.
PENAL CODE SECTION 1016.5 WARNING DOES NOT PRECLUDE RELIEF
A defendant can be granted section 1473.7 relief notwithstanding the Penal Code §1016.5 warning he or she received from the judge during the plea hearing. The California Supreme Court has explained, “[d]efense counsel clearly has far greater duties toward the defendant than has the court taking a plea.” In re Resendiz (2001) abrogated on other grounds by Padilla, 559 U.S. 356. To “construe §1016.5 as a categorical bar to immigration-based ineffective assistance claims ‘would deny defendants [who prove incompetence and prejudice] a remedy for the specific constitutional deprivation suffered.” (rejecting the State’s suggestion that a §1016.5 warning should shield pleas from collateral attack). California Penal Code §1016.5(a) requires that “[p]rior to acceptance of a plea of guilty or nolo contendere to any offense punishable as a crime under state law . . . the court shall administer . . . [an] advisement on the record” about immigration consequences to the defendant. If good advice had come from a defendant’s own attorney—someone who he held in a position of trust and whose job it was to look out for his interests—it would have likely had a different effect. See People v. Resendiz, (explaining that defense counsel has an obligation to “assist the defendant,” after conducting a reasonable investigation, and “owes the client a duty of loyalty,” whereas the court does not); People v. Soriano, (noting that “a defendant may reasonably expect that before counsel undertakes to act at all he will make a rational and informed decision on strategy and tactics founded on adequate investigation and preparation”. The court’s warning about immigration advise came at a stage in the plea-bargaining process when he had already decided to plead guilty.
The warning was effectively a post-hoc formality for a bargain that had already been struck. The California Legislature did not intend, with §1016.5, to replace the role of a defense attorney. In fact, “[b]oth commentary and statute are concerned with the self-evident proposition that a defendant’s in-court responses to rights advisement should not be made ‘off-the-cuff.’ Instead, they should reflect informed decisions he has reached after meaningful consultation with his attorney.” People v. Soriano. “[T]hat a defendant may have received [a] valid §1016.5 advisement from the court does not entail that he has received effective assistance of counsel in evaluating or responding to such advisements.” People v. Resendiz. Many defendant’s rely on professional advice and her or his attorneys maintain a duty to provide accurate advice. People v. Ogunmowo. When one reviews the wording of penal code §1016.5, one can see that it does not touch on this important role of defense counsel at all. It certainly cannot mitigate or cure any prejudice resulting from the counsel’s failure to fulfill this duty. Perhaps for these reasons, California courts have considered immigrants’ claims of ineffective assistance of counsel claims even where they were provided with the required §1016.5 warning. See, e.g., Resendiz; Soriano, (granting habeas petition for ineffective assistance of counsel despite adequate §1016.5 warning); Bautista, (granting evidentiary hearing after finding ineffective assistance due to counsel in the absence of any allegation that court had failed to provide §1016.5 warning). See also People v. Padilla, (granting remand based on ineffective assistance of counsel despite noting that Kentucky courts provided notice of possible immigration consequences on its standard plea form). In People v. Patterson the California Supreme Court reaffirmed the right of an immigrant defendant to withdraw the guilty plea if unaware of the immigration consequences of the conviction at the time of the plea.
A criminal court’s general advisement of potential immigration consequences is no substitute for defense counsel’s unique legal duty to provide case- specific advice about and defense from, the immigration consequences of a conviction. See generally People v. Patterson (2017) (holding that a section 1016.5(a) advisement does not bar section 1018 relief because, unlike defense counsel’s duties, it does not inform the defendant of the actual immigration consequences which may be a material matter in deciding whether a noncitizen will plead guilty. In sum, the Court has full authority to a motion to vacate notwithstanding that he received a §1016.5 warning.
