Newly-Enacted PC 1473.7 Vacates Old Convictions

On January 1, 2017, California Penal Code section 1473.7 went into effect. This is good news for non-citizens who wish to vacate old convictions, but who are no longer in custody or on probation.

There are two main grounds under which to file a motion under PC 1473.7: (1) a prejudicial error damaging 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, or (2) newly discovered evidence of actual innocence.  This law was designed to help non-citizens who were provided ineffective assistance of counsel regarding the immigration consequences of their guilty pleas.

Before the enactment of PC 1473.7, if a noncitizen was no longer serving a sentence or on probation, they were not able to vacate a guilty plea based on the above-mentioned grounds for filing this motion. Now, non-citizens with even very old convictions can file this new motion to vacate a conviction with harsh immigration consequences.

Because this new law vacates a conviction based on a legal defect, the result is that the conviction is eliminated for all purposes, including immigration purposes.

The full text of the new law can be found here.

 

PC 1203.43 Removes Convictions for Immigration Purposes

Recently-enacted California Penal Code § 1203.43 helps to prevent the unintended immigration consequences of Deferred Entry of Judgment (DEJ), by eliminating the DEJ as a drug “conviction” for immigration purposes.

Before the enactment of Cal. Pen. Code § 1203.43, non-citizens who successfully completed DEJ still had a drug “conviction” for immigration purposes, even though Cal. Pen. Code § 1000 provides that it is not a conviction “for any purpose.” These “convictions” led to many non-citizens being subject to removal from the country. Recognizing the discrepancy between the clear language of Cal. Pen. Code § 1000 and how federal law defines a “conviction,”  the California Legislature enacted § 1203.43 in order to rectify the situation where defendants who pled guilty and were given DEJ actually do have their convictions erased for all purposes.

The Law Offices of Andres Bustamante has successfully litigated 1203.43 motions in criminal court and, based on those motions, terminated immigration proceedings in order to help non-citizens avoid the disastrous immigration consequences of a guilty plea in a DEJ case.