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.