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.