POST-CONVICTION RELIEF FOR FOREIGN NATIONALS CONVICTED IN CALIFORNIA

By Jeffrey A. Aaron^*

When Penal Code section 1473.7 was first discussed in this Journal in the Fall of 2017, there were only two cases that had considered the statute.¹ There are now, after the third anniversary of the statute being signed into law,² significantly more. The legislature clearly perceived a need for additional relief, designing the statute to enable defendants, when not advised of the immigration consequences of the plea, and when "other and more traditional collateral relief measures are not available,"³ to withdraw their pleas. It seems that criminal defense and immigration lawyers are using this statute more often, and more successfully. Given the importance of the immigration issue nationwide, one should expect this to continue; indeed, following the amendment of the statute in 2018, the number of reported cases increased.⁴

1. Case Law Before the 2019 Amendments

People v. Perez (2018) 19 Cal.App.5th 818, dealt with timeliness and the defendant’s burden of proof. The defendant pleaded guilty in 2005 and did not file his section 1473.7 motion to vacate his conviction until seven weeks after the effective date.⁵ The Court found this delay did not make the motion untimely, and that section 1473.7 applies retroactively to people who plead guilty before its effective date.⁶ The plea form indicated that defendant was advised of the immigration consequences, and the Court ultimately found he failed to carry his burden of proof because he did "not address this unambiguous record on appeal."⁷ He offered "no evidence to support his position."⁸ His declaration, eleven years after his conviction, simply recited that he did not "meaningfully understand the immigration consequences of his plea."⁹ Similarly, his claim that counsel was defective for not negotiating an "immigration safe disposition" failed because there was no evidence that the prosecution would have considered such a disposition, or that counsel did not try to negotiate the same.¹⁰