Motion to Vacate a Conviction or Sentence

Until 2017, California law only allowed people to challenge their criminal convictions while they were in actual or constructive custody, i.e. parole or probation. This left many individuals without a legal avenue to challenge their convictions.

PC 1473.7 changed that and now, individuals that are no longer in custody have the opportunity to move the court to vacate the judgment in their cases. A PC 1473.7 motion to vacate can be filed on three legal grounds:

1. If a prejudicial error had occurred, which damaged the defendant’s ability to meaningfully understand, defend against, or knowingly accept the actual or potential adverse immigration consequences of a conviction or sentence;
2. If evidence of actual innocence had been newly discovered, including new scientific evidence like DNA or another party’s admission of guilt for the crime; or
3. The person was convicted or sentenced on the basis of race, ethnicity, or national origin.

Regarding the first legal ground, it is important to note that the prejudicial error ground for filing a successful motion to vacate does not require a finding of ineffective assistance of counsel. Moreover, in order to establish prejudice, the moving party does not have to prove that he or she would have obtained a more favorable result in the absence of the error.

PC 1473.7 does have timing requirements. For motions to vacate filed on the basis of PC 1473.7 (a)(1), the motion has to be filed with “reasonable diligence” after receiving a notice to appear in immigration court, other notice from immigration authorities, or after a notice of final removal order, whichever is later. However, this does not preclude a person to file the motion earlier, for example, when a person is filing for an immigration benefit.

For motions filed under PC 1473.7 (a)(2) and (a)(3), the requirements is that the motion has to be filed without undue delay from the time newly discovered evidence were or should have been discovered.

All motions filed under PC 1437.7 are entitled to a hearing before a judge. At the hearing, the person filing the motion has the burden to prove by a preponderance of the evidence that he or she is entitled to relief. If the motion is successful, the conviction will be vacated and erased from the person’s criminal record. And if a plea was entered, that plea will be withdrawn. However, that does not guarantee that the case will be dismissed. The case will only be dismissed, if the prosecution agrees to dismiss it. In the alternative, the prosecution may offer a different plea, and if not, the case will proceed to trial. Importantly, if the motion is denied, the individual has the right to appeal the decision.

At the Justice Firm, we fight zealously to protect our clients’ rights and we believe that everyone is entitled to the opportunity to build a better future. If you or a loved one needs assistance with a post-conviction relief, our highly skilled and compassionate attorneys are here to help and to answer any questions you might have. You can contact our experienced California Criminal and Immigration attorneys today for a case evaluation locally at (310) 914-2444 or at our Toll-Free number at (866) 695-6714, or click here.