Amended in Assembly March 26, 2015

California Legislature—2015–16 Regular Session

Assembly Bill No. 813

Introduced by Assembly Member Gonzalez

February 26, 2015

begin delete An act relating to criminal procedure. end delete begin insert An act to add Section 1473.7 to the Penal Code, relating to criminal procedure. end insert

LEGISLATIVE COUNSEL’S DIGEST

AB 813, as amended, Gonzalez. Criminal begin delete procedure. end delete begin insert procedure: postconviction relief end insert

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Under existing law, although persons not presently restrained of liberty may seek certain types of relief from the disabilities of a conviction, the writ of habeas corpus is generally not available to them. Existing law creates an explicit right for a person no longer unlawfully imprisoned or restrained to prosecute a motion to vacate a judgment based on newly obtained evidence of fraud or misconduct by a government official, as specified.

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This bill would create an explicit right for a person no longer imprisoned or restrained to prosecute a motion to vacate a conviction or sentence based on error damaging the moving party’s ability to meaningfully understand, defend against, or knowingly accept the actual or potential adverse immigration consequences of the conviction, or based on newly discovered evidence of actual innocence, as specified. The bill would require a court to grant the motion if the moving party establishes a ground for relief, by a preponderance of the evidence.

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If an offense is bailable, a judgment of imprisonment has been given, and the defendant will surrender himself or herself in execution of the judgment when, among other things, the judgment is affirmed or modified, existing law authorizes the defendant in a criminal case to be admitted to bail after the conviction and during the appeal of the conviction.

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This bill would state the intent of the Legislature to enact legislation that authorizes judicial review of a conviction in a criminal case even if a person is not in custody.

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Vote: majority. Appropriation: no. Fiscal committee: no. State-mandated local program: no.

The people of the State of California do enact as follows:

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begin insert SECTION 1. end insert   

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begin insert Section 1473.7 is added to the end insert begin insert Penal Code end insert begin insert , to
read: end insert

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begin insert 1473.7. end insert   

(a) A person no longer imprisoned or restrained may
prosecute a motion to vacate a conviction or sentence for any of
the following reasons:

(1) The conviction or sentence is legally invalid due to error
damaging the moving party’s ability to meaningfully understand,
defend against, or knowingly accept the actual or potential adverse
immigration consequences of the conviction.

(2) Newly discovered evidence of actual innocence exists that
requires vacation of the conviction or sentence as a matter of law
or in the interests of justice.

(b) A motion pursuant to this section shall be filed with
reasonable diligence after the later of the following:

(1) The date the moving party receives a notice to appear in
immigration court or other notice from immigration authorities
that asserts the conviction or sentence as a basis for removal.

(2) The date a removal order against the moving party, based
on the existence of the conviction or sentence, becomes final.

(3) The date the moving party discovered, or could have
discovered with the exercise of due diligence, the evidence that
provides a basis for relief under this section.

(4) The effective date of this section.

(c) All motions shall be entitled to a hearing. At the request of
the moving party, the court may hold the hearing without the
personal presence of the moving party if counsel for the moving
party is present and the court finds good cause as to why the
moving party cannot be present.

(d) When ruling on the motion:

(1) The court shall grant the motion to vacate the conviction or
sentence if the moving party establishes, by a preponderance of
the evidence, the existence of any of the grounds for relief specified
in subdivision (a).

(2) In granting or denying the motion, the court shall make
specific findings of fact and conclusions of law on all issues
presented.

(3) If the court grants the motion to vacate a conviction or
sentence obtained through a plea of guilty or nolo contendere, the
court must allow the moving party to withdraw the plea.

(e) An order granting or denying the motion is appealable under
subdivision (b) of Section 1237 as an order after judgment affecting
the substantial rights of a party.

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SECTION 1.  

It is the intent of the Legislature to enact
legislation that authorizes judicial review of a conviction in a
criminal case even if a person is not in custody.

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