BILL NUMBER: AB 813	AMENDED
	BILL TEXT

	AMENDED IN ASSEMBLY  MARCH 26, 2015

INTRODUCED BY   Assembly Member Gonzalez

                        FEBRUARY 26, 2015

    An act relating to criminal procedure.   An
act to add Section 1473.7 to the Penal Code, relating to criminal
procedure. 



	LEGISLATIVE COUNSEL'S DIGEST


   AB 813, as amended, Gonzalez. Criminal  procedure.
  procedure: postconviction relief  
   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.  
   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.  
   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.  
   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. 
   Vote: majority. Appropriation: no. Fiscal committee: no.
State-mandated local program: no.


THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:

   SECTION 1.    Section 1473.7 is added to the 
 Penal Code   , to read:  
   1473.7.  (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. 
  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.