AB 813,
as amended, Gonzalez. Criminal procedure: postconvictionbegin delete reliefend deletebegin insert relief.end insert
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 ofbegin delete the conviction,end deletebegin insert
a plea of guilty or nolo contendere,end insert 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.
Vote: majority. Appropriation: no. Fiscal committee: no. State-mandated local program: no.
The people of the State of California do enact as follows:
Section 1473.7 is added to the Penal Code, to
2read:
(a) A person no longer imprisoned or restrained may
4prosecute a motion to vacate a conviction or sentence forbegin delete anyend deletebegin insert eitherend insert
5 of the following reasons:
6(1) The conviction or sentence is legally invalid due to error
7damaging the moving party’s ability to meaningfully understand,
8defend against, or knowingly accept the actual or potential adverse
9immigration consequences ofbegin delete the conviction.end deletebegin insert
a plea of guiltyend insertbegin insert or
10nolo contendere.end insert
11(2) Newly discovered evidence of actual innocence exists that
12requires vacation of the conviction or sentence as a matter of law
13or in the interests of justice.
14(b) A motion pursuant to this section shall be filed with
15reasonable diligence after the later of the following:
16(1) The date the moving party receives a notice to appear in
17immigration court or other notice from immigration authorities
18that asserts the conviction or sentence as a basis for removal.
19(2) The date a removal order against the
moving party, based
20on the existence of the conviction or sentence, becomes final.
21(3) The date the moving party discovered, or could have
22discovered with the exercise of due diligence, the evidence that
23provides a basis for relief under this section.
24(4) The effective date of this section.
25(c) All motions shall be entitled to a hearing. At the request of
26the moving party, the court may hold the hearing without the
27personal presence of the moving party if counsel for the moving
28party is present and the court finds good cause as to why the
29moving party cannot be present.
30(d) When ruling on the motion:
31(1) The court shall grant the motion to vacate the conviction or
32sentence if the moving party establishes, by a preponderance of
33the evidence, the existence of any of the grounds for relief specified
34in subdivision (a).
P3 1(2) In granting or denying the motion, the court shall make
2specific findings of fact and conclusions of law on all issues
3presented.
4(3) If the court grants the motion to vacate a conviction or
5sentence obtained through a plea of guilty or nolo contendere, the
6courtbegin delete mustend deletebegin insert shallend insert allow the moving party to withdraw the plea.
7(e) An
order granting or denying the motion is appealable under
8subdivision (b) of Section 1237 as an order after judgment affecting
9the substantial rights of a party.
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