Amended in Assembly May 14, 2015

Amended in Assembly May 7, 2015

Amended in Assembly March 26, 2015

California Legislature—2015–16 Regular Session

Assembly BillNo. 813


Introduced by Assembly Member Gonzalez

February 26, 2015


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: 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 onbegin insert a prejudicialend insert error damaging the moving party’s ability to meaningfully understand, defend against, or knowingly accept the actual or potential adverse immigration consequences of a plea of guilty or nolo contendere, 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:

P2    1

SECTION 1.  

Section 1473.7 is added to the Penal Code, to
2read:

3

1473.7.  

(a) A person no longer imprisoned or restrained may
4prosecute a motion to vacate a conviction or sentence for either of
5the following reasons:

6(1) The conviction or sentence is legally invalid due tobegin insert a
7prejudicialend insert
error damaging the moving party’s ability to
8meaningfully understand, defend against, or knowingly accept the
9actual or potential adverse immigration consequences of a plea of
10guilty or nolo contendere.

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
P3    1the evidence, the existence of any of the grounds for relief specified
2in subdivision (a).

3(2) In granting or denying the motion, the court shall make
4specific findings of fact and conclusions of law on all issues
5presented.

6(3) If the court grants the motion to vacate a conviction or
7sentence obtained through a plea of guilty or nolo contendere, the
8court shall allow the moving party to withdraw the plea.

9(e) An order granting or denying the motion is appealable under
10subdivision (b) of Section 1237 as an order after judgment affecting
11the substantial rights of a party.



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