Amended in Senate June 22, 2015

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 Bill No. 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 on a prejudicial 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. begin insert The bill would require a court granting or denying the motion to specify the basis for its conclusion. end insert

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 either of
the following reasons:

(1) The conviction or sentence is legally invalid due to a
prejudicial 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.

(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 begin delete this section end delete begin insert paragraph (1) of
subdivision (a) end insert 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.

begin delete

(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.

end delete begin delete

(4) The effective date of this section.

end delete begin insert

(c) A motion pursuant to paragraph (2) of subdivision (a) shall
be filed without undue delay from 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.

end insert begin delete

(c)

end delete

begin insert (d) end insert  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.

begin delete

(d)

end delete

begin insert (e) end insert  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 begin delete make
specific findings of fact and conclusions of law on all issues
presented. end delete begin insert specify the basis for its conclusion. end insert

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

begin delete

(e)

end delete

begin insert (f) end insert  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.