BILL NUMBER: AB 813	AMENDED
	BILL TEXT

	AMENDED IN SENATE  JUNE 22, 2015
	AMENDED IN ASSEMBLY  MAY 14, 2015
	AMENDED IN ASSEMBLY  MAY 7, 2015
	AMENDED IN ASSEMBLY  MARCH 26, 2015

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.  The bill would
require a court granting or denying the motion to specify the basis
for its conclusion. 
   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  this section  
paragraph (1) of subdivision (a)  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) 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. 

   (c) 
    (d)  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) 
    (e)  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.   specify the basis for its conclusion. 

   (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. 
   (e) 
    (f)  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.