Many new laws affecting the practice of criminal law have been enacted, and will become effective January 1, 2017. One of them, AB 813, is of particular importance to California’s immigrants. It adds Section 1473.7 to the Penal Code.
Under previous law if a non-citizen discovered, many years after accepting a plea bargain, that the conviction triggered an adverse immigration consequence, there was often no avenue for relief because a habeas corpus petition could only be sustained if the individual was in “constructive custody” –i.e., still serving a sentence, or on probation or parole. AB 813, signed by the Governor, solves this problem. It creates a right for a person no longer imprisoned or restrained to prosecute a motion to vacate a conviction or sentence due to “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.” It also allows for a motion to vacate where “[n]ewly 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.”
NOTE: THIS ARTICLE WAS ORIGINALLY PUBLISHED IN THE STATE BAR CRIMINAL LAW SECTION E-BULLETIN