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AB-2867 Criminal procedure: postconviction relief.(2017-2018)

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Date Published: 04/05/2018 09:00 PM
AB2867:v97#DOCUMENT

Amended  IN  Assembly  April 05, 2018
Amended  IN  Assembly  March 22, 2018

CALIFORNIA LEGISLATURE— 2017–2018 REGULAR SESSION

Assembly Bill No. 2867


Introduced by Assembly Member Gonzalez Fletcher

February 16, 2018


An act to amend Section 1473.7 of the Penal Code, relating to criminal procedure.


LEGISLATIVE COUNSEL'S DIGEST


AB 2867, as amended, Gonzalez Fletcher. Criminal procedure: postconviction relief.
Existing law creates an explicit right for a person no longer imprisoned or restrained to file a motion to vacate a conviction or sentence based on a prejudicial error damaging to 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. Under existing law, a defendant who files one of these motions is entitled to a hearing.
This bill would instead authorize a person to file that motion when no longer in criminal custody for any conviction or sentence that is legally invalid due to the moving party’s inability or failure to meaningfully understand, defend against, or knowingly accept the actual or potential adverse immigration consequences of a plea of guilty or nolo contendere. The bill would specify that a finding of prejudicial error legal invalidity relating to the immigration consequences of the plea may, but need not, include a finding of ineffective assistance of counsel and that the only finding that the court is required to make in those cases is that there was an error that damaged the moving party’s ability whether the conviction is legally invalid due to the moving party’s failure to meaningfully understand, defend against, or knowingly accept the actual or potential adverse immigration consequences of a plea of guilty or nolo contendere. The bill would, if the prosecution has no objection to the motion, authorize the court to grant the motion to vacate the conviction or sentence without a hearing.
This bill would specify that the moving party’s former defense counsel does not need to be served with notice of a motion made based on prejudicial error legal invalidity unless the motion specifically alleges ineffective assistance of counsel. The bill would prohibit an order or findings made by the court regarding a motion made based on prejudicial error relating to the immigration consequences of the plea from being reported to the California State Bar without an express finding by the court of ineffective assistance of counsel and only if the attorney found to be ineffective was served with notice. The bill would prohibit a court from issuing a finding of ineffective assistance of counsel if the attorney found to be ineffective was not served with notice, as specified.
Existing law requires a motion based on prejudicial error relating to the immigration consequences of the plea to be filed with reasonable diligence after the later of 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 or the date a removal order against the moving party, based on the existence of the conviction or sentence, becomes final.
This bill would deem a motion based on prejudicial error relating to the immigration consequences of the plea to be deemed timely filed at any time in which an individual is no longer imprisoned or restrained. The bill would require a motion to be filed with reasonable diligence after the moving party receives either a notice to appear in immigration court or other notice from immigration authorities that asserts the conviction or sentence as a basis for removal or denial of naturalization, would require a motion, based on legal invalidity relating to the immigration consequences of the plea, to be deemed timely filed any time in which the individual filing the motion is no longer in criminal custody unless the motion is not filed with reasonable diligence after the later of when the moving party receives notice to appear in immigration court or other notice from immigration authorities that asserts the conviction or sentence as a basis for the removal or the denial of an application for immigration benefit, lawful status, or naturalization, or notice that a final removal order has been issued against the moving party, based on the existence of the conviction or sentence that the moving party seeks to vacate.
Vote: MAJORITY   Appropriation: NO   Fiscal Committee: NO   Local Program: NO  

The people of the State of California do enact as follows:


SECTION 1.

 Section 1473.7 of the Penal Code is amended to read:

1473.7.
 (a) A person who is no longer imprisoned or restrained in criminal custody may file 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 the moving party’s inability or failure to meaningfully understand, defend against, or knowingly accept the actual or potential adverse immigration consequences of a plea of guilty or nolo contendere. A finding of prejudicial error legal invalidity may, but need not, include a finding of ineffective assistance of counsel.
(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) (1) A Except as provided in paragraph (2), a motion pursuant to paragraph (1) of subdivision (a) shall be deemed timely filed at any time in which an the individual filing the motion is no longer imprisoned or restrained. in criminal custody.
(2) A motion pursuant to paragraph (1) of subdivision (a) shall be filed with reasonable diligence after the moving party receives either of the following: may be deemed untimely filed if it was not filed with reasonable diligence after the later of the following:
(A) A 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 or the denial of an application for an immigration benefit, lawful status, or naturalization.
(B) Notice that a final removal order has been issued against the moving party, based on the existence of the conviction or sentence that the moving party seeks to vacate.
(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.
(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. If the prosecution has no objection to the motion, the court may grant the motion to vacate the conviction or sentence without a hearing.
(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). (a) and the moving party establishes that the conviction or sentence being challenged is currently causing or has the potential to cause removal or the denial of an application for an immigration benefit, lawful status, or naturalization.

(2)In granting or denying the motion, the court shall specify the basis for its conclusion.

(2) There is a presumption of legal invalidity for the purposes of paragraph (1) of subdivision (a) if the moving party pleaded guilty or nolo contendere pursuant to a statute that provided that, upon completion of specific requirements, the arrest and conviction shall be deemed never to have occurred, where the moving party complied with these requirements, and where the disposition under the statute has been, or potentially could be, used as a basis for adverse immigration consequences.
(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.
(4) When ruling on a motion under paragraph (1) of subdivision (a), the only finding that the court is required to make is that there was an error that damaged the moving party’s ability whether the conviction is legally invalid due to the moving party’s failure to meaningfully understand, defend against, or knowingly accept the actual or potential adverse immigration consequences of a plea of guilty or nolo contendere. When ruling on a motion under paragraph (2) of subdivision (a), the court shall specify the basis for its conclusion.
(5) The moving party’s former defense counsel does not need to be served with notice of a motion made pursuant to paragraph (1) of subdivision (a) unless the motion specifically alleges ineffective assistance of counsel. An order or findings made by the court regarding a motion made pursuant to paragraph (1) of subdivision (a) shall be reported to the state bar only upon an express finding by the court of ineffective assistance of counsel and only if the attorney found to be ineffective was served with notice pursuant to Section 416.90 of the Code of Civil Procedure. A court may only issue a finding of ineffective assistance of counsel if the attorney found to be ineffective was served with notice pursuant to Section 416.90 of the Code of Civil Procedure.
(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.