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

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Date Published: 06/14/2018 09:00 PM
AB2867:v94#DOCUMENT

Amended  IN  Senate  June 14, 2018
Amended  IN  Senate  June 04, 2018
Amended  IN  Assembly  April 23, 2018
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. Existing law authorizes the court, at the request of the moving party party, to 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.
This bill would specify that a finding based on prejudicial error 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 whether the conviction is legally invalid 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. The bill would authorize the court court, upon the request of the moving party, to hold the hearing without the personal presence of the moving party and without the moving party’s counsel present if the court provided that it finds good cause as to why the moving party cannot be present. 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 prohibit the court from issuing a specific finding of ineffective assistance of counsel as a result of a motion brought under these provisions unless the attorney found to be ineffective was given timely advance notice of the motion hearing by the moving party or the prosecutor.
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, 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.

 The Legislature finds and declares all of the following:
(a) The Legislature enacted Section 1473.7 of the Penal Code to provide people no longer in criminal custody, or after the specified period in which to move for withdrawal of a plea has elapsed, with the opportunity to raise a claim of legal invalidity based on actual innocence or failure to meaningfully understand, defend against, or knowingly accept the immigration consequences of a conviction.
(b) It is the intent of the Legislature to provide clarification to the courts regarding Section 1473.7 of the Penal Code to ensure uniformity throughout the state and efficiency in the statute’s implementation.
(c) This measure shall be interpreted in the interests of justice and consistent with the findings and declarations made in Section 1016.2 of the Penal Code.
(d) The State of California has an interest in ensuring that a person prosecuted in state court does not suffer penalties or adverse consequences as a result of a legally invalid conviction.
(e) It is the intent of the Legislature that courts have the authority to rule on motions filed pursuant to Section 1473.7 of the Penal Code, provided that the individual is no longer in criminal custody. Consistent with case law interpreting other statutes that authorize postconviction relief, including Meyer v. Superior Court (1966) 247 Cal.App.2d 133 (interpreting subdivision (b) of Section 17 of the Penal Code) and People v. Tidwell (2016) 246 Cal.App.4th 212 (interpreting Section 1170.18 of the Penal Code), a motion for relief pursuant to Section 1473.7 of the Penal Code shall be heard and may be granted, notwithstanding a prior order setting aside an adjudication of guilt or a prior order dismissing or reducing one or more charges under any provision of law.

SEC. 2.

 Section 1473.7 of the Penal Code is amended to read:

1473.7.
 (a) A person who is no longer 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 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. A finding of 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) 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 the individual filing the motion is no longer in criminal custody.
(2) A motion pursuant to paragraph (1) of subdivision (a) may be deemed untimely filed if it was not filed with reasonable diligence after the later of the following:
(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. The Upon the request of the moving party, the court may hold the hearing without the personal presence of the moving party if the court provided that it 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). For a motion made pursuant to paragraph (1) of subdivision (a), the moving party shall also establish 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) 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 whether the conviction is legally invalid 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. When ruling on a motion under paragraph (2) of subdivision (a), the court shall specify the basis for its conclusion.
(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.
(g) A court may only issue a specific finding of ineffective assistance of counsel as a result of a motion brought under paragraph (1) of subdivision (a) if the attorney found to be ineffective was given timely advance notice of the motion hearing by the moving party or the prosecutor, pursuant to Section 416.90 of the Code of Civil Procedure.