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Can One File a 1473.7 Motion to Vacate While in Custody?

In 2005, Vanessa S. Rodriguez, then age 22, was convicted in Napa Superior Court of felony possession for sale of a controlled substance (methamphetamine), in violation of Health & Safety Code § 11378, as well as transportation of a controlled substance in violation of Health & Safety Code § 11379.  She was sentenced to probation.

As the reader may know, under federal immigration law, possession of a controlled substance for sale is an aggravated felony.

As the reader further may be well aware, Penal Code § 1473.7 permits individuals who are no longer in custody to move to vacate a conviction or sentence on the ground that it 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” the plea (Penal Code § 1473.7(a)).
Brief Synopsis: A person in custody may file a Motion to Vacate under Penal Code § 1473.7(a), but that custody may not be for the conviction that is the subject of the motion (it can be for another conviction).  “Custody” includes being on probation, parole and of course, in prison or jail.
In 2020, when Ms. Rodriguez filed a 1473.7 motion to vacate, she was detained by federal authorities and was facing mandatory deportation to her country of birth, Mexico, because of that 2005 conviction.  She was then deported.  Her motion detailed how she had been brought to the U.S. by her parents when she was one year old.

Her motion to vacate was denied by the trial court judge, Elia Ortiz, explaining that Rodriguez was on probation in another case, which Judge Ortiz thought would bar her motion under the terms of 1473.7, as being on probation is a form of custody.

Rodriguez appealed the ruling to the Fifth Appellate District in Fresno, which reversed the trial court judge because Rodriguez was no longer in custody in the 2005 case and her probation status was for a wholly separate case, which did not bar her motion.

Fifth District Court of Appeal Fresno

The Fifth Appellate District explained that it reviewed the ruling “de novo,” meaning independently and fresh from the start, under authority from the California Supreme Court in People v. Vivar (2021) 11 Cal.5th 510.

The Fifth Appellate District noted that for many years, adverse immigration consequences of guilty pleas were considered indirect or collateral matters and, thus, trial courts were not required to advise defendants of them.  People v. Mejia (2019) 36 Cal. App. 5th 859, 866-867. 

In 1977, the Legislature enacted Penal Code § 1016.5, which requires trial courts to advise criminal defendants, “If you are not a citizen, you are hereby advised that the conviction of the offense for which you have been charged may have the consequences of deportation, exclusion from admission to the United States, or denial of naturalization pursuant to the laws of the United States.”  Defense attorneys, however, were still under no particular duty to discuss adverse immigration consequences with their clients, although an affirmative misrepresentation about them could constitute ineffective assistance of counsel.  Mejia, p. 867.

In 2010, the United States Supreme Court issued Padilla v. Kentucky (2010) 559 U.S. 356, however, which held that an attorney is constitutionally ineffective under the Sixth Amendment if he or she fails to advise a client-defendant of the actual or potential adverse immigration consequences of pleading guilty to a criminal charge.  Later, in Chaidez v. United States (2013) 568 U.S. 342, the court held that Padilla was not retroactive.

In 2015, the California Legislature enacted Penal Code § 1016.3, which essentially codified the holding of Padilla by requiring defense attorneys to “provide accurate and affirmative advice about the immigration consequences of the proposed disposition” and, when consistent with defendant’s informed consent and professional standards, “defend against those consequences.” 

In 2016, the California Legislature adopted section 1473.7, effective January 1, 2017, which is retroactive, allowing challenges to pleas entered into before it was adopted.  People v. Perez (2018) 19 Cal. App. 5th 818, 824-829.

The court then addressed the error claimed by Rodriguez.  It agreed that under People v. Cruz-Lopez (2018) 27 Cal. App. 4th 212, 220-221, a person on probation for the plea or conviction challenged may not move under 1473.7, but “the Legislature’s purpose for the statute and the larger statutory framework indicates the Legislature intended the clause “not currently in custody” to mean a person may file a motion to vacate a conviction provided that person is no longer in custody for that particular conviction and nothing more.”

We bring this summary to the reader’s attention because it raises a novel issue that certainly could arise here in the Second or Fourth Appellate District as well.

The citation for the Fifth Appellate District Court ruling discussed above is People v. Vanessa S. Rodriguez (5th App. Dist., 2021) 68 Cal. App. 5th 301, 268 Cal. Rptr. 3d 413.

For more information about Penal Code § 1473.7 motions, please click on the following articles:
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