A conviction can carry life-changing penalties and collateral consequences. For instance, a criminal record can make it difficult to secure housing and employment in the future. Additionally, if you are a non-citizen, you risk deportation. What can worsen the matter is if you are facing the consequences because you pleaded guilty to a crime and did not understand the immigration effects. Your conviction could also remain on the criminal record even after new proof of your innocence. California has laws allowing defendants to file motions to vacate and reverse guilty convictions.

However, having a conviction vacated is not easy. At Riverside Criminal Defense Attorney Law Firm, we can offer the legal assistance you require. We can go through the complicated legal process and develop solid arguments for your request.

Defining Vacating/Setting Aside Your Conviction

Vacating a conviction refers to nullifying a verdict. In other words, your conviction and trial appear as if they did not happen. You will withdraw the plea before the prosecutor tries the case again.

Vacating your conviction differs from dismissing the case. Setting aside or vacating refers to canceling a judge's verdict (it can be either a no contest or guilty plea).

On the contrary, dismissing applies to your entire criminal case. Judges dismiss cases for reasons instead of their factual merits. Your vacated judgment can lead to another trial for your case, whereas a dismissed criminal case is resolved at any preliminary phase before trial. Generally, dismissal happens before the sentencing.

To initiate the legal process of vacating a conviction, you should bring a motion to the jurisdiction where sentencing occurred. The law highlights various penal code sections under which defendants can file their motions to vacate their sentences, including:

  • Penal Code Section 1473.7
  • Penal Code Section 1016.5
  • Penal Code Section 1018

All these penal codes provide different grounds for the motion.

Setting Aside Your Conviction Under PC 1018

A motion to vacate the judgment or withdraw your plea is a document that an accused person brings with the court in their case. The defendant brings their motion to attempt withdrawing their plea of no contest or guilty and replaces it with a not guilty plea. Additionally, the defendant can bring their motion after they are found guilty during their jury trial or in court.

You should file this motion:

  • Within six (6) months of the probationary sentence, or
  • Before you are sentenced

While you can sometimes withdraw your plea following serving time, you cannot bring your motion to set aside your judgment. In this case, your criminal defense lawyer should bring a Writ of Habeas Corpus (an appeal arguing that you were imprisoned illegally).

You or your lawyer should bring your motion to a court clerk who schedules a court hearing. During the court hearing, your defense counsel and prosecution discuss your motion before a judge.

Typically, the judge will grant the motion upon proving good cause. You can demonstrate good cause by establishing the following:

An Accomplice, Judge, Police, or Prosecutor subjected you to Duress, Coercion, or Fraud

You will meet a good cause demonstrating if you can establish that you entered the plea due to fraud, force, or coercion overreaching your free will.

Additionally, you can validate good cause by proving that you were lured, threatened, or coerced into entering the plea. Examples of this include:

  • A judge inappropriately pressuring you to accept a deal
  • Your accomplice threatening to injure you or your loved one(s) if you fail to take accountability for the crime
  • A law enforcer telling you that they will retaliate against your family members if you fail to plead guilty

The Defendant Did Not Know the Repercussions of the Plea

Individuals can withdraw their no contest or guilty plea by proving that they did not understand their plea’s consequences. It applies as long as it is significantly more likely that the defendants would not have entered their plea had they known every fact when they entered their plea.

Some of the examples where you might not be unaware of all plea’s consequences include when:

  • You were unaware that pleading guilty could lead to professional license revocation or suspension.
  • You were unaware that pleading guilty can result in adverse immigration repercussions like deportation, removal, or being marked inadmissible in the United States.
  • You were unaware that the offense was punishable by compulsory prison or jail sentence.

You Did Not Have Legal Representation

If you entered a no contest or guilty plea and did not have a defense lawyer when you acted so, the judge should grant the motion to withdraw your plea provided you did not take your plea:

  • voluntarily
  • intelligently, and
  • knowingly.

For instance, the judge can grant the motion if a defendant without legal representation entered the plea and the court accepted their plea without elaborating its consequences to the accused.

Ineffective Legal Assistance

Typically, the court will grant the accused individual a motion if the defendant entered the plea while an incompetent lawyer represented them.

To establish ineffective legal assistance, you should prove your attorney’s assistance fell below objective standards of reasonableness.

You can achieve it by proving that your attorney:

  • Did not advise you accordingly about the consequences and effects of taking a particular plea
  • Failed to investigate your case
  • Encouraged you to accept a plea agreement that did not favor you

What Happens If the Judge Grants Your Motion?

Once the court grants your motion or implements an entry of judgment, your criminal case will begin. Your finding of guilt or plea is removed, and you restart your case at an arraignment. You would proceed to a jury trial if you did not make any deal.

The judge would erase your deal if you accepted a guilty plea before bringing your motion.

Please note that taking your case back to arraignment comes with negative consequences. After the judge erases the plea, the prosecutor can withdraw the previous offer. That way, you should not plead guilty to a more severe charge. Otherwise, you will face a jury trial. However, it is only practical if you file the motion because it will result in a favorable case outcome.

What Happens If the Judge Denies the Motion?

Should the judge deny the motion to withdraw your plea, your plea is accepted, and you will be convicted of the offense. Nevertheless, there are post-conviction relief possibilities you can pursue, including appealing your case and expungement.

Seeking Expungement

If the judge enters a guilty plea and you are subsequently convicted, you can seek expungement.

However, the accused person cannot expunge the criminal record until they complete probation or their jail term.

When the court grants expungement, it releases the defendant from almost all adverse consequences of a conviction. Some of the benefits of expungement include:

  • Your potential boss cannot discriminate against you based on the expunged conviction
  • It is easier to acquire state professional licenses
  • Nobody can use your conviction to impeach your credibility as a witness in court
  • It can sometimes help avoid some immigration consequences

Vacating Your Conviction Per Penal Code 1016.5

California Penal Code Section 1016.5 requires the court to read precise advice to any defendant who is not a United States citizen. The judge should inform the accused that their criminal charges could carry deportation, naturalization denial, or being marked inadmissible to the U.S.

Suppose the court failed to read the admonition/warning, and you pleaded guilty or no contest. In that case, you have a right to seek your conviction vacation if it results in negative immigration consequences.

Please note that vacating your conviction per Penal Code Section 1016.5 does not have a statute of limitations (SOL). Nevertheless, you should demonstrate the judge’s failure to advise you of all immigration repercussions after pleading guilty.

However, the court cannot vacate a conviction if the court fails to warn you of the immigration penalties and the defendant is a legal expert qualified in immigration laws and knows the consequences.

Vacating Your Conviction Per Penal Code Section 1473.7

Penal Code Section 1473.7 allows an immigrant released from police custody to file a motion to vacate their sentence in a case. Typically, a defendant can file the motion depending on:

  • Newly discovered proof of innocence
  • A prejudicial error that hurts the defendant’s ability to understand and consciously accept or defend against the immigration penalties of pleading guilty or no contest

PC 1473.7 became effective in January 2017. Earlier on, most immigrants had few options to contest sentences. One way to challenge a conviction’s legality is by bringing a habeas corpus petition. Habeas corpus is a Latin phrase meaning “having the body.”

Nonetheless, the accused could only file the petition while in police custody. That means the defendant would not be entitled to challenge the conviction after release.

Sometimes defendants would not realize that their sentence resulted in deportation until later. Nonetheless, there were no ways to go back to the court to have the conviction erased.

Vacating Your Conviction on the grounds of a Prejudicial Error

Some of the instances that can cause a motion to vacate your conviction on account of a prejudicial error include:

  • The legal counsel violated their responsibility of probing the case and adequately informed you about different immigration consequences related to the plea.
  • The lawyer failed to defend you against immigration penalties associated with your plea by bargaining for alternatives.
  • You did not know and comprehend all immigration consequences of pleading guilty.

Irrespective of your ground, you should establish that the error biased you. It is not a must that you verify that you could have acquired a more favorable plea bargain or verdict.

Instead, prejudice is proved if you can prove that:

  • You would not have pleaded guilty without the mistake
  • The decision to reject your plea bargain would have been reasonable under the circumstances

Vacating Your Sentence Based on Newly-Discovered Evidence

This evidence can include:

  • Another person admitted to committing a crime
  • Discovery of new elements of a case that call essential evidence into question, like widespread fraud or contamination by a police officer
  • New scientific test results like DNA testing

SOL to File Your Motion Under California Penal Code Section 1473.7 PC

You should file your motion without reasonable diligence and following:

  • The day on which your deportation order is finalized, or
  • The date you received your Notice of Appear in an immigration court, whichever comes later

Reasonable diligence means without inexcusable delay after a defendant discovers or could have learned pieces of proof supporting their motion. Nevertheless, it is not mandatory that the accused waits for the Notice to Appeal to file their motion. You can bring any time. It includes when seeking your green card and naturalization, among other immigration benefits.

Does the Defendant have a Right to a Court Hearing on their Motion?

Yes, they have.

Unlike habeas petitions, which can be denied without a court hearing, each 1473.7 motion has a right to a hearing before the judge.

It is not mandatory that the defendant personally appears in court. An immigrant who has been deported or is in custody does not require to show up in court for their hearing, provided their immigration lawyer is present.

What Occurs If the Court Grants Your Motion?

If the court grants the motion, it will vacate the conviction. It will be as if the sentence or conviction never existed. Then the court will allow the defendant to withdraw their initial plea of guilty or no contest. 

Nevertheless, unless the district attorney (DA) dismisses your initial charges, you will be accountable for them, which means taking another plea or a new trial.

Nonetheless, you will receive credit for the duration you have served. Additionally, you can negotiate your new plea with less serious immigration penalties.

Can You Appeal Your Denied Motion?

If the court denies the motion, the accused can appeal the order. Moreover, government officials can appeal the court’s decision.

Are There Other Basis for Vacating Your Sentence or Conviction?

Yes. You can also vacate your conviction or sentence using the following methods:

Dismissal in the Interests of Justice (PC 1385)

Senate Bill 393, commonly known as Consumer Arrest Equity Act (CARE), allows defendants to seal their court files and arrest records when the criminal filing or arrest did not result in a conviction. Deleting a case or arrest record can help the accused with housing and employment applications.

The act is codified from PC 851.87 to PC 851.92. That means it serves as a Petition for Factual Innocence; it has high standards to satisfy but lower standards for sealing a criminal record.

Additionally, CARE Act allows a petition for sealing of court files and arrest records if a criminal case was dismissed per:

  • Drug diversion programs like PC 1000
  • Cognitive development diversion
  • Parental diversion
  • Mental health diversion
  • Military diversion
  • A local diversion program like an office hearing, Neighborhood Justice Program

Only the judge or prosecutor can file the motion for dismissal in the interests of justice. However, your defense counsel can invite the prosecutor/judge to bring the motion. The motion can be made at any time, either after or during the trial.

The prosecutor can make this motion in the jury’s presence. If the court dismisses the move, it should state the reasons orally.

While the judge can dismiss all or a part of the case per PC 1385, the discretion is not complete. The judge should exercise this discretion with legal discretion amounting to more than substituting the judge’s predilections for the police’s preferences. The reasons for a case dismissal should persuade a prudent and reasonable judge.

Common grounds for PC 1385 dismissal include:

  • Insufficient evidence
  • Plea bargain agreement
  • Dismissal of a criminal charge that makes a defendant qualify for Proposition 36

Penal Code Section 1203.43

For many years, judges, prosecutors, public defenders, and criminal defense lawyers believed that if an immigrant entered into a delayed entry of judgment disposition and avoided a conviction, the individual would avoid all negative immigration consequences. However, the advice was wrong, and defendants who entered the DEJ program continue having a conviction per immigration laws. In other words, they entered a no contest or plea guilty to a criminal charge to qualify for the program, but the plea carries penalties under Immigration and Naturalization Act.

As the wrong advice became more recognized, Assembly Bill (AB) 1352 was proposed, and PC 1203.43 became law in January 2016. According to the law, any individual who entered the DEJ program after or in January 1997 can withdraw their plea, vacate their plea, and have the criminal case dismissed.

PC 1203.43 has an impact superior to a PC 17b motion ( that reduces a California felony to a misdemeanor) or Proposition 47. These convictions include:

  • Health and Safety Code 11350 HS
  • Health and Safety 11357 HS
  • Health and Safety 11364
  • Health and Safety 11365
  • Health and Safety 11377
  • Health and Safety 11550

PC 1203.43 eliminates the plea and dismisses a case like an expungement. However, an expungement is not analyzed under federal immigration laws.

It is worth noting that PC 1203.43 is also available to United States citizens with a previous felony controlled substance sales, transportation, or possession conviction. Removing the conviction from the criminal records significantly benefits defendants regarding professional licensing, applications for employment, volunteer, education opportunities, and housing.

Why Should an Immigrant Seek to Vacate Their Conviction?

A conviction, even resulting from a minor crime, can lead to disastrous consequences for individuals who are not United States citizens. Per the Immigration and Nationality Act (INA), a criminal conviction can result in inadmissibility or deportation.

Deportation means being removed from the U.S. unless you obtain effective post-conviction relief.

If a person is marked inadmissible, it means they cannot:

  • Become a United States citizen
  • Re-enter the U.S. after leaving
  • Apply for a green card (permanent residence)
  • For an illegal immigrant, apply for an adjustment of status

If you have a conviction for an inadmissible or deportable crime and fail to remove your conviction through post-conviction relief, then you will be inadmissible or deportable. It does not matter:

  • How strong are your ties in the county (possessing a business, family, and job)
  • The duration you have lived in the U.S.
  • Whether you are a legal immigrant or not
  • Whether you have dependent children who are U.S. citizens

Some of the deportable offenses include:

  • Crimes of moral turpitude, including murder, perjury, rape, child abuse, burglary, arson, criminal threats, failure to register as a sex offender, felony hit and run, robbery, receiving stolen property, possession for sale of controlled substances, welfare fraud, and voluntary manslaughter
  • Aggravated felonies, including theft offenses that carry at least a one-year prison sentence, murder, and rape
  • Drug crimes
  • Domestic violence offenses
  • Firearms crimes

On the other hand, inadmissibility can be triggered by:

  • A drug offense conviction
  • A crime of moral turpitude conviction
  • Convictions for at least two offenses where the overall prison sentences add up to more than five years

Vacation of Judgment for Rampant Scandal Victims (PC 1473.6)

Any individual no longer illegally restrained or imprisoned can file PC 1473.6 for any of the reasons below:

  • Newly discovered evidence of fraud by government officials that compromises the prosecutor’s case is conclusive and points unerringly to the defendant’s innocence
  • Newly discovered evidence that government officials testified falsely at the trial that led to a conviction and that the testimony played a significant role in the case verdict
  • Newly discovered evidence of a crime committed in the underlying criminal case by government officials led to the fabrication of evidence that played a significant role in the case verdict.

The process of bringing this motion is similar to bringing a writ of habeas corpus petition.

Finding a Knowledgeable and Skilled Criminal Defense Attorney Near Me

A sentence or conviction on the criminal record can affect your life even after serving time. Your potential employers and landlords can conduct background checks and deny you the opportunity you seek. However, like most defendants, you might have pleaded guilty under circumstances that would have been different had you taken another plea. Fortunately, with California law, you can rectify it by vacating your conviction and entering another plea that can lead to a new trial. However, setting aside a conviction is complicated and requires the assistance of a qualified lawyer.

At Riverside Criminal Defense Attorney Law Firm, we believe that your past should not hold your future hostage and are passionate about helping you. During your initial no-obligation consultation, we can discuss options for vacating your conviction. Please call us at 951-946-6366 to learn how we can assist you.