Trial court erred by finding defendant had no right to file a motion to vacate his no contest plea pursuant to Penal Code section 1473.7 unless he faced removal proceedings. In 2002, Morales pleaded no contest to a drug offense. He served his sentence, then voluntarily departed the United States in the face of deportation. He reentered the United States shortly thereafter. In 2017, he moved to vacate his conviction as part of his efforts to obtain a visa. He argued he received ineffective assistance of trial counsel, who failed to inform him that his conviction would result in his deportation and exclusion from admission to the United States. The trial court denied the motion, finding section 1473.7 bars a noncitizen from bringing a motion until after the entry of a final removal order. Morales appealed. Held: Reversed. Section 1473.7, effective January 1, 2017, allows noncitizens who previously entered guilty or no contest pleas and who are no longer in prison or under legal restraint, to challenge their convictions. Subdivision (a) of section 1473.7 grants noncitizens the authority to file a wide range of immigration-related motions. One ground for such a motion is that trial counsel failed to advise the defendant of the immigration consequences of the plea, which prejudiced the defendant’s ability to understand and accept the actual or potential adverse immigration consequences of the plea. Subdivision (b) of section 1473.7 provides that the motion shall be filed with “reasonable diligence” after the later of the date the defendant receives notice of removal proceedings or the date a removal order based on the conviction becomes final, but this does not mean that removal proceedings are a prerequisite to the filing of the motion. It simply defines what motions are timely filed in the face of removal proceedings.
The full opinion is available on the court’s website here: http://www.courts.ca.gov/opinions/documents/A152530.PDF