Penal Code section 1473.7, which allows out-of-custody defendants to move to vacate a conviction based on immigration consequences, is retroactive and applies in cases where the defendant pleaded guilty before January 1, 2017. In August 2005, Perez pleaded guilty to possession of methamphetamine for sale (Health & Saf. Code, § 11378). Six months later he was deported to Mexico based on this conviction. In January 2017, section 1473.7 became effective. It allows a person no longer under state restraint to move to vacate a conviction because the person did not understand the immigration consequences of his plea. Based on this new statute, Perez unsuccessfully moved to vacate his plea. He appealed, challenging the trial court’s finding that his motion was untimely. Held: Affirmed. Relevant to this appeal, section 1473.7 contains three requirements: (1) the moving party is no longer imprisoned or restrained; (2) prejudicial error prevented the moving party from understanding the adverse immigration consequences of his plea; and (3) the motion must be timely, i.e., filed with reasonable diligence after the party receives notice of pending immigration proceedings or a removal order. The moving party must show by a preponderance of the evidence that he is entitled to relief under the statute. Here, the Attorney General argued the statute is not retroactive. However, based on the plain words of the statute, there is no requirement that the defendant enter his plea after section 1473.7’s effective date to be eligible to file a petition. In fact, the statute’s language reflects it can be applied retroactively if the moving party satisfies its requirements.
Perez’s motion to vacate his plea was timely. The superior court found that Perez’s motion was untimely because he was aware of the immigration consequences of his plea when he was deported in 2006, and took no action to vacate the plea until 2017. However, the rights giving rise to the motion did not take effect until January 1, 2017, and Perez brought his motion seven weeks later. Thus, his motion was timely.
Perez did not satisfy his burden of proving by a preponderance of the evidence that he is entitled to relief under section 1473.7. The record belies Perez’s declarations that he did not meaningfully understand the adverse immigration consequences of his plea. A Spanish interpreter, who translated the entire plea form and plea proceedings, was provided for him at trial; the plea form stated his plea would result in deportation; the superior court expressly told Perez he would be deported based on the plea; and his attorney stated during the plea proceedings that Perez was upset about being deported. Based on the record, Perez is not entitled to relief.
The full opinion is available on the court’s website here: http://www.courts.ca.gov/opinions/documents/D072121.PDF