Withdraw a Plea Using Penal Code 1473

Penal Code 1473.7 allows a person no longer imprisoned to withdraw a plea. This is especially useful for non-citizens who want to vacate a conviction or a sentence. If the Court allows the non-citizen to withdraw their plea, it removes the conviction for immigration purposes.

If the conviction is overturned, the criminal case starts again. Undocumented defendants will face the original criminal charges and will need to fight the case or enter a plea that does not have immigration consequences.

Reasons To Withdraw A Plea

Under Penal Code 1473.7, there are 2 reasons to withdraw a guilty plea:

1. If there was a prejudicial error during proceedings that damaged the person’s ability to meaningfully understand, defend, or knowingly accept the actual or potential adverse immigration consequences of a plea of guilty or nolo contendere; or
2. New evidence of innocence exists and requires the withdrawal of a plea.

Failure to Understand Immigration Consequences

If the prosecution opposes the Penal Code 1473.7 motion, they will need to provide evidence that the defendant understood the immigration consequences at the entry of plea. This evidence may include a signed waiver of constitutional rights, a probation or sentencing order, a transcript or recording of the entry of plea, and declarations or testimony from witnesses.

Incompetent Counsel

The defendant can withdraw a plea entered after January 1, 2017 due to ineffective assistance of counsel. To do so the defendant must show:

1. 1. That counsel’s performance was deficient in that it fell below an objective standard of reasonableness; and
   2. That he or she was prejudiced by that deficient performance

The defendant can withdraw a plea entered before January 1, 2017 only if the defendant asked his or her attorney about the immigration consequences of a plea and the attorney gave the defendant incorrect immigration advice. (People v. Landaverde).

When To File A Motion Under Penal Code 1473.7

The motion cannot be filed until:

• The party receives a notice to appear in immigration authorities that asserts the conviction or sentence as the basis for removal.
• The date a removal order based on the conviction or sentence becomes final.

The defendant must file the motion motion with reasonable diligence after the later of the above dates.

Further, the defendant must file the motion without undue delay from the date the defendant discovered or could have discovered the evidence that provides the reason for the withdrawal of the plea.

After Filing The Motion

The court clerk provides notice of the hearing date to the prosecutor and the defendant. At the hearing the Judge will decide whether or not to overturn the conviction. If the court reverses the conviction, the defendant still faces criminal charges and will need to enter a plea or fight the case.

Entering An Immigration-Neutral Plea

In order to avoid deportation, a non-citizen defendant must enter a plea that does not have immigration consequences. One option is to plead to a charge or charges that are immigration-neutral but give the court and prosecution equivalent convictions and sentences.