Vacating a Criminal Conviction in California

Certain California defendants, who have served their sentences, may apply to vacate their convictions. This is not the same as expunging the conviction.

A law that takes effect in January 2017 gives a narrow group of convicted persons in California the ability to go back to court and ask the judge to vacate, or set aside, their guilty or “no contest” (nolo contendere) pleas. If the judge grants the motion, the conviction is wiped out, but the charges do not go away. Instead, the defendants have an opportunity to enter another plea, at a new arraignment, just as they did originally. (Cal. Penal Code § 1473.7.)

The law is designed to allow qualifying defendants to avoid deportation when they unknowingly entered pleas that would have that consequence. (California law requires defense counsel to advise their clients of any adverse immigration consequences to a guilty or no contest plea, but such advice is often absent.) It also applies to those who believe they can establish “actual innocence.” Defendants who are still in custody may use a writ of habeas corpus to vacate their convictions in both instances, but the writ can’t be used by those who are no longer in custody. This law fills that gap.

Defendants Who Are Eligible to Vacate Their Convictions

The new law applies to people who have finished their sentences, and only when they allege one of the following:

  • They did not meaningfully understand or knowingly accept the actual or potential adverse immigration consequences of their plea of guilty or no contest, or
  • They have newly-discovered evidence of “actual innocence.”

When Must The Motion to Vacate Be Brought?

Defendants must not delay when filing their motions to vacate. Defendants who are facing negative immigration consequences must use “reasonable diligence” to file their papers:

  • after receiving a notice from immigration authorities, including an order to appear in immigration court, which claims the defendant should be deported as a result of the conviction, or
  • after a removal order, based on the conviction, becomes final.

Defendants who allege actual innocence must file “without undue delay” after the date the defendant discovered, or could have discovered with the exercise of due diligence, the evidence that establishes actual innocence.

What Does the Defendant Have to Prove?

The judge must grant the defendant’s motion to vacate if the defendant proves, by a preponderance of the evidence, the grounds for vacating the judgment. This standard is less strict than “beyond a reasonable doubt,” which is the standard of proof for establishing criminal guilt. If the judge grants the motion, the defendant will enter a new plea. If the motion is denied, the defendant can appeal to the Court of Appeal.

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