If My 1473.7 Motion to Vacate is Granted, What Happens?
In our experience, we often have clients or potential clients who contact us and, in talking with them, we understand that they think a motion to vacate under 1473.7(a)(1), if granted, means the case is dismissed. We explain that no, this is not what happens, as the motion is just to address the conviction, so the case is “reset” to the arraignment. Clients are often not too happy to hear this, often asking us “are you sure?”
The following summary is of a reported decision that addressed this issue.
2016, Jorge Vaca was charged with violating Penal Code § 422 (“criminal threats”) and various provisions of the Health & Safety Code, including two counts of violating § 11379(a) (transportation or sale of methamphetamine).
Pursuant to a plea bargain in Napa County Superior Court, he entered a no contest plea to two counts of violating 11379(a) and was placed on three years of formal probation with 120 days of county jail.
After completing probation, Mr. Vaca moved to vacate his conviction under Penal Code § 1473.7(a)(1). In closing argument, counsel for Mr. Vaca argued that Mr. Vaca had met his burden of establishing there was a prejudicial error in the plea and that Mr. Vaca was entitled to dismissal of the case.
As to dismissal of the case, the People argued that Mr. Vaca had not provided sufficient notice and asked for time to brief the issue if the court was inclined to dismiss the case.
The judge then granted the motion to vacate, but denied his request to dismiss the case under Penal Code §§ 1016.2 and 1385. The judge then reinstated the complaint.
Mr. Vaca then appealed this ruling to the Fifth Appellate District Court of Appeal in Fresno, arguing that a grant of a motion under 1473.7 requires dismissal of the complaint against him.
The Fifth Appellate District regarded the appeal as one of statutory construction, or, in other words, as question of “what does the statute actually say?”
The appellate court evaluated the statute and concluded that the statute is for a judge to make a finding that “the conviction or sentence is legally invalid due to a prejudicial error damaging the moving party’s ability to meaningfully understand, defend against or knowingly accept the actual or potential adverse immigration consequences of a conviction or sentence.” Penal Code § 1473.7(e)(4).
Further the statute says that “If the court grants the motion to vacate a conviction or sentence obtained through a plea of guilty or nolo contendere, the court shall allow the moving party to withdraw the plea.” Penal Code § 1473.7(e)(3).
“Vaca’s interpretation of the statute would add to the statute a requirement that the trial court dismiss the charging document after granting defendant’s motion to vacate . . . Of course, the Legislature said no such thing” said the Fifth Circuit.
In looking at the legislative history of the code section, the appellate court noted that the legislature explained that if the motion to vacate was granted, then the prosecution had the discretion to have the charges dismissed.
We add that this then allows defendant to resolve the case in an immigration-neutral manner, perhaps to a different charge, and usually with time-served and a terminal disposition, meaning no probation. We find that suggesting such an immigration-neutral plea bargain is an integral part of showing defendant suffered prejudice because it established that there was an immigration-neutral way to resolve the case that was not requested by defendant’s prior counsel and instead a conviction was entered with negative immigration consequences, which could have been avoided.
Mr. Vaca, the Fifth Circuit mentioned in closing by a footnote, did argue at the hearing on his motion at the trial court level that renewing prosecution from the arraignment date, would violate double jeopardy, but in his appeal did not make this argument. The appellate court suggested that this argument might have some merit.
For more information about motions to vacate, please click on the following articles:
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