Author: Antonio Caballero

Under Penal Code section 1203.4, persons can move to withdraw a guilty or no contest plea and vacate the conviction, or vacate a prior conviction after trial, upon a showing that the movant has either completed probation successfully or been discharged from probation early and is not at the time of the motion charged with a new offense, serving a sentence or on probation in any other case. The court has discretion to grant the relief provided by section 1203.4 in the interests of justice even if the movant cannot make this showing, provided the statute does not bar relief for the particular offense.

Section 1203.4 relief is not available for certain sex offenses and Vehicle Code violations including DUI. However, a court has discretion to grant the relief provided by the statute for a DUI and other Vehicle Code violations if it finds it is in the interests of justice to do so.

Note that the relief provided by section 1203.4, though often termed “expungement,” does not actually result in removal of the conviction from the record. Rather, the person’s criminal record will reflect that the conviction has been dismissed pursuant to section 1203.4. It is essentially a court finding of rehabilitation.

Section 1203.4 relief does not prevent the conviction from being considered a conviction under federal immigration laws, nor does it prevent the conviction from being used as a prior in subsequent prosecutions or restore one’s right to own or possess firearms.

Penal Code section 1473.7: New Vehicle for Relief from Immigration Consequences

Effective January 1, 2017, Penal Code section 1473.7 will permit persons no longer in criminal custody to file a motion to vacate a conviction based on: (1) a prejudicial error damaging the person’s ability to meaningfully understand, defend against, or knowingly accept the actual or potential adverse immigration consequences of a plea of guilty or nolo contendere; or (2) newly discovered evidence of actual innocence. required to disclose his or her immigration status to the court.

Penal Code section 1016.5: Motion to Vacate Based on Court’s Failure to Advise of Immigration Consequences

Penal Code section 1016.5 allows persons to move to vacate a prior conviction by way of guilty or no contest plea based on the court’s failure to advise them of three specific immigration consequences during entry of the plea: (1) deportation or removal; (2) exclusion or inadmissibility; or (3) denial of citizenship. A person seeking such relief must show (1) he or she did not receive the required advisement of all three immigration consequences either in a plea form or on the record during entry of the plea; (2) the person actually suffers one or more of these immigration consequences or such consequence is imminent; (3) he or she would not have entered the plea had he or she been advised of such consequences; and (4) he or she filed the request for relief under this statute within a reasonable time after becoming aware of the immigration consequences that flow from the conviction.

Note that when a court grants relief under section 1016.5 by allowing a person to withdraw his or her plea and vacating the conviction, the person is placed in the same position he or she was in at the time of originally entering the plea. That is, he or she will then be able to negotiate a new plea bargain without the negative immigration consequences or dismissal, or proceed to trial on the charge.

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