motion to vacate

AB 256 – The Racial Justice Act for All

July 17, 2023 | by The Justice Firm

In the last few years, California’s legislature has been at the forefront of enacting laws aimed at reforming the State’s criminal justice system and rectifying the injustices and the disproportionate effect that some of the State’s policies have had on marginalized and minority communities.

As part of the ongoing effort to fight the biases and racial discrimination that have been prevalent in our criminal legal system, in 2020, the California legislature passed AB 2542, or the Racial Justice Act, which came into effect on January 1, 2021. The law prohibited the state from obtaining or seeking to obtain a criminal conviction or imposing a sentence on the basis of race, ethnicity, or national origin. The landmark law was a step in the right direction and was welcomed by criminal justice reform advocates.

Prior to the passing of AB 2542, proving racial biases was almost impossible. In the 1987 decision McClesky v. Kemp, the U.S. Supreme Court imposed an unreasonably high burden on defendants to prove racism in criminal cases. In short, the Court required defendants to prove intentional discrimination and held that statistical disparities are not enough to show a constitutional violation.

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PC 1473.7 Motion To Vacate

May 7, 2023 | by The Justice Firm

Non-citizens, including lawful permanent residents, can experience profound immigration consequences for even minor or very old criminal convictions. Prior to 2017, California law only allowed defendants to challenge their conviction while they were in actual or constructive custody, i.e. parole or probation. As a result, countless people were left with no recourse and way of challenging their convictions. This gap has had a particularly devastating impact on the state’s immigrant community.

Throughout the years, many immigrants in California have entered a plea or have been convicted at trial, without being properly informed of the immigration consequences of a criminal conviction. And for most non-citizens, the immigration consequences of a conviction only come to light when they find themselves in immigration court facing deportation, which, in many instances, can be years after they had completed their criminal sentence. In most of those cases, the only way for a non-citizen to avoid deportation and to remain in the United States is to challenge their criminal conviction. However, because California law did not provide a post-conviction relief for people who were no longer in custody, many people have been unjustly deported, or at best, have been stuck in the backlogged immigration system for years.

Recognizing that there are a large number of immigrants in California who have already finished serving their sentences, but who have not received the proper legal advice about the impact their convictions could have on their immigration status, the California legislature enacted Assembly Bill 813, which was codified as PC 1473.7, and became effective on January 1, 2017. Essentially, the new law gave people who were no longer in custody the ability to challenge their criminal convictions and vacate their judgments. Initially, the law was limited to convictions that were the result of a plea of guilty or nolo contendere. However, in 2021, the state legislature passed AB 1259, which amended PC 1473.7. As a result, as of January 1, 2022, the law now also provides a post-conviction relief for non-citizens who were convicted at trial.

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The Los Angeles District Attorney’s New Immigration Policy

December 15, 2022 | by The Justice Firm

A criminal conviction can have a life changing and potentially devastating impact on anyone. However, under federal law, certain offenses are considered deportable, including controlled substance offenses, crimes of moral turpitude, and aggravated felonies. So, for noncitizens, a criminal conviction brings with it potentially very grave collateral immigration consequences. In many instances, the individuals who are convicted of qualifying offenses, have spent their entire adulthood in the United States, have build their lives and have families here, and have no other place they would call home. Yet, following a criminal conviction, noncitizens face the threat of ending up in immigration court to face a potential removal and deportation to a strange country and permanent separation from their families.

Fortunately, in light of the adverse immigration consequences noncitizens face, some district attorneys are starting to adjust their offices’ immigration-related policies, including the Los Angeles District Attorney, George Gascon. On December 6, 2022, Mr. Gascon issued a new special directive outlining the new immigration policies of the LA District Attorney’s Office, which, among other things, is aiming to address the overly punitive consequences accused noncitizens could face.

First, according to the new policy, prior to when a charging decision is made, any person who is under investigation or their attorney, can present information demonstrating the potential adverse immigration consequences that could follow. In such cases, all charging determinations by the DA office should be made with the goal of avoiding or mitigating any adverse consequences a charge could have, and if there are possible alternatives to charges being filed, the DA office should pursue those alternatives. In addition, the new policy encourages prosecutors to expand the use of pretrial diversion programs that do not require an admission of guilt.

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