On February 7, 2018, the California Court of Appeal certified for publication the second appellate case analyzing issues pertaining to Penal Code section 1473.7.[1]
In its opinion, the appellate court ultimately affirmed the denial of the defendant’s Penal Code section 1473.7 motion, determining that he failed to carry his burden of establishing either deficient performance or prejudice in his IAC claim.
On March 12, 2018, thirty different public and private organizations sent in requests for the depublication of the appellate opinion in People v. Landaverde (2018) 20 Cal. App. 5th 287. On May 16, 2018, the petition for review was denied and the Report of Decisions was directed not to publish in the “Official Appellate Reports” the opinion of People v. Landaverde (2018) 20 Cal. App. 5th 287.
When there is a decision to depublish a Court of Appeal opinion it does not mean that the Supreme Court has overruled the Court of Appeal’s ruling. “Depublication” means that the depublished opinion is not longer precedential and cannot be cited as authority in other matters.
The decision to depublish People v. Landaverde and deny Supreme Court review is significant in that now the Supreme Court has more time to gain a broader perspective on how the statute is being litigated and applying relief before confirming the Supreme Court’s interpretation and broader application of the statute.
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[1] Penal Code section 1473.7 became effective on January 1, 2017 and states, in pertinent part, as follows:
(a) A person no longer imprisoned or restrained may prosecute a motion to vacate a conviction or sentence for either of the following reasons:
(1) 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 plea of guilty or nolo contendere.
(2) Newly discovered evidence of actual innocence exists that requires vacation of the conviction or sentence as a matter of law or in the interests of justice.
(b) A motion pursuant to paragraph (1) of subdivision (a) shall be filed with reasonable diligence after the later of the following:
(1) The date the moving party receives a notice to appear in immigration court or other notice from immigration authorities that asserts the conviction or sentence as a basis for removal.
(2) The date a removal order against the moving party, based on the existence of the conviction or sentence, becomes final.
(c) A motion pursuant to paragraph (2) of subdivision (a) shall be filed without undue delay from the date the moving party discovered, or could have discovered with the exercise of due diligence, the evidence that provides a basis for relief under this section.