If you have finished your sentence in California and a past conviction is still causing harm, you can ask the court that entered it to erase it by filing a motion to vacate a criminal conviction in California under Penal Code 1473.7 or Penal Code 1016.5. A granted motion lets you withdraw your original guilty or no-contest plea and treats the conviction as if it never happened. That is a stronger result than an expungement, and for non-citizens it is often the only remedy that actually protects against deportation.
Who Can File
Penal Code 1473.7 is only for people who are “no longer in criminal custody.”1California Legislative Information. California Penal Code Section 1473.7 That means you have finished your entire sentence, including probation and parole. If you are still serving any part of the sentence, you need a habeas corpus petition instead.
Penal Code 1016.5 has no custody restriction, but it is only available to non-citizens who entered a guilty or no-contest plea and are now facing immigration consequences.
The Grounds You Can Use
Your motion has to identify a specific legal ground and give the court facts that support it. California recognizes four.
Prejudicial Error About Immigration Consequences
This is the most common ground. The conviction is legally invalid because of an error that damaged your ability to understand, defend against, or knowingly accept the immigration consequences of your plea.1California Legislative Information. California Penal Code Section 1473.7 In practice this usually means your defense attorney said nothing about deportation risk or gave you incorrect advice about it.
You do not have to prove your lawyer was constitutionally ineffective. The statute says the finding of legal invalidity “may, but need not, include a finding of ineffective assistance of counsel.”1California Legislative Information. California Penal Code Section 1473.7 The question is whether the error was serious enough that you would have rejected the plea if you had understood what it would cost you. Courts weigh the totality of circumstances, including your ties to the United States and whether an immigration-safe plea was potentially available.2Justia Law. People v. Vivar
Newly Discovered Evidence of Actual Innocence
You can also move to vacate when newly discovered evidence shows you are actually innocent.1California Legislative Information. California Penal Code Section 1473.7 The evidence has to be something that was not available and could not have been found through reasonable effort at the time of your plea. DNA results and another person’s confession are typical examples. The bar is high: the evidence has to require vacating the conviction either as a matter of law or in the interests of justice.
Racial or Ethnic Bias
A conviction or sentence sought, obtained, or imposed based on race, ethnicity, or national origin in violation of Penal Code 745 (the California Racial Justice Act) can be vacated under 1473.7.1California Legislative Information. California Penal Code Section 1473.7 If your motion involves conduct by law enforcement officers, you must serve a copy on the agency that employed them. You can also file a pre-motion discovery request to obtain evidence supporting a bias claim.
Missing Immigration Advisement Under 1016.5
Before accepting a guilty or no-contest plea from a non-citizen, the court has to read a specific warning, word for word and on the record, that the conviction may result in deportation, exclusion from the country, or denial of naturalization. If the court skipped that advisement and you now face those consequences, the court must vacate the conviction and let you withdraw the plea. When no court record shows the warning was given, you are presumed not to have received it.3California Legislative Information. California Penal Code Section 1016.5 The statute applies to pleas entered after January 1, 1978.
Why This Is Not the Same as an Expungement
An expungement under Penal Code 1203.4 is a different remedy with real limits. The court dismisses the case after you complete probation, but the conviction can still be used against you in future criminal cases, you still have to disclose it on public office and state licensing applications, and it does not restore firearm rights.4California Legislative Information. California Penal Code Section 1203.4 Federal immigration authorities generally do not treat an expungement as eliminating the conviction for immigration purposes.
A motion to vacate under 1473.7 eliminates the conviction because of a defect in the original proceedings. Federal immigration courts have recognized that a conviction vacated on that basis is no longer a conviction under immigration law. If deportation or another immigration consequence is what brought you here, the motion to vacate is almost always the right tool, not an expungement.
What You Have to Prove
The standard of proof is a preponderance of the evidence, meaning it is more likely than not that your ground for relief exists.1California Legislative Information. California Penal Code Section 1473.7 That is lower than the beyond-a-reasonable-doubt standard used at trial.
For an immigration-related prejudicial error, you need to show a reasonable probability that you would have rejected the plea if you had correctly understood the immigration consequences.2Justia Law. People v. Vivar You do not have to prove you would have won at trial. Strong family ties in the United States, long-term residency, and statements you made at the time of the plea about wanting to stay in the country all help.
For the missing-advisement ground under 1016.5, the analysis is more mechanical. Did the record show the advisement was given? If not, the presumption runs your way and the court must vacate the conviction if you face immigration consequences.3California Legislative Information. California Penal Code Section 1016.5
When to File
For an immigration-related prejudicial error under 1473.7(a)(1), the motion is timely as long as you are no longer in criminal custody. A court can still find it untimely if you did not act with reasonable diligence after receiving a notice to appear in immigration court or a final removal order based on the conviction.1California Legislative Information. California Penal Code Section 1473.7
For actual innocence and racial bias motions under 1473.7(a)(2) and (a)(3), you have to file without undue delay from the date you discovered or could have discovered the supporting evidence. There is no fixed number of days, but waiting months after learning of new evidence without explanation will hurt you.
Penal Code 1016.5 sets no filing deadline, but it only applies to pleas entered after January 1, 1978.3California Legislative Information. California Penal Code Section 1016.5
Preparing the Motion
Before you file, pull together the case number, conviction date, specific charges and code sections, and the county where the conviction occurred. The county determines where you file.
The motion lives or dies on its supporting evidence. Most motions rely on signed declarations, which are sworn written statements from people with firsthand knowledge. Your own declaration is the most important piece. It should explain what your attorney told you or failed to tell you about immigration consequences, why you accepted the plea, and what you would have done with accurate information. Declarations from your original attorney, family members, or an immigration lawyer who can speak to the advice you received all add weight.
If the motion involves immigration consequences, include documents showing your non-citizen status and any notices from immigration authorities. If removal proceedings are already underway, attach the notice to appear or removal order.
The primary form is the Motion to Vacate Conviction or Sentence, Form CR-187, available from the California Courts website.5California Courts. Motion to Vacate Conviction or Sentence (CR-187) On the form you identify your legal ground and describe the supporting facts. Attach every declaration and exhibit, and prepare a proposed order for the judge to sign if the motion is granted.
Filing and Serving
Put the completed CR-187, declarations, exhibits, and proposed order into a single packet. Make at least two copies, one for you and one for the prosecution.
Before filing with the court, deliver a copy to the District Attorney’s office in the county where the conviction occurred. Someone other than you, at least 18 and not a party to the case, has to handle the delivery, either in person or by mail.6California Courts. Serving Court Papers That person completes and signs a Proof of Service documenting the delivery. If your motion involves a racial bias claim based on law enforcement conduct, serve the relevant agency as well.
Take the original packet and the completed Proof of Service to the clerk of the superior court that handled the conviction. There may be a filing fee, and fee waivers are available if you cannot afford it. Get your copy stamped “Filed” as confirmation.
The Hearing and What Happens After
Every 1473.7 motion is entitled to a hearing.1California Legislative Information. California Penal Code Section 1473.7 If you cannot attend in person, the court may allow the hearing to proceed without you for good cause. That option matters especially for people who have already been deported. If the prosecution does not oppose the motion, the court can grant it without a hearing at all.
The prosecutor may file a written response. At the hearing, both sides can argue and the judge may ask questions.
If the motion is granted, the conviction is vacated and you withdraw your plea. The case does not automatically end there. The prosecution can offer a new plea deal or take the case to trial on the original charges. In immigration cases, many prosecutors offer an alternative plea to a charge that does not carry deportation consequences. If the motion is denied, the conviction stays on your record and you can appeal.
What a Granted Motion Does for You
For immigration purposes, a conviction vacated under 1473.7(a)(1) is generally no longer treated as a conviction under federal immigration law. Federal immigration courts have drawn a line between vacaturs based on a defect in the original proceedings, which eliminate the conviction, and rehabilitative relief like expungement, which does not. A 1473.7 vacatur falls on the right side of that line. Some Department of Homeland Security attorneys have argued otherwise, so it is worth having an immigration lawyer coordinate with your criminal defense attorney.
For employment and background checks, California’s Fair Chance Act prohibits employers from asking about or considering convictions that have been dismissed, expunged, or vacated.7California Civil Rights Department. Fair Chance Act: Criminal History and Employment Once the conviction is vacated, you can answer “No” on job applications when asked whether you have been convicted of a crime. Private background check companies can be slow to update their records, so keep a copy of the court order in case you need to dispute an inaccurate report.
Federal Convictions Use a Different Process
All of this applies to California state convictions. Federal convictions are handled under 28 U.S.C. ยง 2255, which has to be filed in the sentencing court within one year of the conviction becoming final and rests on different grounds like constitutional violations, lack of jurisdiction, or a sentence exceeding the legal maximum.8Office of the Law Revision Counsel. 28 U.S. Code 2255 – Federal Custody; Remedies on Motion Attacking Sentence A California state court cannot vacate a federal conviction, and a federal motion cannot vacate a state one. If you are not sure which system your conviction came from, check the court name on your sentencing documents.