The California Court of Appeal, Fourth Appellate Decision, has issued a decision addressing the due diligence requirements of a motion to vacate under Penal Code 1473.7. The trial court denied the motion without the defendant or counsel present, finding no diligence given a 12-year gap between the conviction and the filing of the motion to vacate. The appellate court disagreed, finding that the motion was filed 7 months after Penal Code 1473.7 was enacted, and one month after the appellate court advised the defendant (in a decision denying an appeal of the denial of an expungement in the case) that he could seek relief under 1473.7.
The appellate court also determined that the trial court should have appointed counsel for the defendant, who was unrepresented and detained at the time of the court’s hearing on the motion. “We construe amended section 1473.3 to provide the right to appointed counsel where an indigent moving party has set forth factual allegations stating a prima facie case for entitlement to relief under the statute.”
The full text of People v. Rodriguez can be found here: