BILL NUMBER: AB 142	INTRODUCED
	BILL TEXT


INTRODUCED BY   Assembly Member Fuentes

                        JANUARY 13, 2011

   An act to amend Section 1016.5 of the Penal Code, relating to
criminal procedure.


	LEGISLATIVE COUNSEL'S DIGEST


   AB 142, as introduced, Fuentes. Criminal procedure: pleas.
   Existing law requires the court, prior to the acceptance of a plea
of guilty or nolo contendere, to advise the defendant that if he or
she is not a citizen, conviction of the crime charged may result in
deportation, exclusion from admission to the United States, or denial
of naturalization.
   This bill would additionally require the court to advise the
defendant that, if he or she is deported from the United States and
returns illegally, he or she could be charged with a separate federal
offense. The bill would make other conforming changes.
   Vote: majority. Appropriation: no. Fiscal committee: no.
State-mandated local program: no.


THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:

  SECTION 1.  The Legislature finds and declares all of the
following:
   (a) In Padilla v. Kentucky (2010) 130 S.Ct. 1473, the United
States Supreme Court highlighted the increased significance of
immigration consequences that are often inevitable with the making of
a guilty or nolo contendere plea.
   (b) The United States Supreme Court's decision in Padilla v.
Kentucky provides evidence of the increasing importance of a
defendant's full knowledge of all immigration consequences of a
guilty or nolo contendere plea in weighing whether to enter such a
plea.
   (c) Consistent with the Supreme Court's decision in Padilla v.
Kentucky, informed consideration of immigration consequences can only
benefit both the state and noncitizen defendants during the
plea-bargaining process.
  SEC. 2.  Section 1016.5 of the Penal Code is amended to read:
   1016.5.  (a) Prior to acceptance of a plea of guilty or nolo
contendere to any offense punishable as a crime under state law,
except offenses designated as infractions under state law, the court
shall administer  the following   an 
advisement on the record to the  defendant:  
defendant as specified in paragraphs (1) and (2).  
   (1) If the plea is accepted after January 1, 1978, the court shall
give the following advisement: 

   If you are not a citizen, you are hereby advised that conviction
of the offense for which you have been charged may have the
consequences of deportation, exclusion from admission to the United
States, or denial of naturalization pursuant to the laws of the
United States.

   (2) If the plea is accepted on or after January 1, 2012, the court
shall give the following advisement as well: 

   Further, if you are deported from the United States and return
illegally, you could be charged with a separate federal offense for
illegal reentry into the United States. 

   (b) Upon request, the court shall allow the defendant additional
time to consider the appropriateness of the plea in light of the
advisement as described in this section. If, after January 1, 1978,
the court fails to advise the defendant as required by  this
section   and   paragraph (1) of
subdivision (a) or, after January 1, 2012, fails to advise the
defendant as required by paragraphs (1) and (2) of subdivision (a)
and  the defendant shows that conviction of the offense to which
defendant pleaded guilty or nolo contendere may have the
consequences for the defendant of deportation, exclusion from
admission to the United States, or denial of naturalization pursuant
to the laws of the United States, the court, on defendant's motion,
shall vacate the judgment and permit the defendant to withdraw the
plea of guilty or nolo contendere, and enter a plea of not guilty.
Absent a record that the court provided the advisement required by
this section, the defendant shall be presumed not to have received
the required advisement.
   (c) With respect to  pleas   a plea 
accepted prior to  January 1, 1978,   the dates
specified in paragraphs (1) and (2) of subdivision (a),  it is
not the intent of the Legislature that a court's failure to provide
the advisement  as  required by subdivision (a)  of
Section 1016.5  should require the vacation of judgment and
withdrawal of the plea or constitute grounds for finding a prior
conviction invalid. Nothing in this section, however, shall be deemed
to inhibit a court, in the sound exercise of its discretion, from
vacating a judgment and permitting a defendant to withdraw a plea.
   (d) The Legislature finds and declares that in many instances
involving an individual who is not a citizen of the United States
charged with an offense punishable as a crime under state law, a plea
of guilty or nolo contendere is entered without the defendant
knowing that a conviction of  such   that 
offense is grounds for deportation, exclusion from admission to the
United States, or denial of naturalization pursuant to the laws of
the United States. Therefore, it is the intent of the Legislature in
enacting this section to promote fairness to such accused individuals
by requiring in such cases that acceptance of a guilty plea or plea
of nolo contendere be preceded by an appropriate warning of the
special consequences for such a defendant which may result from the
plea. It is also the intent of the Legislature that the court in such
cases shall grant the defendant a reasonable amount of time to
negotiate with the prosecuting agency in the event the defendant or
the defendant's counsel was unaware of the possibility of
deportation, exclusion from admission to the United States, or denial
of naturalization as a result of conviction. It is further the
intent of the Legislature that at the time of the plea no defendant
shall be required to disclose his or her legal status to the court.