BILL ANALYSIS Ó
AB 142
Page 1
Date of Hearing: March 15, 2011
Counsel: Gabriel Caswell
ASSEMBLY COMMITTEE ON PUBLIC SAFETY
Tom Ammiano, Chair
AB 142 (Fuentes) - As Introduced: January 13, 2011
SUMMARY : Provide for an additional advisement when a noncitizen
pleads guilty so that the person is aware that if he or she is
deported and returns to the United States he or she will face
harsh federal penalties for reentry. Specifically, this bill :
1)Provides that, for any plea accepted after January 1, 2010,
the court shall also give the following advisement: "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."
2)Contains legislative findings and declarations, as specified.
EXISTING LAW :
1)Requires, prior to acceptance of a plea of guilty or nolo
contendere to any offense punishable as a crime under state
law, the court shall administer the following advisement on
the record to the defendant: "Ýi]f 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. ÝPenal Code Section 1026.5(a).]
2)States that 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. ÝPenal
Code Section 1026.5(b).]
3)Provides if the court fails to advise the defendant as
required by this section 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
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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.
ÝPenal Code Section 1026.5(b).]
4)States that 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. ÝPenal
Code Section 1026.5(b).]
5)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 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.
6)States that any "alien" who enters or attempts to enter the
United States at any time or place other than as designated by
immigration officers, or eludes examination or inspection by
immigration officers, or attempts to enter or obtains entry to
the United States by a willfully false or misleading
representation or the willful concealment of a material fact,
shall, for the first commission of any such offense, be fined,
or imprisoned not more than six months, or both, and, for a
subsequent commission of any such offense, be fined, or
imprisoned not more than two years, or both. Ý8 United States
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Code Section 1325(a).]
7)Provides that any "alien" who is apprehended while entering
(or attempting to enter) the United States at a time or place
other than as designated by immigration officers shall be
subject to a civil penalty of at least $50 and not more than
$250 for each such entry (or attempted entry) or twice the
amount specified in the case of an "alien" who has been
previously subject to a civil penalty under this subsection.
Civil penalties under this subsection are in addition to, and
not in lieu of, any criminal or other civil penalties that may
be imposed. Ý8 United States Code Section 1325(b).]
8)States that any individual who knowingly enters into a
marriage for the purpose of evading any provision of the
immigration laws shall be imprisoned for not more than five
years, or fined not more than $250,000, or both. Ý8 United
States Code Section 1325(c).]
9)Provides that any individual who knowingly establishes a
commercial enterprise for the purpose of evading any provision
of the immigration laws shall be imprisoned for not more than
five years. Ý8 United States Code Section 1325(d).]
10)Provides that any "alien" who has been denied admission,
excluded, deported, or removed or has departed the United
States while an order of exclusion, deportation, or removal is
outstanding, and thereafter enters, attempts to enter, or is
at any time found in, the United States, unless prior to his
re-embarkation at a place outside the United States or his
application for admission from foreign contiguous territory,
the Attorney General has expressly consented to such "alien's"
reapplying for admission; or with respect to an "alien"
previously denied admission and removed, unless such "alien"
shall establish that he was not required to obtain such
advance consent under this or any prior Act, shall be fined,
or imprisoned not more than two years or both. Ý8 United
States Code Section 1326(a).]
11)States that notwithstanding the provisions for criminal
penalties for reentry of excluded "aliens," in the case of any
"alien" described in whose removal was subsequent to a
conviction for commission of three or more misdemeanors
involving drugs, crimes against the person, or both, or a
felony (other than an aggravated felony), such alien shall be
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fined, imprisoned not more than 10 years, or both; or whose
removal was subsequent to a conviction for commission of an
aggravated felony, such alien shall be fined, imprisoned not
more than 20 years, or both. Ý8 United States Code Section
1326(b).]
FISCAL EFFECT : Unknown
COMMENTS :
1)Author's Statement : According to the author, "Guilty and no
contest pleas are often treated as just routine procedure,
especially in extremely busy courtrooms. In fact, a guilty/no
contest plea is a very serious legal proceeding, during which
a number of substantial constitutional rights are given up.
"There are also serious potential collateral consequences
associated with entering guilty/no contest pleas. One such
consequence is the possibility of deportation for some
defendants. Although the law has evolved to now require that,
for a plea to be valid, the judge must advise the defendant of
this potential consequence, defendants are NOT routinely
advised of the potential consequences of reentering the United
States if they are deported.
"The potential consequence of illegally reentering the United
States is prosecution in federal court, with a substantial
prison sentence. This is a potential consequence of entering
a guilty/no contest plea that defendants should be aware of
before deciding how to proceed in a criminal case."
2)Background : According to the background submitted by the
author, "Under existing law, judges are required to advise
criminal defendants of potential immigration consequences of
entering a guilty/no-contest plea before the plea can be
accepted. The purpose of this requirement is make sure that
the plea is knowing and voluntary and fully informed. The
problem is that the vast majority of defendants who receive
this advisement have no idea that returning to the country
after deportation is as serious as it is and choose to enter
guilty pleas unfairly unaware of the often times devastating
consequences of the plea. California has recognized the
importance and appropriateness of ensuring that criminal
defendants are advised that they can be deported if they plead
guilty. Defendants should also understand that pleading
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guilty could put them in a situation where they can never
return to the United States (and presumably their family and
friends). This is necessary for a plea to be truly knowing
and voluntary.
"In March of 2010 year the U.S. Supreme Court decided Padilla v.
Kentucky . In Padilla the Court highlighted the importance of
full knowledge of the immigration consequences associated with
entering guilty and no contest pleas. The Court reasoned that
both the defendant AND the State are better served when the
defendant is fully advised of the immigration consequences of
the plea. The Court explained that immigration consequences
are different from other consequences, as they in effect
result in the permanent 'exile' of the defendant from this
country. In light of the dramatic changes in the immigration
laws in the last several decades, the Court recognized that
immigration consequences of guilty and no contest pleas are in
a category of their own and warrant different treatment than
other consequences. This is a point that the Governor did not
consider last year."
3)Sufficiency of the Admonishment of Defendants at the Time of
Plea : Under current law, a defendant is advised of very
general immigration consequences at the time of a guilty or no
contest plea. Defendants are advised that they may be
deported, excluded from admission, and denied naturalization
as a result of their plea. However, courts are not required
to inform defendants that they may be prosecuted for
re-entering the United States. The penalties for re-entering
the United States can range up to 20 years in federal custody
for individuals previously convicted of specified serious
crimes.
The current admonition was codified in the Penal Code in 1977
and has never been updated.
Proponents argue that the admonishment of criminal defendants is
insufficient in the area of immigration and re-entry
consequences, and defendants must be fully informed of the
consequences of their plea. Individuals who plead guilty or
no-contest and re-enter the country may be unaware of the full
consequences of their actions.
Opponents argue that the admonishment should only impact the
direct consequences of the plea and believe that admonishments
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are unnecessary when they only affect possible future criminal
conduct, namely illegal re-entry into the country. Finally,
additional court time would be consumed for the addition to an
already lengthy admonition.
4)Argument in Support : According to the Coalition for Humane
Immigrant Rights of Los Angeles , "Ýi]n 1996, the Illegal
Immigration Reform and Immigrant Responsibility Act (IIRIRA)
was enacted, which among other changes to immigration law,
re-defined the definition of an aggravated felony. Before
1996, this term referred to individuals that committed serious
and violent offenses. However, this definition was broadened
and included minor crimes such as tax evasion, forgery,
perjury, or receipt of stolen property. Individuals that had
been convicted of a crime defined as an aggravated felony,
regardless of whether they had entered the country legally or
without proper documentation, whether regardless of whether
they had entered the country illegally or without proper
documentation, whether they were long-time Legal Permanent
Residents or short term temporary workers, or unauthorized
immigrants who had been working or staying illegally in this
country are subject to deportation and ineligible for
discretionary relief. Before 1996 immigrants convicted of an
aggravated felony had an opportunity to go before an
immigration judge, who should consider their positive
contributions, impact on their families, and time they have
been without convictions.
"Based on these changes, a guilty or no contest plea is a very
serious legal proceeding for non-citizens, which carries
serious potential collateral consequences. One such
consequence is the possibility of deportation for some
defendants. Although the law has evolved and now requires
that for a plea to be valid the judge must advise the
defendant of this potential consequence, defendants are not
routinely advised of the potential consequences of reentering
the United States if they are deported."
5)Argument in Opposition: According to the California District
Attorneys Association , "Ýi]t is not clear that it should be
the duty of the court to advise a defendant that if he or she
breaks the law, he or she could be charged with a crime.
Additionally, we are concerned about expanding the existing
advisement because of the severity of the remedy for the
failure to deliver the advisement. We are aware of reports of
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defendants returning to court years after a guilty plea and
after they have completed their punishment to assert that they
did not receive the advisement. This results in a prosecutor
having to spend valuable time and resourced trying to track
down information that may or may not be in the court file or
may not exist. Of course, this is the result only if the
court decides not to vacate the guilty plea and dismiss the
case."
6)Prior Legislation :
a) AB 806 (Fuentes), of the 2009-10, Legislative Session,
required that courts advise defendants if they are deported
from the United States and return illegally that they could
be charged with a separate federal offense. AB 806 was
vetoed.
b) AB 15 (Fuentes), of the 2009-10 Legislative Session,
required that courts advise defendants if they are deported
from the United States and return illegally that they could
be charged with a separate federal offense. AB 15 was
vetoed.
REGISTERED SUPPORT / OPPOSITION :
Support
American Civil Liberties Union
Coalition for Humane Immigrant Rights of Los Angeles
Opposition
California District Attorneys Association
Analysis Prepared by : Gabriel Caswell / PUB. S. / (916)
319-3744