BILL ANALYSIS Ó
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|SENATE RULES COMMITTEE | AB 142|
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THIRD READING
Bill No: AB 142
Author: Fuentes (D)
Amended: As introduced
Vote: 21
SENATE PUBLIC SAFETY COMMITTEE : 4-2, 6/7/11
AYES: Hancock, Liu, Price, Steinberg
NOES: Anderson, Harman
NO VOTE RECORDED: Calderon
ASSEMBLY FLOOR : 51-19, 3/31/11 - See last page for vote
SUBJECT : Criminal procedure: pleas
SOURCE : Coalition for Humane Immigrant Rights of Los
Angeles
DIGEST : This bill provides for an additional advisement
when a non-citizen pleads guilty so that the person is
aware that if he/she is deported and returns to the United
States, he/she could be charged with a separate federal
offense.
ANALYSIS : Existing law 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
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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. (8
United States Code Section 1325(a))
Existing law 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. (8
United States Code Section 1325(b))
Existing law 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. (8 United States Code Section 1325(c))
Existing law 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.
(8 United States Code Section 1325(d))
Existing law 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. (8 United States Code Section 1326(a))
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Existing law 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 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. (8
United States Code Section 1326(b))
Existing law 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. (Penal Code
Section 1016.5 (a))
Existing law 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. (Penal Code Section 1016.5 (b))
Existing law 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 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. (Penal Code Section 1016.5
(b))
Existing law states that absent a record that the court
provided the advisement required by this section, the
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defendant shall be presumed not to have received the
required advisement. (Penal Code Section 1016.5 (b))
This bill provides that for any plea accepted after January
1, 2012 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.
This bill contains the following legislative findings and
declarations:
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.
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.
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.
Prior Legislation
AB 15 (Fuentes) passed the Senate (21-13) on August 24,
2010, but was vetoed by the Governor.
AB 806 (Fuentes) passed the Senate (23-14) on September 2,
2009, but was vetoed by the Governor.
FISCAL EFFECT : Appropriation: No Fiscal Com.: No
Local: No
SUPPORT : (Verified 6/8/11)
Coalition for Humane Immigrant Rights of Los Angeles
(source)
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American Civil Liberties Union of California
Asian Pacific American Legal Center
Asian Law Caucus
California Public Defenders Association
OPPOSITION : (Verified 6/8/11)
California District Attorneys Association
ARGUMENTS IN SUPPORT : According to 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 to 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 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 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
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category of their own and warrant different treatment
than other consequences."
ARGUMENTS IN OPPOSITION : The California District
Attorneys oppose this bill, as they have the prior
legislation. In their opposition they state: "It 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 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 resources trying to track
down information that may or may not be in a court file
that may 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. Unfortunately, this bill carries the
potential to exacerbate this growing problem."
ASSEMBLY FLOOR : 51-19, 3/31/11
AYES: Allen, Ammiano, Atkins, Beall, Block, Blumenfield,
Bonilla, Bradford, Brownley, Buchanan, Butler, Charles
Calderon, Carter, Cedillo, Chesbro, Davis, Dickinson,
Eng, Feuer, Fong, Fuentes, Furutani, Galgiani, Gatto,
Gordon, Hall, Hayashi, Roger Hernández, Hill, Huber,
Hueso, Huffman, Lara, Bonnie Lowenthal, Ma, Mendoza,
Mitchell, Monning, Nielsen, Norby, Pan, Perea, V. Manuel
Pérez, Portantino, Solorio, Swanson, Torres, Wieckowski,
Williams, Yamada, John A. Pérez
NOES: Achadjian, Bill Berryhill, Conway, Cook, Donnelly,
Fletcher, Garrick, Grove, Harkey, Jeffries, Jones,
Knight, Logue, Mansoor, Miller, Morrell, Olsen, Silva,
Wagner
NO VOTE RECORDED: Alejo, Campos, Gorell, Hagman,
Halderman, Nestande, Skinner, Smyth, Valadao, Vacancy
RJG:mw 6/8/11 Senate Floor Analyses
SUPPORT/OPPOSITION: SEE ABOVE
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