BILL ANALYSIS Ó
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Loni Hancock, Chair A
2011-2012 Regular Session B
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AB 142 (Fuentes)
As Introduced: January 13, 2011
Hearing date: June 7, 2011
Code of Civil Procedure; Penal Code
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CRIMINAL PROCEDURE: PLEAS
HISTORY
Source: Coalition for Human Immigrants' Rights of Los Angeles
Prior Legislation: AB 15 (Fuentes) - Vetoed 2010
AB 806 (Fuentes) - Vetoed 2009
Support: Asian Pacific American Legal Center; Asian Law Caucus;
California Public Defenders Association; American Civil
Liberties Union of California; Coalition for Humane
Immigrant Rights of Los Angeles
Opposition: California District Attorneys Association
Assembly Floor Vote: Ayes 51 - Noes 19
KEY ISSUE
SHOULD THE LAW PROVIDE THAT WHEN A PERSON WHO IS NOT A CITIZEN
ACCEPTS A PLEA THE COURT SHALL ADVISE THE PERSON THAT IF HE OR SHE
IS DEPORTED AND RETURNS TO THE UNITED STATES, HE OR SHE COULD BE
CHARGED WITH A SEPARATE FEDERAL OFFENSE FOR ILLEGAL REENTRY?
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PURPOSE
The purpose of this bill is to provide for an additional
advisement when a non-citizen pleads guilty so that the person
is aware that if he or she is deported and returns to the United
States, he or she could be charged with a separate federal
offense.
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 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
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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).)
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.
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(Penal Code § 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 § 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 § 1016.5 (b).)
Existing law 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. (Penal
Code § 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
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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.
RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION
For the last several years, severe overcrowding in California's
prisons has been the focus of evolving and expensive litigation.
As these cases have progressed, prison conditions have
continued to be assailed, and the scrutiny of the federal courts
over California's prisons has intensified.
On June 30, 2005, in a class action lawsuit filed four years
earlier, the United States District Court for the Northern
District of California established a Receivership to take
control of the delivery of medical services to all California
state prisoners confined by the California Department of
Corrections and Rehabilitation ("CDCR"). In December of 2006,
plaintiffs in two federal lawsuits against CDCR sought a
court-ordered limit on the prison population pursuant to the
federal Prison Litigation Reform Act. On January 12, 2010, a
three-judge federal panel issued an order requiring California
to reduce its inmate population to 137.5 percent of design
capacity -- a reduction at that time of roughly 40,000 inmates
-- within two years. The court stayed implementation of its
ruling pending the state's appeal to the U.S. Supreme Court.
On May 23, 2011, the United States Supreme Court upheld the
decision of the three-judge panel in its entirety, giving
California two years from the date of its ruling to reduce its
prison population to 137.5 percent of design capacity, subject
to the right of the state to seek modifications in appropriate
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circumstances.
In response to the unresolved prison capacity crisis, in early
2007 the Senate Committee on Public Safety began holding
legislative proposals which could further exacerbate prison
overcrowding through new or expanded felony prosecutions.
This bill does not appear to aggravate the prison overcrowding
crisis described above.
COMMENTS
1. Need for This Bill
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
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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.
2. Additional Advisement
Existing law already requires the court, at the time of a plea
of guilty or nolo contendere, to advise the defendant that if he
or she is not a citizen of the United States, his or her plea
could subject him or her to deportation. As noted in the
author's statement the US Supreme Court has recently emphasized
the importance of a noncitizen defendant knowing the immigration
consequences of a plea because deportation is a part of the
penalty that is imposed on such a defendant upon conviction.
(See Padilla v. Kentucky (2010) 130 S. Ct. 1473 at 1480.)
In addition to the existing advisement, this bill would require
the court to give the person an additional advisement stating
that if he or she is deported from the United States and
reenters, he or she could face harsh penalties under federal
law.
The Asian Law Caucus supports the additional advisement in this
bill stating:
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
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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.
3. Opposition
The California District Attorneys oppose this bill, as they have
the prior legislation. In their opposition they state:
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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.
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