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  7/28/11)

          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
          Los Angeles County District Attorney's Office
          Mexican American Legal Defense and Educational Fund

           OPPOSITION  :    (Verified  7/28/11)

          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 

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            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."

           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  7/28/11   Senate Floor Analyses 

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                         SUPPORT/OPPOSITION:  SEE ABOVE

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