BILL ANALYSIS Ó ------------------------------------------------------------ |SENATE RULES COMMITTEE | AB 142| |Office of Senate Floor Analyses | | |1020 N Street, Suite 524 | | |(916) 651-1520 Fax: (916) | | |327-4478 | | ------------------------------------------------------------ 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 CONTINUED AB 142 Page 2 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)) CONTINUED AB 142 Page 3 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 CONTINUED AB 142 Page 4 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) CONTINUED AB 142 Page 5 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 CONTINUED AB 142 Page 6 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 CONTINUED AB 142 Page 7 SUPPORT/OPPOSITION: SEE ABOVE **** END **** CONTINUED