BILL ANALYSIS Ó
AB 142
Page 1
GOVERNOR'S VETO
AB 142 (Fuentes)
As Introduced January 13, 2011
2/3 vote
PUBLIC SAFETY 4-2
-----------------------------------------------------------------
| |Ammiano, Cedillo, Hill, | | |
| |Mitchell | | |
| | | | |
| | | | |
|Ayes:| | | |
| | | | |
| | | | |
|-----+--------------------------+-----+--------------------------|
|Nays:|Knight, Hagman | | |
| | | | |
-----------------------------------------------------------------
-----------------------------------------------------------------
|ASSEMBLY: |51-19|(March 31, |SENATE: |22-16|(August 18, |
| | |2011) | | |2011) |
-----------------------------------------------------------------
SUMMARY : Provides 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.
AB 142
Page 2
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.
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.
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 the 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.
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.
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
AB 142
Page 3
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.
FISCAL EFFECT : Unknown. This bill is keyed non-fiscal by the
Legislative Counsel.
COMMENTS : 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.
AB 142
Page 4
"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."
Please see the policy committee analysis for a full discussion
of this bill.
GOVERNOR'S VETO MESSAGE :
"This measure would require a court to advise a defendant prior
to the entry of a guilty plea or plea of nolo contendere of
possible federal penalties associated with a future prosecution
if the person is deported and if the person subsequently
reenters the country illegally. While a criminal defendant must
be correctly informed about the direct consequences of a plea,
including potential immigration consequences, this measure goes
beyond what is necessary by advising a criminal defendant about
the consequences of future criminality."
Analysis Prepared by : Gabriel Caswell / PUB. S. / (916)
319-3744
FN: 0002788