Senate Bill No. 653

Introduced by Senator Knight

February 22, 2013

An act to amend Section 1016.5 of the Penal Code, relating to criminal procedure.

LEGISLATIVE COUNSEL’S DIGEST

SB 653, as introduced, Knight. Criminal procedure: pleas.

Existing law requires the court, prior to the acceptance of a plea of guilty or nolo contendere, to advise the defendant that if he or she is not a citizen, conviction of the crime charged may result in deportation, exclusion from admission to the United States, or denial of naturalization. After January 1, 1978, if the court fails to advise the defendant, as required, 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 the defendant’s motion, is required to vacate the judgment and permit the defendant to withdraw the plea of guilty or nolo contendere, and enter a plea of not guilty.

This bill would require the motion to be brought before the expiration of the time period for the destruction of the court records corresponding to the defendant’s offense.

Vote: majority. Appropriation: no. Fiscal committee: no. State-mandated local program: no.

The people of the State of California do enact as follows:

SECTION 1.  

Section 1016.5 of the Penal Code is amended to
read:

1016.5.  

(a) Prior to acceptance of a plea of guilty or nolo
contendere to any offense punishable as a crime under state law,
except offenses designated as infractions under state law, the court
shall administer the following advisement on the record to the
defendant:

If 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.

(b)  begin insert (1) end insert begin insert   end insert Upon request, the court shall allow the defendant
additional time to consider the appropriateness of the plea in light
of the advisement begin delete as end delete described in this section. If begin delete , after January 1,
1978, end delete the court fails to advise the defendant as required by this
section and the defendant shows that conviction of the offense to
which begin insert the end insert 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.
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.

begin insert

(2) A motion brought pursuant to this section shall be brought
before the expiration of the applicable time period for the
destruction of court records corresponding to the defendant’s
offense, as described in subdivision (e) of Section 68152 of the
Government Code.

end insert

(c) With respect to pleas accepted prior to January 1, 1978, it
is not the intent of the Legislature that a court’s failure to provide
the advisement required by subdivision (a) begin delete of Section 1016.5 end delete
should require the vacation of judgment and withdrawal of the
plea or constitute grounds for finding a prior conviction invalid.
begin delete Nothing in this end delete begin insert This end insert section, however, begin delete shall be deemed to inhibit end delete
begin insert does not prohibit end insert a court, in the sound exercise of its discretion,
from vacating a judgment and permitting a defendant to withdraw
a plea.

(d) The Legislature 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 begin delete such end delete begin insert those end insert accused individuals by requiring
in begin delete such end delete begin insert those end insert cases that acceptance of a guilty plea or plea of nolo
contendere be preceded by an appropriate warning of the special
consequences for begin delete such a end delete begin insert the end insert defendant which may result from the
plea. It is also the intent of the Legislature that the court in begin delete such end delete
begin insert those end insert 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 begin delete no end delete begin insert a end insert defendant
shall begin insert not end insert be required to disclose his or her legal status to the court.