BILL ANALYSIS �
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Loni Hancock, Chair S
2013-2014 Regular Session B
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SB 653 (Knight)
As Introduced February 22, 2013
Hearing date: April 2, 2013
Penal Code
MK:dl
CRIMINAL PROCEDURE: PLEAS
HISTORY
Source: California District Attorneys Association
Prior Legislation: None
Support: Unknown
Opposition:California Public Defenders Association; California
Attorneys for Criminal Justice; Mexican American Legal
Defense and Educational Fund; California Immigrant
Policy Center
KEY ISSUE
SHOULD A MOTION TO SET ASIDE A PLEA BECAUSE OF A FAILURE TO ADVISE
ON IMMIGRATION IMPACTS BE BROUGHT WITHIN THE TIME FRAME THAT THE
RECORDS MUST BE KEPT?
PURPOSE
The purpose of this bill is to provide that the motion to set
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SB 653 (Knight)
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aside a plea because the advisement on immigration consequences
was not given must be brought within the statutory time frame in
which the records must be kept.
Existing law provides that prior to the acceptance of a plea of
guilty or nolo contender to any offense punishable as a crime
under state law, the court shall administer the following
advisement on the record:
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. (Penal Code �
1016.5 (a).)
Existing law provides that if the court fails to advise the
defendant as required and the defendant shows that the
conviction of the offense to which the defendant pleaded guilty
of nolo contender 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, shall vacate the
judgment and permit the defendant to withdraw the plea of guilty
or nolo contender, and enter a plea of not guilty. (Penal Code
� 1016.5 (b))
Existing law provides 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.
This bill would provide that 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.
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RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION
For the last several years, severe overcrowding in California's
prisons has been the focus of evolving and expensive litigation
relating to conditions of confinement. On May 23, 2011, the
United States Supreme Court ordered California to reduce its
prison population to 137.5 percent of design capacity within two
years from the date of its ruling, subject to the right of the
state to seek modifications in appropriate circumstances.
Beginning in early 2007, Senate leadership initiated a policy to
hold legislative proposals which could further aggravate the
prison overcrowding crisis through new or expanded felony
prosecutions. Under the resulting policy known as "ROCA" (which
stands for "Receivership/ Overcrowding Crisis Aggravation"), the
Committee held measures which created a new felony, expanded the
scope or penalty of an existing felony, or otherwise increased
the application of a felony in a manner which could exacerbate
the prison overcrowding crisis. Under these principles, ROCA
was applied as a content-neutral, provisional measure necessary
to ensure that the Legislature did not erode progress towards
reducing prison overcrowding by passing legislation which would
increase the prison population. ROCA necessitated many hard
and difficult decisions for the Committee.
In January of 2013, just over a year after the enactment of the
historic Public Safety Realignment Act of 2011, the State of
California filed court documents seeking to vacate or modify the
federal court order to reduce the state's prison population to
137.5 percent of design capacity. The State submitted in part
that the, ". . . population in the State's 33 prisons has been
reduced by over 24,000 inmates since October 2011 when public
safety realignment went into effect, by more than 36,000 inmates
compared to the 2008 population . . . , and by nearly 42,000
inmates since 2006 . . . ." Plaintiffs, who oppose the state's
motion, argue in part that, "California prisons, which currently
average 150% of capacity, and reach as high as 185% of capacity
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at one prison, continue to deliver health care that is
constitutionally deficient."
In an order dated January 29, 2013, the federal court granted
the state a six-month extension to achieve the 137.5 % prisoner
population cap by December 31st of this year.
The ongoing litigation indicates that prison capacity and
related issues concerning conditions of confinement remain
unsettled. However, in light of the real gains in reducing the
prison population that have been made, although even greater
reductions are required by the court, the Committee will review
each ROCA bill with more flexible consideration. The following
questions will inform this consideration:
whether a measure erodes realignment;
whether a measure addresses a crime which is directly
dangerous to the physical safety of others for which there
is no other reasonably appropriate sanction;
whether a bill corrects a constitutional infirmity or
legislative drafting error; whether a measure proposes
penalties which are proportionate, and cannot be achieved
through any other reasonably appropriate remedy; and
whether a bill addresses a major area of public safety
or criminal activity for which there is no other
reasonable, appropriate remedy.
COMMENTS
1. Need for This Bill
According to the author:
Existing law requires a court, prior to a guilty or no
contest plea, to advise a defendant that, if he or she
is not a citizen, the impending conviction could carry
consequences relative to immigration status, including
deportation, exclusion from admission to the United
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States, or denial of naturalization pursuant to the
laws of the United States. The remedy for the failure
to provide this advisement is that the judgment can be
vacated and the defendant is permitted to withdraw the
guilty plea. Motions are brought alleging the defendant
never received the advisement years after the court
records have been destroyed. Because the law provides
that absent a record that the court provided the
advisement, the defendant shall be presumed not to have
received the required advisement, an inequitable
situation exists and the law effectively encourages a
person to bring this motion to remove a conviction rom
his or her record whether or not he or she actually
received the advisement.
2. Time for Setting Aside a Plea
Under existing law, when a person pleads guilty, the court must
advise the person that there may be immigration consequences for
the resulting conviction if he or she is not a citizen. If the
court fails to make the required advisement and the conviction
is later shown to have immigration consequences, the person may
make a motion to the court to set aside the plea. Under
existing law, courts are only required to keep records relating
to most misdemeanors for five or ten years and court reporters
may destroy their transcripts after 10 years. According to the
sponsor, since there is not limitation on bringing the motion to
set aside the plea for failure to advise on immigration impact,
the destruction of misdemeanor records means that if the plea is
brought after the records have been destroyed since there is a
presumption that absent a record that the court provided the
advisement that it shall be presumed to have not been given.
This bill provides that the motion must be made before the
expiration of the time period for destruction of court records.
SHOULD A MOTION TO SET ASIDE A PLEA BECAUSE THE IMMIGRATION
CONSEQUENCE WAS NOT GIVEN BE BROUGHT IN THE TIME PERIOD FOR THE
DESTRUCTION OF COURT RECORDS IN THAT CASE?
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3. Opposition
The California Public Defenders Association opposes this bill.
They assert that it is in many of the older cases where the
advisement was not given and a person may not be aware of the
implications of the plea until after that time frame has passed:
It is important to note that there is not statute of
limitations on Immigration and Customs Enforcement
(ICE) actions, so a potential 1016.5 movant might have
not prompt to seek relief, or cause to be aware of
potential relief until years after the case is closed
or after the time has come for the court record to be
destroyed. In fact, these proceedings are often
commenced more than 10 years after a conviction when a
lawful permanent resident attempts to renew his or her
green card (which has a 10 year renewal time period or
when he or she reenters after a trip. Accordingly, this
measure would create an unfair imbalance, imposing one
limitation of action in the face of limitless ICE
actions that are what often drive inquiry into the
validity of the plea.
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CPDA also notes that the California Supreme Court is currently
addressing the "question of whether a District Attorney can meet
the burden showing advisement simply by saying it was his/her
custom and practice to provide such an advisement" in the case
of People v. Arriaga (2011)201 Cal. App. 4th 429. If this bill
passes and the US Supreme Court find that the people can meet
their burden to show an advisement was given by showing it was
given routinely, then CPDA questions what remaining effect this
statute will have.
DOES THE LACK OF STATUTE OF LIMITATIONS FOR ICE CASES MEAN THAT
A PERSON MAY NOT BE AWARE THAT HE OR SHE SHOULD HAVE HAD AN
ADVISEMENT UNTIL AFTER THE TIME FRAME FOR RETAINING RECORDS HAS
PASSED?
SHOULD THE LEGISLATURE WAIT AND SEE HOW THE COURT DECIDES PEOPLE
v. ARRIAGA?
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