BILL ANALYSIS                                                                                                                                                                                                    Ó



                                                                     AB 267


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          Date of Hearing:  March 17, 2015
          Chief Counsel:     Gregory Pagan



                         ASSEMBLY COMMITTEE ON PUBLIC SAFETY


                                  Bill Quirk, Chair





          AB  
                 267 (Jones-Sawyer) - As Introduced  February 10, 2015


                       As Proposed to be Amended in Committee

          
          SUMMARY:  Requires the court, prior to the acceptance of a  
          guilty plea to a felony offense, to inform the defendant of the  
          various consequences that may result from conviction of a  
          felony.  Specifically, this bill:  

          1)Requires the court, prior to the acceptance of a guilty plea  
            or a plea of nolo contendere to a felony offense, to inform  
            the defendant of the various consequences that may result from  
            the conviction of a felony, including , but not limited to the  
            following:

             a)   Experiencing difficulty in obtaining employment  
               generally, and prohibited from employment in certain jobs;

             b)   The loss of voting rights while incarcerated and during  
               parole;

             c)   Ineligibility for enlisting in the military;

             d)   The loss of certain professional licenses, or the loss  
               of the ability to obtain certain professional licenses;








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             e)   Ineligibility for serving on a jury;

             f)   Ineligibility to own or possess a firearm;

             g)   Ineligibility for federal health care programs if the  
               felony is related to fraud involving a federal program,  
               patient abuse, or drugs;

             h)   Ineligibility for becoming a United States citizen;

             i)   Loss of federal financial aid if the felony was  
               committed while the defendant was receiving financial aid;

             j)   Foreign travel restrictions;

             aa)  Ineligibility for federal cash assistance if the felony  
               is drug-related;

             bb)  Restrictions on receiving Supplemental Security Income;  
               and, 

             cc)  Potential diminished parental and child custody rights.

          2)States the with respect to a plea accepted prior to January 1,  
            2016, it is not the intent of 
          the Legislature that a court's failure to provide the advisement  
            required by
          the above provision should require the vacation of judgment and  
            withdrawal  
                of the plea or constitute grounds for finding a prior  
          conviction invalid.

          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:  "[i]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  








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            denial of naturalization pursuant to the laws of the United  
            States.  (Pen. Code, § 1016.5, subd. (a).)

          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.  (Pen.  
            Code, § 1016.5, subd. (b).)

          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 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.   
            (Pen. Code, § 1016.5, subd. (b).) 

          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.  (Pen.  
            Code, § 1016.5, subd. (b).)

          5)Provides that with respect to pleas entered prior to January  
            1, 1978, it is not the intent of the Legislature that a  
            court's failure to provide the required advisement should  
            require the vacation of judgment and withdrawal of the plea or  
            constitute grounds for finding a prior conviction invalid.   
            (Pen. Code, § 1016.5, subd. (c).) 

          6)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  
            guilty plea or plea of nolo contendere be preceded by an  








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            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.  (Pen. Code, § 1016.5, subd. (d.) 

          FISCAL EFFECT:  None

          COMMENTS:  

          1)Author's Statement:  According to the author, "Currently, upon  
            arrest, police officers are required to inform a suspect of  
            their Miranda rights, which is a "right to silence" warning  
            given by police to criminal suspects in police custody. This  
            bill, similarly, will inform defendants verbally of the civil  
            rights they lose if they take a plea and become a felon. These  
            rights range from a loss of certain professional licensure  
            opportunities or ineligibility for becoming a United States  
            citizen." 

          2)As Proposed to be Amended:  It is anticipated that amendments  
            will be adopted in Committee to require that the proposed  
            advisement be made at the time of the entry of a guilty plea  
            or a plea of nolo contendere to a felony offense rather that  
            at the time arraignment.  Often times, an offense that is  
            initially filed or charged as a felony will later be reduced  
            to a misdemeanor or in some instances dismissed.  Requiring  
            the advisement to be given at the time of plea will eliminate  
            the possibility of needless advisements being given at the  
            time or arraignment.  Also, under existing law, at the time of  
            plea the court is required to advise the defendant of his or  
            her constitutional rights and the fact that they will be  
            giving up those rights be entering a plea of guilty. Further,  
            at the same time, the court must advise the defendant of the  
            immigration consequences of a guilty plea to a felony.  This  
            bill, as proposed to be amended, would require the court to,  








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            also, advise the defendant of specified additional  
            consequences resulting from a plea of guilty to a felony.

          Additionally, the proposed amendments, if adopted, will clarify  
            that the proposed advisement contained in this bill, will only  
            be required to be given prospectively, and the failure to  
            advise the defendant of the specified consequences prior to  
            the effective date of this bill will not be a ground to vacate  
            a prior judgment and conviction.

          3)Argument in Support:  The Center on Juvenile and Criminal  
            Justice (CJCJ) states, "Many CJCJ clients have accepted plea  
            deals without being informed of the serious consequences of  
            felony convictions-consequences they will live with for the  
            rest of their lives.  These records make it difficult for our  
            clients and other justice-involved to integrate successfully  
            into the community; they struggle to find jobs and housing  
            simply due to their felony convictions, regardless of their  
            efforts and motivation to lead productive and law-abiding  
            lives.  Moreover, these convictions make people ineligible for  
            many professional licenses, for citizenship, or for serving in  
            the military or on a jury.

          "California has one of the highest recidivism rates in the  
            nation.  Removing or limiting the barriers to successful  
            reentry is the key to both lowering recidivism rates and  
            helping formerly incarcerated people like our clients  
            reintegrate into society.  By informing defendants of the  
            consequences of accepting a plea and a felony conviction,  
            defendants will make more informed decisions about their  
            future."

          4)Argument in Opposition:  The California Judges Association  
            states "AB 267 requires the court to advise the defendant when  
            he or she first appears for felony arraignment that accepting  
            a plea or suffering a conviction for a felony may result in  
            specified consequences.  Before a court may accept a plea of  
            guilty or not contest, the defendant must be advised of the  
            direct consequences of such a plea.

          "The court need not advise the defendant of the collateral  
            consequences, defined as those that do not inexorably flow  








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            from a conviction.  For example, it is unnecessary to state  
            that a guilty plea may be used in a future federal prosecution  
            or as the basis for confinement under the sexually violent  
            predator act.

          "Further, even moving the proposed advisements to the time of  
            plea rather than arraignment, if that were contemplated, would  
            result in additional court time and delays.  For these  
            reasons, CJA respectfully opposes AB 267 and requests your NO  
            vote."

          5)Prior Legislation:  
          
             a)   AB 142 (Fuentes), of the 2011-12 Legislative Session,  
               required that courts advise defendants that if they are  
               deported from the United States and return illegally, they  
               could be charged with a separate federal offense.  AB 142  
               was vetoed by the Governor.

             b)   AB 806 (Fuentes),of the 2009-10 Legislative Session,  
               required that courts advise defendants that if they are  
               deported from the United States and return illegally, they  
               could be charged with a separate federal offense.  AB 806  
               was vetoed by the Governor.

             c)   AB 15 (Fuentes), of the 2009-10 Legislative Session,  
               required that courts advise defendants that if they are  
               deported from the United States and return illegally, they  
               could be charged with a separate federal offense.  AB 806  
               was vetoed by the Governor.

          REGISTERED SUPPORT / OPPOSITION:
          Support


          California Attorneys for Criminal Justice
          American Civil Liberties Union
          Center on Juvenile and Criminal Justice
          Law Center to Prevent Gun Violence
          Legal Center for Prisoners with Children










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          Opposition


          California Judges Association



          Analysis Prepared  
          by:              Gregory Pagan/PUB. S./(916) 319-3744