BILL ANALYSIS Ó
AB 267
Page 1
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
AB 267
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Opposition
California Judges Association
Analysis Prepared
by: Gregory Pagan/PUB. S./(916) 319-3744