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; AB 267 Page 2 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 AB 267 Page 3 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 AB 267 Page 4 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, AB 267 Page 5 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 AB 267 Page 6 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 Page 7 Opposition California Judges Association Analysis Prepared by: Gregory Pagan/PUB. S./(916) 319-3744