BILL ANALYSIS                                                                                                                                                                                                    Ó



                                                                     AB 813


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          Date of Hearing:  April 21, 2015
          Counsel:               Sandra Uribe


                         ASSEMBLY COMMITTEE ON PUBLIC SAFETY


                                  Bill Quirk, Chair





          AB  
                      813 (Gonzalez) - As Amended  March 26, 2015




          SUMMARY:  Creates a mechanism of post-conviction relief for a  
          person to vacate a conviction or sentence based on error  
          damaging his or her ability to meaningfully understand, defend  
          against, or knowingly accept the immigration consequences of the  
          conviction.  Specifically, this bill:  

          1)Permits a person no longer imprisoned or restrained to file a  
            motion to vacate a conviction or sentence for either of the  
            following reasons:

             a)   The conviction or sentence is legally invalid due to  
               error damaging the moving party's ability to meaningfully  
               understand, defend against, or knowingly accept the actual  
               or potential adverse immigration consequences of the  
               conviction; or,

             b)   Newly discovered evidence of actual innocence exists  
               which requires the conviction or sentence be vacated either  
               as a matter of law, or in the interests of justice.



          2)Requires a motion to vacate be filed with reasonable diligence  








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            after the later of the following:

             a)   The date the moving party receives a notice to appear in  
               immigration court or other notice from immigration  
               authorities that asserts the conviction or sentence as a  
               basis for removal;

             b)   The date a removal order against the moving party, based  
               on the existence of the conviction or sentence, becomes  
               final;

             c)   The date the moving party discovered, or could have  
               discovered with the exercise of due diligence, the evidence  
               that provides a basis for relief under this section; or

             d)   The effective date of this section.

          3)Entitles the moving party to a hearing; however, at the  
            request of the moving party, the court may hold the hearing  
            without his or her personal presence if counsel for the moving  
            party is present and the court finds good cause as to why the  
            moving party cannot be present.

          4)Requires the court to grant the motion to vacate the  
            conviction or sentence if the moving party establishes, by a  
            preponderance of the evidence, the existence of any of the  
            specified grounds for relief.

          5)Requires the court when ruling on the motion to make specific  
            findings of fact and conclusions of law on all issues  
            presented.

          6)Requires the court to allow the moving party to withdraw the  
            plea if it grants the motion to vacate a conviction or  
            sentence obtained through a plea of guilty or nolo contendere.

          7)Permits an appeal from an order granting or denying a motion  
            to vacate the conviction or sentence.

          EXISTING STATE LAW:  

          1)Requires a court before accepting a plea to advise a criminal  








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            defendant as follows: "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."   
            (Pen. Code, § 1016.5, subd. (a).)

          2)Permits a defendant to make a motion to withdraw his or her  
            plea if the court fails to admonish him or her about the  
            possible immigration consequences of entering the plea.  (Pen.  
            Code, § 1016.5, subd. (a).)

          3)Permits a defendant to move to withdraw a plea at any time  
            before judgment, or within six months after an order granting  
            probation when the entry of judgment is suspended, or if the  
            defendant appeared without counsel at the time of the plea.   
            (Pen. Code, § 1018.)

          4)Allows every person unlawfully imprisoned or restrained of his  
            or her liberty to prosecute a writ of habeas corpus to inquire  
            into the cause of his or her restraint.  (Pen. Code, § 1473,  
            subd. (a).)

          5)Authorizes a person no longer unlawfully imprisoned or  
            restrained to prosecute a motion to vacate the judgment based  
            on newly discovered evidence, as specified, if the motion is  
            brought within one year of the discovery.  (Pen. Code, §  
            1473.6.)

          EXISTING FEDERAL LAW:

          1)Lists several categories of crimes which render a non-citizen  
            removable from the United States, including:  crimes of moral  
            turpitude; aggravated felony convictions; domestic violence  
            convictions; firearm convictions, and drug convictions.  (INA  
            § 237(a)(2), see also 8 U.S.C. § 1227(a)(2).)
           
           2)Lists several categories of crimes which will render a  
            non-citizen inadmissible to the United States, including:   
            crimes of moral turpitude; drug convictions; and prostitution  
            convictions.  (INA § 212(a)(2), see also 8 U.S.C. §  
            1182(a)(2).)








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           FISCAL EFFECT:  Unknown

          COMMENTS:  

          1)Author's Statement:  According to the author, "AB 813 will  
            give hope to those who have been wronged by an unlawful  
            conviction by establishing a way to challenge it after their  
            criminal custody has ended. Even though current law requires  
            defense counsel to inform noncitizen defendants of the  
            immigration consequences of convictions, some defense  
            attorneys still fail to do so. Failure to understand the true  
            consequences of pleading guilty to certain felonies, for  
            example, has led to the unnecessary separation of families  
            across California. AB 813 does not guarantee an automatic  
            reversal of the conviction, but an opportunity to present  
            their case in front of a judge, a procedure that already  
            exists in most of the country."

          2)People v. Kim (2009) 45 Cal.4th 1078:  Kim was a legal  
            resident, but not a citizen of the United States, when he  
            suffered multiple criminal convictions.  The federal  
            government sought to deport him based on the convictions, and  
            Kim petitioned for a writ of error coram nobis, seeking to  
            vacate the convictions which triggered the deportation  
            proceedings based on his unawareness of the immigration  
            consequences of his plea.  The California Supreme Court  
            granted review to address whether persons in similar  
            situations are entitled to have their guilty pleas vacated by  
            a writ of error coram nobis.  (Id. at p. 1084.)

          The Supreme Court observed, the writ of coram nobis is granted  
            only when three requirements are met.  First, the petitioner  
            must demonstrate that some fact existed which, through no  
            fault or negligence on his part, was not presented to the  
            court at the trial, and which if presented would have  
            prevented the rendition of the judgment.  Next, the petitioner  
            must show that the newly discovered evidence does not go to  
            the merits of issues tried because issues of fact, once  
            adjudicated, even if incorrectly, cannot be reopened except on  
            motion for new trial.  This requirement applies even though  
            the evidence in question is not discovered until after the  








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            deadline for filing a motion for new trial time or after the  
            motion has been denied.   Finally, the petitioner must show  
            that the relied-upon facts were not known to him or her and  
            could not in the exercise of due diligence have been  
            discovered at any time substantially earlier than the time of  
            the motion for the writ.  (People v. Kim, supra, 45 Cal.4th at  
            pp. 1092-1093, citing People v. Shipman (1965) 62 Cal.2d 226.)

          The Court held that Kim was ineligible for a coram nobis relief.  
             Kim was put on notice of the possible immigration  
            consequences pertaining to the plea agreement.  The fact that  
            the actual immigration consequences of the plea were unknown  
            to the court and the parties was a mistake of law, not a  
            mistake of fact.  Kim's claim amounted to a claim of  
            ineffective assistance of counsel, which is not reviewable by  
            way of writ of coram nobis.  Here, Kim's contention was not a  
            basic flaw which would have prevented rendition of the  
            judgment, but rather facts which went to the legal effect of  
            the judgment.  (People v. Kim, supra, 45 Cal.4th at pp.  
            1102-1103.)

          In Kim, the Court concluded by noting, "[T]he Legislature has  
            been active in providing statutory remedies when the existing  
            remedies such as habeas corpus have proven ineffective.   
            Section 1016.5 especially shows the Legislature's concern that  
            those who plead guilty or no contest to criminal charges are  
            aware of the immigration consequences of their pleas.  Because  
            the Legislature remains free to enact further statutory  
            remedies for those in defendant's position, we are disinclined  
            to reinterpret the historic writ of error coram nobis to  
            provide the remedy he seeks."  (People v. Kim, supra, 45  
            Cal.4th at p. 1107.)

          This bill creates a new mechanism for post-conviction relief for  
            a person who is no longer in actual or constructive custody.   
            Specifically, it allows a person to move to vacate a  
            conviction due to error affecting his or her ability to  
            meaningfully understand, defend against, or knowingly accept  
            the actual or potential immigration consequences of the  
            conviction.

          3)Options for Post-Conviction Relief:  In Padilla v. Kentucky  








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            (2010) 559 U.S. 356, the United States Supreme court held that  
            the Sixth Amendment requires defense counsel to provide  
            affirmative and competent advice to noncitizen defendants  
            regarding the potential immigration consequences of their  
            criminal cases.  (Id. at p. 360.)  Specifically, the United  
            States Supreme Court held that defense counsel is  
            constitutionally deficient if there is a failure to advise a  
            noncitizen client entering a plea to a criminal offense of the  
            risk of deportation.  "Deportation as a consequence of a  
            criminal conviction has become an integral part of the penalty  
            for a criminal conviction for noncitizens, sometimes the most  
            important part.  (Id. at p. 364.)  The court's holding is not  
            limited to only affirmative mis-advice of the consequence  
            because that would encourage defense counsel to remain silent  
            on a matter of great importance to a noncitizen client, and  
            that would be inconsistent with counsel's duty to provide  
            advice to a client considering the advantages and  
            disadvantages of a plea agreement.  (Id. at pp. 370-371.)

          For a defendant who is granted probation, he or she may be able  
            to obtain post-conviction relief based on ineffective  
            assistance of counsel with regard to advice about immigration  
            consequences by moving to vacate the plea under Penal Code  
            section 1018, but only within six months of the granting of  
            probation.  (See e.g. People v. Perez (2015) 233 Cal.App.4th  
            736.)

          An appeal is the most common method for most defendants to  
            challenge a judgment of conviction.  However, a notice of  
            appeal must be filed within 60 days of the judgment.  (Cal.  
            Rules of Court, Rule 8.308.)  Moreover, an appeal is limited  
            to matters that appear on the face of the record.  Usually,  
            the record on appeal fails to show why counsel acted or failed  
            to act in the instance asserted to be ineffective.  To accept  
            an ineffective assistance of counsel claim on direct appeal  
            the appellate record must make it clear that the challenged  
            omission was "mistake beyond the range of reasonable  
            competence."  (People v. Montiel (1993) 5 Cal.4th 877, 911.)   
            "In some cases . . . the record on appeal sheds no light on  
            why counsel acted or failed to act in the manner challenged.   
            In such circumstances, unless counsel was asked for an  
            explanation and failed to provide one or unless there simply  








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            could be no satisfactory explanation, these cases are affirmed  
            on appeal."  (People v. Lewis (1990) 50 Cal.3d 262, 288;  
            People v. Mendoza Tello (1997) 15 Cal.4th 264, 266.)

          Habeas corpus is the main vehicle for review of orders where an  
            appeal is precluded or would be an inadequate remedy.  Habeas  
            corpus is also used to bring to the court's attention to  
            matters outside the record which are crucial to the  
            petitioner's claims for relief, and which have resulted in a  
            constitutional violation, thereby rendering the petitioner's  
            restraint unlawful.  (In re Bower (1985) 38 Cal.3d 865, 872.)   
            One common example of the use of habeas corpus is ineffective  
            assistance of counsel claims.  An individual could allege that  
            his or her attorney was ineffective by failing to advise him  
            or her of the adverse immigration consequences of accepting a  
            plea, or by providing erroneous advice.  (See e.g. People v.  
            Soriano (1987) 194 Cal.App.3d 1470.)  However, to be eligible  
            for habeas corpus the individually must be considered  
            "unlawful imprisoned or restrained." (Pen. Code, § 1473.)   
            Actual incarceration in prison or jail is not required for a  
            petition for writ of habeas corpus; persons on bail,  
            probation, parole, or committed to a state hospital are  
            considered to be in constructive custody for purposes of  
            habeas corpus writ review.  (In re Bandmann (1959) 51 Cal.2d  
            388, 396-397; In re Petersen (1958) 51 Cal.2d 177, 181.)   
            However, federal immigration custody alone, does not qualify  
            as "custody" for purposes of habeas corpus writ review.   
            (People v. Villa (2009) 45 Cal.4th 1063.)  Therefore, a  
            non-citizen who did not learn of an immigration consequence  
            until many years later, such as at a naturalization interview,  
            would be precluded from using the writ of habeas corpus to  
            challenge the conviction based on ineffective assistance of  
            counsel.

          A criminal defendant who is no longer in "custody" for purposes  
            of the writ of habeas corpus, can move to withdraw a guilty  
            plea if the trial court accepting the plea, failed to admonish  
            the defendant of the possible immigration consequence of the  
            plea under Penal Code section 1016.5.  There is no time limit  
            within which such a motion must be filed, but there is a due  
            diligence requirement.  (People v. Zamudio (2000) 23 Cal.4th  
            183.)  However, the grounds for this basis of relief are quite  








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            limited.  It is only available where the court fails to give  
            the general admonishment or the record is silent on the  
            matter.  (People v. Martinez (2013) 57 Cal.4th 555, 565.)

          So at this time, under California law, there is no vehicle to  
            for a person who is no longer in actual or constructive  
            custody to challenge his or her conviction based on a mistake  
            of law regarding immigration consequences or ineffective  
            assistance of counsel in properly advising of these  
            consequences when the person learns of the error post-custody.  
             It seems particularly important to create such a vehicle  
            given that it was after the California Supreme Court  
            prohibited the use of a writ of corum nobis in these instances  
            that the United States Supreme Court explicitly held that  
            defense counsel has a duty to properly advise on these  
            matters.

          4)Argument in Support:  According to the American Civil  
            Liberties Union of California, a co-sponsor of this bill,  
            "Currently, only people who are in prison, on parole, or on  
            probation may ask a court to review the validity of their  
            conviction.  After the opportunity for habeas corpus relief  
            has passed, people with old convictions - who long ago  
            completed their sentence and have become productive members of  
            society - have no way to raise a claim of innocence or  
            otherwise challenge the legal validity of the convictions.   
            California is one of very few states that lacks a vehicle for  
            post-custodial review.  In fact, forty-four other states and  
            the federal government all provide individuals with a way of  
            challenging unjust convictions after criminal custody has  
            ended.  

          "This deficiency in current law has a particularly devastating  
            impact on California's immigrant communities.  While the  
            criminal penalty for a conviction is obvious and immediate,  
            the immigration penalty can remain 'invisible' until an  
            encounter with the immigration system raises the issue.  Since  
            1987, California law has required defense counsel to inform  
            noncitizen defendants about the immigration consequences of  
            convictions.  But, despite this requirement, some defense  
            attorneys still fail to do so.  Immigrants may find out that  
            their conviction makes them deportable only when, years later,  








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            Immigration and Customs Enforcement initiates removal  
            proceedings.  By then, however, it is too late.  Without any  
            vehicle to challenge their convictions in state court,  
            immigrants are routinely deported on the basis of convictions  
            that should never have existed in the first place and would be  
            thrown out if habeas corpus were available.

          "Previously, Californians facing deportation for old, legally  
            invalid convictions used a process called corum nobis to  
            challenge these convictions.  But in 2009, the California  
            Supreme Court decided People v. Kim, ruling that corum nobis  
            could not be used to raise claims of ineffective assistance of  
            counsel, thereby eliminating the last post-custodial vehicle  
            to vacate legally invalid convictions.  (People v. Kim 45  
            Cal.4th 1078 (Cal. 2009)).  However, the Court specifically  
            invited legislative action, noting that, 'when established  
            remedies have proved inadequate, the Legislature has enacted  
            statutory remedies to fill the void.'  (People v. Kim)

          "AB 813 answers the Supreme Court's call to action and fills a  
            gaping hole in California law."

          5)Argument in Opposition:  The California District Attorneys  
            Association writes, "In the context of a conviction obtained  
            by a guilty plea, I can follow the logic that a person who  
            didn't fully understand the immigration consequences of that  
            plea should be given an opportunity to have the conviction  
            vacated and the plea withdrawn because they may not have pled  
            guilty if they understood how that plea may impact their  
            immigration status.  It would represent a tremendous failure  
            by defense counsel to meet their constitutional obligation to  
            inform their client, by the court to advise the defendant as  
            required under PC 1016.5, and likely be grounds for an appeal  
            based on ineffective assistance of counsel, but it makes  
            logical sense.

          "However, in cases where an individual chose to go to trial, and  
            was found guilty by verdict, this logic falls apart.  Would a  
            person have tried harder to not be found guilty if they were  
            concerned about adverse immigration consequences?  Would they  
            somehow have been less culpable of the crime for which a jury  
            has found them guilty?








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          "Consider this example - a person is charged with armed robbery  
            (or forcible rape, or murder, or literally any other crime, as  
            the bill contains no restrictions based on the seriousness of  
            the offense) and enters a plea of not guilty.  The evidence  
            against the defendant is overwhelming, and the jury returns a  
            unanimous guilty verdict.  After the convicted defendant  
            completes his sentence, he files a motion under this new right  
            given to him by AB 813, contesting his conviction because he  
            didn't meaningfully understand that there might be adverse  
            immigration consequences as a result of his conviction.  The  
            court would then be required to vacate his conviction if they  
            found, by a preponderance of the evidence, that he didn't  
            understand the potential immigration consequences.

          "This makes no sense.  At no point is the convicted person  
            alleging that he did not commit the crime for which a jury  
            found him guilty, yet he would be allowed to have that  
            conviction vacated because of what amounts to a failure by  
            defense counsel to meet their constitutional obligation of  
            ensuring that their client was informed about the consequences  
            of a conviction.  It's unclear how a better understanding of  
            those consequences would have changed someone's trial strategy  
            when they already decided not to enter a guilty plea.  

          "Even more troubling is the fact that if that person later  
            committed another offense, they would not be eligible for any  
            sort of enhanced sentence that would normally apply to a  
            person who has committed multiple offenses, because their  
            prior conviction has been vacated.  Again, in the case of a  
            motion under new PC 1473.7(a)(1), this would be done without  
            any showing of actual innocence.

          "The bill also contains no provisions covering whether a person  
            could be retried after a conviction was vacated or plea  
            withdrawn. 

          "We have additional concerns that AB 813 would be sent directly  
            to the floor if it were to pass out of committee.  Certainly  
            there would be a cost attributed to the hearings that would be  
            required for these new motions.  Since the bill, as drafted,  
            would apply to literally everyone who has ever been convicted  








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            of any crime, as long as they can show that the conviction  
            might negatively impact their immigration status, these  
            potential costs would be substantial.  Having the  
            Appropriations Committee estimate and consider these potential  
                                                               costs seems like a good idea."

          6)Related Legislation: 

             a)    AB 267 (Jones-Sawyer) would require 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.  AB 267 is pending a  
               vote on the Assembly Floor.

             b)   AB 1343 (Thurmond) would require defense counsel to  
               provide accurate and affirmative advice to a defendant  
               regarding the potential immigration consequences of a  
               proposed disposition and attempt to defend against those  
               consequences.  AB 1343 will be heard in this Committee  
               today.

             c)   AB 1352 (Eggman) would require the court to allow a  
               defendant to withdraw his or her plea in a deferred entry  
               of judgment case in order to avoid specified adverse  
               consequences, including deportation.  AB 1352 is will be  
               heard in this Committee today.

          7)Prior Legislation:  

             a)   SB 1310 (Lara), Chapter 174, Statutes of 2014, reduced  
               the maximum sentence for a misdemeanor from 365 days to 364  
               days to prevent some offenses from being classified as  
               aggravated felonies for purposes of federal immigration  
               law.

             b)   Chapter 1088, Statutes of 1977, required trial courts,  
               prior to acceptance of guilty or nolo contendere pleas from  
               noncitizens, to advise them that conviction might result in  
               deportation or other immigration consequences.


          REGISTERED SUPPORT / OPPOSITION:








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          Support

          American Civil Liberties Union of California (Co-Sponsor)
          California Public Defenders Association (Co-Sponsor)
          California Attorneys for Criminal Justice
          California Immigrant Policy Center
          Centro Legal de la Raza
          Lawyers Committee for Civil Rights of the San Francisco Bay Area
          Legal Services for Prisoners with Children
          National Day Laborer Organizing Network
          Pangea Legal Services
          Public Counsel
          Root and Rebound
          Rubicon Programs
          San Francisco Public Defender

          Opposition
          
          California District Attorneys Association


          Analysis Prepared  
          by:              Sandy Uribe / PUB. S. / (916) 319-3744