BILL ANALYSIS Ó AB 813 Page 1 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 AB 813 Page 2 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 AB 813 Page 3 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).) AB 813 Page 4 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 AB 813 Page 5 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 AB 813 Page 6 (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 AB 813 Page 7 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 AB 813 Page 8 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, AB 813 Page 9 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? AB 813 Page 10 "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 AB 813 Page 11 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: AB 813 Page 12 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