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