BILL ANALYSIS                                                                                                                                                                                                    Ó



                                                                       AB 813


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          ASSEMBLY THIRD READING


          AB  
          813 (Gonzalez)


          As Amended  March 26, 2015


          Majority vote


           -------------------------------------------------------------------- 
          |Committee       |Votes |Ayes                 |Noes                  |
          |----------------+------+---------------------+----------------------|
          |Public Safety   |5-2   |Quirk, Jones-Sawyer, |Melendez, Lackey      |
          |                |      |Low, Santiago,       |                      |
          |                |      |Thurmond             |                      |
           -------------------------------------------------------------------- 


          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,








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             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  
            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  








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            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  
            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."  


          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.  


          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.  










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          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.  


          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.  


          FISCAL EFFECT:  Unknown.  This bill is keyed non-fiscal by the  
          Legislative Counsel. 


          COMMENTS:  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."


          Analysis Prepared by:                                               
          Sandy Uribe / PUB. S. / (916) 319-3744  FN: 0000184
















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