BILL ANALYSIS Ó
AB 813
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ASSEMBLY THIRD READING
AB
813 (Gonzalez)
As Amended March 26, 2015
Majority vote
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|Committee |Votes |Ayes |Noes |
|----------------+------+---------------------+----------------------|
|Public Safety |5-2 |Quirk, Jones-Sawyer, |Melendez, Lackey |
| | |Low, Santiago, | |
| | |Thurmond | |
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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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