BILL ANALYSIS Ó
AB 813
Page 1
ASSEMBLY THIRD READING
AB
813 (Gonzalez)
As Amended May 14, 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 following a guilty plea 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 a
prejudicial error damaging the moving party's ability to
meaningfully understand, defend against, or knowingly accept
the actual or potential adverse immigration consequences of a
plea of guilty or nolo contendere; or,
AB 813
Page 2
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
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.
AB 813
Page 3
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 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.
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.
AB 813
Page 4
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:
Martin Vindiola / PUB. S. / (916) 319-3744 FN:
0000392