BILL ANALYSIS Ó
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Loni Hancock, Chair
2015 - 2016 Regular
Bill No: AB 813 Hearing Date: July 7, 2015
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|Author: |Gonzalez |
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|Version: |June 22, 2015 |
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|Urgency: |No |Fiscal: |No |
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|Consultant:|MK |
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Subject: Criminal Procedure: Post-Conviction Relief
HISTORY
Source: American Civil Liberties Union
California Attorneys for Criminal Justice
California Public Defenders Association
Prior Legislation:None
Support: Alameda County Public Defender; California Immigrant
Policy Center; Coalition for Humane Immigrant Rights
of Los Angeles; Immigrant Defense Project; Immigrant
Legal Resource Center; The Immigrant Rights Clinic at
the University of California Irvine School of Law;
Lawyers Committee of Civil Rights of the SF Bay Area;
Legal Services for Prisoners with Children; The
National Day Laborer Organizing Network; Pangea Legal
Services; Public Counsel; Root and Rebound; Rubicon
Programs
Opposition:Alameda County District Attorney; Judicial Council of
California (unless amended)
Assembly Floor Vote: 65 - 11
AB 813 (Gonzalez ) Page
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PURPOSE
The purpose of this bill is to create 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.
Existing law 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." (Penal Code § 1016.5 (a).)
Existing law 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.
(Penal Code, § 1016.5 (a).)
Existing law 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. (Penal Code § 1018.)
Existing law 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. (Penal
Code § 1473 (a).)
Existing law 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.)
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Existing federal law 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).)
Existing federal law 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).)
This bill permits a person no longer imprisoned or restrained to
file a motion to vacate a conviction or sentence for either of
the following reasons:
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,
Newly discovered evidence of actual innocence exists
which requires vacation of the conviction or sentence as a
matter of law or in the interests of justice.
This bill provides that a motion to vacate be filed with
reasonable diligence after the later of the following:
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;
The date a removal order against the moving party, based on
the existence of the conviction or sentence, becomes final;
This bill provides that the motion shall be filed without undue
delay from the date of 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.
This bill entitles the moving party to a hearing; however, at
the request of the moving party, the court may hold the hearing
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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.
This bill 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.
This bill requires the court when ruling on the motion to
specify the basis for its conclusions.
This bill provides that if the court grants the motion to vacate
a conviction or sentence obtained through a plea of guilty or
nolo contendere, the court shall allow the moving party to
withdraw the plea.
This bill permits an appeal from an order granting or denying a
motion to vacate the conviction or sentence.
RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION
For the past eight years, this Committee has scrutinized
legislation referred to its jurisdiction for any potential
impact on prison overcrowding. Mindful of the United States
Supreme Court ruling and federal court orders relating to the
state's ability to provide a constitutional level of health care
to its inmate population and the related issue of prison
overcrowding, this Committee has applied its "ROCA" policy as a
content-neutral, provisional measure necessary to ensure that
the Legislature does not erode progress in reducing prison
overcrowding.
On February 10, 2014, the federal court ordered California to
reduce its in-state adult institution population to 137.5% of
design capacity by February 28, 2016, as follows:
143% of design bed capacity by June 30, 2014;
141.5% of design bed capacity by February 28, 2015; and,
137.5% of design bed capacity by February 28, 2016.
In February of this year the administration reported that as "of
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February 11, 2015, 112,993 inmates were housed in the State's 34
adult institutions, which amounts to 136.6% of design bed
capacity, and 8,828 inmates were housed in out-of-state
facilities. This current population is now below the
court-ordered reduction to 137.5% of design bed capacity."(
Defendants' February 2015 Status Report In Response To February
10, 2014 Order, 2:90-cv-00520 KJM DAD PC, 3-Judge Court, Coleman
v. Brown, Plata v. Brown (fn. omitted).
While significant gains have been made in reducing the prison
population, the state now must stabilize these advances and
demonstrate to the federal court that California has in place
the "durable solution" to prison overcrowding "consistently
demanded" by the court. (Opinion Re: Order Granting in Part and
Denying in Part Defendants' Request For Extension of December
31, 2013 Deadline, NO. 2:90-cv-0520 LKK DAD (PC), 3-Judge Court,
Coleman v. Brown, Plata v. Brown (2-10-14). The Committee's
consideration of bills that may impact the prison population
therefore will be informed by the following questions:
Whether a proposal erodes a measure which has contributed
to reducing the prison population;
Whether a proposal addresses a major area of public safety
or criminal activity for which there is no other
reasonable, appropriate remedy;
Whether a proposal addresses a crime which is directly
dangerous to the physical safety of others for which there
is no other reasonably appropriate sanction;
Whether a proposal corrects a constitutional problem or
legislative drafting error; and
Whether a proposal proposes penalties which are
proportionate, and cannot be achieved through any other
reasonably appropriate remedy.
COMMENTS
1. Need for This Bill
According to the author:
California lags far behind the rest of the country in
its failure to provide its residents with a means of
challenging unlawful convictions after their criminal
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sentences have been served. Forty-four states and the
federal government all provide individuals with a way
of challenging unjust convictions after criminal
custody has ended. In California, however, individuals
who gain access to evidence of actual innocence - or to
proof of a defect in the underlying criminal proceeding
- have no way to present this evidence before the court
after criminal custody has expired.
This omission has a particularly devastating impact on
California's immigrant community. Since 1987,
California law has required defense counsel to inform
non-citizen defendants about the immigration
consequences of convictions. However, many defense
attorneys still fail to do so. Many immigrants suffer
convictions without having any idea that their criminal
record will, at some point in the future, result in
mandatory immigration imprisonment and deportation,
permanently separating families.
While the criminal penalty for a conviction is clear,
the immigration penalty can remain "invisible" until an
encounter with the immigration system raises the issue.
For many immigrants, the first time they learn of the
immigration consequences of a conviction can occur
years after they have successfully completed their
criminal sentence when Immigration and Customs
Enforcement initiates removal proceedings. Challenging
the unlawful criminal conviction is often the only
remedy available to allow immigrants an opportunity to
remain with their families in the United States. Yet,
in California, affected individuals have no way of
challenging their unjust convictions once probation
ends, because they no longer satisfy habeas corpus'
strict custody requirements. Californians are thus
routinely deported on the basis of convictions that
never should have existed in the first place.
AB 813 will fill a gap in California criminal procedure
by providing a means for people to challenge their
legally invalid convictions. The proposal does not
guarantee an automatic reversal of the conviction, but
an opportunity to present a case in front of a judge.
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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 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
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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.)
3. Motion for Post-Conviction Relief
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.
In Padilla v. Kentucky (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.)
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
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requirement. (People v. Zamudio (2000) 23 Cal.4th 183.)
However, the grounds for this basis of relief are quite 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.)
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. The Padilla case
requiring that a defense counsel properly advise a person on
immigration consequences was subsequent to the California
decision in Kim prohibiting the use of corum nobis and so this
bill would create a mechanism for post-conviction relief where
there is not one currently.
4. Support
The Alameda County Public Defender supports this bill stating:
Currently, only people who are in prison, on parole or
on probation may ask a court to review the validity of
their conviction. People with old convictions-who long
ago completed their sentence and have become productive
members of society-have not way to raise a claim of
innocence or otherwise challenge the legal validity of
the convictions. California is one of the 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
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requirement, some defense attorneys still fail to do
so. Immigrants may only find out that their conviction
makes them deplorable when, years later, 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
conviction that never should have existed in the first
place.
5. Opposition
The Alameda County District Attorney opposes this bill stating:
I oppose this bill for many reasons. The first is that
existing law already creates a mechanism for a person
to seek relief if they did not know their immigration
consequences of a conviction. Second, this bill
requires all motions shall be entitled to a hearing
which removes the discretion from the court to have a
hearing because there is not requirement of showing or
new evidence. Also this new hearing also doesn't
require the defendant to be present for the hearing so
who is going to testify that he or she didn't
understand their immigration consequences.
6. Related Legislation
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 passed this Committee on June 16.
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.
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
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order to avoid specified adverse consequences, including
deportation. AB 1352 (Eggman) is set to be heard in this
committee on July 14th.
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