BILL ANALYSIS Ó
SENATE COMMITTEE ON APPROPRIATIONS
Senator Ricardo Lara, Chair
2015 - 2016 Regular Session
AB 813 (Gonzalez) - Criminal procedure: post-conviction relief
-----------------------------------------------------------------
| |
| |
| |
-----------------------------------------------------------------
|--------------------------------+--------------------------------|
| | |
|Version: June 22, 2015 |Policy Vote: PUB. S. 5 - 2 |
| | |
|--------------------------------+--------------------------------|
| | |
|Urgency: No |Mandate: No |
| | |
|--------------------------------+--------------------------------|
| | |
|Hearing Date: June 20, 2016 |Consultant: Jolie Onodera |
| | |
-----------------------------------------------------------------
This bill meets the criteria for referral to the Suspense File.
Bill
Summary: AB 813 would establish a process of post-conviction
relief for a person to vacate a conviction or sentence for
either of the following reasons: (1) the conviction or sentence
is legally invalid due to a prejudicial error damaging a
person's ability to meaningfully understand, defend against, or
knowingly accept the immigration consequences of the conviction,
or (2) newly discovered evidence of actual innocence exists that
requires vacation of the conviction or sentence as a matter of
law or in the interests of justice.
Fiscal
Impact: To the extent additional motions to vacate are filed
with the courts and evidentiary hearings are conducted as
required for all motions filed pursuant to the provisions of
this measure, significant additional workload for the trial
courts could result. While the fiscal impact cannot be estimated
with certainty, costs could potentially exceed the low millions
of dollars (General Fund*) annually for additional court
workload based on the estimated hourly court cost of $837. To
the extent even five to ten petitions for relief are filed per
county could cost in the range of $1.9 million to $3.9 million
AB 813 (Gonzalez) Page 1 of
?
statewide assuming eight hours of court time per case, which
includes locating the historic record, reviewing the case,
setting the case for hearing, allowing for discovery, conducting
the hearing, and making a final judgement on the record.
*Trial Court Trust Fund
Background: In Padilla v. Kentucky (2010) 559 U.S. 356, the United States
(U.S.) 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. Specifically, the U.S.
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 as
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 § 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 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.)
Under California law, there is currently no means 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 defense
counsel to properly advise a person of potential immigration
AB 813 (Gonzalez) Page 2 of
?
consequences was subsequent to the California decision in People
v. Kim, supra, 45 Cal.4th at p. 1107, prohibiting the use of a
writ of corum nobis. This bill would create a mechanism for
post-conviction relief where there is not one currently.
Proposed Law:
This bill would provide that a person no longer imprisoned or
restrained may prosecute a motion to vacate a conviction or
sentence for either of the following reasons:
(1) 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.
(2) Newly discovered evidence of actual innocence exists
that requires vacation of the conviction or sentence as a
matter of law or in the interests of justice.
This bill provides that a motion pursuant to (1) above shall 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 a motion pursuant to (2) above shall be
filed without undue delay from 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.
This bill specifies that all motions shall be entitled to a
hearing. At the request of the moving party, the court may hold
the hearing without the personal presence of the moving party if
counsel for the moving party is present and the court finds good
cause as to why the moving party cannot be present.
AB 813 (Gonzalez) Page 3 of
?
When ruling on the motion, 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 grounds for relief, as specified.
In granting or denying the motion, the court shall
specify the basis for its conclusion.
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.
Provides that an order granting or denying the motion is
appealable, as specified.
Prior
Legislation: AB 1343 (Thurmond) Chapter 705/2015 requires defense counsel
to provide accurate advice on the potential immigration
consequences of a proposed plea agreement, consistent with the
provisions of Padilla. AB 1343 additionally requires the
prosecution and defense counsel to contemplate immigration
consequences in the plea negotiation process.
AB 267 (Jones-Sawyer) 2015 would have required 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 offense. This bill allowed the court
to provide the required advisement through a form notice
presented to the defendant, or a bulletin posted in the
courtroom. This bill was vetoed by the Governor with the
following message:
I am returning Assembly Bill 267 without my signature. This bill
requires the court to provide a criminal defendant with
information about a wide array of potential consequences of a
guilty plea. I believe ensuring adequate consideration of the
various consequences of a criminal conviction prior to a guilty
plea is the responsibility of the defendant's counsel, who is
best situated to determine which advisements are appropriate and
meaningful to the defendant.
Staff
AB 813 (Gonzalez) Page 4 of
?
Comments: By establishing a new process for post-conviction
relief, this bill could result in a significant number of court
filings by persons no longer in custody who are seeking to have
their sentences or convictions vacated. The Judicial Council has
indicated that while the circumstances upon which a court may
vacate a sentence or conviction are limited (lack of
understanding about potential adverse immigration consequences,
or newly discovered evidence of actual innocence), it is likely
that far more individuals will file motions than are eligible
for this post-conviction relief.
In addition to the potential increase in filings for
post-conviction relief, this bill requires that all motions
shall be entitled to a hearing, irrespective of whether or not a
petitioner has demonstrated a prima facie case in his or her
favor. By prohibiting judicial discretion to deny a motion to
vacate based on an insufficient showing of evidence to warrant a
hearing, this bill could potentially result in significant court
costs to conduct such hearings.
While the fiscal impact of this measure cannot be estimated with
certainty, costs to the courts could potentially exceed the low
millions of dollars annually for additional court workload based
on the estimated hourly court cost of $837. To the extent even
five to ten motions are filed in each county per year could cost
in the range of $1.9 million to $3.9 million statewide assuming
eight hours of court time per case, which includes locating the
historic record, reviewing the case, setting the case for
hearing, allowing for discovery, conducting the hearing, and
making a final judgement on the record. To the extent the number
of motions filed is greater or less than noted above, and/or the
court time attributable to each case is greater or less than
estimated above, the annual costs would be commensurately higher
or lower. To the extent motions to vacate are currently being
filed in the courts via other approaches (i.e., through coram
nobis petitions, PC §1016.5 motions) for this population would
serve to potentially offset, only in minor part, the potential
costs of this measure.
-- END --
AB 813 (Gonzalez) Page 5 of
?