BILL ANALYSIS Ó ----------------------------------------------------------------- |SENATE RULES COMMITTEE | AB 813| |Office of Senate Floor Analyses | | |(916) 651-1520 Fax: (916) | | |327-4478 | | ----------------------------------------------------------------- THIRD READING Bill No: AB 813 Author: Gonzalez (D) Amended: 6/22/15 in Senate Vote: 21 SENATE PUBLIC SAFETY COMMITTEE: 5-2, 5/10/16 AYES: Hancock, Glazer, Leno, Liu, Monning NOES: Anderson, Stone SENATE APPROPRIATIONS COMMITTEE: 5-2, 8/11/16 AYES: Lara, Beall, Hill, McGuire, Mendoza NOES: Bates, Nielsen ASSEMBLY FLOOR: 65-11, 5/18/15 - See last page for vote SUBJECT: Criminal procedure: postconviction relief SOURCE: American Civil Liberties Union California Attorneys for Criminal Justice California Public Defenders Association DIGEST: This bill 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. ANALYSIS: AB 813 Page 2 Existing federal law: 1)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).) 2)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).) 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." (Penal Code § 1016.5 (a).) 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. (Penal Code § 1016.5 (a).) 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. (Penal Code § 1018.) 4)Allows every person unlawfully imprisoned or restrained of his or her liberty to prosecute a writ of habeas corpus to inquire AB 813 Page 3 into the cause of his or her restraint. (Penal Code § 1473 (a).) 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. (Penal Code § 1473.6.) 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: 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. 1)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; or, The date a removal order against the moving party, based on the existence of the conviction or sentence, becomes final. AB 813 Page 4 1)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 bill. 2)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. 3)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. 4)Requires the court when ruling on the motion to specify the basis for its conclusions. 5)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. 6)Permits an appeal from an order granting or denying a motion to vacate the conviction or sentence. Background 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. AB 813 Page 5 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 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 prohibiting the use of corum nobis and so this bill creates a mechanism for AB 813 Page 6 post-conviction relief where there is not one currently. FISCAL EFFECT: Appropriation: No Fiscal Com.:NoLocal: No According to the Senate Appropriations Committee, 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 10 petitions for relief are filed per county 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 judgment on the record. SUPPORT: (Verified8/11/16) American Civil Liberties Union (co-source) California Attorneys for Criminal Justice (co-source) California Public Defenders Association (co-source) A New Way of Life Re-Entry Project ACCESS Women's Health Justice Alameda County Public Defender California Immigrant Policy Center Centro Legal de la Raza Coalition for Humane Immigrant Rights of Los Angeles Ella Baker Center for Human Rights Equal Justice Society Friends Committee on Legislation of California Immigrant Defense Project Immigrant Legal Resource Center Legal Services for Prisoners with Children Northern California Innocence Project Pangea Legal Services Post-Conviction Justice Project of the USC Gould School of Law AB 813 Page 7 Public Counsel Root and Rebound Rubicon Programs Santa Clara County Public Defender's Office SEIU California The Immigrant Rights Clinic at the University of California Irvine School of Law Lawyers Committee of Civil Rights of the SF Bay Area The National Day Laborer Organizing Network Unite Here Local 30 W. Haywood Burns Institute One individual OPPOSITION: (Verified8/11/16) Alameda County District Attorney Judicial Council of California ARGUMENTS IN 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 requirement, some defense attorneys still fail to do AB 813 Page 8 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. ARGUMENTS IN 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. ASSEMBLY FLOOR: 65-11, 5/18/15 AYES: Achadjian, Alejo, Bloom, Bonilla, Bonta, Brown, Burke, Calderon, Campos, Chang, Chau, Chávez, Chiu, Chu, Cooley, Cooper, Dababneh, Dahle, Daly, Dodd, Eggman, Frazier, Cristina Garcia, Eduardo Garcia, Gatto, Gipson, Gomez, Gonzalez, Gordon, Gray, Roger Hernández, Holden, Irwin, Jones, Jones-Sawyer, Lackey, Levine, Linder, Lopez, Low, Maienschein, Mayes, McCarty, Medina, Mullin, Nazarian, O'Donnell, Olsen, Perea, Quirk, Rendon, Ridley-Thomas, Rodriguez, Salas, Santiago, Steinorth, Mark Stone, Thurmond, Ting, Wagner, Weber, Wilk, Williams, Wood, Atkins NOES: Travis Allen, Baker, Brough, Beth Gaines, Gallagher, Grove, Hadley, Harper, Obernolte, Patterson, Waldron NO VOTE RECORDED: Bigelow, Kim, Mathis, Melendez Prepared by:Mary Kennedy / PUB. S. / 8/15/16 20:26:50 **** END **** AB 813 Page 9