BILL ANALYSIS Ó
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|SENATE RULES COMMITTEE | AB 813|
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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:
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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
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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.
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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.
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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
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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
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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
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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
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