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