BILL ANALYSIS                                                                                                                                                                                                    Ó



                                                                     AB 813


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          CONCURRENCE IN SENATE AMENDMENTS


          AB  
          813 (Gonzalez)


          As Amended  June 22, 2015


          Majority vote


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          |ASSEMBLY:  |65-11 |(May 18, 2015) |SENATE: |26-11 |(August 16,      |
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          Original Committee Reference:  PUB. S.


          SUMMARY:  Creates a mechanism of post-conviction relief for a  
          person to vacate a conviction following a guilty plea based on  
          error damaging his or her ability to meaningfully understand,  
          defend against, or knowingly accept the immigration consequences  
          of the conviction.


          The Senate amendments:


          1)State that a motion to vacate a guilty-plea conviction based  
            on a misunderstanding of immigration consequences must be  
            filed with reasonable diligence, whereas a motion to vacate a  
            conviction based on newly-discovered evidence of actual  
            innocence must be filed without undue delay from the date of  
            discovery.
          2)Require the court to specify its basis for granting or denying  
            the motion, rather than make findings of fact and conclusions  








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            of law on all issues presented.


          EXISTING 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."  


          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.  


          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.  


          4)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.  


          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.


          AS PASSED BY THE ASSEMBLY:


          1)Permitted a person no longer imprisoned or restrained to file  
            a motion to vacate a conviction or sentence for either of the  
            following reasons:








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             a)   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,
             b)   Newly discovered evidence of actual innocence exists  
               which requires the conviction or sentence be vacated either  
               as a matter of law, or in the interests of justice.


          2)Required a motion to vacate be filed with reasonable diligence  
            after the later of the following:
             a)   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;
             b)   The date a removal order against the moving party, based  
               on the existence of the conviction or sentence, becomes  
               final;


             c)   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; or


             d)   The effective date of this section.


          3)Entitled 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.
          4)Required 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.










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          5)Required the court when ruling on the motion to make specific  
            findings of fact and conclusions of law on all issues  
            presented.


          6)Required the court to allow the moving party to withdraw the  
            plea if it grants the motion to vacate a conviction or  
            sentence obtained through a plea of guilty or nolo contendere.


          7)Permitted an appeal from an order granting or denying a motion  
            to vacate the conviction or sentence.


          FISCAL EFFECT:  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 judgement on the record.


          *Trial Court Trust Fund


          COMMENTS:  According to the author, "AB 813 will give hope to  
          those who have been wronged by an unlawful conviction by  
          establishing a way to challenge it after their criminal custody  
          has ended.  Even though current law requires defense counsel to  
          inform noncitizen defendants of the immigration consequences of  
          convictions, some defense attorneys still fail to do so.   
          Failure to understand the true consequences of pleading guilty  
          to certain felonies, for example, has led to the unnecessary  








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          separation of families across California.  AB 813 does not  
          guarantee an automatic reversal of the conviction, but an  
          opportunity to present their case in front of a judge, a  
          procedure that already exists in most of the country."


          Please see the policy committee analysis for a full discussion  
          of this bill.


          Analysis Prepared by:                                             
                          Sandy Uribe / PUB. S. / (916) 319-3744  FN:  
          0004167