BILL ANALYSIS Ó AB 813 Page 1 CONCURRENCE IN SENATE AMENDMENTS AB 813 (Gonzalez) As Amended June 22, 2015 Majority vote -------------------------------------------------------------------- |ASSEMBLY: |65-11 |(May 18, 2015) |SENATE: |26-11 |(August 16, | | | | | | |2016) | | | | | | | | | | | | | | | -------------------------------------------------------------------- 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 AB 813 Page 2 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: AB 813 Page 3 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. AB 813 Page 4 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 AB 813 Page 5 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