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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|COMMITTEE VOTE: | 5-1 |(August 30, |RECOMMENDATION: |concur |
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(Pub. S.)
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
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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
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
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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:
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
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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.
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
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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.
*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
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:
0005003