Amended in Assembly March 26, 2015

California Legislature—2015–16 Regular Session

Assembly BillNo. 1343


Introduced by Assembly Member Thurmond

February 27, 2015


An actbegin insert to add Sections 1016.2 and 1016.3 to the Penal Code,end insert relating to criminal procedure.

LEGISLATIVE COUNSEL’S DIGEST

AB 1343, as amended, Thurmond. Criminal procedure: defense counsel.

Existing law requires the court in a noncapital case, if the defendant appears for arraignment without counsel, to inform the defendant that it is his or her right to have counsel before being arraigned and to ask the defendant if he or she desires the assistance of counsel. If the defendant desires and is unable to employ counsel, the court is required to assign counsel to defend him or her as provided.begin insert Existing law requires courts, prior to acceptance of a plea of guilty or nolo contendere by a defendant, to inform the defendant that a conviction of the offense charged end insertbegin insertmay have the consequences of deportation, exclusion from admission to the United States, or denial of naturalization pursuant to the laws of the United States. end insert

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This bill would state the intent of the Legislature to enact legislation that requires defense counsel in California to comply with Padilla v. Kentucky (2010) 559 U.S. 356.

end delete
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This bill would require defense counsel to provide accurate and affirmative advice of the potential immigration consequences of a proposed disposition and attempt to defend against those consequences. The bill would require the prosecution and defense counsel, in the interests of justice, to contemplate considering immigration consequences in the plea negotiation process. By requiring an increased level of service, this bill would impose a state-mandated local program.

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begin insert

The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.

end insert
begin insert

This bill would provide that, if the Commission on State Mandates determines that the bill contains costs mandated by the state, reimbursement for those costs shall be made pursuant to these statutory provisions.

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Vote: majority. Appropriation: no. Fiscal committee: begin deleteno end deletebegin insertyesend insert. State-mandated local program: begin deleteno end deletebegin insertyesend insert.

The people of the State of California do enact as follows:

P2    1begin insert

begin insertSECTION 1.end insert  

end insert

begin insertSection 1016.2 is added to the end insertbegin insertPenal Codeend insertbegin insert, to
2read:end insert

begin insert
3

begin insert1016.2.end insert  

The Legislature finds and declares all of the following:

4(a) In Padilla v. Kentucky, 559 U.S. 356 (2010), the United
5States Supreme Court held that the Sixth Amendment requires
6defense counsel to provide affirmative and competent advice to
7noncitizen defendants regarding the potential immigration
8consequences of their criminal cases. California courts also have
9held that defense counsel must investigate, advise regarding, and
10defend against, potential adverse immigration consequences of a
11proposed disposition (People v. Soriano, 194 Cal.App.3d 1470
12(1987), People v. Barocio, 216 Cal.App.3d 99 (1989), People v.
13Bautista, 115 Cal.App.4th 229 (2004)).

14(b) In Padilla, the United States Supreme Court sanctioned the
15consideration of immigration consequences by both parties in the
16plea negotiating process. The court stated that “informed
17consideration of possible deportation can only benefit both the
18State and noncitizen defendants during the plea-bargaining
19process. By bringing deportation consequences into this process,
20the defense and prosecution may well be able to reach agreements
21that better satisfy the interests of both parties.”

22(c) In Padilla, the United States Supreme Court found that for
23noncitizens, deportation is an integral part of the penalty imposed
24for criminal convictions. Deportation may result from serious
P3    1offenses or a single minor conviction. It may be by far the most
2serious penalty flowing from the conviction.

3(d) With an accurate understanding of immigration
4consequences, many noncitizen defendants are able to plead to a
5conviction and sentence that satisfy the prosecution and court, but
6that have no, or fewer, adverse immigration consequences than
7the original charge.

8(e) Defendants who are misadvised or not advised at all of the
9immigration consequences of criminal charges often suffer
10irreparable damage to their current or potential lawful immigration
11status, resulting in penalties such as mandatory detention,
12deportation, and permanent separation from close family. In many
13cases, these consequences could have been avoided had counsel
14provided informed advice and defense.

15(f) Once in removal proceedings, a noncitizen may be
16transferred to any of over 200 immigration detention facilities
17across the country. Many criminal offenses trigger mandatory
18detention, so that the person may not request bond. In immigration
19proceedings, there is no court-appointed right to counsel and as
20a result, the majority of detained immigrants go unrepresented.
21Immigration judges often lack the power to consider whether the
22person should remain in the United States in light of equitable
23factors such as serious hardship to United States citizen family
24members, length of time living in the United States, or
25rehabilitation.

26(g) The immigration consequences of criminal convictions have
27particularly strong impact in California. One out of every four
28persons living in the state is foreign-born. One out of every two
29children lives in a household headed by at least one foreign-born
30person. The majority of these children are United States citizens.
31It is estimated that 50,000 parents of California United States
32citizen children were deported in a little over two years. Once a
33person is deported, especially after a criminal conviction, it is
34extremely unlikely that he or she ever is permitted to return.

35(h) It is the intent of the Legislature to codify Padilla v. Kentucky
36and California case law.

end insert
37begin insert

begin insertSEC. 2.end insert  

end insert

begin insertSection 1016.3 is added to the end insertbegin insertPenal Codeend insertbegin insert, to read:end insert

begin insert
38

begin insert1016.3.end insert  

(a) Defense counsel shall provide accurate and
39affirmative advice of the potential immigration consequences of
P4    1a proposed disposition and attempt to defend against those
2consequences.

3(b) The prosecution and defense counsel, in the interests of
4justice, shall contemplate considering immigration consequences
5in the plea negotiation process in an effort to reach a just
6resolution.

7(c) This code section shall not be interpreted to change the
8requirements of Section 1016.5, including the requirement that no
9defendant shall be required to disclose his or her immigration
10status to the court.

end insert
11begin insert

begin insertSEC. 3.end insert  

end insert
begin insert

If the Commission on State Mandates determines that
12this act contains costs mandated by the state, reimbursement to
13local agencies and school districts for those costs shall be made
14pursuant to Part 7 (commencing with Section 17500) of Division
154 of Title 2 of the Government Code.

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16

SECTION 1.  

It is the intent of the Legislature to enact
17legislation that requires defense counsel in California to comply
18with Padilla v. Kentucky (2010) 559 U.S. 356.

end delete


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