BILL NUMBER: AB 1343	AMENDED
	BILL TEXT

	AMENDED IN ASSEMBLY  MARCH 26, 2015

INTRODUCED BY   Assembly Member Thurmond

                        FEBRUARY 27, 2015

   An act  to add Sections 1016.2 and 1016.3 to the Penal Code,
  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.  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 
 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.  
   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.  
   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.  
   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.  
   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. 
   Vote: majority. Appropriation: no. Fiscal committee:  no
  yes  . State-mandated local program:  no
  yes  .


THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:

   SECTION 1.    Section 1016.2 is added to the 
 Penal Code   , to read:  
   1016.2.  The Legislature finds and declares all of the following:
   (a) In Padilla v. Kentucky, 559 U.S. 356 (2010), 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. California courts also have held that defense counsel must
investigate, advise regarding, and defend against, potential adverse
immigration consequences of a proposed disposition (People v.
Soriano, 194 Cal.App.3d 1470 (1987), People v. Barocio, 216
Cal.App.3d 99 (1989), People v. Bautista, 115 Cal.App.4th 229
(2004)).
   (b) In Padilla, the United States Supreme Court sanctioned the
consideration of immigration consequences by both parties in the plea
negotiating process. The court stated that "informed consideration
of possible deportation can only benefit both the State and
noncitizen defendants during the plea-bargaining process. By bringing
deportation consequences into this process, the defense and
prosecution may well be able to reach agreements that better satisfy
the interests of both parties."
   (c) In Padilla, the United States Supreme Court found that for
noncitizens, deportation is an integral part of the penalty imposed
for criminal convictions. Deportation may result from serious
offenses or a single minor conviction. It may be by far the most
serious penalty flowing from the conviction.
   (d) With an accurate understanding of immigration consequences,
many noncitizen defendants are able to plead to a conviction and
sentence that satisfy the prosecution and court, but that have no, or
fewer, adverse immigration consequences than the original charge.
   (e) Defendants who are misadvised or not advised at all of the
immigration consequences of criminal charges often suffer irreparable
damage to their current or potential lawful immigration status,
resulting in penalties such as mandatory detention, deportation, and
permanent separation from close family. In many cases, these
consequences could have been avoided had counsel provided informed
advice and defense.
   (f) Once in removal proceedings, a noncitizen may be transferred
to any of over 200 immigration detention facilities across the
country. Many criminal offenses trigger mandatory detention, so that
the person may not request bond. In immigration proceedings, there is
no court-appointed right to counsel and as a result, the majority of
detained immigrants go unrepresented. Immigration judges often lack
the power to consider whether the person should remain in the United
States in light of equitable factors such as serious hardship to
United States citizen family members, length of time living in the
United States, or rehabilitation.
   (g) The immigration consequences of criminal convictions have
particularly strong impact in California. One out of every four
persons living in the state is foreign-born. One out of every two
children lives in a household headed by at least one foreign-born
person. The majority of these children are United States citizens. It
is estimated that 50,000 parents of California United States citizen
children were deported in a little over two years. Once a person is
deported, especially after a criminal conviction, it is extremely
unlikely that he or she ever is permitted to return.
   (h) It is the intent of the Legislature to codify Padilla v.
Kentucky and California case law. 
   SEC. 2.    Section 1016.3 is added to the  
Penal Code   , to read:  
   1016.3.  (a) Defense counsel shall provide accurate and
affirmative advice of the potential immigration consequences of a
proposed disposition and attempt to defend against those
consequences.
   (b) The prosecution and defense counsel, in the interests of
justice, shall contemplate considering immigration consequences in
the plea negotiation process in an effort to reach a just resolution.

   (c) This code section shall not be interpreted to change the
requirements of Section 1016.5, including the requirement that no
defendant shall be required to disclose his or her immigration status
to the court. 
   SEC. 3.    If the Commission on State Mandates
determines that this act contains costs mandated by the state,
reimbursement to local agencies and school districts for those costs
shall be made pursuant to Part 7 (commencing with Section 17500) of
Division 4 of Title 2 of the Government Code.  
  SECTION 1.    It is 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.