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 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: yes. State-mandated local program: yes.
The people of the State of California do enact as follows:
Section 1016.2 is added to the Penal Code, to
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
10 defend against, potential adverse immigration
11consequences of a proposed disposition (People v. Soriano, 194
12Cal.App.3d 1470 (1987), People v. Barocio, 216 Cal.App.3d 99
13(1989), People v. Bautista, 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 process.
19By bringing deportation consequences into this process, the defense
20and prosecution may well be able to reach agreements that better
21satisfy 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
25offenses or a single minor
begin delete conviction.end delete It may be by far the
26most serious penalty flowing from the conviction.
P3 1(d) With an accurate understanding of immigration
2consequences, many noncitizen defendants are able to plead to a
3conviction and sentence that satisfy the prosecution and court, but
4that have no, or fewer, adverse immigration consequences than
5the original charge.
6(e) Defendants who are misadvised or not advised at all of the
7immigration consequences of criminal charges often suffer
8irreparable damage to their current or potential lawful immigration
9status, resulting in penalties such as mandatory detention,
10deportation, and permanent separation from close family. In
begin delete manyend delete
11 cases, these consequences could have been avoided had
12counsel provided informed advice and
begin delete defense.end delete
14(f) Once in removal proceedings, a noncitizen may be transferred
15to any of over 200 immigration detention facilities across the
16country. Many criminal offenses trigger mandatory detention, so
17that the person may not request bond. In immigration proceedings,
18there is no court-appointed right to counsel and as a result, the
19majority of detained immigrants go unrepresented. Immigration
20judges often lack the power to consider whether the person should
21remain in the United States in light of equitable factors such as
22serious hardship to United States citizen family members, length
23of time living in the United States, or rehabilitation.
24(g) The immigration consequences of criminal convictions have
25particularly strong impact in California. One out of every four
26persons living in the state is foreign-born. One out of every two
27children lives in a household headed by at least one foreign-born
28person. The majority of these children are United States citizens.
29It is estimated that 50,000 parents of California United States
30citizen children were deported in a little over two years. Once a
31person is deported, especially after a criminal conviction, it is
32extremely unlikely that he or she ever is permitted to return.
33(h) It is the intent of the Legislature to codify Padilla
34Kentucky and California case law.
Section 1016.3 is added to the Penal Code, to read:
(a) Defense counsel shall provide accurate and
37affirmative advice of the potential immigration consequences of
38a proposed disposition and attempt to defend against those
P4 1(b) The prosecution and defense counsel, in the interests of
2justice, shall contemplate considering immigration consequences
3in the plea negotiation process in an effort to reach a just resolution.
4(c) This code section shall not be interpreted to change the
5requirements of Section 1016.5, including the requirement that no
6defendant shall be required to disclose his or her immigration status
7to the court.
If the Commission on State Mandates determines that
9this act contains costs mandated by the state, reimbursement to
10local agencies and school districts for those costs shall be made
11pursuant to Part 7 (commencing with Section 17500) of Division
124 of Title 2 of the Government Code.