Amended in Senate June 15, 2015

Amended in Assembly April 16, 2015

Amended in Assembly March 26, 2015

California Legislature—2015–16 Regular Session

Assembly BillNo. 1343

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.


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 proposedbegin delete dispositionend deletebegin insert disposition, and when consistent with the goals and with the informed consent of the defendant, and with professional standards, to recommend and pursue available dispositions without avoidable adverse immigration consequencesend insert 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:

P2    1


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,begin delete and
10attempt to defend against, potential adverse immigration
11consequences of a proposed dispositionend delete
begin insert the immigration
12 consequences of the available dispositions, and should, when
13consistent with the goals and informed consent of the defendant,
14and as consistent with professional standards, recommend and
15pursue available dispositions and defend against potential adverse
16immigration consequences of a proposed dispositionend insert
(People v.
17Soriano, 194 Cal.App.3d 1470 (1987), People v. Barocio, 216
18Cal.App.3d 99 (1989), People v. Bautista, 115 Cal.App.4th 229

20(b) In Padilla, the United States Supreme Court sanctioned the
21consideration of immigration consequences by both parties in the
P3    1plea negotiating process. The court stated that “informed
2consideration of possible deportation can only benefit both the
3State and noncitizen defendants during the plea-bargaining process.
4By bringing deportation consequences into this process, the defense
5and prosecution may well be able to reach agreements that better
6satisfy the interests of both parties.”

7(c) In Padilla, the United States Supreme Court found that for
8noncitizens, deportation is an integral part of the penalty imposed
9for criminal convictions. Deportation may result from serious
10offenses or a single minor offense. It may be by far the most serious
11penalty flowing from the conviction.

12(d) With an accurate understanding of immigration
13consequences, many noncitizen defendants are able to plead to a
14conviction and sentence that satisfy the prosecution and court, but
15that have no, or fewer, adverse immigration consequences than
16the original charge.

17(e) Defendants who are misadvised or not advised at all of the
18immigration consequences of criminal charges often suffer
19irreparable damage to their current or potential lawful immigration
20status, resulting in penalties such as mandatory detention,
21deportation, and permanent separation from close family. In some
22cases, these consequences could have been avoided had counsel
23provided informed advice and attempted to defend against such

25(f) Once in removal proceedings, a noncitizen may be transferred
26to any of over 200 immigration detention facilities across the
27country. Many criminal offenses trigger mandatory detention, so
28that the person may not request bond. In immigration proceedings,
29there is no court-appointed right to counsel and as a result, the
30majority of detained immigrants go unrepresented. Immigration
31judges often lack the power to consider whether the person should
32remain in the United States in light of equitable factors such as
33serious hardship to United States citizen family members, length
34of time living in the United States, or rehabilitation.

35(g) The immigration consequences of criminal convictions have
36particularly strong impact in California. One out of every four
37persons living in the state is foreign-born. One out of every two
38children lives in a household headed by at least one foreign-born
39person. The majority of these children are United States citizens.
40It is estimated that 50,000 parents of California United States
P4    1citizen children were deported in a little over two years. Once a
2person is deported, especially after a criminal conviction, it is
3extremely unlikely that he or she ever is permitted to return.

4(h) It is the intent of the Legislature to codify Padilla v.
5Kentucky and related California casebegin delete law.end deletebegin insert law and to encourage
6the growth of such case law in furtherance of justice and the
7findings and declarations of this section.end insert


SEC. 2.  

Section 1016.3 is added to the Penal Code, to read:



(a) Defense counsel shall provide accurate and
10affirmative advice of the potential immigration consequences of
11a proposed disposition andbegin insert when consistent with the goals and
12with the informed consent of the defendant, and consistent with
13professional standards, recommend and pursue available
14dispositions without avoidable adverse immigration consequences,end insert

15 attempt to defend against those consequences.

16(b) The prosecution and defense counsel, in the interests of
17justice,begin insert and in furtherance of the findings and declarations of
18Section 1016.2,end insert
shall contemplate considering immigration
19consequences in the plea negotiation process in an effort to reach
20a just resolution.

21(c) This code section shall not be interpreted to change the
22requirements of Section 1016.5, including the requirement that no
23defendant shall be required to disclose his or her immigration status
24to the court.


SEC. 3.  

If the Commission on State Mandates determines that
26this act contains costs mandated by the state, reimbursement to
27local agencies and school districts for those costs shall be made
28pursuant to Part 7 (commencing with Section 17500) of Division
294 of Title 2 of the Government Code.