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 Bill No. 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.

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 require defense counsel to provide accurate and affirmative advice of the potential immigration consequences of a proposed begin delete disposition end delete begin 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 consequences end 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:

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, begin delete and
attempt to defend against, potential adverse immigration
consequences of a proposed disposition end delete begin insert the immigration
consequences of the available dispositions, and should, when
consistent with the goals and informed consent of the defendant,
and as consistent with professional standards, recommend and
pursue available dispositions and defend against potential adverse
immigration consequences of a proposed disposition end insert (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 offense. 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 some
cases, these consequences could have been avoided had counsel
provided informed advice and attempted to defend against such
consequences.

(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 related California case begin delete law. end delete begin insert law and to encourage
the growth of such case law in furtherance of justice and the
findings and declarations of this section. end insert

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 begin insert when consistent with the goals and
with the informed consent of the defendant, and consistent with
professional standards, recommend and pursue available
dispositions without avoidable adverse immigration consequences, end insert
attempt to defend against those consequences.

(b) The prosecution and defense counsel, in the interests of
justice, begin insert and in furtherance of the findings and declarations of
Section 1016.2, end insert 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.