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 advicebegin delete of the potentialend deletebegin insert
about theend insert immigration consequences of a proposed disposition, and when consistent with the goalsbegin insert ofend insert and with the informed consent of the defendant, and with professionalbegin delete standards, to recommend and pursue available dispositions without avoidable adverse immigration consequences and attempt toend deletebegin insert standards,end insert defend against those consequences. The bill would require thebegin delete prosecution and defense counsel,end deletebegin insert prosecution,end insert in the interests of justice, tobegin delete contemplate consideringend deletebegin insert
consider the avoidance of adverseend insert immigration consequences in the plea negotiationbegin delete process.end deletebegin insert process as one factor in an effort to reach a just resolution.end insert 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
2read:
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 mustbegin delete investigate,end deletebegin insert investigate andend insert advise
10begin delete regarding,end deletebegin insert
regardingend insert the immigration consequences of the available
11dispositions, and should, when consistent with the goalsbegin insert ofend insert and
12informed consent of the defendant, and as consistent with
13professional standards,begin delete recommend and pursue available defend against
14dispositions andend deletebegin delete potentialend delete adverse immigration
15begin delete consequences of a proposed dispositionend deletebegin insert consequencesend insert (People v.
16Soriano, 194 Cal.App.3d 1470 (1987), People v. Barocio, 216
P3 1Cal.App.3d 99 (1989),
People v. Bautista, 115 Cal.App.4th 229
2(2004)).
3(b) Inbegin delete Padilla,end deletebegin insert
Padilla v. Kentucky,end insert the United States Supreme
4Court sanctioned the consideration of immigration consequences
5by both parties in the plea negotiating process. The court stated
6that “informed consideration of possible deportation can only
7benefit both the State and noncitizen defendants during the
8plea-bargaining process. By bringing deportation consequences
9into this process, the defense and prosecution may well be able to
10reach agreements that better satisfy the interests of both parties.”
11(c) Inbegin delete Padilla,end deletebegin insert Padilla v. Kentucky,end insert the United States Supreme
12Court found that for noncitizens, deportation is an integral part of
13the penalty imposed for
criminal convictions. Deportation may
14result from serious offenses or a single minor offense. It may be
15by far the most serious penalty flowing from the conviction.
16(d) With an accurate understanding of immigration
17consequences, many noncitizen defendants are able to plead to a
18conviction and sentence that satisfy the prosecution and court, but
19that have no, or fewer, adverse immigration consequences than
20the original charge.
21(e) Defendants who are misadvised or not advised at all of the
22immigration consequences of criminal charges often suffer
23irreparable damage to their current or potential lawful immigration
24status, resulting in penalties such as mandatory detention,
25deportation, and permanent separation from close family. In some
26cases, these consequences could have been
avoided had counsel
27provided informed advice and attempted to defend against such
28consequences.
29(f) Once in removal proceedings, a noncitizen may be transferred
30to any of over 200 immigration detention facilities across the
31country. Many criminal offenses trigger mandatory detention, so
32that the person may not request bond. In immigration proceedings,
33there is no court-appointed right to counsel and as a result, the
34majority of detained immigrants go unrepresented. Immigration
35judges often lack the power to consider whether the person should
36remain in the United States in light of equitable factors such as
37serious hardship to United States citizen family members, length
38of time living in the United States, or rehabilitation.
39(g) The immigration consequences of criminal
convictions have
40begin insert
aend insert particularly strong impact in California. One out of every four
P4 1persons living in the state is foreign-born. One out of every two
2children lives in a household headed by at least one foreign-born
3person. The majority of these children are United States citizens.
4It is estimated that 50,000 parents of California United States
5citizen children were deported in a little over two years. Once a
6person is deported, especially after a criminal conviction, it is
7extremely unlikely that he or she ever is permitted to return.
8(h) It is the intent of the Legislature to codify Padilla v.
9Kentucky and related California case law and to encourage the
10growth of such case law in furtherance of justice and the findings
11and declarations of this section.
Section 1016.3 is added to the Penal Code, to read:
(a) Defense counsel shall provide accurate and
14affirmative advicebegin delete of the potentialend deletebegin insert about theend insert immigration
15consequences of a proposedbegin delete dispositionend deletebegin insert disposition,end insert and when
16consistent with the goalsbegin insert ofend insert and with the informed consent of the
17defendant, and consistent with professionalbegin delete standards, recommend begin insert
standards,end insert defend against
18and pursue available dispositions without avoidable adverse
19immigration consequences, attempt toend delete
20those consequences.
21(b) Thebegin delete prosecution and defense counsel,end deletebegin insert prosecution,end insert in the
22interests of justice, and in furtherance of the findings and
23declarations of Section 1016.2, shallbegin delete contemplate consideringend delete
24begin insert consider the avoidance of adverseend insert immigration consequences in
25the plea negotiation processbegin insert as one factorend insert in an effort to reach a
26just resolution.
27(c) This code section shall not be interpreted to change the
28requirements of Section 1016.5, including the requirement that no
29defendant shall be required to disclose his or her immigration status
30to the court.
If the Commission on State Mandates determines that
32this act contains costs mandated by the state, reimbursement to
33local agencies and school districts for those costs shall be made
34pursuant to Part 7 (commencing with Section 17500) of Division
354 of Title 2 of the Government Code.
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