BILL NUMBER: AB 1343 AMENDED
BILL TEXT
AMENDED IN SENATE JUNE 22, 2015
AMENDED IN SENATE JUNE 15, 2015
AMENDED IN ASSEMBLY APRIL 16, 2015
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 require defense counsel to provide accurate and
affirmative advice of the potential about the
immigration consequences of a proposed disposition, and when
consistent with the goals of and with the informed consent
of the defendant, and with professional standards, to
recommend and pursue available dispositions without avoidable adverse
immigration consequences and attempt to standards,
defend against those consequences. The bill would require the
prosecution and defense counsel, prosecution,
in the interests of justice, to contemplate
considering consider the avoidance of adverse
immigration consequences in the plea negotiation process.
process as one factor in an effort to reach a just
resolution. 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, investigate and advise
regarding, regarding the immigration
consequences of the available dispositions, and should, when
consistent with the goals of 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 consequences
(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, Padilla v. Kentucky,
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, Padilla v. Kentucky,
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
a 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 law and to encourage the growth
of such case law in furtherance of justice and the findings and
declarations of this section.
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 about the
immigration consequences of a proposed disposition
disposition, and when consistent with the goals
of and with the informed consent of the defendant, and
consistent with professional standards, recommend and pursue
available dispositions without avoidable adverse immigration
consequences, attempt to standards, defend
against those consequences.
(b) The prosecution and defense counsel,
prosecution, in the interests of justice, and in furtherance of
the findings and declarations of Section 1016.2, shall
contemplate considering consider the avoidance of
adverse immigration consequences in the plea negotiation
process as one factor 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.