BILL ANALYSIS Ó
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Date of Hearing: April 21, 2015
Counsel: David Billingsley
ASSEMBLY COMMITTEE ON PUBLIC SAFETY
Bill Quirk, Chair
AB
1343 (Thurmond) - As Amended April 16, 2015
SUMMARY: Requires defense counsel to provide accurate advice of
the potential immigration consequences of a proposed disposition
and attempt to defend against those consequences. Requires the
prosecution and defense counsel contemplate immigration
consequences in the plea negotiation process. Specifically,
this bill:
1)Requires defense counsel to provide accurate and affirmative
advice of the potential immigration consequences of a proposed
disposition and attempt to defend against those consequences.
2)Requires that prosecution and defense counsel, in the
interests of justice, to contemplate and consider immigration
consequences in the plea negotiation process in an effort to
reach a just resolution.
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3)States that 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.
4)The Legislature makes the following findings:
a) In Padilla v. Kentucky (2010), 559 U.S. 356, 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, and defend against,
potential adverse immigration consequences of a proposed
disposition (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.";
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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 conviction.
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 many cases, these consequences could
have been avoided had counsel provided informed advice and
defense;
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
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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; and,
h) It is the intent of the Legislature to codify Padilla v.
Kentucky and California case law.
EXISTING LAW:
1)Requires the court prior to acceptance of a plea of guilty or
nolo contendere to any offense punishable as a crime under
state law, except offenses designated as infractions under
state law, to administer the following advisement on the
record to the defendant:
"If you are not a citizen, you are hereby advised that
conviction of the offense for which you have been charged may
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have the consequences of deportation, exclusion from admission
to the United States, or denial of naturalization pursuant to
the laws of the United States." (Pen. Code, § 1016.5, subd.
(a).)
2)States that upon request, the court shall allow the defendant
additional time to consider the appropriateness of the plea in
light of the advisement as described in this section. (Pen.
Code, § 1016.5, subd. (b).)
3)Requires the court the, on defendant's motion, to vacate the
judgment and permit the defendant to withdraw the plea of
guilty or nolo contendere, and enter a plea of not guilty, if
court fails to advise the defendant as required by this
section and the defendant shows that conviction of the offense
to which defendant pleaded guilty or nolo contendere may have
the consequences for the defendant of deportation, exclusion
from admission to the United States, or denial of
naturalization pursuant to the laws of the United States.
Absent a record that the court provided the advisement
required by this section, the defendant shall be presumed not
to have received the required advisement. (Pen. Code, §
1016.5, subd. (b).)
FISCAL EFFECT: Unknown
COMMENTS:
1)Author's Statement: According to the author, "In Padilla v.
Kentucky, (2010) 559 U.S. 356, the U.S. 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 have long since held the
same, including that defense counsel must investigate, advise
regarding, and defend against, potential adverse immigration
consequences of a proposed disposition.
"In order for the consideration of immigration consequences to
result in meaningful change, it is important for both the
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prosecution and defense to consider immigration consequences
in plea negotiations. The Supreme Court agreed, stating 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."
"The effects of even a minor criminal conviction on the life
of an immigrant cannot be understated. Immigrants can suffer
irreparable consequences including loss of legal status, loss
of ability to obtain legal status, inability to apply for
citizenship (temporary or permanent), mandatory detention in
immigration proceedings (no bond), or permanent deportation,
and subsequent family separation. Once in deportation
proceedings, the injustice continues, where immigrants are
often transferred to over 200 facilities across the country,
often states away from friends or family, and without being
provided an attorney. Offenses which can trigger these
consequences can include possession of a controlled substance,
petty thefts, and many more.
"In many cases, these consequences could have been avoided or
mitigated had the immigration consequences been considered in
the criminal case. The result is disproportionate punishment,
where immigrants are essentially punished twice for the same
offense, with the immigration consequences often being worse
than the criminal punishment.
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"These negative effects can be particularly felt in
California, where one out of every four persons is
foreign-born. One out of every two children lives in a
household headed by at least one foreign-born person. When
parents are deported, children may be left parentless and are
thereafter more likely to enter the criminal justice system
themselves. The majority of these children are U.S. citizens.
It is estimated that 50,000 parents of California U.S.
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 is ever
permitted to return. Thus, countless California families are
needlessly separated each year."
2)Previous Legislative Findings Regarding Advisement of
Immigration Consequences Arising From Criminal Proceedings:
In 1977, the legislature enacted law requiring criminal
defendants to be advised prior to the acceptance of a plea of
guilty or no contest, that conviction may result in
deportation, exclusion from admission, or denial of
naturalization, if the defendant is not a citizen. At that
time, the legislature found and declared:
". . . that in many instances involving an individual who is not
a citizen of the United States charged with an offense
punishable as a crime under state law, a plea of guilty or nolo
contendere is entered without the defendant knowing that a
conviction of such offense is grounds for deportation, exclusion
from admission to the United States, or denial of naturalization
pursuant to the laws of the United States. Therefore, it is the
intent of the Legislature in enacting this section to promote
fairness to such accused individuals by requiring in such cases
that acceptance of a guilty plea or plea of nolo contendere be
preceded by an appropriate warning of the special consequences
for such a defendant which may result from the plea. It is also
the intent of the Legislature that the court in such cases shall
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grant the defendant a reasonable amount of time to negotiate
with the prosecuting agency in the event the defendant or the
defendant's counsel was unaware of the possibility of
deportation, exclusion from admission to the United States, or
denial of naturalization as a result of conviction. It is
further the intent of the Legislature that at the time of the
plea no defendant shall be required to disclose his or her legal
status to the court." (Pen. Code, § 1016.5, subd. (d).)
3)Argument in Support: According to The Immigrant Legal
Resource Center, "In Padilla v. Kentucky (2010), 559 U.S. 356,
the U.S. 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. This conforms with
California court decisions, which have held that defense
counsel must investigate, advice regarding, and defend
against, potential adverse immigration consequences of a
proposed disposition. In order for the consideration of
immigration consequences to have meaning, it is important for
both the prosecution and defense to consider immigration
consequences in plea negotiations. The U.S. Supreme Court
sanctioned this practice, stating that "informed consideration
of possible deportation can only benefit both the State and
noncitizen defendants during the plea-bargaining process."
Padilla, 559 U.S. at 373.
"The consequences are especially devastating to an
immigrant-rich state like California, where one out of every
four persons is foreign-born and mixed citizen/immigrant
families are the norm. For example, one out of every two
children in California lives in a household headed by a least
one foreign-born person, and the great majority of these
children are U.S. citizens.
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"Thousands of California families are destroyed each year by
deportations. In many cases, these consequences could have
been avoided or mitigated had the immigration consequences
been considered in the criminal case. The result is
disproportionate punishment, where immigrants are essentially
punished twice for the same offense, with the immigration
consequences often being worse than the criminal punishment.
"California has a legacy of statewide policies that support
immigration reform. In the face of Congressional gridlock,
this legislation continues our state's legacy as a leader in
responsive and effective immigration policy reform by ensuring
that immigrants receive competent and effective legal
assistance and fair treatment in our state system."
4)PriorLegislation:
a) AB 142 (Fuentes), of the 2011-12 Legislative Session,
would have required that courts advise defendants that if
they are deported from the United States and return
illegally, they could be charged with a separate federal
offense. AB 142 was vetoed by the Governor.
b) AB 806 (Fuentes),of the 2009-10 Legislative Session,
would have required that courts advise defendants that if
they are deported from the United States and return
illegally, they could be charged with a separate federal
offense. AB 806 was vetoed by the Governor.
c) AB 15 (Fuentes), of the 2009-10 Legislative Session,
would have required that courts advise defendants that if
they are deported from the United States and return
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illegally, they could be charged with a separate federal
offense. AB 15 was vetoed by the Governor.
REGISTERED SUPPORT / OPPOSITION:
Support
Immigrant Legal Resource Center
American Civil Liberties Union of California
California Immigrant Policy Center
Coalition for Humane Immigrant Rights of Los Angeles
Dolores Street Community Services
Pangea Legal Services
Opposition
None
Analysis Prepared
by: David Billingsley / PUB. S. / (916) 319-3744