BILL ANALYSIS                                                                                                                                                                                                    



                                                                    AB 1343


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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