BILL ANALYSIS Ó
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Date of Hearing: April 29, 2015
ASSEMBLY COMMITTEE ON APPROPRIATIONS
Jimmy Gomez, Chair
AB
1343 (Thurmond) - As Amended April 16, 2015
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Urgency: No State Mandated Local Program: YesReimbursable:
Yes
SUMMARY:
This bill requires defense counsel to provide accurate advice of
the potential immigration consequences of a proposed disposition
and attempt to defend against those consequences. Also requires
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the prosecution and defense counsel to contemplate immigration
consequences in the plea negotiation process.
FISCAL EFFECT:
Negligible local nonreimbursable costs as this bill codifies
what has been established by the US Supreme Court and the
California courts regarding notification by defense attorneys.
Potential minor reimbursable costs by requiring the prosecution
and defense to consider immigration consequences in the plea
negotiation process.
COMMENTS:
1)Purpose. 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
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
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into this process, the defense and prosecution may well be
able to reach agreements that better satisfy the interests of
both parties."
2)Background. Current law 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 have the consequences of deportation, exclusion from
admission to the United States, or denial of naturalization
pursuant to the laws of the United States."
Also under current law, the court, on defendant's motion,
is required 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.
3)Argument in Support: According to The Immigrant Legal
Resource Center, "California has a legacy of statewide
policies that support immigration reform. In the face of
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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."
Analysis Prepared by:Pedro R. Reyes / APPR. / (916)
319-2081