BILL ANALYSIS                                                                                                                                                                                                    



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          ASSEMBLY THIRD READING


          AB  
          1343 (Thurmond)


          As Amended  April 16, 2015


          Majority vote


           -------------------------------------------------------------------- 
          |Committee       |Votes |Ayes                   |Noes                |
          |----------------+------+-----------------------+--------------------|
          |Public Safety   |7-0   |Quirk, Melendez,       |                    |
          |                |      |Jones-Sawyer, Lackey,  |                    |
          |                |      |Low, Santiago,         |                    |
          |                |      |Thurmond               |                    |
          |                |      |                       |                    |
          |----------------+------+-----------------------+--------------------|
          |Appropriations  |17-0  |Gomez, Bigelow, Bloom, |                    |
          |                |      |Bonta, Calderon,       |                    |
          |                |      |Chang, Daly, Eggman,   |                    |
          |                |      |Gallagher, Eduardo     |                    |
          |                |      |Garcia, Holden, Jones, |                    |
          |                |      |Quirk, Rendon, Wagner, |                    |
          |                |      |Weber, Wood            |                    |
           -------------------------------------------------------------------- 


          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  








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            advice of the potential immigration consequences of a proposed  
            disposition and attempt to defend against those consequences.


          2)Requires 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.


          3)States that this code section shall not be interpreted to change  
            the requirements of Penal Code 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 (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 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 U.S. 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  








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               may well be able to reach agreements that better satisfy the  
               interests of both parties.";


             c)   In Padilla, the U.S. 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  
               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 U.S. in light of equitable  
               factors such as serious hardship to U.S. citizen family  
               members, length of time living in the U.S., or  








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               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  
               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; and, 


             h)   It is the intent of the Legislature to codify Padilla 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 have the  
          consequences of deportation, exclusion from admission to the  
          United States, or denial of naturalization pursuant to the laws of  
          the U.S." 


          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. 
          3)Requires the court the, on defendant's motion, to vacate the  
            judgment and permit the defendant to withdraw the plea of guilty  








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            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 U.S., or denial of naturalization pursuant to  
            the laws of the U.S.  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. 


          FISCAL  
          EFFECT:  According to the Assembly Appropriations Committee,  
          negligible local nonreimbursable costs as this bill codifies what  
          has been established by the U.S. 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:  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  








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          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. 


          "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  








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          ever permitted to return.  Thus, countless California families are  
          needlessly separated each year."




          Analysis Prepared by:                                               
          David Billingsley / PUB. S. / (916) 319-3744  FN: 0000227