BILL ANALYSIS Ó
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ASSEMBLY THIRD READING
AB
1343 (Thurmond)
As Amended April 16, 2015
Majority vote
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|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 | |
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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