BILL ANALYSIS Ó
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Loni Hancock, Chair
2015 - 2016 Regular
Bill No: AB 1343 Hearing Date: July 7, 2015
-----------------------------------------------------------------
|Author: |Thurmond |
|-----------+-----------------------------------------------------|
|Version: |June 22, 2015 |
-----------------------------------------------------------------
-----------------------------------------------------------------
|Urgency: |No |Fiscal: |Yes |
-----------------------------------------------------------------
-----------------------------------------------------------------
|Consultant:|LT |
| | |
-----------------------------------------------------------------
Subject: Criminal Procedure: Defense Counsel
HISTORY
Source: Immigrant Legal Resource Center
Prior Legislation:AB 142 (Fuentes) - 2011, vetoed
AB 15 (Fuentes) - 2009, vetoed
AB 806 (Fuentes) - 2010, vetoed
Support: California Immigrant Policy Center; California Public
Defenders Association; The
National Association of Social Workers, California Chapter;
Immigrant Legal Resource
Center; Dolores Street Community Services; United Farm Workers;
East Bay Community Law Center; American Civil Liberties Union of
California
Opposition:None known
Assembly Floor Vote: 77 - 0
PURPOSE
The purpose of this bill is to require defense counsel to comply
with Padilla v. Kentucky (2010) 559 U.S. 356. and to advise
AB 1343 (Thurmond ) Page
2 of ?
defendants of the potential immigration consequences of a
proposed disposition.
Existing 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." (Penal Code § 1016.5 (a).)
Existing law provides 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. (Penal Code § 1016.5 (a).)
Existing law requires the court, on the 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 thr court fails to advise the defendant as required
by this section and the defendant shows that conviction of the
offense to which the 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. (Penal Code § 1016.5 (a).)
This bill requires defense counsel to provide accurate and
affirmative advice about the immigration consequences of a
proposed disposition, and when consistent with the goals of and
with the informed consent of the defendant, and consistent with
professional standards, defend against those consequences.
This bill requires the prosecution, in the interests of justice,
and in furtherance of the findings and declarations of Section
AB 1343 (Thurmond ) Page
3 of ?
1016.2, to consider the avoidance of adverse immigration
consequences in the plea negotiation process as one factor in an
effort to reach a just resolution.
This bill 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.
This bill makes the following legislative findings:
1) 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 and advise regarding the immigration
consequences of the available dispositions, and should,
when consistent with the goals of and informed consent of
the defendant, and as consistent with professional
standards, defend against adverse immigration consequences.
(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)).
2) In Padilla v. Kentucky, 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".
AB 1343 (Thurmond ) Page
4 of ?
3) In Padilla v. Kentucky, 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.
4) 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.
5) 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
attempted to defend against such consequences.
6) 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 United States in light of
equitable factors such as serious hardship to United States
AB 1343 (Thurmond ) Page
5 of ?
citizen family members, length of time living in the United
States, or rehabilitation.
7) The immigration consequences of criminal convictions
have a 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.
8) It is the intent of the Legislature to codify Padilla v.
Kentucky and California case law and to encourage the
growth of such case law in furtherance of justice and the
findings and declarations of this section.
RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION
For the past eight years, this Committee has scrutinized
legislation referred to its jurisdiction for any potential
impact on prison overcrowding. Mindful of the United States
Supreme Court ruling and federal court orders relating to the
state's ability to provide a constitutional level of health care
to its inmate population and the related issue of prison
overcrowding, this Committee has applied its "ROCA" policy as a
content-neutral, provisional measure necessary to ensure that
the Legislature does not erode progress in reducing prison
overcrowding.
AB 1343 (Thurmond ) Page
6 of ?
On February 10, 2014, the federal court ordered California to
reduce its in-state adult institution population to 137.5% of
design capacity by February 28, 2016, as follows:
143% of design bed capacity by June 30, 2014;
141.5% of design bed capacity by February 28, 2015; and,
137.5% of design bed capacity by February 28, 2016.
In February of this year the administration reported that as "of
February 11, 2015, 112,993 inmates were housed in the State's 34
adult institutions, which amounts to 136.6% of design bed
capacity, and 8,828 inmates were housed in out-of-state
facilities. This current population is now below the
court-ordered reduction to 137.5% of design bed capacity."(
Defendants' February 2015 Status Report In Response To February
10, 2014 Order, 2:90-cv-00520 KJM DAD PC, 3-Judge Court, Coleman
v. Brown, Plata v. Brown (fn. omitted).
While significant gains have been made in reducing the prison
population, the state now must stabilize these advances and
demonstrate to the federal court that California has in place
the "durable solution" to prison overcrowding "consistently
demanded" by the court. (Opinion Re: Order Granting in Part and
Denying in Part Defendants' Request For Extension of December
31, 2013 Deadline, NO. 2:90-cv-0520 LKK DAD (PC), 3-Judge Court,
Coleman v. Brown, Plata v. Brown (2-10-14). The Committee's
consideration of bills that may impact the prison population
therefore will be informed by the following questions:
Whether a proposal erodes a measure which has contributed
to reducing the prison population;
Whether a proposal addresses a major area of public safety
or criminal activity for which there is no other
reasonable, appropriate remedy;
Whether a proposal addresses a crime which is directly
dangerous to the physical safety of others for which there
is no other reasonably appropriate sanction;
Whether a proposal corrects a constitutional problem or
legislative drafting error; and
Whether a proposal proposes penalties which are
proportionate, and cannot be achieved through any other
reasonably appropriate remedy.
AB 1343 (Thurmond ) Page
7 of ?
COMMENTS
1.Need for This Legislation
According to the author:
In Padilla v. Kentucky, 559 U.S. 356 (2010), the U.S.
Supreme Court held that the Sixth Amendment requires
defense counsel to provide affirmative information 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 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
AB 1343 (Thurmond ) Page
8 of ?
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 that
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 ever permitted to return. Thus, countless
California families are needlessly separated each
year. .
2. Effect of This Legislation
Existing law requires courts to advise defendants that if not a
citizen, the defendant may face consequences including
deportation, exclusion from admission to the United States, or
denial of naturalization. This bill will require defense
counsel to advise defendants about the immigration consequences
associated with a felony conviction and defend against those
consequences. This bill would also require the prosecution to
consider the avoidance of adverse immigration consequences in
the plea negotiating process as a factor in reaching a just
resolution.
3. Related Bill
AB 267 (Jones-Sawyer), which was passed by this Committee (5-1)
on June 16th, seeks to advise defendants of additional
AB 1343 (Thurmond ) Page
9 of ?
consequences associated with a felony conviction before a
defendant decides to accept a plea of guilty or a plea deal.
Existing law requires courts to advise defendants of potential
consequences including deportation, exclusion from admission to
the United States, or denial of naturalization if the defendant
is not a citizen. AB 267 would expand existing law to include a
larger scope of consequences some of which are, difficulty in
obtaining employment, loss of voting rights while incarcerated,
etcetera, which will potentially affect the defendant after
being released.
-- END -