BILL ANALYSIS                                                                                                                                                                                                    



          SENATE COMMITTEE ON PUBLIC SAFETY
                             Senator Loni Hancock, Chair
                                2015 - 2016  Regular 

          Bill No:    AB 1343       Hearing Date:    July 7, 2015    
          
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          |Author:    |Thurmond                                             |
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          |Version:   |June 22, 2015                                        |
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          |Urgency:   |No                     |Fiscal:    |Yes              |
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          |Consultant:|LT                                                   |
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                   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  







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          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  








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          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".













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             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  








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               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.   








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          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.









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          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  








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               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  








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          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. 


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