BILL ANALYSIS                                                                                                                                                                                                    Ó




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                                   THIRD READING 


          Bill No:  AB 1343
          Author:   Thurmond (D)
          Amended:  6/22/15 in Senate
          Vote:     21  

           SENATE PUBLIC SAFETY COMMITTEE:  5-1, 7/7/15
           AYES:  Hancock, Glazer, Leno, Liu, Monning
           NOES:  Stone
           NO VOTE RECORDED:  Anderson

          SENATE APPROPRIATIONS COMMITTEE:  Senate Rule 28.8

           ASSEMBLY FLOOR:  77-0, 5/18/15 - See last page for vote

           SUBJECT:   Criminal procedure: defense counsel


          SOURCE:    Immigrant Legal Resource Center 


          DIGEST:  This bill requires defense counsel to comply with  
          Padilla v. Kentucky (2010) 559 U.S. 356 and to advise defendants  
          about the immigration consequences of a proposed disposition. 


          ANALYSIS:   


          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  








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            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).)

          2)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).)

          3)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  
            the 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:

          1)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.

          2)Requires the prosecution, in the interests of justice, and in  
            furtherance of the findings and declarations of Penal Code  
            Section 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. 









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          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)Makes the following legislative findings:
                
             a)   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)).





             b)   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."





             c)   In Padilla v. Kentucky, the United States Supreme Court  
               found that for noncitizens, deportation is an integral part  








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               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 some cases, these consequences could  
               have been avoided had counsel provided informed advice and  
               attempted to defend against such consequences.





             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 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.





             g)   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. 





             h)   It is the intent of the Legislature to codify Padilla v.  
               Kentucky and related California case law and to encourage  
               the growth of such case law in furtherance of justice and  
               the findings and declarations of this section. 


          FISCAL EFFECT:   Appropriation:    No          Fiscal  
          Com.:YesLocal:   Yes


          SUPPORT:   (Verified8/17/15)


          Immigrant Legal Resource Center (source) 
          ACLU of California
          California Attorneys for Criminal Justice
          California Immigrant Policy Center
          California Public Defenders Association
          Dolores Street Community Services








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          East Bay Community Law Center
          The National Association of Social Workers, California Chapter
          United Farm Workers


          OPPOSITION:   (Verified8/17/15)


          None received

          ARGUMENTS IN SUPPORT:

          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.  








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               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 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. 


          ASSEMBLY FLOOR:  77-0, 5/18/15
          AYES:  Achadjian, Alejo, Travis Allen, Baker, Bigelow, Bloom,  
            Bonilla, Bonta, Brough, Brown, Burke, Calderon, Campos, Chang,  
            Chau, Chávez, Chiu, Chu, Cooley, Cooper, Dababneh, Dahle,  
            Daly, Dodd, Eggman, Frazier, Beth Gaines, Gallagher, Cristina  
            Garcia, Eduardo Garcia, Gatto, Gipson, Gomez, Gonzalez,  
            Gordon, Gray, Grove, Hadley, Harper, Roger Hernández, Holden,  
            Irwin, Jones, Jones-Sawyer, Lackey, Levine, Linder, Lopez,  
            Low, Maienschein, Mayes, McCarty, Medina, Mullin, Nazarian,  
            Obernolte, O'Donnell, Olsen, Patterson, Perea, Quirk, Rendon,  
            Ridley-Thomas, Rodriguez, Salas, Santiago, Steinorth, Mark  








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            Stone, Thurmond, Ting, Wagner, Waldron, Weber, Wilk, Williams,  
            Wood, Atkins
          NO VOTE RECORDED:  Kim, Mathis, Melendez

          Prepared by:Linda Tenerowicz / PUB. S. / 
          8/18/15 17:03:12


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