BILL ANALYSIS Ó
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|SENATE RULES COMMITTEE | AB 1343|
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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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