BILL ANALYSIS Ó
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CONCURRENCE IN SENATE AMENDMENTS
AB
1343 (Thurmond)
As Amended June 22, 2015
Majority vote
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|ASSEMBLY: |77-0 |(May 18, 2015) |SENATE: |35-5 |(September 2, |
| | | | | |2015) |
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Original Committee Reference: PUB. S.
SUMMARY: Requires defense counsel to provide accurate advice on
the potential immigration consequences of a proposed plea
agreement and attempt to defend against those consequences,
consistent with the goals of the defendant. Requires the
prosecution and defense counsel to contemplate immigration
consequences in the plea negotiation process.
The Senate amendments:
1)Add language to emphasize that defense counsel should pursue
resolutions to criminal cases to insure that the defendant
avoids adverse immigration consequences in a manner that is
consistent with the overall goals of the defendant and the
attorney's professional standards.
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2)Add language directing prosecution and defense counsel to act
in furtherance of the legislative findings when contemplating
the immigration consequences in plea negotiations.
3)Make technical, non-substantive changes to the language of
this bill.
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 [U.S.], 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 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 United States (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.
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AS PASSED BY THE ASSEMBLY:
1)Required defense counsel to provide accurate and affirmative
advice of the potential immigration consequences of a proposed
disposition and attempt to defend against those consequences.
2)Required 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)Stated 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 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
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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, 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
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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
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.
FISCAL EFFECT: According to the Senate Appropriations
Committee, pursuant to Senate Rule 28.8, negligible state costs.
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
ever permitted to return. Thus, countless California families
are needlessly separated each year."
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Analysis Prepared by:
David Billingsley / PUB. S. / (916) 319-3744
FN: 0001421