BILL ANALYSIS Ó AB 1343 Page 1 CONCURRENCE IN SENATE AMENDMENTS AB 1343 (Thurmond) As Amended June 22, 2015 Majority vote -------------------------------------------------------------------- |ASSEMBLY: |77-0 |(May 18, 2015) |SENATE: |35-5 |(September 2, | | | | | | |2015) | | | | | | | | | | | | | | | -------------------------------------------------------------------- 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. AB 1343 Page 2 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. AB 1343 Page 3 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 AB 1343 Page 4 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 AB 1343 Page 5 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 AB 1343 Page 6 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." AB 1343 Page 7 Analysis Prepared by: David Billingsley / PUB. S. / (916) 319-3744 FN: 0001421