BILL ANALYSIS                                                                                                                                                                                                    



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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,    |
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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