BILL ANALYSIS Ó
SB 1242
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Date of Hearing: June 14, 2016
Counsel: Sandy Uribe
ASSEMBLY COMMITTEE ON PUBLIC SAFETY
Reginald Byron Jones-Sawyer, Sr., Chair
SB
1242 (Lara) - As Amended March 28, 2016
As Proposed to be Amended in Committee
SUMMARY: Retroactively applies the provision of law defining
one year as 364 days for the purposes of sentencing.
Specifically, this bill:
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1)States that the reduced sentence applies to all convictions
entered before the effective date, even final judgments.
2)Provides that a person previously sentenced to one year in
county jail may file a motion in the trial court requesting to
be resentenced to a period not to exceed 364 days.
EXISTING STATE LAW:
1)Defines a felony as a crime that is punishable with death, by
imprisonment in the state prison, or notwithstanding any other
provision of law, by imprisonment in a county jail under Penal
Code section 1170, subdivision (h), (realignment). (Pen.
Code, § 17, subd. (a).)
2)States that every other crime or public offense is a
misdemeanor except those offenses classified as infractions.
(Pen. Code, § 17, subd. (a).)
3)States that every offense which is prescribed by any law of
the state to be punishable by imprisonment in the county jail
up to or not exceeding one year shall be punishable by
imprisonment in the county jail for a period not to exceed 364
days. (Penal Code § 18.5)
4)Provides that, except where a different punishment is
prescribed, every offense declared to be a misdemeanor is
punishable by imprisonment in the county jail not exceeding
six months or by a fine not exceeding $1,000 or by both.
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(Pen. Code, § 19.)
5)Provides that no part of the Penal Code is retroactive, unless
expressly so declared. (Pen. Code, § 3.)
EXISTING FEDERAL LAW:
1)Lists several categories of crimes which render a non-citizen
removable from the United States, including: crimes of moral
turpitude; aggravated felony convictions; domestic violence
convictions; firearm convictions, and drug convictions. (INA
§ 237(a)(2), see also 8 U.S.C. § 1227(a)(2).)
2)Lists several categories of crimes which will render a
non-citizen inadmissible to the United States, including:
crimes of moral turpitude; drug convictions; and prostitution
convictions. (INA § 212(a)(2), see also 8 U.S.C. §
1182(a)(2).)
3)Provides for enhanced penalties for a non-citizen who reenters
the country illegally after being removed due to a conviction
for an aggravated felony. (INA § 276(b)(2); see also 8 U.S.C
§ 1326(b)(2).)
4)Renders an asylum applicant statutorily ineligible for
political asylum if convicted of an aggravated felony. (INA
§§ 208(b)(2); see also 8 U.S.C. § 1158(b)(2).)
1)Defines an "aggravated felony" as specified. (INA §
101(a)(43), see also 8 U.S.C. § 1101(a)(43)(F).)
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FISCAL EFFECT:
COMMENTS:
1)Author's Statement: According to the author, "Two years ago
SB 1310 (Lara, 2014) aligned the definition of a misdemeanor
between state and federal law. While SB 1310 aligned state
and federal law on a prospective basis, it did not help those
who were convicted of a misdemeanor prior to 2015. Thousands
of legal residents are currently living in California with the
threat of deportation looming for minor crimes. Many of those
people have families and businesses in the state and few ties
to their country of origin. SB 1242 will provide on a
retroactive basis that all misdemeanors are punishable for no
more than 364 days and ensure that legal residents are not
deported due to previous discrepancies between state and
federal law."
2)Retroactive Application of New Statutes: Penal Code section 3
provides: "No part of [the Penal Code] is retroactive, unless
expressly so declared." This means that "[a] new statute is
generally presumed to operate prospectively absent an express
declaration of retroactivity or a clear and compelling
implication that the Legislature intended otherwise." (People
v. Hayes (1989) 49 Cal.3d 1260, 1274.)
In In re Estrada (1965) 63 Cal.2d 740, 744, the California
Supreme Court recognized an exception to the general rule of
prospective application of statutes and found that an intent
for retroactive application is inherent where the Legislature
changes the law to mitigate the penalty for a crime. When the
Legislature amends a statute to reduce punishment, and does
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not include a savings clause, courts should apply the
amendment retroactively so that the lighter punishment is
imposed as to all cases not yet final on the effective date of
the statute. (Id. at pp. 744-745, 748 .)
"[F]or the purpose of determining retroactive application of an
amendment to a criminal statute, a judgment is not final until
the time for petitioning for a writ of certiorari in the
United States Supreme Court has passed." (People v. Vieira
(2005) 35 Cal.4th 264, 306 [citations and internal quotation
marks omitted].)
In 2014, SB 1310 (Lara) reduced the maximum misdemeanor sentence
to 364 days. Under the principles discussed above, a
defendant who was sentenced before the effective date of the
new law, but whose appeal was pending was entitled to the
benefit of the new law. However, as drafted, all cases which
were final on appeal were not entitled to a modification in
sentence. This bill specifies that change applies
retroactively to all cases.
3)Legislative Authority to Make an Amendment Fully Retroactive:
While Estrada, supra, 63 Cal.2d 740 requires retroactive
application to judgments not yet final, nowhere does it
prohibit retroactive application to judgments that are final
if that is what the Legislature intended or what the
Constitution requires. (In re Chavez (2004) 114 Cal.App.4th
989, 1000.)
The Legislature has full authority to make a law fully
retroactive. "A final judgment is not immune from the
Legislature's power to adjust prison sentences for a
legitimate public purpose. (Chavez, supra, 114 Cal.App.4th
1000, citing In re Kapperman (1974) 11 Cal.3d 542, 547; People
v. Community Release Bd. (1979) 96 Cal.App.3d 792, 800; and
Way v. Superior Court (1977) 74 Cal.App.3d 165, 181 (conc.
opn. of Friedman, J.).)
This bill provides that change applies retroactively to cases
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that were final.
4)Immigration Consequences of Criminal Convictions: In addition
to criminal punishment, non-citizens can face immigration
consequences as a result of a criminal conviction. Certain
criminal convictions will make a non-citizen removable
(formerly known as deportation), inadmissible (formerly known
as exclusion), or both.
Of significance for purposes of this bill, are "aggravated
felonies." (8 U.S.C. § 1101(a)(43)(F), see also INA §
101(a)(43).) The term "aggravated felony" suggests a
particularly serious offense. However, after the passage of
the Illegal Immigration Reform and Immigrant Responsibility
Act of 1996, there are hundreds of aggravated felonies. Many
offenses are aggravated felonies regardless of the sentence
imposed. However, some offenses will be classified as
aggravated felonies if the defendant is sentenced to a term of
one year or more. This is true even though under California
law, the crime is characterized as a misdemeanor, and not a
felony.
It should be noted that the federal immigration statute defines
the term of imprisonment for a sentence as the "period of
incarceration or confinement ordered by a court of law
regardless of any suspension of the imposition or execution of
that imprisonment in whole or in part." (8 U.S.C. §
1101(a)(48)(B).) Therefore, a person convicted of a
misdemeanor who is sentenced to one year with part of, or even
most of, the sentence suspended is still convicted of an
aggravated felony for purposes of federal immigration law.
Aggravated felonies have the most severe immigration
consequences for non-citizens. Conviction of an aggravated
felony can result in removal without a hearing and with no
appeal, inadmissibility following removal, increased criminal
penalties for illegal re-entry after removal based on
conviction of an aggravated felony, ineligibility for asylum,
and ineligibility for citizenship.
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As noted above, in 2014, SB 1310 (Lara) reduced the maximum
misdemeanor sentence to 364 days to prevent misdemeanor
offenses from being classed as aggravated felonies for
purposes of immigration law. By making this law retroactive
to cases that were final when SB 1310 was enacted, it will
ensure that persons convicted of misdemeanors prior to 2015
will not face harsher immigration consequences than those
receiving the benefit of the new law.
5)Argument in Support: According to the California Attorneys
for Criminal Justice (CACJ), a co-sponsor of this bill, "In
2014, CACJ, along with many other co-sponsors, passed Senate
Bill 1310. This bill reduced the maximum possible misdemeanor
sentence by one day, from one year to 364 days. This one-day
change corrected a glitch between California criminal and
federal immigration laws, which had a catastrophic impact on
California's families. Immigration law will treat a state
misdemeanor as a felony if the misdemeanor has a 365-day (as
opposed to 364-day) potential sentence. Without §18.5, one
misdemeanor, even with no jail time imposed, causes a lawful
permanent resident to become automatically deportable.
"However, the language of SB 1310 did not explicitly state
whether the statute applied retroactively. This ambiguity has
led to unjust results. Hundreds, if not thousands, of
Californians may not benefit from the 2014 change because the
statute does not explicitly state its retroactivity. As a
result, thousands of families may be torn apart every year due
to minor crimes, such as writing a bad check. This is an
extremely problematic issue that has negative consequences for
families in California.
"By making this statute apply retroactively, this law will save
the court time and money from families challenging removal
proceedings based on old one-year misdemeanor sentences."
6)Prior Legislation: SB 1310 (Lara), Chapter 174, Statutes of
2014, reduced the maximum sentence for a misdemeanor from 365
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days to 364 days.
REGISTERED SUPPORT / OPPOSITION:
Support
California Attorneys for Criminal Justice (Co-Sponsor)
Coalition for Humane Immigrant Rights Los Angeles (Co-Sponsor)
Immigrant Legal Resource Center (Co- Sponsor)
Latino Coalition for Healthy Communities (Co-Sponsor)
Los Angeles District Attorney's Office (Co-Sponsor)
Mexican American Legal Defense Fund (Co-Sponsor)
A New PATH
All of Us or None
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American Civil Liberties Union
American Friends Service Committee
American Immigration Lawyers Association
Asian Americans Advancing Justice
Asian Law Alliance
California Civil Liberties Advocacy
California Immigrant Policy Center
California Labor Federation
California Public Defenders Association
California Rural Legal Assistance Foundation
Californians for Safety and Justice
Californians United for a Responsible Budget
Canal Alliance
Center on Juvenile and Criminal Justice
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Central American Resource Center
Centro Laboral de Graton
Community Legal Services in East Palo Alto
Courage Campaign
Day Labor Center - Hayward/Oakland
Drug Policy Alliance
Friends Committee on Legislation of California
Human Rights Watch
Latino Coalition for a Healthy California
Lawyers' Committee for Civil Rights of the San Francisco Bay
Area
Legal Services for Prisoners with Children
National Center for Youth Law
National Day Laborer Organizing Network
National Immigration Law Center
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Pangea Legal Services
Prison Law Office
Project ALOFA
San Quentin Restorative Justice Program
Santa Ana Boys and Men of Color
Santa Clara County Public Defender's Office
Services, Immigrant Rights & Education Network
Service Employees International Union
Silicon Valley De-Bug
Southeast Asia Resource Action Center
United Farm Workers Foundation
Opposition
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None
Analysis Prepared by:Sandy Uribe / PUB. S. / (916)
319-3744