BILL ANALYSIS
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Mark Leno, Chair A
2009-2010 Regular Session B
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AB 15 (Fuentes)
As Amended June 9, 2010
Hearing date: June 15, 2010
Penal Code
MK:dl
CRIMINAL PROCEDURE: PLEAS
HISTORY
Source: Author
Prior Legislation: AB 806 (Fuentes) - 2009, vetoed
Support: Taxpayers for Improving Public Safety; American Civil
Liberties Union
Opposition:California District Attorneys Association; Governor's
Office of Planning and Research
Assembly Floor Vote: Not applicable
KEY ISSUE
SHOULD THE LAW PROVIDE THAT WHEN A PERSON WHO IS NOT A CITIZEN
ACCEPTS A PLEA THE COURT SHALL ADVISE THE PERSON THAT IF HE OR SHE
IS DEPORTED AND RETURNS TO THE UNITED STATES, HE OR SHE COULD FACE
HARSH FEDERAL PENALTIES FOR ILLEGAL REENTRY?
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PURPOSE
The purpose of this bill is to provide for an additional
advisement when a noncitizen pleads guilty so that the person is
aware that if he or she is deported and returns to the United
States he or she will face harsh federal penalties for reentry.
Existing law states that any "alien" who enters or attempts to
enter the United States at any time or place other than as
designated by immigration officers, or eludes examination or
inspection by immigration officers, or attempts to enter or
obtains entry to the United States by a willfully false or
misleading representation or the willful concealment of a
material fact, shall, for the first commission of any such
offense, be fined, or imprisoned not more than six months, or
both, and, for a subsequent commission of any such offense, be
fined, or imprisoned not more than two years, or both. (8
United States Code Section 1325(a).)
Existing law provides that any "alien" who is apprehended while
entering (or attempting to enter) the United States at a time or
place other than as designated by immigration officers shall be
subject to a civil penalty of at least $50 and not more than
$250 for each such entry (or attempted entry) or twice the
amount specified in the case of an "alien" who has been
previously subject to a civil penalty under this subsection.
Civil penalties under this subsection are in addition to, and
not in lieu of, any criminal or other civil penalties that may
be imposed. (8 United States Code Section 1325(b).)
Existing law states that any individual who knowingly enters
into a marriage for the purpose of evading any provision of the
immigration laws shall be imprisoned for not more than five
years, or fined not more than $250,000, or both. (8 United
States Code Section 1325(c).)
Existing law provides that any individual who knowingly
establishes a commercial enterprise for the purpose of evading
any provision of the immigration laws shall be imprisoned for
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not more than five years. (8 United States Code Section
1325(d).)
Existing law provides that any "alien" who has been denied
admission, excluded, deported, or removed or has departed the
United States while an order of exclusion, deportation, or
removal is outstanding, and thereafter enters, attempts to
enter, or is at any time found in, the United States, unless
prior to his re-embarkation at a place outside the United States
or his application for admission from foreign contiguous
territory, the Attorney General has expressly consented to such
"alien's" reapplying for admission; or with respect to an
"alien" previously denied admission and removed, unless such
"alien" shall establish that he was not required to obtain such
advance consent under this or any prior Act, shall be fined, or
imprisoned not more than two years or both. (8 United States
Code Section 1326(a).)
Existing law states that notwithstanding the provisions for
criminal penalties for reentry of excluded "aliens," in the case
of any "alien" described in whose removal was subsequent to a
conviction for commission of three or more misdemeanors
involving drugs, crimes against the person, or both, or a felony
(other than an aggravated felony), such alien shall be fined,
imprisoned not more than 10 years, or both; or whose removal was
subsequent to a conviction for commission of an aggravated
felony, such alien shall be fined, imprisoned not more than 20
years, or both. (8 United States Code Section 1326(b).)
Existing law requires, prior to acceptance of a plea of guilty
or nolo contendere to any offense punishable as a crime under
state law, the court shall administer the following advisement
on the record to the defendant: "[i]f 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).)
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Existing law 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.
(Penal Code 1016.5 (b).)
Existing law provides if the 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, or denial of naturalization pursuant to the
laws of the United States, the court, on defendant's motion,
shall vacate the judgment and permit the defendant to
withdraw the plea of guilty or nolo contendere, and enter a
plea of not guilty. (Penal Code 1016.5 (b).)
Existing law states that 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 (b).)
This bill provides that for any plea accepted after January 1,
2010 the court shall also give the following advisement:
Further, if you are deported from the United States and return
illegally, you could be charged with a separate federal offense
for illegal reentry into the United States, pursuant to Section
1325, 1326, or both 1325 and 1326, of Title 8 of the United
States Code, which impose harsh penalties.
This bill contains legislative findings and declarations, as
specified.
RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION
The severe prison overcrowding problem California has
experienced for the last several years has not been solved. In
December of 2006 plaintiffs in two federal lawsuits against the
Department of Corrections and Rehabilitation sought a
court-ordered limit on the prison population pursuant to the
federal Prison Litigation Reform Act. On January 12, 2010, a
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federal three-judge panel issued an order requiring the state to
reduce its inmate population to 137.5 percent of design capacity
-- a reduction of roughly 40,000 inmates -- within two years.
In a prior, related 184-page Opinion and Order dated August 4,
2009, that court stated in part:
"California's correctional system is in a tailspin,"
the state's independent oversight agency has reported.
. . . (Jan. 2007 Little Hoover Commission Report,
"Solving California's Corrections Crisis: Time Is
Running Out"). Tough-on-crime politics have increased
the population of California's prisons dramatically
while making necessary reforms impossible. . . . As a
result, the state's prisons have become places "of
extreme peril to the safety of persons" they house, .
. . (Governor Schwarzenegger's Oct. 4, 2006 Prison
Overcrowding State of Emergency Declaration), while
contributing little to the safety of California's
residents, . . . . California "spends more on
corrections than most countries in the world," but the
state "reaps fewer public safety benefits." . . . .
Although California's existing prison system serves
neither the public nor the inmates well, the state has
for years been unable or unwilling to implement the
reforms necessary to reverse its continuing
deterioration. (Some citations omitted.)
. . .
The massive 750% increase in the California prison
population since the mid-1970s is the result of
political decisions made over three decades, including
the shift to inflexible determinate sentencing and the
passage of harsh mandatory minimum and three-strikes
laws, as well as the state's counterproductive parole
system. Unfortunately, as California's prison
population has grown, California's political
decision-makers have failed to provide the resources
and facilities required to meet the additional need
for space and for other necessities of prison
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existence. Likewise, although state-appointed experts
have repeatedly provided numerous methods by which the
state could safely reduce its prison population, their
recommendations have been ignored, underfunded, or
postponed indefinitely. The convergence of
tough-on-crime policies and an unwillingness to expend
the necessary funds to support the population growth
has brought California's prisons to the breaking
point. The state of emergency declared by Governor
Schwarzenegger almost three years ago continues to
this day, California's prisons remain severely
overcrowded, and inmates in the California prison
system continue to languish without constitutionally
adequate medical and mental health care.<1>
The court stayed implementation of its January 12, 2010 ruling
pending the state's appeal of the decision to the U.S. Supreme
Court. That appeal, and the final outcome of this litigation,
is not anticipated until later this year or 2011.
This bill does not aggravate the prison overcrowding crisis
described above.
COMMENTS
1. Need for This Bill
The author on this proposal has stated:
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<1> Three Judge Court Opinion and Order, Coleman v.
Schwarzenegger, Plata v. Schwarzenegger, in the United States
District Courts for the Eastern District of California and the
Northern District of California United States District Court
composed of three judges pursuant to Section 2284, Title 28
United States Code (August 4, 2009).
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Under existing law, judges are required to advise
criminal defendants of potential immigration
consequences of entering a guilty/no-contest plea before
the plea can be accepted. The purpose of this
requirement is to make sure that the plea is knowing and
voluntary and fully informed. The problem is that the
vast majority of defendants who receive this advisement
have no idea that returning to the country after
deportation is as serious as it is and choose to enter
guilty pleas unfairly unaware of the often times
devastating consequences of the plea. California has
recognized the importance and appropriateness of
ensuring that criminal defendants are advised that they
can be deported if they plead guilty. Defendants should
also understand that pleading guilty could put them in a
situation where they can never return to the United
States (and presumably their family and friends). This
is necessary for a plea to be truly knowing and
voluntary.
2. Additional Advisement
Existing law already requires the court, at the time of a plea
of guilty or nolo contendere, to advise the defendant that if he
or she is not a citizen of the United States, his or her plea
could subject him or her to deportation. In addition to that
advisement this bill would require the court to give the person
an additional advisement stating that if he or she is deported
from the United States and reenters, he or she could face harsh
penalties under federal law.
In support of the bill, the California Public Defenders
Association states:
Given the fact that there are substantial consequences
with respect to immigration rights and potential
criminal penalties attached, it is important as a matter
of fairness that defendants are properly advised. It
would help ensure that all parties go in with eyes wide
open and that the question of voluntariness with respect
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to a plea does not become an issue.
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3. Opposition
The opponents to this bill raise questions as to why the court
should be advising a person that if they break the law they will
be punished and concerns that the remedy for failing to advise
is a potential motion to withdraw the plea. Specifically, the
California Judges Association opposes this bill stating:
The admonishment proposed under AB 806 would be
appropriate if it were concerning the direct
consequences of the plea. But the bill instead would
task the courts with warning defendants about the
possible consequences of a particular type of future
criminal conduct. Courts generally do not advise
defendants of the consequences of future crimes, and
there is no rationale as to why this particular future
criminal conduct should be singled out. Defendants
presumably understand that future crimes beget future
penalties.
Do the potential future consequences that may arise from a plea
outweigh any court time that may be involved in giving this
additional advisement? Does the potential for a plea withdrawal
if the advisement is not given outweigh the benefit to having a
plea given with a full awareness of potential future
consequences?
SHOULD THE LAW REQUIRE AN ADDITIONAL ADVISEMENT THAT REENTRY
AFTER DEPORTATION WILL SUBJECT A PERSON TO SERIOUS PUNISHMENT
UNDER FEDERAL LAW?
4. Veto
The author carried an identical measure to this bill, AB 806,
last year. That bill, which passed this Committee on a vote of
5-2, was vetoed. Governor Schwarzenegger's veto message stated:
I am returning Assembly Bill 806 without my signature.
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This bill would require the court to advise a
defendant that if he or she is deported from the
United States and returns illegally, he or she could
be charged with federal offenses, as specified. All
criminal convictions have the potential to adversely
affect a defendant who thereafter commits further
crimes. There is simply no reason for state courts to
admonish a defendant on the consequences
of committing future, potential federal crimes.
For these reasons I am unable to sign this bill.
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