BILL ANALYSIS
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|SENATE RULES COMMITTEE | AB 15|
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THIRD READING
Bill No: AB 15
Author: Fuentes (D)
Amended: 6/9/10 in Senate
Vote: 21
PRIOR SENATE VOTES NOT RELEVANT
SENATE PUBLIC SAFETY COMMITTEE : 5-2, 6/15/10
AYES: Leno, Cedillo, Hancock, Steinberg, Wright
NOES: Cogdill, Huff
ASSEMBLY FLOOR : Not relevant
SUBJECT : Criminal procedure: pleas
SOURCE : Author
DIGEST : This bill provides for an additional advisement
when a noncitizen pleads guilty so that the person is aware
that if he/she is deported and returns to the United States
he/she will face harsh federal penalties for reentry.
ANALYSIS : 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,
CONTINUED
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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 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))
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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." (Section
1016.5(a) of the Penal Code)
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. (Section 1016.5 (b) of the
Penal Code)
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. (Section 1016.5 (b) of the
Penal Code)
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
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required advisement. (Section 1016.5 (b) of the Penal
Code)
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.
Prior Legislation
Last year, the author carried an identical measure to this
bill - AB 806, which passed the Senate with a vote of 23-14
on September 2, 2009. The bill was vetoed by Governor
Schwarzenegger. In his veto message, the Governor stated:
"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."
FISCAL EFFECT : Appropriation: No Fiscal Com.: No
Local: No
SUPPORT : (Verified 6/16/10)
American Civil Liberties Union
Taxpayers for Improving Public Safety
OPPOSITION : (Verified 6/16/10)
California District Attorneys Association
Governor's Office of Planning and Research
ARGUMENTS IN SUPPORT : The author states, "Under existing
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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."
ARGUMENTS IN 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."
RJG:mw 6/16/10 Senate Floor Analyses
SUPPORT/OPPOSITION: SEE ABOVE
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