AB 806 Assembly Bill

BILL NUMBER: AB 806	AMENDED
	BILL TEXT

	AMENDED IN ASSEMBLY  MAY 20, 2009

INTRODUCED BY   Assembly Member Fuentes

                        FEBRUARY 26, 2009

   An act to amend Section 1016.5 of the Penal Code, relating to
criminal procedure.


	LEGISLATIVE COUNSEL'S DIGEST


   AB 806, as amended, Fuentes. Criminal procedure: pleas.
   Existing law requires the court, prior to the acceptance of a plea
of guilty or nolo contendere to advise the defendant that if he or
she is not a citizen, conviction of the crime charged may result in
deportation, exclusion from admission to the United States, or denial
of naturalization.
   This bill would additionally require the court to advise the
defendant that, if he or she is deported from the United States and
returns illegally, he or she could be charged with a separate federal
offense, as specified.  The bill would make other conforming
changes. 
   Vote: majority. Appropriation: no. Fiscal committee: no.
State-mandated local program: no.


THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:

  SECTION 1.  Section 1016.5 of the Penal Code is amended to read:
   1016.5.  (a) 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, the court
shall administer  the following   an 
advisement on the record to the defendant  :  
as specified in paragraphs (1) and (2).  
   (1) If the plea is accepted after January 1, 1978, the court shall
give the following advisement: 
   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, or denial of naturalization pursuant to the laws of the
United States.  Further,  
   (2) If the plea is accepted on or after January 1, 2010, the court
shall give the following advisement as well: 
    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.
   (b) 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. If, after January 1, 1978,
the court fails to advise the defendant as required by  this
section   paragraph (1) of   subdivision (a)
or, after January 1, 2010, fails to advise the defendant as required
by paragraphs (1) and (2) of subdivision (a)  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. 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.
   (c) With respect to  pleas   a plea 
accepted prior to  January 1, 1978   the dates
specified in paragraphs (1) and (2) of subdivision (a) , it is
not the intent of the Legislature that a court's failure to provide
the advisement  as  required by subdivision (a)  of
Section 1016.5  should require the vacation of judgment and
withdrawal of the plea or constitute grounds for finding a prior
conviction invalid. Nothing in this section, however, shall be deemed
to inhibit a court, in the sound exercise of its discretion, from
vacating a judgment and permitting a defendant to withdraw a plea.
   (d) The Legislature finds and declares that in many instances
involving an individual who is not a citizen of the United States
charged with an offense punishable as a crime under state law, a plea
of guilty or nolo contendere is entered without the defendant
knowing that a conviction of such offense is grounds for deportation,
exclusion from admission to the United States, or denial of
naturalization pursuant to the laws of the United States. Therefore,
it is the intent of the Legislature in enacting this section to
promote fairness to such accused individuals by requiring in such
cases that acceptance of a guilty plea or plea of nolo contendere be
preceded by an appropriate warning of the special consequences for
such a defendant which may result from the plea. It is also the
intent of the Legislature that the court in such cases shall grant
the defendant a reasonable amount of time to negotiate with the
prosecuting agency in the event the defendant or the defendant's
counsel was unaware of the possibility of deportation, exclusion from
admission to the United States, or denial of naturalization as a
result of conviction. It is further the intent of the Legislature
that at the time of the plea no defendant shall be required to
disclose his or her legal status to the court.