BILL ANALYSIS
AB 806
Page 1
Date of Hearing: May 12, 2009
Counsel: Gabriel Caswell
ASSEMBLY COMMITTEE ON PUBLIC SAFETY
Jose Solorio, Chair
AB 806 (Fuentes) - As Introduced: February 26, 2009
As Proposed to be Amended in Committee
SUMMARY : Requires that courts advise defendants, if they are
deported from the United States and return illegally, that they
could be charged with a separate federal offense. Specifically,
this bill
1)Requires that judges admonish defendants by stating the
following: 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, under
specified code sections, which impose harsh penalties.
2)Specifies that the admonition shall only apply to pleas taken
subsequent to January 1, 2010, and this act shall not apply
retroactively.
EXISTING LAW :
1)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 Section 1026.5(a).]
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. [Penal
Code Section 1026.5(b).]
3)Provides if the court fails to advise the defendant as
required by this section and the defendant shows that
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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 Section 1026.5(b).]
4)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 Section 1026.5(b).]
5)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.
6)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
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subsequent commission of any such offense, be fined, or
imprisoned not more than two years, or both. [8 United States
Code Section 1325(a).]
7)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).]
8)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).]
9)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).]
10)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).]
11)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
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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).]
FISCAL EFFECT : None
COMMENTS :
1)Author's Statement : According to the author, "Guilty and no
contest pleas are often treated as just routine procedure,
especially in extremely busy courtrooms. In fact, a guilty/no
contest plea is a very serious legal proceeding, during which
a number of substantial constitutional rights are given up.
"There are also serious potential collateral consequences
associated with entering guilty/no contest pleas. One such
consequence is the possibility of deportation for some
defendants. Although the law has evolved to now require that,
for a plea to be valid, the judge must advise the defendant of
this potential consequence, defendants are NOT routinely
advised of the potential consequences of reentering the United
States if they are deported.
"The potential consequence of illegally reentering the United
States is prosecution in federal court, with a substantial
prison sentence. This is a potential consequence of entering
a guilty/no contest plea that defendants should be aware of
before deciding how to proceed in a criminal case."
2)Background : According to the background provided by the
author, "[u]nder 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 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
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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."
3)Sufficiency of the Admonishment of Defendants at the Time of
their Plea : Under current law, a very general immigration
consequences at the time of a guilty or no contest plea.
Defendants are advised that they may be deported, excluded
from admission, and denied naturalization as a result of their
plea. However, courts are not required to inform defendants
that they may be prosecuted for re-entering the United States.
The penalties for re-entering the United States can range up
to 20 years in federal custody for individuals previously
convicted of specified serious crimes.
The current admonition was codified in the Penal Code in 1977
and has never been updated.
Proponents argue that the admonishment of criminal defendants
is insufficient in the area of immigration and re-entry
consequences and defendants must be fully informed of the
consequences of their plea. Individuals who plead guilty or
no-contest and re-enter the country may be unaware of the full
consequences of their actions.
Opponents argue that the admonishment should only impact the
direct consequences of the plea and believe that admonishments
are unnecessary when they only affect possible future criminal
conduct, namely illegal re-entry into the country. Finally,
additional court time would be consumed for the addition to an
already lengthy admonition.
4)Argument in Support : According to the California Public
Defenders Association , "AB 806 would require that, prior to
accepting a guilty or no contest plea, judges advise criminal
defendants of the potential for federal prosecution, with
harsh penalties, for illegally reentering the United States
after having been deported.
"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
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defendants are properly advised. It would help ensure that
all parties go in with eyes wide open and that the questions
of voluntariness with respect to a plea does not become an
issue."
5)Argument in Opposition: The California Judges Association
states, "[t]he bill would require a court, before accepting a
plea of guilty or nolo contendere, to admonish a defendant
about the possible federal penalties for illegally returning
to the United States after having been deported.
"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
admonish 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."
REGISTERED SUPPORT / OPPOSITION :
Support
California Public Defenders Association
Opposition
California District Attorneys Association
California Judges Association
Analysis Prepared by : Gabriel Caswell / PUB. S. / (916)
319-3744