BILL ANALYSIS
AB 806
Page 1
ASSEMBLY THIRD READING
AB 806 (Fuentes)
As Amended May 20, 2009
Majority vote
PUBLIC SAFETY 5-2
-----------------------------------------------------------------
|Ayes:|Solorio, Furutani, Hill, | | |
| |Ma, Skinner | | |
| | | | |
|-----+--------------------------+-----+--------------------------|
|Nays:|Hagman, Anderson | | |
| | | | |
-----------------------------------------------------------------
SUMMARY : Requires that courts advise defendants, if they are
deported from the United States (U.S.) 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 re-entry 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."
2)States that upon request, the court shall allow the defendant
AB 806
Page 2
additional time to consider the appropriateness of the plea in
light of the advisement as described in this section.
3)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 U.S., or denial
of naturalization pursuant to the laws of the U.S., 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.
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.
5)Finds and declares that in many instances involving an
individual who is not a citizen of the U.S. 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 U.S., or denial
of naturalization pursuant to the laws of the U.S. 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 U.S., 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 "undocumented immigrant" who enters or
attempts to enter the U.S. 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 U.S. by a willfully false or misleading
AB 806
Page 3
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.
Provides that any "undocumented immigrant" who is apprehended
while entering (or attempting to enter) the U.S. 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 "undocumented
immigrant" 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.
FISCAL EFFECT : None
COMMENTS : 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."
Please see the policy committee for a full discussion of this
bill.
AB 806
Page 4
Analysis Prepared by : Gabriel Caswell / PUB. S. / (916)
319-3744 FN:
0000860