BILL ANALYSIS
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Mark Leno, Chair A
2009-2010 Regular Session B
8
0
6
AB 806 (Fuentes)
As Amended May 20, 2009
Hearing date: July 2, 2009
Penal Code
MK:br
CRIMINAL PROCEDURE: PLEAS
HISTORY
Source: Author
Prior Legislation: Unknown
Support: COFEM; California Public Defenders Association; ACLU
Opposition:California Judges Association; California District
Attorneys Association
Assembly Floor Vote: Ayes 44 - Noes 32
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?
PURPOSE
(More)
AB 806 (Fuentes)
PageB
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
not more than five years. (8 United States Code Section
(More)
AB 806 (Fuentes)
PageC
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).)
Existing law states that upon request, the court shall allow the
(More)
AB 806 (Fuentes)
PageD
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 bil l 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.
RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION
California continues to face a severe prison overcrowding
crisis. The Department of Corrections and Rehabilitation (CDCR)
currently has about 170,000 inmates under its jurisdiction. Due
to a lack of traditional housing space available, the department
houses roughly 15,000 inmates in gyms and dayrooms.
California's prison population has increased by 125% (an average
of 4% annually) over the past 20 years, growing from 76,000
inmates to 171,000 inmates, far outpacing the state's population
growth rate for the age cohort with the highest risk of
(More)
AB 806 (Fuentes)
PageE
incarceration.<1>
In December of 2006 plaintiffs in two federal lawsuits against
CDCR sought a court-ordered limit on the prison population
pursuant to the federal Prison Litigation Reform Act. On
February 9, 2009, the three-judge federal court panel issued a
tentative ruling that included the following conclusions with
respect to overcrowding:
No party contests that California's prisons are
overcrowded, however measured, and whether considered
in comparison to prisons in other states or jails
within this state. There are simply too many
prisoners for the existing capacity. The Governor,
the principal defendant, declared a state of emergency
in 2006 because of the "severe overcrowding" in
California's prisons, which has caused "substantial
risk to the health and safety of the men and women who
work inside these prisons and the inmates housed in
them." . . . A state appellate court upheld the
Governor's proclamation, holding that the evidence
supported the existence of conditions of "extreme
peril to the safety of persons and property."
(citation omitted) The Governor's declaration of the
state of emergency remains in effect to this day.
. . . the evidence is compelling that there is no
relief other than a prisoner release order that will
remedy the unconstitutional prison conditions.
. . .
Although the evidence may be less than perfectly
----------------------
<1> "Between 1987 and 2007, California's population of ages 15
through 44 - the age cohort with the highest risk for
incarceration - grew by an average of less than 1% annually,
which is a pace much slower than the growth in prison
admissions." (2009-2010 Budget Analysis Series, Judicial and
Criminal Justice, Legislative Analyst's Office (January 30,
2009).)
(More)
AB 806 (Fuentes)
PageF
clear, it appears to the Court that in order to
alleviate the constitutional violations California's
inmate population must be reduced to at most 120% to
145% of design capacity, with some institutions or
clinical programs at or below 100%. We caution the
parties, however, that these are not firm figures and
that the Court reserves the right - until its final
ruling - to determine that a higher or lower figure is
appropriate in general or in particular types of
facilities.
. . .
Under the PLRA, any prisoner release order that we
issue will be narrowly drawn, extend no further than
necessary to correct the violation of constitutional
rights, and be the least intrusive means necessary to
correct the violation of those rights. For this
reason, it is our present intention to adopt an order
requiring the State to develop a plan to reduce the
prison population to 120% or 145% of the prison's
design capacity (or somewhere in between) within a
period of two or three years.<2>
The final outcome of the panel's tentative decision, as well as
any appeal that may be in response to the panel's final
decision, is unknown at the time of this writing.
This bill does not appear to aggravate the prison overcrowding
crisis outlined above.
COMMENTS
1. Need for This Bill
---------------------------
<2> Three Judge Court Tentative Ruling, 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 (Feb. 9, 2009).
(More)
AB 806 (Fuentes)
PageG
According to the author's statement in the Assembly Public
Safety Committee analysis:
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
(More)
AB 806 (Fuentes)
PageH
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
to a plea does not become an issue.
(More)
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?
***************
(More)