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AB-15 Criminal procedure: pleas.(2009-2010)

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AB15:v88#DOCUMENT

Enrolled  August 31, 2010
Passed  IN  Senate  August 24, 2010
Passed  IN  Assembly  August 25, 2010
Amended  IN  Senate  July 01, 2010
Amended  IN  Senate  June 09, 2010
Amended  IN  Senate  June 03, 2010
Amended  IN  Senate  May 12, 2010
Amended  IN  Senate  September 04, 2009
Amended  IN  Senate  September 02, 2009
Amended  IN  Assembly  May 21, 2009
Amended  IN  Assembly  April 13, 2009
Amended  IN  Assembly  March 25, 2009
Amended  IN  Assembly  February 26, 2009

CALIFORNIA LEGISLATURE— 2009–2010 REGULAR SESSION

Assembly Bill
No. 15

Introduced  by  Assembly Member Fuentes

December 01, 2008

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


LEGISLATIVE COUNSEL'S DIGEST


AB 15, 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. The bill would make other conforming changes.
Vote: MAJORITY   Appropriation: NO   Fiscal Committee: NO   Local Program: NO  

The people of the State of California do enact as follows:


SECTION 1.

 The Legislature finds and declares all of the following:
(a) In Padilla v. Kentucky (2010) 130 S.Ct. 1473, the United States Supreme Court highlighted the increased significance of immigration consequences that are often inevitable with the making of a guilty or nolo contendere plea.
(b) The United States Supreme Court’s decision in Padilla v. Kentucky provides evidence of the increasing importance of a defendant’s full knowledge of all immigration consequences of a guilty or nolo contendere plea in weighing whether to enter such a plea.
(c) Consistent with the Supreme Court’s decision in Padilla v. Kentucky, informed consideration of immigration consequences can only benefit both the state and noncitizen defendants during the plea-bargaining process.

SEC. 2.

 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 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.

(2) If the plea is accepted on or after January 1, 2011, 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.

(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 paragraph (1) of subdivision (a) or, after January 1, 2011, 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 a plea accepted prior to 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) 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 that 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.