Existing law creates an explicit right for a person no longer imprisoned or restrained to file a motion to vacate a conviction or sentence based on a prejudicial error damaging to the moving partys ability to meaningfully understand, defend against, or knowingly accept the actual or potential adverse immigration consequences of a plea of guilty or nolo contendere, or based on newly discovered evidence of actual innocence, as specified. Under existing law, a defendant who files one of these motions is entitled to a hearing. Existing law authorizes the court, at the request of the moving party, to hold the hearing without the personal presence of the moving party if counsel for the moving party is present and the court finds good cause as to why the moving party cannot be present.

This bill would specify that a finding based on prejudicial error may, but need not, include a finding of ineffective assistance of counsel and that the only finding that the court is required to make in those cases is whether the conviction is legally invalid due to prejudicial error damaging the moving partys ability to meaningfully understand, defend against, or knowingly accept the actual or potential adverse immigration consequences of a plea of guilty or nolo contendere. The bill would authorize the court, upon the request of the moving party, to hold the hearing without the personal presence of the moving party and without the moving partys counsel present provided that it finds good cause as to why the moving party cannot be present. The bill would, if the prosecution has no objection to the motion, authorize the court to grant the motion to vacate the conviction or sentence without a hearing.

This bill would prohibit the court from issuing a specific finding of ineffective assistance of counsel as a result of a motion brought under these provisions unless the attorney found to be ineffective was given timely advance notice of the motion hearing by the moving party or the prosecutor.

Existing law requires a motion based on prejudicial error relating to the immigration consequences of the plea to be filed with reasonable diligence after the later of the date the moving party receives a notice to appear in immigration court or other notice from immigration authorities that asserts the conviction or sentence as a basis for removal or the date a removal order against the moving party, based on the existence of the conviction or sentence, becomes final.

This bill would deem a motion, based on prejudicial error relating to the immigration consequences of the plea, timely filed any time in which the individual filing the motion is no longer in criminal custody unless the motion is not filed with reasonable diligence after the later of when the moving party receives notice to appear in immigration court or other notice from immigration authorities that asserts the conviction or sentence as a basis for the removal or the denial of an application for immigration benefit, lawful status, or naturalization, or notice that a final removal order has been issued against the moving party, based on the existence of the conviction or sentence that the moving party seeks to vacate.

Existing law creates an explicit right for a person no longer imprisoned or restrained to file a motion to vacate a conviction or sentence based on a prejudicial error damaging to the moving partys ability to meaningfully understand, defend against, or knowingly accept the actual or potential adverse immigration consequences of a plea of guilty or nolo contendere, or based on newly discovered evidence of actual innocence, as specified. Under existing law, a defendant who files one of these motions is entitled to a hearing. Existing law authorizes the court, at the request of the moving party, to hold the hearing without the personal presence of the moving party if counsel for the moving party is present and the court finds good cause as to why the moving party cannot be present.

This bill would specify that a finding based on prejudicial error may, but need not, include a finding of ineffective assistance of counsel and that the only finding that the court is required to make in those cases is whether the conviction is legally invalid due to prejudicial error damaging the moving partys ability to meaningfully understand, defend against, or knowingly accept the actual or potential adverse immigration consequences of a plea of guilty or nolo contendere. The bill would authorize the court, upon the request of the moving party, to hold the hearing without the personal presence of the moving party and without the moving partys counsel present provided that it finds good cause as to why the moving party cannot be present. The bill would, if the prosecution has no objection to the motion, authorize the court to grant the motion to vacate the conviction or sentence without a hearing.

This bill would prohibit the court from issuing a specific finding of ineffective assistance of counsel as a result of a motion brought under these provisions unless the attorney found to be ineffective was given timely advance notice of the motion hearing by the moving party or the prosecutor.

Existing law requires a motion based on prejudicial error relating to the immigration consequences of the plea to be filed with reasonable diligence after the later of the date the moving party receives a notice to appear in immigration court or other notice from immigration authorities that asserts the conviction or sentence as a basis for removal or the date a removal order against the moving party, based on the existence of the conviction or sentence, becomes final.

This bill would deem a motion, based on prejudicial error relating to the immigration consequences of the plea, timely filed any time in which the individual filing the motion is no longer in criminal custody unless the motion is not filed with reasonable diligence after the later of when the moving party receives notice to appear in immigration court or other notice from immigration authorities that asserts the conviction or sentence as a basis for the removal or the denial of an application for immigration benefit, lawful status, or naturalization, or notice that a final removal order has been issued against the moving party, based on the existence of the conviction or sentence that the moving party seeks to vacate.

Existing law creates an explicit right for a person no longer imprisoned or restrained to file a motion to vacate a conviction or sentence based on a prejudicial error damaging to the moving partys ability to meaningfully understand, defend against, or knowingly accept the actual or potential adverse immigration consequences of a plea of guilty or nolo contendere, or based on newly discovered evidence of actual innocence, as specified. Under existing law, a defendant who files one of these motions is entitled to a hearing. Existing law authorizes the court, at the request of the moving party party, to hold the hearing without the personal presence of the moving party if counsel for the moving party is present and the court finds good cause as to why the moving party cannot be present.

This bill would specify that a finding based on prejudicial error may, but need not, include a finding of ineffective assistance of counsel and that the only finding that the court is required to make in those cases is whether the conviction is legally invalid due to prejudicial error damaging the moving partys ability to meaningfully understand, defend against, or knowingly accept the actual or potential adverse immigration consequences of a plea of guilty or nolo contendere. The bill would authorize the court court, upon the request of the moving party, to hold the hearing without the personal presence of the moving party and without the moving partys counsel present if the court provided that it finds good cause as to why the moving party cannot be present. The bill would, if the prosecution has no objection to the motion, authorize the court to grant the motion to vacate the conviction or sentence without a hearing.

This bill would prohibit the court from issuing a specific finding of ineffective assistance of counsel as a result of a motion brought under these provisions unless the attorney found to be ineffective was given timely advance notice of the motion hearing by the moving party or the prosecutor.

Existing law requires a motion based on prejudicial error relating to the immigration consequences of the plea to be filed with reasonable diligence after the later of the date the moving party receives a notice to appear in immigration court or other notice from immigration authorities that asserts the conviction or sentence as a basis for removal or the date a removal order against the moving party, based on the existence of the conviction or sentence, becomes final.

This bill would deem a motion, based on prejudicial error relating to the immigration consequences of the plea, timely filed any time in which the individual filing the motion is no longer in criminal custody unless the motion is not filed with reasonable diligence after the later of when the moving party receives notice to appear in immigration court or other notice from immigration authorities that asserts the conviction or sentence as a basis for the removal or the denial of an application for immigration benefit, lawful status, or naturalization, or notice that a final removal order has been issued against the moving party, based on the existence of the conviction or sentence that the moving party seeks to vacate.

Existing law creates an explicit right for a person no longer imprisoned or restrained to file a motion to vacate a conviction or sentence based on a prejudicial error damaging to the moving partys ability to meaningfully understand, defend against, or knowingly accept the actual or potential adverse immigration consequences of a plea of guilty or nolo contendere, or based on newly discovered evidence of actual innocence, as specified. Under existing law, a defendant who files one of these motions is entitled to a hearing. Existing law authorizes the court, at the request of the moving party to hold the hearing without the personal presence of the moving party if counsel for the moving party is present and the court finds good cause as to why the moving party cannot be present.

This bill would specify that a finding based on prejudicial error may, but need not, include a finding of ineffective assistance of counsel and that the only finding that the court is required to make in those cases is whether the conviction is legally invalid due to prejudicial error damaging the moving partys ability to meaningfully understand, defend against, or knowingly accept the actual or potential adverse immigration consequences of a plea of guilty or nolo contendere. The bill would authorize the court to hold the hearing without the personal presence of the moving party and without the moving partys counsel present if the court finds good cause as to why the moving party cannot be present. The bill would, if the prosecution has no objection to the motion, authorize the court to grant the motion to vacate the conviction or sentence without a hearing.

Existing law requires a motion based on prejudicial error relating to the immigration consequences of the plea to be filed with reasonable diligence after the later of the date the moving party receives a notice to appear in immigration court or other notice from immigration authorities that asserts the conviction or sentence as a basis for removal or the date a removal order against the moving party, based on the existence of the conviction or sentence, becomes final.

This bill would deem a motion, based on prejudicial error relating to the immigration consequences of the plea, timely filed any time in which the individual filing the motion is no longer in criminal custody unless the motion is not filed with reasonable diligence after the later of when the moving party receives notice to appear in immigration court or other notice from immigration authorities that asserts the conviction or sentence as a basis for the removal or the denial of an application for immigration benefit, lawful status, or naturalization, or notice that a final removal order has been issued against the moving party, based on the existence of the conviction or sentence that the moving party seeks to vacate.

Existing law creates an explicit right for a person no longer imprisoned or restrained to file a motion to vacate a conviction or sentence based on a prejudicial error damaging to the moving partys ability to meaningfully understand, defend against, or knowingly accept the actual or potential adverse immigration consequences of a plea of guilty or nolo contendere, or based on newly discovered evidence of actual innocence, as specified. Under existing law, a defendant who files one of these motions is entitled to a hearing.

This bill would instead authorize a person to file that motion when no longer in criminal custody for any conviction or sentence that is legally invalid due to the moving partys inability or failure to meaningfully understand, defend against, or knowingly accept the actual or potential adverse immigration consequences of a plea of guilty or nolo contendere. The bill would specify that a finding of legal invalidity relating to the immigration consequences of the plea based on prejudicial error may, but need not, include a finding of ineffective assistance of counsel and that the only finding that the court is required to make in those cases is whether the conviction is legally invalid due to prejudicial error damaging the moving partys failure ability to meaningfully understand, defend against, or knowingly accept the actual or potential adverse immigration consequences of a plea of guilty or nolo contendere. The bill would, if the prosecution has no objection to the motion, authorize the court to grant the motion to vacate the conviction or sentence without a hearing.

This bill would specify that the moving partys former defense counsel does not need to be served with notice of a motion made based on legal invalidity prejudicial error unless the motion specifically alleges ineffective assistance of counsel. The bill would prohibit a court from issuing a finding of ineffective assistance of counsel if the attorney found to be ineffective was not served with notice, as specified.

Existing law requires a motion based on prejudicial error relating to the immigration consequences of the plea to be filed with reasonable diligence after the later of the date the moving party receives a notice to appear in immigration court or other notice from immigration authorities that asserts the conviction or sentence as a basis for removal or the date a removal order against the moving party, based on the existence of the conviction or sentence, becomes final.

This bill would require deem a motion, based on legal invalidity prejudicial error relating to the immigration consequences of the plea, to be deemed timely filed any time in which the individual filing the motion is no longer in criminal custody unless the motion is not filed with reasonable diligence after the later of when the moving party receives notice to appear in immigration court or other notice from immigration authorities that asserts the conviction or sentence as a basis for the removal or the denial of an application for immigration benefit, lawful status, or naturalization, or notice that a final removal order has been issued against the moving party, based on the existence of the conviction or sentence that the moving party seeks to vacate.

Existing law creates an explicit right for a person no longer imprisoned or restrained to file a motion to vacate a conviction or sentence based on a prejudicial error damaging to the moving partys ability to meaningfully understand, defend against, or knowingly accept the actual or potential adverse immigration consequences of a plea of guilty or nolo contendere, or based on newly discovered evidence of actual innocence, as specified. Under existing law, a defendant who files one of these motions is entitled to a hearing.

This bill would instead authorize a person to file that motion when no longer in criminal custody for any conviction or sentence that is legally invalid due to the moving partys inability or failure to meaningfully understand, defend against, or knowingly accept the actual or potential adverse immigration consequences of a plea of guilty or nolo contendere. The bill would specify that a finding of prejudicial error legal invalidity relating to the immigration consequences of the plea may, but need not, include a finding of ineffective assistance of counsel and that the only finding that the court is required to make in those cases is that there was an error that damaged the moving partys ability whether the conviction is legally invalid due to the moving partys failure to meaningfully understand, defend against, or knowingly accept the actual or potential adverse immigration consequences of a plea of guilty or nolo contendere. The bill would, if the prosecution has no objection to the motion, authorize the court to grant the motion to vacate the conviction or sentence without a hearing.

This bill would specify that the moving partys former defense counsel does not need to be served with notice of a motion made based on prejudicial error legal invalidity unless the motion specifically alleges ineffective assistance of counsel. The bill would prohibit an order or findings made by the court regarding a motion made based on prejudicial error relating to the immigration consequences of the plea from being reported to the California State Bar without an express finding by the court of ineffective assistance of counsel and only if the attorney found to be ineffective was served with notice. The bill would prohibit a court from issuing a finding of ineffective assistance of counsel if the attorney found to be ineffective was not served with notice, as specified.

Existing law requires a motion based on prejudicial error relating to the immigration consequences of the plea to be filed with reasonable diligence after the later of the date the moving party receives a notice to appear in immigration court or other notice from immigration authorities that asserts the conviction or sentence as a basis for removal or the date a removal order against the moving party, based on the existence of the conviction or sentence, becomes final.

This bill would deem a motion based on prejudicial error relating to the immigration consequences of the plea to be deemed timely filed at any time in which an individual is no longer imprisoned or restrained. The bill would require a motion to be filed with reasonable diligence after the moving party receives either a notice to appear in immigration court or other notice from immigration authorities that asserts the conviction or sentence as a basis for removal or denial of naturalization, would require a motion, based on legal invalidity relating to the immigration consequences of the plea, to be deemed timely filed any time in which the individual filing the motion is no longer in criminal custody unless the motion is not filed with reasonable diligence after the later of when the moving party receives notice to appear in immigration court or other notice from immigration authorities that asserts the conviction or sentence as a basis for the removal or the denial of an application for immigration benefit, lawful status, or naturalization, or notice that a final removal order has been issued against the moving party, based on the existence of the conviction or sentence that the moving party seeks to vacate.

Existing law makes it a misdemeanor for a judge, justice, commissioner, or assistant commissioner of a court to accept money or any other thing of value for performing a marriage, except for a fee for performing a marriage on Saturday, Sunday, or a legal holiday.

This bill would make technical, nonsubstantive changes to these provisions.

CONCURRENCE IN SENATE AMENDMENTS

CSA1 Bill Id:AB 2867

Author:(Gonzalez Fletcher)

As Amended Ver:June 14, 2018

Majority vote

Original Committee Reference: PUB. S.

SUMMARY: Clarifies the timing and procedural requirements of motions for post-conviction relief that are based on either a prejudicial error regarding a defendant's comprehension of immigration consequences stemming from his or her conviction, or newly discovered evidence of actual innocence.

The Senate amendments:

1. Include legislative findings and declarations.
2. Clarify that the court may only issue a specific finding of ineffective assistance of counsel as a result of a motion brought under these provisions if the attorney found to be ineffective was given timely notice of the hearing.

EXISTING LAW:

1. Authorizes a person no longer imprisoned or restrained to prosecute a motion to vacate a conviction or sentence for either of the following reasons:
   1. A legal error damaged the person's ability to understand, defend against, or knowingly accept the actual or potential immigration consequences of pleading guilty or no contest; or
   2. Newly discovered evidence of actual innocence exists that requires vacation of the conviction or sentence as a matter of law or in the interests of justice.
2. Requires a court before accepting a plea to advise a criminal defendant as follows: "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."
3. Permits a defendant to make a motion to withdraw his or her plea if the court fails to admonish him or her about the possible immigration consequences of entering the plea.
4. Permits a defendant to move to withdraw a plea at any time before judgment, or within six months after an order granting probation when the entry of judgment is suspended, or if the defendant appeared without counsel at the time of the plea.
5. Allows every person unlawfully imprisoned or restrained of his or her liberty to prosecute a writ of habeas corpus to inquire into the cause of his or her restraint.
6. Authorizes a person no longer unlawfully imprisoned or restrained to prosecute a motion to vacate the judgment based on newly discovered evidence, as specified, if the motion is brought within one year of the discovery.

AS PASSED BY THE ASSEMBLY, this bill:

1. Required a court to find that a motion for post-conviction relief is timely if it is filed at any time in which the person is no longer in criminal custody.
2. Required that the motion be filed with reasonable diligence after the person filing the motion receives notice of one of the following, whichever comes later:
   1. Notice from immigration authorities that assert the conviction or sentence is the basis for removal, the denial of an immigration benefit, lawful status or naturalization; or
   2. Notice that a final order of removal has been issued against the person filing the motion based on the existence of the conviction or sentence the person is seeking to vacate.
3. Clarified that a court may find that defense counsel was legally ineffective, but does not have to do so, in order to grant a motion to vacate a conviction or sentence that was obtained despite the defendant's inability to understand, defend against, or knowingly accept adverse immigration consequences.
4. Clarified that a court can grant a motion to vacate the conviction or sentence without a hearing if the prosecution has no objection.
5. Clarified that the person filing the motion must establish that the conviction or sentence is causing, or has the potential to cause adverse immigration consequences.
6. Clarified that the only finding the court is required to make is that there was a prejudicial error that damaged the moving party's ability to meaningfully understand, defend against, or knowingly accept the actual or potential adverse immigration consequences of a plea of guilty or nolo contendere;
7. Clarified that the moving party's defense attorney does not need to be served with notice of the motion unless it specifically alleges that the attorney was legally ineffective and that the state bar should only be notified if there was an express finding of legal ineffectiveness.
8. Created a presumption that the conviction or sentence is invalid if the person filing the motion pled guilty or no contest to an offense based upon a statute that provided that if the defendant completed certain requirements the arrest and conviction would be deemed never to have occurred, and despite the fact that the defendant completed all those requirements the conviction or sentence is nonetheless is being used or could be used as a basis for adverse immigration consequences.

FISCAL EFFECT: Unknown. This bill is keyed non-fiscal by the Legislative Counsel.

COMMENTS: According to the author, ''In 2016, I authored AB 813 [Chapter 739] to fill a gaping hole in California's criminal procedure by creating a process for individuals to erase the catastrophic consequences, immigration or otherwise, that can attach to even very old criminal convictions. Since the implementation of that legislation, courts have reached differing interpretations of the statute created through the bill. AB 2867 will help clarify the Legislature's intent and provide uniform implementation of California Penal Code [Section] 1473.7.''

Analysis Prepared by: Matthew Fleming / PUB. S. / (916) 319-3744 FN: 0003523

 THIRD READING  

Bill No: AB 2867

Author:

:

Vote:

SENATE PUBLIC SAFETY COMMITTEE: 5-2, 6/12/18

AYES: Skinner, Bradford, Jackson, Mitchell, Wiener

NOES: Anderson, Stone

ASSEMBLY FLOOR: 59-1, 4/30/18 - See last page for vote

SUBJECT:

SOURCE: American Civil Liberties Union of California

California Attorneys for Criminal Justice

California Public Defenders Association

Immigrant Legal Resource Center

DIGEST:

This bill clarifies the timing and procedural requirements of motions for post-conviction relief that are based on a legal error regarding a defendant’s comprehension of immigration consequences stemming from his or her conviction.

ANALYSIS: Existing federal law lists several categories of crimes which render a non-citizen removable from the United States, including: crimes of moral turpitude; aggravated felony convictions; domestic violence convictions; firearm convictions, and drug convictions. (INA § 237(a)(2), see also 8 U.S.C. § 1227(a)(2).)

Existing state law:

1. Requires a court before accepting a plea to advise a criminal defendant as follows: "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." (Pen. Code, § 1016.5, subd. (a).)
2. Permits a defendant to make a motion to withdraw his or her plea if the court fails to admonish him or her about the possible immigration consequences of entering the plea. (Pen. Code, § 1016.5, subd. (a).)
3. Permits a defendant to move to withdraw a plea at any time before judgment, or within six months after an order granting probation when the entry of judgment is suspended, or if the defendant appeared without counsel at the time of the plea. (Pen. Code, § 1018.)
4. Allows every person unlawfully imprisoned or restrained of his or her liberty to prosecute a writ of habeas corpus to inquire into the cause of his or her restraint. (Pen. Code, § 1473, subd. (a).)
5. Authorizes a person no longer unlawfully imprisoned or restrained to prosecute a motion to vacate the judgment based on newly discovered evidence, as specified, if the motion is brought within one year of the discovery. (Pen. Code, § 1473.6.)
6. Authorizes a person no longer imprisoned or restrained to prosecute a motion to vacate a conviction or sentence for either of the following reasons:
   1. A legal error damaged the person’s ability to understand, defend against, or knowingly accept the actual or potential immigration consequences of pleading guilty or no contest; or,
   2. Newly discovered evidence of actual innocence exists that requires vacation of the conviction or sentence as a matter of law or in the interests of justice. (Pen. Code, § 1473.7, subd. (a).)
7. States that a motion to vacate the conviction based on legal error shall be filed with reasonable diligence after the later of the following:
   1. The date the moving party receives a notice to appear in immigration court or other notice from immigration authorities that asserts the conviction or sentence as a basis for removal;
   2. The date a removal order against the moving party, based on the existence of the conviction or sentence, becomes final. (Pen. Code, § 1473.7, subd. (b).)
8. States that all motions pursuant to Penal Code section 1437.7 are entitled to a hearing. At the request of the moving party, the court may hold the hearing without the personal presence of the moving party if counsel for the moving party is present and the court finds good cause as to why the moving party cannot be present. (Pen. Code, § 1473.7, subd. (d).)
9. Provides that when ruling on a motion pursuant to Penal Code section 1437.7:
   1. The court shall grant the motion to vacate the conviction or sentence if the moving party establishes, by a preponderance of the evidence, the existence of any of the grounds for relief specified in subdivision;
   2. In granting or denying the motion, the court shall specify the basis for its conclusion; and,
   3. If the court grants the motion to vacate a conviction or sentence obtained through a plea of guilty or nolo contendere, the court shall allow the moving party to withdraw the plea. (Pen. Code, § 1473.7, subd. (e).)

This bill:

1. Provides that a motion to vacate the conviction based on legal error is deemed timely filed at any time in which the individual filing the motion is no longer in criminal custody and that a motion to vacate the conviction based on legal error may be deemed untimely filed if it was not filed with reasonable diligence after the later of the following:
   1. The moving party receives a notice to appear in immigration court or other notice from immigration authorities that asserts the conviction or sentence as a basis for removal or the denial of an application for an immigration benefit, lawful status, or naturalization; or,
   2. Notice that a final removal order has been issued against the moving party, based on the existence of the conviction or sentence that the moving party seeks to vacate.
2. Removes the requirement that the moving party must be present for the court to hold a hearing on the motion.
3. Provides that if the prosecution has no objection to the motion, the court may grant the motion to vacate the conviction or sentence without a hearing.
4. Requires the court when ruling on the motion to vacate the conviction due to legal error to additionally:
   1. The moving party to establish that the conviction or sentence being challenged is currently causing or has the potential to cause removal or the denial of an application for an immigration benefit, lawful status, or naturalization;
   2. There is a presumption of legal invalidity if the moving party pleaded guilty or nolo contendere pursuant to a statute that provided that, upon completion of specific requirements, the arrest and conviction shall be deemed never to have occurred, where the moving party complied with these requirements, and where the disposition under the statute has been, or potentially could be, used as a basis for adverse immigration consequences; and,
   3. The only finding that the court is required to make is whether the conviction is legally invalid due to prejudicial error damaging the moving party’s ability to meaningfully understand, defend against, or knowingly accept the actual or potential adverse immigration consequences of a plea of guilty or nolo contendere.
5. Deletes the requirement that in granting or denying a motion to vacate the conviction based on legal error, the court shall specify the basis for its conclusion but retains that requirement for a motion to vacate the conviction based on newly discovered evidence that actual innocence exists.
6. States that a finding of legal invalidity may, but need not, include a finding of ineffective assistance of counsel.
7. Provides that a court may only issue a specific finding of ineffective assistance of counsel as a result of a motion to vacate the conviction based on legal error if the attorney found to be ineffective was given timely advance notice of the motion hearing by the moving party or the prosecutor, as specified.
8. States that it is intent of the Legislature to provide clarification to the courts regarding Section 1473.7 of the Penal Code to ensure uniformity throughout the state and efficiency in the statute’s implementation.

FISCAL EFFECT: Appropriation: Fiscal Com.: Local:

SUPPORT: (Verified 6/13/18)

American Civil Liberties Union of California (co-source)

California Attorneys for Criminal Justice (co-source)

California Public Defenders Association (co-source)

Immigrant Legal Resource Center (co-source)

Asian Americans Advancing Justice – California

Californians for Safety and Justice

California Immigrant Policy Center

Centro Legal de la Raza

Communities United for Restorative Youth Justice

Community Legal Services in East Palo Alto

Courage Campaign

Dolores Street Community Services

East Bay Community Law Center

Ella Baker Center on Human Rights

Immigrant Defenders Law Center

Legal Services for Prisoners with Children

National Association of Social Workers – California Chapter

A New Way of Life Re-Entry Project

Pangea Legal Services

Root & Rebound

Rubicon Programs

Santa Clara County Office the Public Defender

Services, Immigrant Rights, and Education Network

Social Justice Collaborative

Somera, Freeman & Cervantes

UC Irvine School of Law Criminal Justice Clinic

UC Irvine School of Law Immigrant Rights Clinic

The W. Haywood Burns Institute

One individual

OPPOSITION: (Verified 6/13/18)

None received

ASSEMBLY FLOOR: 59-1, 4/30/18

AYES: Aguiar-Curry, Arambula, Baker, Berman, Bloom, Bonta, Burke, Caballero, Calderon, Carrillo, Chau, Chávez, Chiu, Chu, Cooley, Cooper, Cunningham, Dahle, Daly, Eggman, Frazier, Friedman, Eduardo Garcia, Gipson, Gloria, Gonzalez Fletcher, Gray, Grayson, Holden, Irwin, Jones-Sawyer, Kalra, Kamlager-Dove, Kiley, Lackey, Levine, Limón, Low, Maienschein, Mayes, McCarty, Medina, Mullin, Muratsuchi, Nazarian, O'Donnell, Quirk, Quirk-Silva, Reyes, Rodriguez, Rubio, Salas, Santiago, Mark Stone, Thurmond, Ting, Weber, Wood, Rendon

NOES: Travis Allen

NO VOTE RECORDED: Acosta, Bigelow, Brough, Cervantes, Chen, Choi, Flora, Fong, Gallagher, Cristina Garcia, Harper, Mathis, Melendez, Obernolte, Patterson, Steinorth, Voepel, Waldron

Prepared by:

6/15/18 15:09:26

**** END ****

SENATE COMMITTEE ON PUBLIC SAFETY

Senator Nancy Skinner, Chair

2017 - 2018 Regular

Bill No: AB 2867 Hearing Date: June 12, 2018

Subject: Criminal Procedure: Postconviction Relief

HISTORY

Source: American Civil Liberties Union of California

Immigrant Legal Resource Center

California Public Defenders Association

California Attorneys for Criminal Justice

Prior Legislation: AB 813 (Gonzalez), Ch. 739, Stats. 2016

Support: Asian Americans Advancing Justice – California; Californians for Safety and Justice; California Immigrant Policy Center; Centro Legal de la Raza; Communities United for Restorative Youth Justice; Community Legal Services in East Palo Alto; Courage Campaign; Dolores Street Community Services; East Bay Community Law Center; Ella Baker Center on Human Rights; Immigrant Defenders Law Center; Legal Services for Prisoners with Children; National Association of Social Workers – California Chapter; A New Way of Life Re-Entry Project; Pangea Legal Services; Root & Rebound; Rubicon Programs; Santa Clara County Office the Public Defender; Services, Immigrant Rights, and Education Network (SIREN); Social Justice Collaborative; Somera, Freeman & Cervantes; UC Irvine School of Law Criminal Justice Clinic; UC Irvine School of Law Immigrant Rights Clinic; The W. Haywood Burns Institute; one individual

Opposition: None known

Assembly Floor Vote: 59 - 1

PURPOSE

The purpose of this bill is to clarify the timing and procedural requirements of motions for post-conviction relief that are based on a legal error regarding a defendant’s comprehension of immigration consequences stemming from his or her conviction.

Existing law requires a court before accepting a plea to advise a criminal defendant as follows: "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." (Pen. Code, § 1016.5, subd. (a).)

Existing federal law lists several categories of crimes which render a non-citizen removable from the United States, including: crimes of moral turpitude; aggravated felony convictions; domestic violence convictions; firearm convictions, and drug convictions. (INA § 237(a)(2), see also 8 U.S.C. § 1227(a)(2).)

Existing law permits a defendant to make a motion to withdraw his or her plea if the court fails to admonish him or her about the possible immigration consequences of entering the plea. (Pen. Code, § 1016.5, subd. (a).)

Existing law permits a defendant to move to withdraw a plea at any time before judgment, or within six months after an order granting probation when the entry of judgment is suspended, or if the defendant appeared without counsel at the time of the plea. (Pen. Code, § 1018.)

Existing law allows every person unlawfully imprisoned or restrained of his or her liberty to prosecute a writ of habeas corpus to inquire into the cause of his or her restraint. (Pen. Code, § 1473, subd. (a).)

Existing law authorizes a person no longer unlawfully imprisoned or restrained to prosecute a motion to vacate the judgment based on newly discovered evidence, as specified, if the motion is brought within one year of the discovery. (Pen. Code, § 1473.6.)

Existing law authorizes a person no longer imprisoned or restrained to prosecute a motion to vacate a conviction or sentence for either of the following reasons:

• A legal error damaged the person’s ability to understand, defend against, or knowingly accept the actual or potential immigration consequences of pleading guilty or no contest; or,
• Newly discovered evidence of actual innocence exists that requires vacation of the conviction or sentence as a matter of law or in the interests of justice. (Pen. Code, § 1473.7, subd. (a).)

Existing law states that a motion to vacate the conviction based on legal error shall be filed with reasonable diligence after the later of the following:

• The date the moving party receives a notice to appear in immigration court or other notice from immigration authorities that asserts the conviction or sentence as a basis for removal;
• The date a removal order against the moving party, based on the existence of the conviction or sentence, becomes final. (Pen. Code, § 1473.7, subd. (b).)

This bill instead provides that a motion to vacate the conviction based on legal error is deemed timely filed at any time in which the individual filing the motion is no longer in criminal custody and that a motion to vacate the conviction based on legal error may be deemed untimely filed if it was not filed with reasonable diligence after the later of the following:

• The moving party receives a notice to appear in immigration court or other notice from immigration authorities that asserts the conviction or sentence as a basis for removal or the denial of an application for an immigration benefit, lawful status, or naturalization; or,
• Notice that a final removal order has been issued against the moving party, based on the existence of the conviction or sentence that the moving party seeks to vacate.

Existing law requires all motions pursuant to Penal Code section 1437.7 are entitled to a hearing. At the request of the moving party, the court may hold the hearing without the personal presence of the moving party if counsel for the moving party is present and the court finds good cause as to why the moving party cannot be present. (Pen. Code, § 1473.7, subd. (d).)

This bill removes the requirement that moving party shall make the request of the court and be present in order for the court to hold a hearing without the personal presence of the moving party.

This bill provides that if the prosecution has no objection to the motion, the court may grant the motion to vacate the conviction or sentence without a hearing.

Existing law provides that when ruling on a motion pursuant to Penal Code section 1437.7:

• The court shall grant the motion to vacate the conviction or sentence if the moving party establishes, by a preponderance of the evidence, the existence of any of the grounds for relief specified in subdivision;
• In granting or denying the motion, the court shall specify the basis for its conclusion; and,
• If the court grants the motion to vacate a conviction or sentence obtained through a plea of guilty or nolo contendere, the court shall allow the moving party to withdraw the plea. (Pen. Code, § 1473.7, subd. (e).)

This bill additionally requires when ruling on the motion to vacate the conviction due to legal error:

• The moving party to establish that the conviction or sentence being challenged is currently causing or has the potential to cause removal or the denial of an application for an immigration benefit, lawful status, or naturalization;
• There is a presumption of legal invalidity if the moving party pleaded guilty or nolo contendere pursuant to a statute that provided that, upon completion of specific requirements, the arrest and conviction shall be deemed never to have occurred, where the moving party complied with these requirements, and where the disposition under the statute has been, or potentially could be, used as a basis for adverse immigration consequences; and,
• The only finding that the court is required to make is whether the conviction is legally invalid due to prejudicial error damaging the moving party’s ability to meaningfully understand, defend against, or knowingly accept the actual or potential adverse immigration consequences of a plea of guilty or nolo contendere.

This bill deletes the requirement that in granting or denying a motion to vacate the conviction based on legal error, the court shall specify the basis for its conclusion but retains that requirement for a motion to vacate the conviction based on newly discovered evidence that actual innocence exists.

This bill states that a finding of legal invalidity may, but need not, include a finding of ineffective assistance of counsel.

This bill provides that a court may only issue a specific finding of ineffective assistance of counsel as a result of a motion to vacate the conviction based on legal error if the attorney found to be ineffective was given timely advance notice of the motion hearing by the moving party or the prosecutor, as specified.

This bill states that it is intent of the Legislature to provide clarification to the courts regarding Section 1473.7 of the Penal Code to ensure uniformity throughout the state and efficiency in the statute’s implementation.

COMMENTS

1. Need for this Bill

According to the author of this bill:

California Penal Code §1473.7, established by AB 813 (Gonzalez) in 2016, permits individuals who are no longer in criminal custody to file a motion to vacate a conviction or sentence based on either one of two claims: (1) a prejudicial error damaging the defendant’s ability to meaningfully understand, defend against, or knowingly accept the actual or potential adverse immigration consequences of a plea of guilty or nolo contendere; or (2) newly discovered evidence of actual innocence.

Prior to the enactment of AB 813, individuals who gained access to evidence of actual innocence, or to proof of a defect in the underlying criminal proceeding, had no legal vehicle to present this evidence after their criminal custody had expired. This lack of a remedy had a particularly devastating impact on California’s immigrant communities.

Many immigrants suffered convictions without having any idea that their criminal record will, at some point in the future, result in mandatory immigration imprisonment and deportation, which only serves to permanently separate families. For many immigrants, the first time they learn of the immigration consequences of a conviction can occur years after they have successfully completed their criminal sentence when Immigration and Customs Enforcement initiates removal proceedings.

In light of the Trump Administration’s increased immigration enforcement, California Penal Code §1473.7 motions have proven to be a critical legal tool for immigrants to challenge old, legally-invalid convictions. Courts throughout California have been reviewing and hearing California Penal Code §1473.7 motions since the section became operative on January 1, 2017. As these motions have been adjudicated, courts have reached differing interpretations of the proper timing and grounds for the motions, and what notice must be provided to the petitioning individual’s prior defense counsel. AB 2867 addresses this issue by clarifying the Legislature’s intent of California Penal Code §1473.7.

2. Sixth Amendment Guarantee to Counsel

Under the Sixth Amendment to the U.S. Constitution, a defendant is entitled to the effective assistance of competent counsel. (McMann v. Richardson (1970) 397 U.S. 759, 771, 90 S. Ct. 1441, 25 L. Ed. 2d 763 (1970); Strickland v. Washington (1984) 466 U.S. 668, 686.)

In Padilla v. Kentucky (2010) 559 U.S. 356, the United States Supreme court held that the Sixth Amendment requires defense counsel to provide affirmative and competent advice to noncitizen defendants regarding the potential immigration consequences of their criminal cases. (Id. at p. 360.) Specifically, the United States Supreme Court held that defense counsel is constitutionally deficient if there is a failure to advise a noncitizen client entering a plea to a criminal offense of the risk of deportation. "Deportation as a consequence of a criminal conviction has become an integral part of the penalty for a criminal conviction for noncitizens, sometimes the most important part. (Id. at p. 364.) The court's holding is not limited to only affirmative mis-advice of the consequence because that would encourage defense counsel to remain silent on a matter of great importance to a noncitizen client, and that would be inconsistent with counsel's duty to provide advice to a client considering the advantages and disadvantages of a plea agreement. (Id. at pp. 370-371.)

3. Habeas Corpus

A writ of habeas corpus is the main vehicle for review of orders where an appeal is precluded or would be an inadequate remedy. Habeas corpus is also used to bring to the court's attention to matters outside the record which are crucial to the petitioner's claims for relief, and which have resulted in a constitutional violation, thereby rendering the petitioner's restraint unlawful. (In re Bower (1985) 38 Cal.3d 865, 872.) One common example of the use of habeas corpus is ineffective assistance of counsel claims. An individual could allege that his or her attorney was ineffective by failing to advise him or her of the adverse immigration consequences of accepting a plea, or by providing erroneous advice. (See e.g. People v. Soriano (1987) 194 Cal.App.3d 1470.)

However, to be eligible for habeas corpus the individually must be considered "unlawfully imprisoned or restrained." (Pen. Code, § 1473.) Actual incarceration in prison or jail is not required for a petition for writ of habeas corpus; persons on bail, probation, parole, or committed to a state hospital are considered to be in constructive custody for purposes of habeas corpus writ review. (In re Bandmann (1959) 51 Cal.2d 388, 396-397; In re Petersen (1958) 51 Cal.2d 177, 181.) However, federal immigration custody alone, does not qualify as "custody" for purposes of habeas corpus writ review. (People v. Villa (2009) 45 Cal.4th 1063.) AB 813 (Gonzalez), Chapter 739, Statutes of 2016, remedied that limitation by creating a procedure through Penal Code section 1473.7 that allows individuals detained in federal immigration custody to seek relief from a conviction that they did not understand would have adverse immigration consequences.

This bill makes changes to Penal Code section 1473.7 to clarify the timing and procedural requirements of motions to vacate convictions based on legal error. An added requirement is that the moving party must establish that the conviction or sentence being challenged is currently causing or has the potential to cause removal or the denial of an application for an immigration benefit, lawful status, or naturalization. This bill also creates a presumption of legal invalidity if a person pled guilty to an offense with the understanding that, upon completion of specific requirements, the arrest and conviction would be deemed never to have occurred, where the moving party complied with those requirements, and where the disposition of the case has been, or potentially could be, used as a basis for adverse immigration consequences.

-- END –

ASSEMBLY THIRD READING

ATR Bill Id:AB 2867

Author:(Gonzalez Fletcher)

As Amended Ver:April 23, 2018

Majority vote

SUMMARY: Clarifies the timing and procedural requirements of motions for post-conviction relief that are based on either a prejudicial error regarding a defendant's comprehension of immigration consequences stemming from his or her conviction, or newly discovered evidence of actual innocence. Specifically, this bill:

1. Requires a court to find that a motion for post-conviction relief is timely if it is filed at any time in which the person is no longer in criminal custody.
2. Requires that the motion be filed with reasonable diligence after the person filing the motion receives notice of one of the following, whichever comes later:
   1. Notice from immigration authorities that assert the conviction or sentence is the basis for removal, the denial of an immigration benefit, lawful status or naturalization; or
   2. Notice that a final order of removal has been issued against the person filing the motion based on the existence of the conviction or sentence the person is seeking to vacate.
3. Clarifies that a court may find that defense counsel was legally ineffective, but does not have to do so, in order to grant a motion to vacate a conviction or sentence that was obtained despite the defendant's inability to understand, defend against, or knowingly accept adverse immigration consequences.
4. Clarifies that a court can grant a motion to vacate the conviction or sentence without a hearing if the prosecution has no objection.
5. Clarifies that the person filing the motion must establish that the conviction or sentence is causing, or has the potential to cause adverse immigration consequences.
6. Clarifies that the only finding the court is required to make is that there was a prejudicial error that damaged the moving party's ability to meaningfully understand, defend against, or knowingly accept the actual or potential adverse immigration consequences of a plea of guilty or nolo contendere;
7. Clarifies that the moving party's defense attorney does not need to be served with notice of the motion unless it specifically alleges that the attorney was legally ineffective and that the state bar should only be notified if there was an express finding of legal ineffectiveness.
8. Creates a presumption that the conviction or sentence is invalid if the person filing the motion pled guilty or no contest to an offense based upon a statute that provided that if the defendant completed certain requirements the arrest and conviction would be deemed never to have occurred, and despite the fact that the defendant completed all those requirements the conviction or sentence is nonetheless is being used or could be used as a basis for adverse immigration consequences.

EXISTING LAW:

1. Authorizes a person no longer imprisoned or restrained to prosecute a motion to vacate a conviction or sentence for either of the following reasons:
   1. A legal error damaged the person's ability to understand, defend against, or knowingly accept the actual or potential immigration consequences of pleading guilty or no contest; or
   2. Newly discovered evidence of actual innocence exists that requires vacation of the conviction or sentence as a matter of law or in the interests of justice.
2. Requires a court before accepting a plea to advise a criminal defendant as follows: "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."
3. Permits a defendant to make a motion to withdraw his or her plea if the court fails to admonish him or her about the possible immigration consequences of entering the plea.
4. Permits a defendant to move to withdraw a plea at any time before judgment, or within six months after an order granting probation when the entry of judgment is suspended, or if the defendant appeared without counsel at the time of the plea.
5. Allows every person unlawfully imprisoned or restrained of his or her liberty to prosecute a writ of habeas corpus to inquire into the cause of his or her restraint.
6. Authorizes a person no longer unlawfully imprisoned or restrained to prosecute a motion to vacate the judgment based on newly discovered evidence, as specified, if the motion is brought within one year of the discovery.

FISCAL EFFECT: Unknown. This bill is keyed non-fiscal by the Legislative Counsel.

COMMENTS: Author's Statement: According to the author, ''In 2016, I authored AB 813 [Chapter 739] to fill a gaping hole in California's criminal procedure by creating a process for individuals to erase the catastrophic consequences, immigration or otherwise, that can attach to even very old criminal convictions. Since the implementation of that legislation, courts have reached differing interpretations of the statute created through the bill. AB 2867 will help clarify the Legislature's intent and provide uniform implementation of California Penal Code [Section] 1473.7.''

Please see the policy committee analysis for a full discussion of this bill.

Analysis Prepared by: Matthew Fleming / PUB. S. / (916) 319-3744 FN: 0002726

ASSEMBLY THIRD READING

ATR Bill Id:AB 2867

Author:(Gonzalez Fletcher)

As Amended Ver:April 5, 2018

Majority vote

SUMMARY: Clarifies the timing and procedural requirements of motions for post-conviction relief that are based on either a legal error regarding a defendant's comprehension of immigration consequences stemming from his or her conviction, or newly discovered evidence of actual innocence. Specifically, this bill:

1. Requires a court to find that a motion for post-conviction relief is timely if it is filed at any time in which the person is no longer in criminal custody.
2. Requires that the motion be filed with reasonable diligence after the person filing the motion receives notice of one of the following, whichever comes later:
   1. Notice from immigration authorities that assert the conviction or sentence is the basis for removal, the denial of an immigration benefit, lawful status or naturalization; or
   2. Notice that a final order of removal has been issued against the person filing the motion based on the existence of the conviction or sentence the person is seeking to vacate.
3. Clarifies that a court may find that defense counsel was legally ineffective, but does not have to do so, in order to grant a motion to vacate a conviction or sentence that was obtained despite the defendant's inability to understand, defend against, or knowingly accept adverse immigration consequences.
4. Clarifies that a court can grant a motion to vacate the conviction or sentence without a hearing if the prosecution has no objection.
5. Clarifies that the person filing the motion must establish that the conviction or sentence is causing, or has the potential to cause adverse immigration consequences.
6. Clarifies that the only finding the court is required to make is that there was an error that damaged the moving party's ability to meaningfully understand, defend against, or knowingly accept the actual or potential adverse immigration consequences of a plea of guilty or nolo contendere;
7. Clarifies that the moving party's defense attorney does not need to be served with notice of the motion unless it specifically alleges that the attorney was legally ineffective and that the state bar should only be notified if there was an express finding of legal ineffectiveness.
8. Creates a presumption that the conviction or sentence is invalid if the person filing the motion pled guilty or no contest to an offense based upon a statute that provided that if the defendant completed certain requirements the arrest and conviction would be deemed never to have occurred, and despite the fact that the defendant completed all those requirements the conviction or sentence is nonetheless is being used or could be used as a basis for adverse immigration consequences.

EXISTING LAW:

1. Authorizes a person no longer imprisoned or restrained to prosecute a motion to vacate a conviction or sentence for either of the following reasons:
   1. A legal error damaged the person's ability to understand, defend against, or knowingly accept the actual or potential immigration consequences of pleading guilty or no contest; or
   2. Newly discovered evidence of actual innocence exists that requires vacation of the conviction or sentence as a matter of law or in the interests of justice.
2. Requires a court before accepting a plea to advise a criminal defendant as follows: "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."
3. Permits a defendant to make a motion to withdraw his or her plea if the court fails to admonish him or her about the possible immigration consequences of entering the plea.
4. Permits a defendant to move to withdraw a plea at any time before judgment, or within six months after an order granting probation when the entry of judgment is suspended, or if the defendant appeared without counsel at the time of the plea.
5. Allows every person unlawfully imprisoned or restrained of his or her liberty to prosecute a writ of habeas corpus to inquire into the cause of his or her restraint.
6. Authorizes a person no longer unlawfully imprisoned or restrained to prosecute a motion to vacate the judgment based on newly discovered evidence, as specified, if the motion is brought within one year of the discovery.

FISCAL EFFECT: Unknown. This bill is keyed non-fiscal by the Legislative Counsel.

COMMENTS: Author's Statement: According to the author, ''In 2016, I authored AB 813 [Chapter 739] to fill a gaping hole in California's criminal procedure by creating a process for individuals to erase the catastrophic consequences, immigration or otherwise, that can attach to even very old criminal convictions. Since the implementation of that legislation, courts have reached differing interpretations of the statute created through the bill. AB 2867 will help clarify the Legislature's intent and provide uniform implementation of California Penal Code [Section] 1473.7.''

Please see the policy committee analysis for a full discussion of this bill.

Analysis Prepared by: Matthew Fleming / PUB. S. / (916) 319-3744 FN: 0002673

Date of Hearing:

Counsel: Matthew Fleming

ASSEMBLY COMMITTEE ON PUBLIC SAFETY

Reginald Byron Jones-Sawyer, Sr., Chair

ABPCA Bill Id:AB 2867

Author:(Gonzalez Fletcher) – As Amended Ver:April 5, 2018

SUMMARY:

Clarifies the timing and procedural requirements of motions for post-conviction relief that are based on either a legal error regarding a defendant’s comprehension of immigration consequences stemming from his or her conviction, or newly discovered evidence of actual innocence. Specifically, this bill:

1. Requires a court to find that a motion for post-conviction relief is timely if it is filed at any time in which the person is no longer in criminal custody.
   
2. Requires that the motion be filed with reasonable diligence after the person filing the motion receives notice of one of the following, whichever comes later:
   
   1. Notice from immigration authorities that assert the conviction or sentence is the basis for removal, the denial of an immigration benefit, lawful status or naturalization; or
      
   2. Notice that a final order of removal has been issued against the person filing the motion based on the existence of the conviction or sentence the person is seeking to vacate.
      
3. Clarifies that a court may find that defense counsel was legally ineffective, but does not have to do so, in order to grant a motion to vacate a conviction or sentence that was obtained despite the defendant’s inability to understand, defend against, or knowingly accept adverse immigration consequences.
   
4. Clarifies that a court can grant a motion to vacate the conviction or sentence without a hearing if the prosecution has no objection.
   
5. Clarifies that the person filing the motion must establish that the conviction or sentence is causing, or has the potential to cause adverse immigration consequences.
   
6. Clarifies that the only finding the court is required to make is that there was an error that damaged the moving party’s ability to meaningfully understand, defend against, or knowingly accept the actual or potential adverse immigration consequences of a plea of guilty or nolo contendere;
   
7. Clarifies that the moving party’s defense attorney does not need to be served with notice of the motion unless it specifically alleges that the attorney was legally ineffective and that the state bar should only be notified if there was an express finding of legal ineffectiveness.
   
8. Creates a presumption that the conviction or sentence is invalid if the person filing the motion pled guilty or no contest to an offense based upon a statute that provided that if the defendant completed certain requirements the arrest and conviction would be deemed never to have occurred, and despite the fact that the defendant completed all those requirements the conviction or sentence is nonetheless is being used or could be used as a basis for adverse immigration consequences.

EXISTING LAW:

1. 
   
2. Authorizes a person no longer imprisoned or restrained to prosecute a motion to vacate a conviction or sentence for either of the following reasons:
   
   1. A legal error damaged the person’s ability to understand, defend against, or knowingly accept the actual or potential immigration consequences of pleading guilty or no contest; or
      
   2. Newly discovered evidence of actual innocence exists that requires vacation of the conviction or sentence as a matter of law or in the interests of justice. (Pen. Code, § 1473.7.)
      
3. Requires a court before accepting a plea to advise a criminal defendant as follows: "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." (Pen. Code, § 1016.5, subd. (a).)
   
4. Permits a defendant to make a motion to withdraw his or her plea if the court fails to admonish him or her about the possible immigration consequences of entering the plea. (Pen. Code, § 1016.5, subd. (a).)
   
5. Permits a defendant to move to withdraw a plea at any time before judgment, or within six months after an order granting probation when the entry of judgment is suspended, or if the defendant appeared without counsel at the time of the plea. (Pen. Code, § 1018.)
   
6. Allows every person unlawfully imprisoned or restrained of his or her liberty to prosecute a writ of habeas corpus to inquire into the cause of his or her restraint. (Pen. Code, § 1473, subd. (a).)
   
7. Authorizes a person no longer unlawfully imprisoned or restrained to prosecute a motion to vacate the judgment based on newly discovered evidence, as specified, if the motion is brought within one year of the discovery. (Pen. Code, § 1473.6.)

FISCAL EFFECT:

Unknown

COMMENTS:

1. Author's Statement: According to the author, “In 2016, I authored AB 813 to fill a gaping hole in California’s criminal procedure by creating a process for individuals to erase the catastrophic consequences, immigration or otherwise, that can attach to even very old criminal convictions. Since the implementation of that legislation, courts have reached differing interpretations of the statute created through the bill. AB 2867 will help clarify the Legislature’s intent and provide uniform implementation of California Penal Code §1473.7.”
   
2. Padilla v. Kentucky: In Padilla v. Kentucky (2010) 559 U.S. 356, the United States Supreme court held that the Sixth Amendment requires defense counsel to provide affirmative and competent advice to noncitizen defendants regarding the potential immigration consequences of their criminal cases. (Id. at p. 360.) Specifically, the United States Supreme Court held that defense counsel is constitutionally deficient if there is a failure to advise a noncitizen client entering a plea to a criminal offense of the risk of deportation. "Deportation as a consequence of a criminal conviction has become an integral part of the penalty for a criminal conviction for noncitizens, sometimes the most important part. (Id. at p. 364.) The court's holding is not limited to only affirmative mis-advice of the consequence because that would encourage defense counsel to remain silent on a matter of great importance to a noncitizen client, and that would be inconsistent with counsel's duty to provide advice to a client considering the advantages and disadvantages of a plea agreement. (Id. at pp. 370-371.)
   
3. Writs of Habeas Corpus: Habeas corpus is the main vehicle for review of orders where an appeal is precluded or would be an inadequate remedy. Habeas corpus is also used to bring to the court's attention to matters outside the record which are crucial to the petitioner's claims for relief, and which have resulted in a constitutional violation, thereby rendering the petitioner's restraint unlawful. (In re Bower (1985) 38 Cal.3d 865, 872.) One common example of the use of habeas corpus is ineffective assistance of counsel claims. An individual could allege that his or her attorney was ineffective by failing to advise him or her of the adverse immigration consequences of accepting a plea, or by providing erroneous advice. (See e.g. People v. Soriano (1987) 194 Cal.App.3d 1470.) However, to be eligible for habeas corpus the individually must be considered "unlawful imprisoned or restrained." (Pen. Code, § 1473.) Actual incarceration in prison or jail is not required for a petition for writ of habeas corpus; persons on bail, probation, parole, or committed to a state hospital are considered to be in constructive custody for purposes of habeas corpus writ review. (In re Bandmann (1959) 51 Cal.2d 388, 396-397; In re Petersen (1958) 51 Cal.2d 177, 181.) However, federal immigration custody alone, does not qualify as "custody" for purposes of habeas corpus writ review. (People v. Villa (2009) 45 Cal.4th 1063.) Therefore, a non-citizen who did not learn of an immigration consequence until many years later, such as at a naturalization interview, would be precluded from using the writ of habeas corpus to challenge the conviction based on ineffective assistance of counsel.
   
4. AB 813: In response to the limitations on when a writ of habeas corpus can be filed, the author introduced AB 813 Chapter 739, Statutes of 2016. AB 813 created Penal Code Section 1473.7 which provided a procedure in which individuals detained in federal immigration custody could seek relief from a conviction that they did not understand would have adverse immigration consequences. This follow-up bill would provide clarification regarding timing and procedural requirements that will aid courts in correctly interpreting the intent of the legislature when it passed AB 813, and will promote uniformity in its implementation.
   

This bill also addresses the situation in which a person pled guilty to an offense with the understanding that the conviction would be deemed never to have occurred provided that he or she completed certain requirements, such as community service or education courses. If such a person completes those requirements, but immigration authorities are nonetheless attempting to use the guilty plea as a reason to deport or deny the person immigration benefits or status, then it would be presumed that the conviction is invalid.

1. Argument in Support: According to the bill’s sponsor, the American Civil Liberties Union: “Penal Code §1473.7 allows individuals no longer in criminal custody to file a motion to vacate a conviction or sentence based on either: (1) an error damaging the defendant’s ability to meaningfully understand, defend against, or knowingly accept the actual or potential adverse immigration consequences of a plea of guilty or nolo contendere, or (2) newly discovered evidence of actual innocence. This filled a gaping hole in California’s criminal procedural landscape by creating a statutory vehicle for individuals to erase the catastrophic consequences (immigration or otherwise) that can attach to unlawful criminal convictions. AB 2867 ensures that the promise of AB 813 is achieved by clearing up minor discrepancies that have arisen since implementation.

“In light of the Trump administration’s increased immigration enforcement, Penal Code §1473.7 motions have proven to be a critical legal tool to challenge old, legally invalid convictions. Prior to the enactment of Penal Code §1473.7, individuals who gained access to evidence of actual innocence, or to proof of a defect in the underlying criminal proceeding, had no legal vehicle to present this evidence after their criminal custody had expired. This was particularly devastating for California’s immigrants, many of whom suffered convictions without having any idea that their criminal record could result in mandatory immigration imprisonment and deportation and permanent separation from their family. Courts throughout California have been hearing these motions for over a year. As these motions have been adjudicated, courts have reached differing interpretations of the proper timing and grounds for the motions, necessity of holding hearings, and the notice that must be provided to the petitioning individual’s prior defense counsel. AB 2867 will help resolve these discrepancies, ensure that the true intent of Penal Code §1473.7 is realized, and save courts and litigants needless time consuming and costly litigation.”

1. Prior Legislation: AB 813 (Gonzalez Fletcher) Chapter 739, Statutes of 2016 created a mechanism of post-conviction relief for a person to vacate a conviction or sentence based on

error damaging his or her ability to meaningfully understand, defend against, or knowingly accept the immigration consequences of the conviction.

REGISTERED SUPPORT / OPPOSITION:

Support

American Civil Liberties of California (Co-sponsor)

California Attorneys for Criminal Justice (Co-Sponsor)

California Public Defenders Association (Co-Sponsor)

Immigrant Legal Resource Center (Co-sponsor)

A New Way of Life Reentry Project

American Immigration Lawyers Association – California

Asian Americans Advancing Justice – California

Centro Legal de la Raza

California Immigrant Policy Center

Communities United for Restorative Youth Justice

Community Legal Services in East Palo Alto

Courage Campaign

Dolores Street Community Services

East Bay Community Law Center

Ella Baker Center for Human Rights
Immigrant Defenders Law Center

Legal Services for Prisoners with Children
Pangea Legal Services
Rubicon Programs
Santa Clara County Public Defender
Services, Immigrant Rights, and Education Network
Social Justice Collaborative
Somera Law Group
University of California Irvine – Criminal Justice Clinic
University of California Irvine – Immigrant Rights Clinic

W. Hayward Burns Institute

1 Private Individual

Opposition

None

Analysis Prepared by:

Matthew Fleming / PUB. S. / (916) 319-3744