BILL ANALYSIS                                                                                                                                                                                                    Ó



          SENATE COMMITTEE ON PUBLIC SAFETY
                             Senator Loni Hancock, Chair
                                2015 - 2016  Regular 

          Bill No:    AB 267        Hearing Date:    June 16, 2015    
          
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          |Author:    |Jones-Sawyer                                         |
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          |Version:   |April 16, 2015                                       |
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          |Urgency:   |No                     |Fiscal:    |No               |
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          |Consultant:|LT                                                   |
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             Subject:  Criminal Procedure: Disclosure: Felony Conviction  
 
                                    Consequences



          HISTORY

          Source:   California Attorneys for Criminal Justice

          Prior Legislation:AB 142 (Fuentes) - 2011, vetoed
                         AB 15 (Fuentes) - 2009, vetoed
                         AB 806 (Fuentes) - 2010, vetoed

          Support:  American Civil Liberties Union; California Rifle and  
                    Pistol Association; Center on Juvenile and Criminal  
                    Justice; Law Center to Prevent Gun Violence; Legal  
                    Services for Prisoners with Children

          Opposition:California Judges Association; Judicial Council of  
          California

          Assembly Floor Vote:                 57 - 21


          PURPOSE

          The purpose of this bill is to require the court, prior to  
          acceptance of a guilty plea to a felony offense, to inform the  







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          defendant of the various consequences that may result from a  
          felony conviction. 

          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 the 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  
          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).)

          Existing law provides that with respect to pleas entered prior  
          to January 1, 1978, it is not the intent of the Legislature that  
          a court's failure to provide the required advisement should  
          require the vacation of judgment and withdrawal of the plea or  
          constitute grounds for finding a prior conviction invalid.  
          (Penal Code § 1016.5 (c).)

          Existing law 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  








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          guilty or nolo contendere is entered without the defendant  
          knowing that a conviction of such offense is grounds for  
          deportation, exclusion from admission to the United States, or  
          denial of naturalization pursuant to the laws of the United  
          States. Therefore, it is the intent of the Legislature in  
          enacting this section to promote fairness to such accused  
          individuals by requiring in such cases that acceptance of a  
          guilty plea or plea of nolo contendere be preceded by an  
          appropriate warning of the special consequences for such a  
          defendant which may result from a 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.  
          (Penal Code § 1016.5 (d).)

          This bill requires the court to "inform the defendant that a  
          conviction for a felony offense may result in various  
          consequences to the defendant, including, but not limited to,  
          the following:

                 Experiencing difficulty in obtaining employment  
               generally, and prohibited from employment in certain jobs;
                 The loss of voting rights while incarcerated and during  
               parole; 
                 Ineligibility for enlisting in the military;
                 The loss of certain professional licenses, or the loss  
               of the ability to obtain certain professional licensees;
                 Ineligibility for serving on a jury;
                 Ineligibility to own or possess a firearm;
                 Ineligibility for federal health care programs if the  
               felony is related to fraud involving a federal program,  
               patient abuse, or drugs;
                 Loss of federal financial aid if the felony aid if the  
               felony was committed while the defendant was receiving  
               financial aid;
                 Ineligibility for federal cash assistance if the felony  
               is drug-related;
                 Restrictions on receiving Supplemental Security Income;  
               and,








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                 Potential diminished parental and child custody rights."

          This bill will not be retroactive, or constitute grounds for  
          finding a prior conviction invalid prior to January 1, 2016. 


                    RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION

          For the past eight years, this Committee has scrutinized  
          legislation referred to its jurisdiction for any potential  
          impact on prison overcrowding.  Mindful of the United States  
          Supreme Court ruling and federal court orders relating to the  
          state's ability to provide a constitutional level of health care  
          to its inmate population and the related issue of prison  
          overcrowding, this Committee has applied its "ROCA" policy as a  
          content-neutral, provisional measure necessary to ensure that  
          the Legislature does not erode progress in reducing prison  
          overcrowding.   

          On February 10, 2014, the federal court ordered California to  
          reduce its in-state adult institution population to 137.5% of  
          design capacity by February 28, 2016, as follows:   

                 143% of design bed capacity by June 30, 2014;
                 141.5% of design bed capacity by February 28, 2015; and,
                 137.5% of design bed capacity by February 28, 2016. 

          In February of this year the administration reported that as "of  
          February 11, 2015, 112,993 inmates were housed in the State's 34  
          adult institutions, which amounts to 136.6% of design bed  
          capacity, and 8,828 inmates were housed in out-of-state  
          facilities.  This current population is now below the  
          court-ordered reduction to 137.5% of design bed capacity."(  
          Defendants' February 2015 Status Report In Response To February  
          10, 2014 Order, 2:90-cv-00520 KJM DAD PC, 3-Judge Court, Coleman  
          v. Brown, Plata v. Brown (fn. omitted).

          While significant gains have been made in reducing the prison  
          population, the state now must stabilize these advances and  
          demonstrate to the federal court that California has in place  
          the "durable solution" to prison overcrowding "consistently  
          demanded" by the court.  (Opinion Re: Order Granting in Part and  
          Denying in Part Defendants' Request For Extension of December  
          31, 2013 Deadline, NO. 2:90-cv-0520 LKK DAD (PC), 3-Judge Court,  








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          Coleman v. Brown, Plata v. Brown (2-10-14).  The Committee's  
          consideration of bills that may impact the prison population  
          therefore will be informed by the following questions:

              Whether a proposal erodes a measure which has contributed  
               to reducing the prison population;
              Whether a proposal addresses a major area of public safety  
               or criminal activity for which there is no other  
               reasonable, appropriate remedy;
              Whether a proposal addresses a crime which is directly  
               dangerous to the physical safety of others for which there  
               is no other reasonably appropriate sanction; 
              Whether a proposal corrects a constitutional problem or  
               legislative drafting error; and
              Whether a proposal proposes penalties which are  
               proportionate, and cannot be achieved through any other  
               reasonably appropriate remedy.








          



          COMMENTS

             1.   Need for This Legislation

          According to the Center on Juvenile and Criminal Justice:

               Many CJCJ clients have accepted plea deals without  
               being informed of the serious consequences of felony  
               convictions-consequences they will live with for the  
               rest of their lives. These records make it difficult  
               for our clients and other justice-involved to  
               integrate successfully into the community; they  
               struggle to find jobs and housing simply due to their  
               felony convictions, regardless of their efforts and  
               motivation to lead productive and law-abiding lives.  








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               Moreover, these convictions make people ineligible for  
               many professional licenses, for citizenship, or for  
               serving in the military or on a jury.

               California has one of the highest recidivism rates in  
               the nation. Removing or limiting the barriers to  
               successful reentry is the key to both lowering  
               recidivism rates and helping formerly incarcerated  
               people like our clients reintegrate into society. By  
               informing defendants of the consequences of accepting  
               a plea and a felony conviction, defendants will make  
               more informed decisions about their future.

          2.  Effect of This Legislation

          Under current law, prior to any offense, the court shall inform  
          defendants that if not a citizen, the defendant may face  
          consequences including deportation, exclusion from admission to  
          the United States, or denial of naturalization. This bill will  
          require the court to inform defendants of additional  
          consequences associated with a felony conviction before the  
          defendant accepts a plea of guilty to a felony including, but  
          not limited to, the points articulated in this bill. This bill  
          would be prospective following January 1, 2016. 

          3.  Argument in Opposition

          The California Judges Association states in part:

               AB 267 requires the court to advise the defendant when  
               he or she first appears for felony arraignment that  
               accepting a plea or suffering a conviction for a  
               felony may result in specified consequences. Before a  
               court may accept a plea of guilty or no contest, the  
               defendant must be advised of the direct consequences  
               of such a plea.

               The court need not advise the defendant of the  
               collateral consequences, defined as those that do not  
               inexorably flow from a conviction. For example, it is  
               unnecessary to state that a guilty plea may be used in  
               a future federal prosecution or as the basis for  
               confinement under the sexually violent predator  
               act?Further, even moving the proposed advisements to  








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               the time of plea rather than arraignment if that were  
               contemplated, would result in additional court time  
               and delays.

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