Pleas: immigration., the official text

An act to amend Section 1016.3 of the Penal Code, relating to immigration.

LEGISLATIVE COUNSEL'S DIGEST

Existing law provides the pleas a defendant may make to an indictment, information, or complaint charging a misdemeanor or infraction. Existing law requires defense counsel to advise a defendant about the immigration consequences of a proposed disposition, as specified. Existing law requires the prosecution to consider the avoidance of adverse immigration consequences in the plea negotiation process, as specified.
This bill would instead require the prosecution to meet and confer during the negotiation process with the defense in an effort to avoid the adverse immigration consequences of a plea, conviction, or sentence. The bill would establish a rebuttable presumption of a violation of the above-described requirement if the defendant asserts facts that provide a prima facie showing that during negotiations the defendant proposed an alternative plea or sentence that would avoid adverse immigration consequences, including, among other things, an offense of greater seriousness, and the prosecution declined the offer. Upon a prima facie showing of the above-described circumstances, the bill would require the court to order a hearing and would require the prosecution to demonstrate good cause for the failure to offer a plea that would avoid adverse immigration consequences. If the court finds that the prosecuting attorney failed to establish good cause at the above-described hearing, the bill would require the court to impose an appropriate remedy, as specified. By imposing additional duties on local prosecutors, the bill would impose a state-mandated local program.
The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.
This bill would provide that, if the Commission on State Mandates determines that the bill contains costs mandated by the state, reimbursement for those costs shall be made pursuant to the statutory provisions noted above.

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

SECTION 1.
Section 1016.3 of the Penal Code is amended to read:
1016.3.
(a) Defense counsel shall provide accurate and affirmative advice about the immigration consequences of a proposed disposition, and when consistent with the goals of and with the informed consent of the defendant, and consistent with professional standards, defend against those consequences.
(b) The prosecution, in the interests of justice, and in furtherance of the findings and declarations of Section 1016.2, shall meet and confer during the negotiation process with the defense in an effort to avoid the adverse immigration consequences of a plea, conviction, or sentence.
(c) A rebuttable presumption of a violation of this section exists where the defendant asserts facts that provide a prima facie showing that during negotiations the defendant proposed an alternative plea or sentence that would avoid adverse immigration consequences, including, but not limited to, an offense of comparable or greater seriousness under California law, and the prosecution declined the offer.
(d) (1) Upon a prima facie showing of the circumstances described in subdivision (c), the court shall order a hearing at which the prosecution bears the burden of demonstrating, by clear and convincing evidence, good cause for the failure to offer a plea that would avoid the adverse immigration consequences as described in subdivision (b).
(2) A hearing held pursuant to this subdivision shall comply with Section 351.4 of the Evidence Code.
(e) If the court finds that the prosecuting attorney failed to establish good cause at the hearing described in subdivision (d), the court shall impose an appropriate remedy to effectuate the purposes of this section, including, but not limited to, any of the following:
(1) Ordering the parties to meet and confer in good faith within 10 calendar days.
(2) Continuing the matter to permit compliance with this section at the request of the defendant.
(3) Making express findings on the record regarding the violation.
(4) Any relief necessary in the furtherance of justice.
(f) For the purposes of this section, “an offense of comparable or greater seriousness” means an offense within the same sentencing triad, a plea to multiple offenses in lieu of a single offense, or a plea to a more serious offense with a greater sentencing exposure.
(g) This section does not change the requirements of Section 1016.5, including the requirement that a defendant shall not be required to disclose their immigration status to the court.

SEC. 2.
If the Commission on State Mandates determines that this act contains costs mandated by the state, reimbursement to local agencies and school districts for those costs shall be made pursuant to Part 7 (commencing with Section 17500) of Division 4 of Title 2 of the Government Code.