A.B.2867

California State Legislature

Bill Title Criminal procedure: postconviction relief.
Hispanic Sponsors CA Assemb. Lorena Gonzalez Fletcher (D-CA-080)
Date Introduced 02/16/2018
NHCSL Task Force
Law and Criminal Justice
Primary Issue Area Families
Issue Areas
Administrative law and government organization
Criminal justice
Family affairs
Federal and intergovernmental affairs
Session 2017-2018 Regular Session

Summary

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 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, 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 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. 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 party's 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.