People v. Hyung Joon Kim

• Citation: 90 Cal.Rptr.3d 355,45 Cal. 4th 1078,202 P.3d 436
• Decision Date: 16 March 2009
• Docket Number: No. S153183.,S153183.
• Parties: The PEOPLE, Plaintiff and Appellant, v. HYUNG JOON KIM, Defendant and Respondent.
• Court: United States State Supreme Court (California)

202 P.3d 436

90 Cal.Rptr.3d 355

45 Cal. 4th 1078

The PEOPLE, Plaintiff and Appellant, v. HYUNG JOON KIM, Defendant and Respondent.

No. S153183.

Supreme Court of California.

March 16, 2009.

[202 P.3d 440]

Bill Lockyer and Edmund G. Brown, Jr., Attorney General, Robert R. Anderson, Mary Jo Graves and Dane R. Gillette, Chief Assistant Attorneys General, Gerald A. Engler, Assistant Attorney General, Eric D. Share, Laurence K. Sullivan and Amy Haddix, Deputy Attorneys General, for Plaintiff and Appellant.

Law Offices of Norton Tooby, Norton Tooby, Oakland; Law Offices of A.J. Kutchins, AJ Kutchins, Berkeley; Law Offices of Joel Franklin and Joel Franklin, Monterey, for Defendant and Respondent.

Ralph S. Greer, Pasadena, as Amicus Curiae on behalf of Defendant and Respondent.

Immigrant Crime and Justice and Karl W. Krooth, San Francisco, for National Immigration Project of National Lawyers Guild as Amicus Curiae on behalf of Defendant and Respondent.

Linda Starr, Paige Kaneb; and Michael Willemsen, Mountain View, for Northern California Innocence Project as Amicus Curiae on behalf of Defendant and Respondent.

Law Offices of Michael K. Mehr, Michael K. Mehr, Santa Cruz, and Rachael Keast, for Immigrant Legal Resources Center, San Francisco Public Defender, UC Davis Immigration Law Clinic, San Francisco Public Defender's Office, South Asian Network and Asian Law Caucus as Amici Curiae on behalf of Defendant and Respondent.

Denise M. Gragg, Assistant Public Defender (Orange), for California Attorneys for Criminal Justice as Amicus Curiae on behalf of Defendant and Respondent.

Trutanich · Michel, C.D. Michel, Brigid Joyce, Joseph A. Silvoso, Long Beach, and Erin Eckelman, Costa Mesa, for California Rifle & Pistol Association, Inc., and Law Enforcement Alliance of America, Inc., as Amici Curiae on behalf of Defendant and Respondent.

WERDEGAR, J.

Defendant Hyung Joon Kim was born in South Korea and entered this country legally with his parents when he was a young child. He has lived in this country as a legal resident for more than two decades but never became a citizen. As a result of his multiple criminal convictions, the federal government now seeks to remove him from the country and return him to South Korea. He petitioned for a writ of error coram nobis in the trial court, seeking to vacate the state felony convictions that triggered his federal removal proceedings. His case is one of two we decide today in which litigants seek to challenge the validity of old, otherwise final criminal convictions to eliminate them as a possible basis for removal from this country by federal authorities. As we explain in a companion case (People v. Villa (Mar. 16, 2009, S151561) ___ Cal.4th ___, 90 Cal.Rptr.3d 344, 202 P.3d 427, 2009 WL 650354), a person in federal immigration detention is ineligible for a writ of habeas corpus from a state court if his state sentence and probation or parole have been completed. In the instant case, we conclude defendant Kim is ineligible for a writ of error coram nobis on the facts of this case. Accordingly, because the Court of Appeal below correctly reversed the trial court's decision to issue the writ, we affirm.

I. FACTS

A. Background

Defendant Kim was born in South Korea in 1977. His parents brought him and his brother to this country on a family visa when defendant was six years old. He became a lawful permanent resident in 1986 and has resided continuously in this country since his initial entry. His mother and brother are naturalized citizens; his father is a lawful permanent resident.

While still a juvenile, defendant was arrested on several occasions and eventually became a ward of the court in February 1995, having been found to be a minor in possession of live ammunition, a misdemeanor. (Pen.Code, § 12101, subd. (b).)¹ The juvenile court placed him on probation on certain conditions, including a specific prohibition against possessing weapons or ammunition. Defendant turned 18 years old in December of that year.

In April 1996, while still on juvenile probation, defendant and two juveniles burglarized a tool shed behind a residence in Pacific Grove, Monterey County, stealing three firearms. When police searched a storage shed to which defendant had access, they found the three stolen guns, some ammunition, and a ski mask. Police also found a fourth gun, a .38-caliber revolver with matching ammunition and an attached laser sight that had been stolen in a burglary in the City of Marina in 1995. Defendant was convicted of first degree burglary (§ 459), but imposition of sentence was suspended and he was sentenced to five years' probation on the condition he serve 180 days in jail. He was, however, granted an early release, with 117 days suspended, so that he could begin his freshman year at the University of California, Santa Barbara (UCSB).

Later that same year (1996), defendant was arrested and convicted of misdemeanor petty theft and second degree burglary for stealing four CD-ROM games, batteries, and cables from the UCSB bookstore. (§§ 484, subd. (a), 459, 460, subd. (b), 461, subd. 2.) The total value of the stolen merchandise was about $184. He was sentenced to three years' probation on the condition he serve 30 days in jail, which was suspended until the end of the school year.

In February 1997, defendant's parents gave him some money to buy groceries before returning to college. He went to a Costco store in Monterey County with two younger friends, one a juvenile. They proceeded to shoplift three prepaid telephone cards and a video game. They acted in concert, two of them using their bodies to shield the third from other customers while packages were opened. The trio then purchased other items and attempted to leave the store. Their activities had been observed by security personnel, however, and security guards detained them. Costco recovered the stolen merchandise, which was valued in the aggregate at less than $100.

As a result of this last incident, the People charged defendant with felony burglary for the Costco crimes (§ 459), a strike (§ 1170.12, subd. (c)(1)) for the tool shed burglary, a misdemeanor petty theft with a prior (§§ 666/484), and misdemeanor contributing to the delinquency of a minor (§ 272). Defendant negotiated a plea bargain in which he would plead guilty to felony petty theft with a prior theft-related conviction and admit the strike allegation. In exchange, the prosecution agreed to dismiss the charges of felony burglary and misdemeanor contributing to the delinquency of a minor. Significantly, in connection with this plea, defendant personally executed a written waiver of rights and placed his initials next to several statements, including this one: "I understand that if I am not a citizen of the United States a plea of `Guilty'/'No Contest' could result in deportation, exclusion from admission to this country, and/or denial of naturalization."

The trial court accepted the plea and noted in the record that it would reserve jurisdiction to strike the prior serious felony allegation at the time of sentencing. At sentencing in October 1997, the trial court struck the strike allegation and sentenced defendant to the upper term of three years for felony petty theft with a prior and to the lower term of two years, to be served concurrently, for violating his probation in the Monterey County tool shed burglary case.

B. Subsequent Federal Proceedings and Defendant's Responses

Defendant's 1997 plea to felony petty theft with a prior theft-related conviction plunged him into a labyrinth of legal problems. On December 16, 1998, the Immigration and Naturalization Service (INS)² initiated proceedings for defendant's mandatory deportation based on his status as an alien who has been convicted of an "aggravated felony,"³ which for deportation purposes is defined as "a theft offense ... or burglary offense for which the term of imprisonment [is] at least one year." (8 U.S.C. § 1101(a)(43)(G).) A few months later, on February 1, 1999, defendant completed his three-year term (reduced by applicable credits) and was released on parole. He was detained by the INS the next day (Kim v. Ziglar (9th Cir.2002) 276 F.3d 523, 526) and held in federal custody without bond. He was eventually released from INS custody on August 20, 1999.

Defendant successfully completed his three-year parole on February 1, 2002. On August 16 of that year, the INS filed an amended charging document, alleging that in addition to mandatory removal, defendant was also subject to discretionary removal due to his having been convicted of two crimes involving moral turpitude: the tool shed burglary and the Costco felony petty theft with a prior. (8 U.S.C. § 1227(a)(2)(A)(ii).)⁴

Defendant then began filing collateral challenges to his various state convictions in an attempt to eliminate them as the basis for deportation. In 2003, he filed a nonstatutory motion to vacate his three-year sentence (but not the actual convictions) for the Costco petty theft with a prior and the concurrent two-year sentence for the tool shed burglary. Although both sentences had been served, he claimed that when he entered his plea, he did not know the sentences would subject him to mandatory deportation by the INS. When the trial court asked the prosecutor whether he opposed the motion, the prosecutor replied: "No. I just want to say we're not opposing it. That's as far into it as I want to get." The trial court granted the motion vacated the sentences, and resentenced defendant to serve a one-day probation on the condition he serve 364 days in jail, with credit for time served.⁵ The result of this resentencing was that defendant served no additional time in prison (having already served a full three-year sentence), but his official sentence for the Costco crimes was now modified to be one day short of a year, thereby avoiding having either crime characterized as an aggravated felony for immigration...