People v. Kim

• Decision Date: 19 December 2012
• Docket Number: H037320
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Appellant, v. HYUNG JOON KIM, Defendant and Respondent.

212 Cal.App.4th 117
151 Cal.Rptr.3d 154

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

H037320

Court of Appeal,
Sixth District, California.

Filed December 19, 2012

Hon. Terrance R. Duncan. (Monterey County Super. Ct. No. SM970463).
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gerald A. Engler, Senior Assistant Attorney General, Laurence K. Sullivan, Supervising Deputy Attorney General, Amy Haddix, Deputy Attorney General, Bridget Billeter, Deputy Attorney General, for The People.

Law Offices of Joel Franklin, Joel Franklin, Monterey, J. Courtney Shevelson, for Hyung Joon Kim.

Premo, J.

[212 Cal.App.4th 119]

Fourteen years after pleading guilty to petty theft with a prior and 12 years after having served a three-year prison sentence for the conviction, defendant Hyung Joon Kim invited the trial court to dismiss the action in the interests of justice pursuant to Penal Code section 1385. ¹ The trial court accepted the invitation and dismissed the action on its own motion over the People's objections. The People appeal and advance several reasons why the trial court erred. We agree with their principal reason, namely, that a trial court has no authority to dismiss an action after judgment has been imposed and the defendant has served his or her sentence. We therefore reverse the order and need not address the People's secondary contentions.

BACKGROUND

Defendant immigrated to this country at age six from South Korea, and became a “lawful permanent resident in 1986 and has resided continuously in this country since his initial entry.” (People v. Kim (2009) 45 Cal.4th 1078, 1084–1085, 90 Cal.Rptr.3d 355, 202 P.3d 436 ( Kim ).) However,[151 Cal.Rptr.3d 157]he had several juvenile arrests and had been made a ward of the court and placed on probation before turning 18. Within months after turning 18, defendant suffered a conviction for first degree burglary and the trial court placed him on probation. Within the following two years, however, he was twice convicted for theft-related crimes. The first conviction was for first degree burglary for which the trial court placed defendant on probation. The second conviction was for petty theft with a prior (the first degree burglary conviction). It resulted from a 1997 guilty-plea agreement in which defendant had

[212 Cal.App.4th 120]

executed a form that acknowledged: “ ‘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.’ ” (Id. at p. 1086, 90 Cal.Rptr.3d 355, 202 P.3d 436.) For this conviction, the trial court sentenced defendant to serve three years in prison. It also revoked probation in the first degree burglary case and sentenced defendant to serve two concurrent years in prison for that conviction. Defendant was released from prison in 1999 on three-year parole.

All of which, per our Supreme Court, plunged defendant into “a labyrinth of legal problems,” all related to his status as a lawful resident, but not a citizen, of this country. Included in this series of developments was a detention by the federal INS ² for almost six months in 1999, and then the initiation of deportation (aka “mandatory removal”) proceedings by the INS in 2002. ( Kim, supra, 45 Cal.4th at p. 1087, 90 Cal.Rptr.3d 355, 202 P.3d 436.)

To counter this, throughout 2003 and 2004, defendant “began filing collateral challenges to his various state convictions in an attempt to eliminate them as the basis for deportation.” (Kim, supra, 45 Cal.4th at p. 1087, 90 Cal.Rptr.3d 355, 202 P.3d 436.) When these did not solve his problems with the INS, in 2005, he filed two motions in the trial court. The first was entitled “ ‘Motion to Vacate Judgment (Coram Nobis).’ ”³ It sought to vacate the petty-theft-with-a-prior conviction. ( Id. at p. 1089, 90 Cal.Rptr.3d 355, 202 P.3d 436.) One of the allegations of the motion was that his 1997 plea was not “ ‘knowing, intelligent, free or voluntary, and was thus void ab initio ’ ” under the United States Constitution. ( Ibid.) Defendant's 1997 attorney also filed a supporting declaration elaborating on both his and defendant's ignorance of the immigration-related consequences of his plea. The trial court granted the motion and the companion motion. In support of the ruling, it specifically cited counsel's admission of his ignorance of the immigration-consequences of the 1997 plea. We reversed the grant of the coram nobis petition ( People v. Kim (Apr. 25, 2007, H029324) [nonpub. opn.] ), and the Supreme Court affirmed our judgment in Kim.

Among other things, the Supreme Court held that “a claim of ineffective assistance of counsel, which relates more to a mistake of law than of fact, is

[212 Cal.App.4th 121]

an inappropriate [151 Cal.Rptr.3d 158]ground for relief on coram nobis ....” (Kim, supra, 45 Cal.4th at p. 1104, 90 Cal.Rptr.3d 355, 202 P.3d 436.) According to the court, the alleged violation of the defendant's constitutional right to effective assistance of counsel should have been “raised in a motion for a new trial or in a petition for a writ of habeas corpus.” ( Ibid. ) But, because defendant had served his sentence and completed his parole period, the court in Kim held that he was no longer in custody and could not therefore challenge his conviction by petition for writ of habeas corpus. (Id. at p. 1108, 90 Cal.Rptr.3d 355, 202 P.3d 436.)

Undeterred, in 2011, defendant attacked the petty-theft-with-a-prior conviction by filing the underlying pleading, which he deemed a “Suggestion for Dismissal in the Interests of Justice under Penal Code Section 1385.” ⁴ He supported the suggestion with declarations that summarized his personal history from 2005 and reiterated that his 1997 plea was a product of ineffective assistance of counsel based on counsel's ignorance of the immigration consequences of the plea. The People opposed the suggestion by arguing that (1) the trial court had no authority to entertain the suggestion because there was no case pending against defendant, (2) if there were a case in which defendant had been on probation, that probation had expired, (3) the plea bargain implicitly contemplated that defendant would suffer a felony conviction and dismissal would violate the bargain, (4) defendant had failed to exercise reasonable diligence in filing the suggestion given that the INS began deportation proceedings in 1998, (5) defendant's remedy was in habeas corpus, (6) defendant was raising an improper piecemeal claim given that the claim mirrors the coram nobis claim, (7) defendant's suggestion was barred by the law-of-the-case doctrine because we had addressed the merits of the ineffective-assistance-of-counsel issue and found no prejudice (the Supreme Court did not address the merits), (8) defendant's suggestion was barred because its sole purpose was to avoid deportation ( People v. Mendoza (2009) 171 Cal.App.4th 1142, 1159, 90 Cal.Rptr.3d 315), and (9) dismissal would not serve the interests of justice given defendant's personal history from 2005, which included convictions for possessing a blackjack and driving under the influence of alcohol.

The trial court reasoned as follows.

“Well, I have a suspicion that given the gravity of this case and the previous positions taken by the appellate courts that ... the People's position is ... ultimately going to prove correct. And I have some misgivings about going down this road because of, assuming it flies, what the consequences of it might be in terms of legislative response to Courts doing things that the Court thinks is right but other people may not.

[212 Cal.App.4th 122]

¶] However, you have to look at each case on its own. So the Court on its own motion grants the order. The case...