People v. Kim

• Citation: 59 Cal.Rptr.3d 255,150 Cal.App.4th 1158
• Decision Date: 25 April 2007
• Docket Number: No. H029324.,H029324.
• Court: California Court of Appeals
• Parties: The PEOPLE, Plaintiff and Appellant, v. Hyung Joon KIM, Defendant and Respondent.

59 Cal.Rptr.3d 255

150 Cal.App.4th 1158

The PEOPLE, Plaintiff and Appellant, v. Hyung Joon KIM, Defendant and Respondent.

No. H029324.

Court of Appeal, Sixth District.

April 25, 2007.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Gerald A. Engler, Senior Assistant Attorney General, Eric D. Share, Supervising Deputy Attorney General, Amy Haddix, Deputy Attorney General, for Plaintiff/Appellant: The People.

Law Offices of Norton Tooby, Norton Tooby, Oakland, AJ Kutchins, Berkeley, Law Offices of Joel Franklin, Joel Franklin, Monterey, for Defendant/Respondent: Hyung Joon Kim.

PREMO, J.

Defendant Hyung Joon Kim filed a petition for writ of error coram nobis asserting that a judgment of conviction against him for felony petty theft with a prior following a Negotiated plea was based on mistake of fact and therefore void. He argued that he did not know that the plea would subject him to deportation and concluded that the plea was not knowing and voluntary as required by the federal and state Constitutions. He also filed a nonstatutory motion to vacate the judgment asserting that his trial counsel was constitutionally ineffective because counsel failed to advise him of the immigration consequences of the petty theft conviction. The trial court granted the petition and motion. The People appeal and principally contend that the trial court had no authority to grant the relief defendant sought. We agree and therefore reverse the orders.

BACKGROUND

Defendant was born in South Korea and entered the United States in 1984 on a family visa when he was six years old. He achieved lawful-permanent-resident status in 1986. At some point, he became a ward of the juvenile court because he possessed ammunition. He turned 18 years old in 1995.

In 1996 while on juvenile probation, defendant burglarized a residence in Monterey County and suffered a conviction for first degree burglary following a court trial. The trial court suspended imposition of sentence and placed defendant on five years probation with a condition that he serve 180 days in jail. We affirmed the judgment. (People v. Kim (Oct. 30, 1997, H016002) [nonpub. opn.].)¹

In 1997, defendant burglarized a Costco in Monterey County and faced the underlying charges in this case of commercial burglary (Costco), petty theft (Costco merchandise) with a prior (residential burglary), and contributing to the delinquency of a minor (an accomplice to the Costco burglary and theft). He also faced a strike allegation from the residential-burglary conviction for purposes of the Three Strikes law. He negotiated a guilty plea to a felony petty theft with a prior and an admission of the strike allegation in exchange for dismissal of the commercial burglary and contributing counts. He signed a waiver form stating the following: "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." Thereafter, the trial court dismissed the strike admission upon defendant's motion and revoked defendant's probation in the residential burglary case. It then sentenced defendant to serve three years in prison for the petty theft conviction plus two concurrent years for the residential burglary conviction.

In 1998, the Immigration and Naturalization Service (INS)² charged defendant with mandatory deportation as an aggravated felon because he had suffered a sentence of one year or more (as to defendant, two sentences).³

In 1999, defendant was released from prison on three-year parole and placed in INS custody.⁴ The INS then began the aggravated-felony deportation proceeding.

In 2002, defendant's parole ended and the INS additionally charged him with discretionary deportation for having suffered two convictions of crimes that involved moral turpitude (residential burglary; petty theft with a prior).⁵

In 2003, defendant filed a nonstatutory motion to vacate the three-year petty-theft sentence and the two-year concurrent residential-burglary sentence on the ground that he did not know that the sentences would subject him to mandatory deportation. The People did not oppose the motion.⁶ The trial court granted the motion, vacated the sentences, and ordered nunc pro tunc that defendant be placed on one-day probation with a condition that he serve 364 days in jail and a credit for having served that time.⁷ The INS then dismissed the aggravated-felony charge.

In 2003,' the immigration judge found for defendant on the moral-turpitude charge and cancelled deportation.⁸

In 2004, on the government's appeal, the Board of Immigration Appeals reversed the immigration judge and ordered defendant deported to South Korea. Defendant then filed a petition for writ of habeas corpus in United States District Court challenging the deportation order. A change of law resulted in the petition being transferred to the United States Court of Appeals where it is pending.

In 2005, defendant filed the petition⁹ and motion at issue.

In support of the petition, defendant submitted a declaration of his trial counsel in which counsel essentially declares that he was not aware that petty theft with a prior would be a moral-turpitude deportation trigger and that, had he known, he would have negotiated a plea to the commercial burglary count, provided that the count charged entry with intent to commit "`theft or any felony,'" a count having the same punishment as petty theft with a prior but without having the moral-turpitude deportation consequences. Defendant also submitted a declaration from an immigration attorney (who had represented defendant in the sentence-vacation proceeding), that explained the immigration consequences resulting from convictions of aggravated felonies and crimes of moral turpitude. The attorney related the following: (1) "We originally sought to vacate the two-year [sic] sentences on two Monterey County cases, including this one, since these sentences made the convictions both aggravated felonies, under immigration law, which trigger the worst of all possible immigration consequences. We assumed that once [defendant] no longer had any aggravated felony convictions, we would be able to avoid deportation for him by obtaining cancellation of removal in immigration court"; (2) "I understand that original defense counsel as well as the prosecution, the court, and [defendant] himself, were unaware at the time of the original plea and sentence in this case of the aggravated felony mandatory deportation consequences of the prison sentence originally imposed. As a result of this mistake of fact, this Court in 2003 vacated the sentence and imposed a sentence of 364 days in county jail, thus avoiding the aggravated felony immigration consequences of the sentence"; (3) "Even if defense counsel had recognized, and avoided, the `aggravated felony' consequences triggered by a one-year sentence, the plea itself, regardless of the sentence, triggered [immigration consequences].... If I had been consulted at the time of the plea, I would have urged [defendant] and his counsel to seek an alternative disposition that avoided not only the aggravated felony sentence, but also avoided the crime of moral turpitude immigration consequences"; and (4) "The Solution. If [defendant] had entered a plea to one count of burglary, ..., entry with intent to commit `theft or any felony,' that conviction would not have been considered a crime of moral turpitude by the immigration authorities." The immigration attorney also opined that defendant's deportation would likely be permanent and South Korea would likely imprison defendant for three to eight years because defendant would refuse military service due to his religious beliefs. Defendant further submitted his father's declaration, which essentially, testified to defendant's good character. And defendant finally submitted his own declaration, which essentially testified to his remorse for past offenses, law abiding behavior for eight years, strong family ties in this country, good standing at San Jose State University, community service, sincere religious beliefs that might subject him to imprisonment in South Korea, and unawareness at the time of his plea that a petty theft with a prior conviction would subject him to deportation while a plea to commercial burglary charging entry with intent to commit "theft or any felony" would not have subjected him to deportation.

In support of the motion to vacate, defendant submitted a declaration of his trial counsel that was identical to the one submitted in support of the petition.

The People opposed the petition and motion by arguing that the trial court had no authority to grant the relief and submitting, on the merits, a declaration from the prosecutor who negotiated the petty-theft plea to the effect that he would not have agreed to assist defendant in thwarting immigration consequences, particularly since defendant would have required an amendment of the information.¹⁰ At the hearing, the People also made the point that, had, defendant negotiated a plea to* commercial burglary instead of petty theft with a prior, he would nevertheless have been subject to mandatory deportation as an aggravated felon because of the three-year prison sentence.

The trial court explained its ruling as follows: "First of all, in regard to the nonstatutory motion, the court feels that the Court—the Court believes the Court has jurisdiction to entertain the motion because of the Constitutional issues presented. The—the issue of the ineffective assistance of counsel is somewhat difficult in the sense—in my mind in the sense that what the real standard was back when this plea was taken and what the standard perhaps ought to have been may not have been the same. So certainly from the defendant's point of view, the counsel he got was ineffective because it has put him in the...