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The People v. Hyung Joon Kim

December 19, 2012


Trial Court: Monterey County Superior Court Superior Court No. SM970463 Trial Judge: Hon. Terrance R. Duncan

The opinion of the court was delivered by: Premo, J.


(Monterey County Super. Ct. No. SM970463)

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.*fn1 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.


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 (Kim).) However, 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 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.) 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*fn2 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.)

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.) 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).' "*fn3 It sought to vacate the petty-theft-with-a-prior conviction. (Id. at p. 1089.) 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 an inappropriate ground for relief on coram nobis . . . ." (Kim, supra,45 Cal.4th at p. 1104.) 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.)

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."*fn4 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), 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. [¶] However, you have to look at each case on its own. So the Court on its own motion grants the order. The case is dismissed pursuant to [section] 1385 of the Penal Code for the following reasons: The plea entered in this case is legally invalid as a product of ineffective assistance of counsel in violation of defendant's constitutional rights. The defendant complied with all the terms and conditions of his original sentence, was an exemplary inmate, he also complied with all the terms of the suspended sentence entered in May of 2003. [¶] As a result of the plea in this case, the defendant is facing devastating immigration consequences and risk of deportation because of ineffective assistance of counsel. If he's deported, he will not be able to re-enter the United States under any circumstances. Defendant will be separated from his family and has no family in Korea as far as the Court is aware. Defendant may ultimately be imprisoned in Korea because of his religious beliefs as a pacifist. [¶] The offense committed in this case was relatively minor; although, the consequences have not been. [¶] Court is aware that Mr. Kim has violated the law subsequent to the conviction in this case. The Court is frankly somewhat disappointed that Mr. Kim was not more aware of how those behaviors, although somewhat trivial, perhaps, would affect his life. But in any case, they hardly justify banishment. [¶] Mr. Kim has, during the last few years, conducted himself in a manner that leaves the Court to believe that he has made mental changes as well as the behavioral changes that are necessary for him to live as a law-abiding citizen. Mr. Kim has no other charges pending against him at this time as far as the Court is aware. [¶] He has this decent job now and has had that job for quite some time, and he is working towards completing his education, and in order to better serve as a good citizen of the United States."

The trial court then made written findings in support of dismissal that tracked its ...

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