P. v. Kim 4/25/07 CA6

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State: California

Court: 1st District Court of Appeal 1st District Court of Appeal

Docket No: H029324

Case Date: 07/25/2007

Preview:Filed 4/25/07; pub. order 5/17/07 (see end of opn.)

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA SIXTH APPELLATE DISTRICT

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

H029324 (Monterey County Super. Ct. No. SM970463)

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

Thereafter in 1996, while attending the University of California at Santa Barbara, defendant burglarized the campus book store and suffered misdemeanor convictions for petty theft and burglary. In 2004, the Santa Barbara County Superior Court vacated these convictions and dismissed the case. The order followed a grant of defendant's motion to vacate that was made on the ground that the convictions were void because they were in violation of the Fifth, Sixth, and Fourteenth Amendments to the United States Constitution. The record does not reveal any underlying facts. Defendant provided us with an order and amended order that only recite the superior court's conclusion.

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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 The INS is now known as the Department of Homeland Security. The name change occurred at some point during these proceedings. We will use INS throughout for clarity. 3 The Immigration and Nationality Act (8 U.S.C.A.

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