People v. Kim CA2/7 ( 2021 )

Filed 12/9/21 P. v. Kim CA2/7
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
THE PEOPLE, B309035
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BA402937)
v.
HYO KUN KIM,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los
Angeles County, Mildred Escobedo, Judge. Reversed with
directions.
Christopher Lionel Haberman, under appointment by the
Court of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Senior
Assistant Attorney General, and Paul M. Roadarmel, Jr. and
Steven D. Mathews, Supervising Deputies Attorney General, for
Plaintiff and Respondent.
_______________________
Hyo Kun Kim appeals from the trial court’s order denying
his motion under Penal Code sections 1016.5 and 1473.7 to
vacate his 2013 conviction for assault with a deadly weapon.1
Kim has been a legal permanent resident of the United States
since 1979. But his conviction subjects him to mandatory
deportation to South Korea.
At the time of his no contest plea, Kim expressed confusion
about the immigration consequences of his plea. The court’s
response suggested Kim might be able to avoid deportation. Plus,
Kim suffered from psychosis, had been diagnosed with
schizophrenia and was taking anti-psychotic and mood stabilizing
medications.
We reverse.
FACTUAL AND PROCEDURAL BACKGROUND
A. The Underlying Offense
On September 17, 2012, Kim entered a coffee shop and
asked for free coffee. The owner obliged. Kim asked for a loan,
which the owner refused. The owner asked the security guard to
ask Kim to leave. Kim refused. The security guard, feeling
threatened, pepper-sprayed Kim and attempted to handcuff him.
A struggle ensued, and Kim cut the security guard’s hand with a
knife. The cut required approximately 20 stitches.2
The People charged Kim with one count of assault with a
deadly weapon (§ 245, subd. (a)(1)) and alleged he inflicted great
bodily injury (§ 12022.7, subd. (a)).
1 Undesignated statutory references are to the Penal Code.
2 Facts taken from the probation officer’s preconviction
report.
2
B. Kim’s Plea and Conviction
On February 7, 2013, the day of trial, defense counsel told
the trial court that Kim wanted to change his plea to the charge
in an open plea to the court.3 The court told Kim if he pleaded to
the charge, the court would sentence him to two years, given his
lack of criminal record and “some unusual circumstances.” The
People had offered Kim a plea agreement for three years, striking
the great bodily injury enhancement.
The court began by addressing the immigration
consequences of the plea, noting they were a concern of Kim’s.
The court explained, “[I]f you’re found guilty or no contest, you
will have the consequences – will – not maybe – but will have the
consequences of deportation – you know what deportation is? –
that’s where they’ll send you back to Korea – exclusion of
admission to the United States, meaning you can’t be admitted to
the United States – or denial of naturalization, meaning you can’t
become a citizen and some other rights, pursuant to the laws of
the United States. I’m explaining it a little more than I’m
required to. Do you understand that?” Kim responded, “Your
Honor, I do understand it, but then I guess I’m going to have to
say I’m going to have to go with the trial, because that’s going to
affect my immigration status.”
Kim confirmed his desire to have a jury trial, and the court
began jury selection.
After the lunch break, defense counsel told the court that
Kim again had changed his mind and wanted to enter a plea of no
contest. The court advised Kim of his constitutional rights and
took waivers of them. The court explained that if Kim went to
trial, the maximum sentence Kim faced was seven years but that
3 Judge Clifford L. Klein.
3
“I’m not saying I’ll give you the seven years but that’s the worse
that can happen to you. Of course you could win.” The court
revisited the immigration consequences of the plea, stating, “I
read you your immigration consequences before, I’m gonna read
it again because I know you’re very concerned about that. If
you’re not a citizen you’re advised that a conviction for this
offense, meaning this crime will have the consequences of
deportation, exclusion from admission to the United States or
denial of naturalization pursuant to the laws of the United
States; do you understand that?” Kim responded, “Yes.”
The court asked Kim if he had discussed with his counsel
the charge, his defenses and the consequences of his plea,
including immigration consequences. Kim said, “I did but I’m a
little unclear about all that.” The court asked, “What are you
unclear about?” Kim explained, “Um, well, I was, I went to school
ever since I was in first grade and I can’t understand why I would
be deported.” The court responded, “I’m not here to explain
immigration laws; I’m not an immigration lawyer. Yesterday I
had an immigration lawyer in court, I asked him a question of
something I didn’t think was fair but that’s up to the immigration
authorities I just have to tell you; okay.” The court went on to
say, “If you want to argue with them you should be allowed to
stay here you can make that argument but I don’t have any
control over that. I’ve told you what, what the law says I have to
tell you. Okay. Do you understand that?” Kim responded, “Yes.”
Before taking his plea, the court asked Kim if he wanted to
talk to his counsel. Kim did not respond; instead, defense counsel
responded, “Thank you, Your Honor.” Kim then entered a plea of
no contest under People v. West (1970) 3 Cal.3d 595, to one count
of assault with a deadly weapon (§ 245, subd. (a)(1)) and admitted
4
the great bodily injury special allegation (§ 12022.7, subd. (a).)4
The court asked defense counsel if he joined in Kim’s waivers and
plea and if he was satisfied Kim understood what he just did
given his “yellow shirt.”5 Defense counsel responded
affirmatively.
The court struck the great bodily injury special allegation
for sentencing. The court explained, “there were mitigating
circumstances here with the defendant [who] lacked the prior
record.” The court said that “there were certain mental health
aspects to this,” including “serious issues in his past,” and that if
the people at the coffee shop “had known the true situation
maybe this could have been avoided.” The court sentenced Kim
to two years, noting “were he to have certain psychiatric
behaviors in state prison,” he could “serve even longer.”
At defense counsel’s request, the court included in Kim’s
prison packet a psychiatric report prepared by Dr. Rothberg on
Kim’s competency to stand trial. The court also “strongly
recommend[ed]” Kim be evaluated for housing in a mental health
treatment facility and receive mental health treatment.
4 Assault with a deadly weapon (§ 245, subd. (a)(1)) is a
crime of violence under federal law, and when resulting in a
sentence longer than one year, it becomes an aggravated felony,
which is a deportable offense under federal immigration law. (8
U.S.C. § 1101, subd. (a)(43)(F); 18 U.S.C. § 16, subd. (a).)
5 The “yellow shirt” refers to the fact that Kim was being
held at the psychiatric hospital facility of the Los Angeles County
Twin Towers Correctional Center.
5
C. Kim’s Motion To Vacate
On March 19, 2020, Kim moved to vacate his plea under
sections 1016.5 and 1473.7. Kim argued that his mental illness
prohibited him from meaningfully understanding the
immigration consequences of his plea, and that the trial court
erred and his defense counsel was ineffective in proceeding with
the plea after Kim expressed confusion about immigration
consequences.
In addition to the transcripts from his plea hearing, Kim
submitted documents created on or around the time of his plea,
including medical reports from the Los Angeles County Sheriff’s
Department from September 25, 2012, to February 8, 2013;
defense counsel’s request for a competency evaluation and Dr.
Rothberg’s November 30, 2012, psychiatric evaluation; and
defense counsel’s February 7, 2013, notes about Kim’s case. Kim
also submitted a more recent psychiatric assessment and
declarations from his treating physician and immigration
attorney.
1. Medical Reports
After his arrest, Kim was housed at the psychiatric hospital
unit of the Los Angeles Sheriff’s Department Twin Towers
Correctional Facility. Kim began treatment in the jail facility on
the day of his arraignment. He was prescribed medications to
treat his psychosis, which were modified during his detention.
On October 15, 2012, medical staff noted Kim’s speech
“derails and becomes disorganized on elaboration,” and he
expressed “paranoid themes of being watched by persons on the
outside.” Kim experienced “bizarre, paranoid delusions” about
people breaking into his home and plotting against him, about
cockroaches hatching more eggs if they saw him take his
6
medication, and about someone attacking Kim who “looked
familiar” but whom he could not identify because of the attacker’s
plastic surgery. Kim also experienced audio and visual
hallucinations from October 2012 through January 2013. Kim
complained of bleeding gums, which the staff discovered resulted
from Kim brushing his teeth with a toothbrush he found in a can
containing a floor-cleaning chemical. Medical staff wrote that
Kim’s behavior was unpredictable and that he demonstrated poor
judgment and impulse control.
On January 30, 2013, medical staff noted that Kim’s
psychotic symptoms were decreasing and that he claimed to feel
better and denied having hallucinations. On February 6, 2013,
the day before he changed his plea, medical staff reported Kim
did not show any bizarre behavior or psychotic symptoms. On
February 11, four days after he entered his plea, medical staff
described Kim’s speech as “at times circumstantial
w/nonsequential responses.”
2. Defense Counsel’s Request for Psychiatric Evaluation
and Dr. Rothberg’s Report
On October 25, 2012, defense counsel wrote to Dr. Rothberg
requesting a psychiatric evaluation of Kim. Counsel explained
Kim’s background, including that he was once a conservatee of
the Public Guardian and received social security benefits for
mental illness. Counsel explained Kim had been living with his
mother, and after she moved to a convalescent home, he was
unable to care for himself and resorted to taking food from local
restaurants for a few weeks. Counsel also explained Kim told
him he carried a knife because “he believes Syrian terrorists are
out to get him because they know his grandfather was a Coronel
7
[sic] in the ROK Army during the Korean War.”6 Concerning the
potential disposition of the case, counsel said Kim was “open to a
hospital setting as an alternative to state prison, but will not
agree to any resolution that would involve him being found
guilty” because he believed a private security guard did not have
the right to arrest him. Kim also told counsel, “he wants to plead
no contest, and then immediately appeal because he is not
guilty.” Counsel could not convince Kim that “his proposed
solution was not an option.”
Dr. Rothberg interviewed Kim and prepared a psychiatric
report on November 30, 2012, assessing Kim’s competency to
stand trial and providing recommendations for disposition. Kim
described the incident leading to his arrest, stating “he was
afraid of the security guard,” “was not sure he was actually a
security guard because sometimes people impersonate them,” and
“thought he was going to be kidnapped . . . so he acted in self-
defense.” Kim explained, “he carrie[d] a knife because he had
been assaulted in Anaheim in the past and is always fearful.” Dr.
Rothberg noted Kim was aware of what a trial was and
“believe[d] he would do about six or twelve months in a hospital.”
Dr. Rothberg concluded Kim “understands the nature and the
purpose of the proceedings” and “appear[ed] to be marginally
competent to stand trial, and though his competency is less than
optimal it is probably adequate to proceed.” Dr. Rothberg
believed that Kim had “a very significant underlying mental
disorder” and that he would be a “suitable candidate for a
diversion into a mental health program, but given his low level of
6 ROK likely refers to the Republic of Korea. The ROK Army
is also known as the Republic of Korea Army or the South Korean
Army.
8
functioning, he needs to be in a structured and preferably locked
environment.”
3. Defense Counsel’s Notes About Kim’s Case
Defense counsel’s notes dated February 7, 2013,
summarized Kim’s case proceedings. Counsel characterized Kim
as “borderline competent but knows what is going on.” Regarding
immigration consequences, counsel wrote Kim “has residency but
advised that he should expect to be deported despite long term
US residence.” Based on counsel’s investigation, there were no
favorable witnesses. Counsel said Kim “understands issues esp
self defense. Understands & waives rts.” Counsel noted the
circumstances leading up to the incident appear to be that Kim
was being cared for by his mother, who entered a rest home, and
Kim “was unable to care for self. [H]e relied on hand outs & theft
from local businesses.”
4. Asian Pacific Counseling and Treatment Centers’
Psychiatric Assessment
On May 23, 2018, Asian Pacific Counseling and Treatment
Centers prepared a psychiatric assessment of Kim. The
assessment confirmed Kim had been diagnosed with and
continued to suffer from schizophrenia, which he managed
through medication. The assessment noted Kim had served his
prison sentence in a psychiatric ward. Regarding Kim’s past
medical history, the assessment reported Kim suffered a head
injury with loss of consciousness in his late 30’s following an
assault.
9
5. Dr. Yen’s Declaration
Dr. Yen was Kim’s treating psychiatrist from March 17,
2017, through the time Dr. Yen submitted his declaration on
January 7, 2020. Dr. Yen saw Kim bi-monthly, and a therapist
saw Kim regularly. Dr. Yen explained Kim initially presented
with auditory hallucination, grandiosity and paranoid delusion.
Kim was diagnosed with schizophrenia, for which he was taking
anti-psychotic medication and a mood stabilizer. Despite
medication, Kim continued to experience psychotic symptoms at
“an attenuated level.” Dr. Yen said Kim was “unable to
differentiate his thoughts that are psychotic versus the reality,”
had “limited understanding into his delusional beliefs and ma[de]
poor judgment[s] and decisions based on impaired reality” and
“continue[d] to function at a marginal level.” Kim lived in a
board and care facility, which supervised his medications and
assisted with his daily needs.
6. Toyama’s Declaration
Matthew Toyama is an immigration attorney. He reviewed
Kim’s criminal and immigration records. Kim obtained legal
residency status, as a derivative of his parents, on February 22,
1979. Toyama explained Kim’s conviction of section 245,
subdivision (a)(1), was a crime of violence. Because Kim was
sentenced to more than one year in prison, the conviction was
also an aggravated felony under immigration law. Toyama
explained that had Kim been convicted of two crimes of violence
but sentenced to only 364 days for each crime, the convictions
would not have been considered aggravated felonies under
immigration law. Toyama explained Kim’s conviction
automatically disqualified him from asylum relief and from
cancellation of removal available to certain legal permanent
10
residents. Toyama concluded Kim’s conviction barred him from
any reasonable form of immigration relief, and if removal
proceedings were initiated against Kim, he would be deported to
South Korea.
D. The Hearing and Order Denying Kim’s Motion To Vacate
At the September 11, 2020 hearing, no live testimony was
presented. Kim’s counsel argued Kim failed to meaningfully
understand the immigration consequences of his plea, as
evidenced by his mental state at the time of his plea and the
confusion he expressed at his plea hearing about why he would be
deported. Kim’s counsel also argued the judge who took the plea
exacerbated Kim’s confusion by saying Kim could argue against
deportation to the immigration court, even though the conviction
resulted in mandatory deportation.
The People did not file a written opposition, present any
evidence or object to Kim’s exhibits. At the hearing, the People
argued the judge who took the plea properly advised Kim of the
immigration consequences of his plea and confirmed Kim spoke
to his defense counsel about those consequences. The People also
argued defense counsel’s notes indicated he went over the
immigration consequences with Kim. And the motion should be
denied because “all the requirements of the law” had been met.
The trial court denied the motion without prejudice.7 The
court found that the judge who took the plea “has taken probably
thousands of pleas, was very clear with Mr. Kim,” and that
“[t]here was no confusion whatsoever.” The court explained that,
because Kim had “the right under federal procedure to ask for a
hearing in immigration court,” the judge’s statement that Kim
7 Judge Mildred Escobedo.
11
could argue against deportation in immigration court was “a
correct statement of the law.” The court said it was “absolutely
incorrect” to argue the statement confused Kim, given the judge
also told Kim that his conviction would lead to his deportation.
E. Kim’s Motion for Reconsideration
Approximately three weeks after the hearing, Kim moved
to reconsider his motion to vacate. Although Kim did not present
any new evidence, he urged the trial court to consider whether
Kim’s mental state affected his ability to meaningfully
understand the immigration consequences of his plea and
whether defense counsel erred in failing to request more time at
the plea hearing when Kim expressed his confusion about the
immigration consequences.
The People did not file an opposition.
Without a hearing or an appearance by the People, the
court denied the motion with prejudice, noting its successive
nature.
DISCUSSION
Kim argues the trial court erred by not vacating his plea
under section 1473.7 or, in the alternative, under section 1016.5.
Because we agree with Kim on his first argument, we do not
reach his second argument.
A. Penal Code Section 1473.7
Under section 1473.7, subdivision (a)(1), a defendant may
vacate a sentence or conviction if the defendant establishes a
prejudicial error that prevented the defendant from
understanding, defending against, or knowingly accepting the
immigration consequences of the defendant’s plea: “A person who
is no longer in criminal custody may file a motion to vacate a
12
conviction or sentence . . . [¶] [because] [t]he conviction or
sentence is legally invalid due to prejudicial error damaging the
moving party’s ability to meaningfully understand, defend
against, or knowingly accept the actual or potential adverse
immigration consequences of a plea of guilty or nolo contendere.”
A party seeking relief under section 1473.7, subdivision
(a)(1), must make two showings: (1) an error “‘damaging the
moving party’s ability to meaningfully understand, defend
against, or knowingly accept the actual or potential adverse
immigration consequences’” of the plea, and (2) prejudice.8
(People v. Vivar (2021) 11 Cal.5th 510, 528 (Vivar).) The error
need not be by the court or defense counsel but can be the
defendant’s own mistake. (People v. Rodriguez (2021) 68
Cal.App.5th 301, 321.) “[S]howing prejudicial error under section
1473.7, subdivision (a)(1) means demonstrating a reasonable
probability that the defendant would have rejected the plea if the
defendant had correctly understood its actual or potential
immigration consequences. When courts assess whether a
petitioner has shown that reasonable probability, they consider
the totality of the circumstances.” (Vivar, at pp. 529-530.)
“Factors particularly relevant to this inquiry include the
defendant’s ties to the United States, the importance the
defendant placed on avoiding deportation, the defendant’s
priorities in seeking a plea bargain, and whether the defendant
had reason to believe an immigration-neutral negotiated
8 There are other requirements that must be met when
moving to vacate a conviction under section 1473.7, subdivision
(a)(1). (§ 1473.7, subds. (b)(2), (e)(1).) But we need not address
those requirements in this case since they are not challenged and
appear to have been met.
13
disposition was possible.” (Ibid.) The “key to the statute is the
mindset of the defendant and what he or she understood—or
didn’t understand—at the time the plea was taken.” (People v.
Mejia (2019) 36 Cal.App.5th 859, 866 (Mejia).)
The moving party must establish a ground for relief by a
preponderance of the evidence under section 1473.7. (§ 1473.7,
subd. (e)(1).) “[W]hen a defendant seeks to withdraw a plea
based on inadequate advisement of immigration consequences,
we have long required the defendant corroborate such assertions
with ‘“objective evidence.”’” (Vivar, supra, 11 Cal.5th at p. 530.)
“[T]he only finding that the court is required to make is
whether the conviction is legally invalid due to prejudicial error
damaging the moving party’s ability to meaningfully understand,
defend against, or knowingly accept the actual or potential
adverse immigration consequences of a plea of guilty or nolo
contendere.” (§ 1473.7, subd. (e)(4).)
B. Standard of Review
We review the denial of a section 1473.7 motion
independently. (Vivar, supra, 11 Cal.5th at pp. 524-525.)
“‘[U]nder independent review, an appellate court exercises its
independent judgment to determine whether the facts satisfy the
rule of law.’ [Citation.] When courts engage in independent
review, they should be mindful that ‘“[i]ndependent review is not
the equivalent of de novo review.”’” (Id. at p. 527.) The motion is
reviewed independently because of “the history of section 1473.7,
the interests at stake in a section 1473.7 motion, the type of
evidence on which a section 1473.7 ruling is likely to be based,
and the relative competence of trial courts and appellate courts to
assess that evidence.” (Ibid.)
14
We need not defer to the trial court’s findings when the
evidence is documentary. When “the facts derive entirely from
written declarations and other documents . . . there is no reason
to conclude the trial court has the same special purchase on the
question at issue; as a practical matter, ‘[t]he trial court and this
court are in the same position in interpreting written
declarations’ when reviewing a cold record in a section 1473.7
proceeding.” (Vivar, supra, 11 Cal.5th at p. 528.)
C. Kim Established Error by a Preponderance of the Evidence
Kim contends he established multiple errors that damaged
his ability to understand the immigration consequences of his
plea, notwithstanding the trial court’s advisements that the
conviction would lead to his deportation.9
We agree. Kim did not meaningfully understand or
knowingly accept the immigration consequences of his plea.
Most importantly, the record is clear Kim was confused
about immigration consequences at the time of his plea. 10 Kim
9 On appeal Kim argues his defense counsel was ineffective
for failing to seek an immigration-neutral plea or to pursue a plea
of not guilty by reason of insanity. We do not address this
purported error because Kim forfeited this argument by not
raising it in the trial court. (See Dumas v. Los Angeles County
Bd. of Supervisors (2020) 45 Cal.App.5th 348, 357 [failure to raise
argument in trial court results in forfeiture on appeal].)
10 The undisputed evidence also demonstrates Kim appeared
confused about what it meant to enter a no contest plea,
including his statement to defense counsel that he wanted to
enter a no contest plea and immediately appeal because he was
not guilty.
15
said, “I’m a little unclear about all that. . . . I can’t understand
why I would be deported.”
In addition, the court responded by suggesting Kim could
take his argument up with the immigration authorities: “[T]hat’s
up to the immigration authorities. . . . If you want to argue with
them you should be allowed to stay here you can make that
argument but I don’t have control over that.” Although the
court’s comments were technically correct, Kim could have
understood them to mean deportation may be avoidable if he
made a persuasive argument against it. But deportation was not
avoidable because Kim’s conviction subjects him to mandatory
deportation. At a minimum, the court’s comments likely confused
Kim even more.
Finally, it is uncontroverted Kim suffered from a mental
illness at the time of his plea. He was diagnosed with
schizophrenia in 1993. While in custody, and for months leading
up to the day Kim entered his plea, his medical records
documented the symptoms he experienced, including paranoia,
audio and visual hallucinations and delusions. Kim’s psychiatric
evaluation confirmed that he had “a very significant underlying
mental disorder” and reached the equivocal conclusion that he
was “marginally competent to stand trial, and though his
competency is less than optimal it is probably adequate to
proceed.” (Italics added.)
The People argue we should affirm the trial court’s denial
of Kim’s motion because he failed to establish error. But their
arguments are unpersuasive, addressing the evidence piecemeal
rather than analyzing the totality of the circumstances.
The People contend Kim was “competent to enter a plea of
no contest” because he was “competent to stand trial.” But
16
irrespective of his competency, the record shows that at the time
of his plea, Kim was confused about why he would be deported
and likely more confused by the court’s comments implying
deportation might be avoidable. Kim’s marginal competency and
mental health issues did not clarify things but exacerbated the
confusion.
The People also contend that the immigration advisements
given by the court and defense counsel, and that Kim’s
affirmation he understood the advisements and had spoken with
his counsel about the immigration consequences of his plea, are
sufficient to deny the motion. But proper advisement under
section 1016.5 is not a bar to relief under section 1473.7. (See
People v. Camacho (2019) 32 Cal.App.5th 998, 1011, fn. 8 [a trial
court’s warning that deportation “will result” is not a bar to relief
under section 1473.7].) Moreover, Kim’s mental illness and
marginal competence probably impaired his ability to
meaningfully understand the advisement. This impairment is
consistent with the fact that after his advisement and before his
plea, Kim expressed confusion about deportation. The court’s
response suggesting deportation might be avoidable only made
matters worse.
Finally, at oral argument, the People contended the fact
that Kim was advised of mandatory deportation, expressed
concern about deportation and pleaded anyway showed Kim
understood and accepted deportation as a consequence of his
plea. But after Kim expressed concern and before his plea, the
court’s comments intimated he might avoid deportation. And
again, Kim was suffering from severe mental issues and was
barely competent.
17
Having considered the totality of the circumstances, we
conclude Kim met his burden of producing a preponderance of the
evidence that an error likely occurred at the time of his plea
impacting his ability to meaningfully understand and accept the
immigration consequences of his plea.
D. Kim Established Prejudice by a Preponderance of the
Evidence
Kim contends the errors were prejudicial because there was
a reasonable probability he would have rejected the plea if he had
understood its actual consequences.
We agree. The contemporaneous and overwhelming
evidence corroborates Kim’s position that there was a reasonable
probability he would have rejected the plea had he meaningfully
understood its immigration consequences.
At the time of his plea, Kim had been a legal permanent
resident since 1979, living in the United States for over 30 years.
Avoiding deportation was on Kim’s mind, and the trial court was
aware of Kim’s concern. Kim initially declined a plea agreement
and opted to go to trial because he was concerned about
immigration consequences.
The risk of receiving a harsher sentence after trial was not
high. The court signaled to Kim that it believed there were
“unusual circumstances” in the case, including Kim’s lack of a
prior record, his severe mental illness, and whether the incident
would have occurred had the coffee shop owner and security
guard “known the true situation” about Kim’s circumstances.
The court told Kim that he faced up to seven years in prison if
convicted by a jury but that the court would not necessarily
sentence him to the maximum sentence. In fact, the court
indicated it would sentence Kim (and ultimately sentenced him)
18
to only two years in custody for a plea without a plea agreement.
Kim could have reasonably believed he would not have received a
much longer custodial sentence after trial unless the evidence
was worse than the judge anticipated. Even if Kim received a
longer custodial sentence, he likely would have served it in a
psychiatric facility and not in state prison.
Further, Kim may have thought he could win at trial. The
court said to Kim, “Of course you could win [at trial],” which Kim
reasonably could have interpreted as an indication he could win
at trial. Kim believed that he was innocent and acted in self-
defense and that the security guard improperly acted beyond his
authority in trying to arrest Kim.
Considering the totality of the circumstances and the
evidence from Kim’s perspective, we conclude a reasonable
probability existed that he would not have pleaded no contest had
he comprehended its immigration consequences. (Mejia, supra,
36 Cal.App.5th at pp. 872-873 [defendant established prejudice
under section 1473.7 in part given defendant had no criminal
record, the crime was “unsophisticated,” and “it is simply not
realistic to imagine that the court would have then imposed the
maximum prison sentence” had defendant gone to trial]; see also
People v. Jung (2020) 59 Cal.App.5th 842, 859, disapproved on
other ground in Vivar, supra, 11 Cal.5th at p. 526, fn. 4 [the focus
of inquiry regarding prejudicial error under section 1473.7 is the
defendant’s “mindset when pleading guilty”].)
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DISPOSITION
We reverse the order denying Kim’s motion to vacate under
section 1473.7. The case is remanded to the trial court to grant
the motion and allow Kim to withdraw his no contest plea.
IBARRA, J.*
We concur:
PERLUSS, P. J.
SEGAL, J.
* Judge of the Santa Clara County Superior Court, assigned
by the Chief Justice pursuant to article VI, section 6 of the
California Constitution.
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