People v. Kim CA2/3 ( 2020 )

Filed 11/13/20 P. v. Kim CA2/3
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions
not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion
has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE, B303718
(Los Angeles County
Plaintiff and Respondent, Super. Ct. No. BA284029)
v.
KEUNG HAN KIM,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County, Michael D. Abzug, Judge. Dismissed.
Eric R. Larson, under appointment by the Court of Appeal,
for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
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Keung Han Kim appeals from a postconviction order
denying his petition for resentencing under Senate Bill No. 1437.
His appellate counsel filed a brief asking this court to proceed
under People v. Serrano (2012) 211 Cal.App.4th 496.
A jury convicted Kim of child abuse (Pen. Code,1 § 273a,
subd. (a); counts 1 & 3), mayhem (§ 203; count 2), second degree
murder (§ 187, subd. (a); count 4), and assault on a child causing
death (§ 273ab; count 5). The jury found true great bodily injury
enhancements (§§ 12022.7, subd. (d), 12022.95). In 2007, the
trial court sentenced Kim to 25 years to life. A different panel of
this Division affirmed the judgment of conviction in People v. Kim
(Feb. 22, 2008, B197604) [nonpub. opn.].
In 2019, Kim petitioned for resentencing under Senate Bill
No. 1437. Using a form petition, Kim declared that a complaint,
information, or indictment had been filed against him that
allowed the prosecution to proceed under a theory of felony
murder or murder under the natural and probable consequences
doctrine, he was convicted of first or second degree murder
pursuant to those doctrines, and he could not now be convicted of
second degree murder because of changes to sections 188 and
189. He did not declare he was not the actual killer. Kim also
requested that counsel be appointed for him.
The People filed a response to Kim’s petition in which it
argued he was the actual killer. After reviewing the file and
appellate decision affirming Kim’s conviction, the trial court
noted that the jury had been instructed with CALJIC Nos. 8.11
and 8.31, which the trial court thought referred to the natural
and probable consequences doctrine. The trial court therefore
1 All further statutory references are to the Penal Code.
2
appointed counsel for Kim, who filed a reply to the People’s
opposition. In the reply, counsel conceded that while the
instructions referred to the natural consequences of an act, the
jury was not instructed on the natural and probable
consequences doctrine. At a hearing on the petition at which the
parties appeared, Kim’s counsel conceded that Kim was not
convicted under either the felony murder or natural and probable
consequences doctrines and that Kim was the actual killer. The
trial court denied the petition.
Kim appealed. His appellate counsel declared he was
unable to find any arguable issues and asked us to follow the
procedures in People v. Serrano, supra, 211 Cal.App.4th 496.
Kim did not submit a supplemental brief. We have nonetheless
examined the record and found no arguable issues. We are
further satisfied that his attorney has fully complied with the
responsibilities of counsel. Accordingly, we dismiss the appeal.
(See generally, People v. Cole (2020) 52 Cal.App.5th 1023, 1040,
review granted Oct. 14, 2020, S264278.)
DISPOSITION
The appeal is dismissed.
NOT TO BE PUBLISHED.
DHANIDINA, J.
We concur:
EDMON, P. J. LAVIN, J.
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