Supreme Court of California Justia
Citation 45 Cal. 4th 1078, 202 P.3d 436, 90 Cal. Rptr. 3d 355

People v. Kim

Filed 3/16/09 (this opinion should follow the companion case, S151561, also filed 3/16/09)

IN THE SUPREME COURT OF CALIFORNIA

THE PEOPLE,
Plaintiff and Appellant,
S153183
v.
) Ct.App.
6
H029324
HYUNG JOON KIM,
Monterey
County
Defendant and Respondent.
Super. Ct. No. SM970463

Defendant Hyung Joon Kim was born in South Korea and entered this
country legally with his parents when he was a young child. He has lived in this
country as a legal resident for more than two decades but never became a citizen.
As a result of his multiple criminal convictions, the federal government now seeks
to remove him from the country and return him to South Korea. He petitioned for
a writ of error coram nobis in the trial court, seeking to vacate the state felony
convictions that triggered his federal removal proceedings. His case is one of two
we decide today in which litigants seek to challenge the validity of old, otherwise
final criminal convictions to eliminate them as a possible basis for removal from
this country by federal authorities. As we explain in a companion case (People v.
Villa (Mar. 16, 2009, S151561) __ Cal.4th ___), a person in federal immigration
detention is ineligible for a writ of habeas corpus from a state court if his state
sentence and probation or parole have been completed. In the instant case, we
conclude defendant Kim is ineligible for a writ of error coram nobis on the facts of
1


this case. Accordingly, because the Court of Appeal below correctly reversed the
trial court’s decision to issue the writ, we affirm.
I. FACTS
A. Background
Defendant Kim was born in South Korea in 1977. His parents brought him
and his brother to this country on a family visa when defendant was six years old.
He became a lawful permanent resident in 1986 and has resided continuously in
this country since his initial entry. His mother and brother are naturalized citizens;
his father is a lawful permanent resident.
While still a juvenile, defendant was arrested on several occasions and
eventually became a ward of the court in February 1995, having been found to be
a minor in possession of live ammunition, a misdemeanor. (Pen. Code, § 12101,
subd. (b).)1 The juvenile court placed him on probation on certain conditions,
including a specific prohibition against possessing weapons or ammunition.
Defendant turned 18 years old in December of that year.
In April 1996, while still on juvenile probation, defendant and two
juveniles burglarized a tool shed behind a residence in Pacific Grove, Monterey
County, stealing three firearms. When police searched a storage shed to which
defendant had access, they found the three stolen guns, some ammunition, and a
ski mask. Police also found a fourth gun, a .38-caliber revolver with matching
ammunition and an attached laser sight that had been stolen in a burglary in the
City of Marina in 1995. Defendant was convicted of first degree burglary (§ 459),
but imposition of sentence was suspended and he was sentenced to five years’

1
All further statutory references are to the Penal Code unless otherwise
noted.
2


probation on the condition he serve 180 days in jail. He was, however, granted an
early release, with 117 days suspended, so that he could begin his freshman year at
the University of California, Santa Barbara (UCSB).
Later that same year (1996), defendant was arrested and convicted of
misdemeanor petty theft and second degree burglary for stealing four CD-ROM
games, batteries, and cables from the UCSB bookstore. (§§ 484, subd. (a), 459,
460, subd. (b), 461, subd. 2.) The total value of the stolen merchandise was about
$184. He was sentenced to three years’ probation on the condition he serve 30
days in jail, which was suspended until the end of the school year.
In February 1997, defendant’s parents gave him some money to buy
groceries before returning to college. He went to a Costco store in Monterey
County with two younger friends, one a juvenile. They proceeded to shoplift three
prepaid telephone cards and a video game. They acted in concert, two of them
using their bodies to shield the third from other customers while packages were
opened. The trio then purchased other items and attempted to leave the store.
Their activities had been observed by security personnel, however, and security
guards detained them. Costco recovered the stolen merchandise, which was
valued in the aggregate at less than $100.
As a result of this last incident, the People charged defendant with felony
burglary for the Costco crimes (§ 459), a strike (§ 1170.12, subd. (c)(1)) for the
tool shed burglary, a misdemeanor petty theft with a prior (§§ 666/484), and
misdemeanor contributing to the delinquency of a minor (§ 272). Defendant
negotiated a plea bargain in which he would plead guilty to felony petty theft with
a prior theft-related conviction and admit the strike allegation. In exchange, the
prosecution agreed to dismiss the charges of felony burglary and misdemeanor
contributing to the delinquency of a minor. Significantly, in connection with this
plea, defendant personally executed a written waiver of rights and placed his
3
initials next to several statements, including this one: “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.”
The trial court accepted the plea and noted in the record that it would
reserve jurisdiction to strike the prior serious felony allegation at the time of
sentencing. At sentencing in October 1997, the trial court struck the strike
allegation and sentenced defendant to the upper term of three years for felony
petty theft with a prior and to the lower term of two years, to be served
concurrently, for violating his probation in the Monterey County tool shed
burglary case.
B. Subsequent Federal Proceedings and Defendant’s Responses
Defendant’s 1997 plea to felony petty theft with a prior theft-related
conviction plunged him into a labyrinth of legal problems. On December 16,
1998, the Immigration and Naturalization Service (INS)2 initiated proceedings for
defendant’s mandatory deportation based on his status as an alien who has been
convicted of an “aggravated felony,”3 which for deportation purposes is defined as

2
Like the Court of Appeal below and the parties, we will continue to refer to
the federal authorities as the “INS,” although that agency has since been
reorganized into the Department of Homeland Security. Deportations are now
prosecuted by United States Immigration and Customs Enforcement. (See U.S. v.
Garcia-Beltran
(9th Cir. 2006) 443 F.3d 1126, 1129, fn. 2 [“The INS is now
known as Immigration and Customs Enforcement (ICE)”].)
3
Title 8 United States Code section 1227(a)(2)(A)(iii) provides: “Any alien
who is convicted of an aggravated felony at any time after admission is
deportable.” The parties refer to deportation based on a conviction of an
aggravated felony as “mandatory” removal, presumably because such aliens are
subject to mandatory detention by the INS (id., § 1226(c)(1)(B)) and are ineligible
for discretionary cancellation of removal (id., § 1229b(a)(3)).
4


“a theft offense . . . or burglary offense for which the term of imprisonment [is] at
least one year.” (8 U.S.C. § 1101(a)(43)(G).) A few months later, on February 1,
1999, defendant completed his three-year term (reduced by applicable credits) and
was released on parole. He was detained by the INS the next day (Kim v. Ziglar
(9th Cir. 2002) 276 F.3d 523, 526) and held in federal custody without bond. He
was eventually released from INS custody on August 20, 1999.
Defendant successfully completed his three-year parole on February 1,
2002. On August 16 of that year, the INS filed an amended charging document,
alleging that in addition to mandatory removal, defendant was also subject to
discretionary removal due to his having been convicted of two crimes involving
moral turpitude: the tool shed burglary and the Costco felony petty theft with a
prior. (8 U.S.C. § 1227(a)(2)(A)(ii).)4
Defendant then began filing collateral challenges to his various state
convictions in an attempt to eliminate them as the basis for deportation. In 2003,
he filed a nonstatutory motion to vacate his three-year sentence (but not the actual
convictions) for the Costco petty theft with a prior and the concurrent two-year
sentence for the tool shed burglary. Although both sentences had been served, he
claimed that when he entered his plea, he did not know the sentences would
subject him to mandatory deportation by the INS. When the trial court asked the
prosecutor whether he opposed the motion, the prosecutor replied: “No. I just

4
Title 8 United States Code section 1227(a)(2)(A)(ii) provides: “Any alien
who at any time after admission is convicted of two or more crimes involving
moral turpitude
, not arising out of a single scheme of criminal misconduct,
regardless of whether confined therefor and regardless of whether the convictions
were in a single trial, is deportable.” (Italics added.) We assume the parties refer
to this as “discretionary” removal because aliens in violation of this provision are
not subject to mandatory preremoval detention and may seek discretionary
cancellation of removal. (8 U.S.C. § 1229b(a).)
5


want to say we’re not opposing it. That’s as far into it as I want to get.” The trial
court granted the motion, vacated the sentences, and resentenced defendant to
serve a one-day probation on the condition he serve 364 days in jail, with credit
for time served.5 The result of this resentencing was that defendant served no
additional time in prison (having already served a full three-year sentence), but his
official sentence for the Costco crimes was now modified to be one day short of a
year, thereby avoiding having either crime characterized as an aggravated felony
for immigration purposes.6
As a result of this retroactive resentencing, the INS amended its charging
document, dismissing the allegation of mandatory removal based on the
aggravated felony conviction (8 U.S.C. § 1227(a)(2)(A)(iii)) and clarifying that it
was proceeding only on the basis of discretionary removal as a result of
defendant’s two convictions involving moral turpitude (8 U.S.C.
§ 1227(a)(2)(A)(ii)). The elimination of the allegation based on an aggravated
felony conviction opened another avenue of possible relief for defendant in that he
became eligible to move for cancellation of removal.7 He so moved, and on

5
As the People did not seek appellate review of the court’s order, that matter
is now final and its merits are not before us.
6
In re Song (2001) 23 I. & N. Dec. 173, 174 (resentencing to less than one
year removes a crime from the category of aggravated felony); see 6 Gordon et al.,
Immigration Law and Procedure (rev. ed. 2007) Deportation, section 71.05[2][b],
pages 71-160 to 71-160.1 and footnote 435 (rel. 115 12/06).
7
Title 8 United States Code section 1229b(a) provides: “The Attorney
General may cancel removal in the case of an alien who is inadmissible or
deportable from the United States if the alien— [¶] (1) has been an alien lawfully
admitted for permanent residence for not less than 5 years, [¶] (2) has resided in
the United States continuously for 7 years after having been admitted in any status,
and [¶] (3) has not been convicted of any aggravated felony.” (Italics added.)
6


June 27, 2003, a federal immigration judge granted his motion, thereby permitting
him to remain in the country. On the INS’s appeal to the Board of Immigration
Appeals (BIA), however, the BIA reversed, concluding it was “unconvinced that
[defendant’s] long residence in the United States, his family ties and his
rehabilitation outweigh his substantial criminal history and recidivism.”
Consequently, the BIA ordered defendant “removed from the United States to
South Korea.”
Despite this setback, defendant continued his efforts to avoid deportation.
First, he filed a petition for a writ of habeas corpus in federal district court. That
matter has since been removed to the Ninth Circuit Court of Appeals under the
REAL ID Act of 2005.8 Second, he began proceedings to vacate his remaining
state court convictions. On October 19, 2004, the Santa Barbara County Superior
Court granted his motion to vacate his misdemeanor convictions for petty theft and
second degree burglary stemming from his thefts at the UCSB campus bookstore.
The same court later dismissed both charges. Having ameliorated the effect of his

8
On May 11, 2005, “President Bush signed into law the REAL ID Act of
2005 (‘RIDA’), Pub.L. No. 109-13, Div. B, 119 Stat. 231, codified as amended at
8 U.S.C. § 1252. Section 106(a) of RIDA eliminated habeas corpus as an avenue
of review for aliens seeking to challenge a final order of removal, making petitions
for review in the courts of appeals the ‘sole and exclusive means for judicial
review’ of a removal order. See § 1252(a)(5). At the same time, Congress
restored jurisdiction to the courts of appeals over petitions for review brought by
criminal aliens, creating a unitary path of review for criminal and non-criminal
aliens alike. See § 1252(a)(2)(D) (permitting review of ‘constitutional claims or
questions of law’ raised by any alien in a petition for review); see also Puri v.
Gonzales
, 464 F.3d 1038, 1041-42 (9th Cir. 2006) (describing how RIDA created
jurisdiction over criminal aliens’ petitions for review). Importantly, however,
Congress did not modify the requirement that petitions for review must be filed
within 30 days of the issuance of a final order of removal by the BIA. See
§ 1252(b)(1).” (Singh v. Mukasey (9th Cir. 2008) 533 F.3d 1103, 1105.)
7


convictions for petty theft with a prior (the Costco crimes) and burglary (the tool
shed crime) by having his aggregate sentence reduced to less than one year, and
having obtained dismissal of his Santa Barbara misdemeanor theft-related
convictions, all that remained for defendant to do was to obtain dismissal of his
Costco conviction for petty theft with a prior, which would leave him with only a
single conviction for a crime of moral turpitude (the tool shed burglary) and thus
ineligible for removal from the country (because 8 U.S.C. § 1227(a)(2)(A)(ii)
requires convictions of “two or more crimes involving moral turpitude”). That
brings us to the present proceeding.
C. The Proceedings Below
On July 8, 2005, defendant filed two motions in Monterey County Superior
Court. The first, termed a “MOTION TO VACATE JUDGMENT (CORAM NOBIS),”
sought to vacate his 1997 guilty plea to felony petty theft with a prior theft-related
conviction (the Costco crimes) on the ground that the judgment was “based on a
mistake of fact, in that no one knew: [¶] (a) South Korea was incarcerating
Jehovah’s Witnesses (like Mr. Kim) for three years in prison for refusing on
religious grounds to serve in the military, and that Mr. Kim would face that fate if
deported as a result of this plea; [¶] (b) the problem that the plea of guilty would
cause defendant’s deportation, even without a sentence of one year in custody; or
[¶] (c) the solution that an equivalent plea to burglary under Penal Code section
459, if properly framed, would not cause this result, and if these facts had been
known to court and counsel, the plea would not have been entered. . . . [¶] The
plea was therefore not knowing, intelligent, free or voluntary, and was void ab
initio in violation of the Fifth, Sixth, and Fourteenth Amendments to the United
States Constitution and parallel provisions of the California Constitution.”
(Original italics and underscoring.)
8
The second motion, termed a “NON-STATUTORY MOTION AND MOTION
TO VACATE JUDGMENT,” sought to vacate the same 1997 guilty plea on different
grounds. This motion alleged defendant’s state and federal constitutional rights
were violated because his trial counsel “rendered ineffective assistance of counsel
for his failure adequately to investigate the immigration consequences of the
conviction” and also “for his failure to defend Mr. Kim against a plea that would
result in mandatory deportation or to make any effort to get an equivalent
nondeportable conviction.”
In support of these motions, defendant’s then trial attorney, Thomas
Worthington, provided a declaration stating that at the time of defendant’s pleas,
counsel “was unaware . . . that a conviction of petty theft with a prior conviction
would be considered a ‘crime of moral turpitude’ by the immigration authorities,
and trigger deportation for Mr. Kim, exposing him to arrest by the immigration
authorities, requiring him to post a bond and hire immigration counsel, and
resulting in his mandatory deportation if he was unsuccessful in obtaining a waiver
of deportation. Therefore, I did not advise Mr. Kim of the actual adverse
immigration consequences of this plea. [¶] . . . If I had been aware that an
alternative plea to burglary, in the language of the statute, entry with intent to
commit ‘theft or any felony,’ would have avoided deportation on account of a
crime of moral turpitude conviction, I believe there is a reasonable probability the
prosecution and [trial] court would have been willing to agree to this plea.”
In a joint opposition to both motions, the prosecution argued it would have
been improper to change the wording of the plea in order to thwart the
immigration consequences flowing from the plea, that no mistake of fact supports
issuance of a writ of error coram nobis, that evidence of defendant’s religious
beliefs is not relevant, that a correction nunc pro tunc is inappropriate because
defendant does not seek to correct a clerical error, that no court authority exists to
9
grant a nonstatutory motion to vacate and to withdraw the plea, that defense
counsel was not ineffective, and that the trial court should not attempt to nullify
the order of another court (i.e., the BIA). In support, the prosecutor in defendant’s
petty theft case, Charles Olvis, provided a declaration stating: “I would not have
agreed to allow the defendant to plead to a charge to assist the defendant in
thwarting actual or potential immigration consequences. I specifically would not
have agreed to a plea to a felony violation . . . with the altered language to reflect
‘any felony.’ I believe that a criminal conviction should appropriately reflect the
criminal conduct engaged in by the defendant.”
After a hearing, the trial court granted both motions. Regarding the
nonstatutory motion to vacate, the court explained: “[T]he Court does find that —
and based in no small part on Mr. Worthington’s own declaration in that regard —
that given the facts presented in this case, the fact that the defendant is a Korean,
that was known at the time. It was clear that there was some belief that there was
— there were ties to Korea and even some possibility of him leaving the country
for Korea, that immigration should have probably been an issue. [¶] As to the
prejudice, based on my 30-plus years of experience in this business, I believe it’s
not only reasonably possible but frankly highly likely that had Mr. Worthington
realized what the situation was, he would have been able to find a way to avoid the
immigration consequences of . . . the defendant’s conduct. I base that in part on
actually Judge Curtis’s remarks at the time of sentencing . . . wherein he actually
demonstrates some sympathy for and some optimism for the defendant’s future in
striking the strike. . . . [¶] So the Court does find that there is prejudice, given the
facts and circumstances of this particular case, and that it’s likely Mr. Worthington
would have had an opportunity to prevail on either or probably both the
[prosecutor] and Judge Curtis in part in arriving at a disposition that . . . would not
have incurred the consequences that Mr. Kim faces at this time.” The trial court
10
granted the petition for a writ of error coram nobis as well, explaining: “I don’t
know if it’s necessary for the Court to even rule on that at this point, but for the
sake of the record, the Court — I must say I’m a lot less sanguine about the
distinctions between a mistake of fact and mistake of law and how you categorize
those. But so the record is clear, the Court grants that motion as well on the
grounds that there was a mistake in fact which materially affected the result.”
The Court of Appeal reversed, and we granted review.
II. DISCUSSION
A. The Writ of Error Coram Nobis
1. Background
The writ of error coram nobis is a nonstatutory, common law remedy
whose origins trace back to an era in England in which appeals and new trial
motions were unknown.9 “Far from being of constitutional origin, the ‘proceeding
designated “coram nobis” . . .’ . . . was contrived by the courts at an early epoch in
the growth of common law procedure to provide a corrective remedy ‘because of
the absence at that time of the right to move for a new trial and the right of appeal
from the judgment.’ ” (People v. Sica (1953) 116 Cal.App.2d 59, 62.) The
grounds on which a litigant may obtain relief via a writ of error coram nobis are
narrower than on habeas corpus (In re Lindley (1947) 29 Cal.2d 709, 724-725); the
writ’s purpose “is to secure relief, where no other remedy exists, from a judgment
rendered while there existed some fact which would have prevented its rendition if

9
Although the writ technically is available in civil as well as criminal cases
(see generally 6 Witkin & Epstein, Cal. Criminal Law (3d ed. 2000) Criminal
Judgment, § 182, p. 211), “[i]n California, the writ has been used almost
exclusively to attack judgments in criminal cases” (id., § 183, p. 212). We address
in this case the availability of the writ in criminal cases only.
11


the trial court had known it and which, through no negligence or fault of the
defendant, was not then known to the court” (People v. Adamson (1949) 34 Cal.2d
320, 326-327).
We described the writ of error coram nobis in People v. Reid (1924) 195
Cal. 249:10 “The principal office of the writ of error coram nobis was to enable
the same court which had rendered the judgment to reconsider it in a case in which
the record still remained before that court. The conventional language of this writ
in the King’s Bench makes reference to the record ‘which remains before us [the
king], quae coram nobis resident.’ In the Common Pleas the form of the writ was
[‘]coram vobis,’ ‘before you’ (the judges). The most comprehensive statement of
the office and function of this writ which has come to our notice is the following
. . . : ‘The office of the writ of coram nobis is to bring the attention of the court to,
and obtain relief from, errors of fact, such as the death of either party pending the
suit and before judgment therein; or infancy, where the party was not properly
represented by guardian, or coverture, where the common-law disability still
exists, or insanity, it seems, at the time of the trial; or a valid defense existing in
the facts of the case, but which, without negligence on the part of the defendant,
was not made, either through duress or fraud or excusable mistake; these facts not
appearing on the face of the record, and being such as, if known in season, would
have prevented the rendition and entry of the judgment questioned.’ ” (Id. at
pp. 254-255.)
We long ago emphasized the limited nature of this legal remedy. Quoting
from an old treatise, we opined the writ of error coram nobis “ ‘does not lie to

10
Reid was overruled on other grounds in People v. Hutchinson (1969) 71
Cal.2d 342, 347-348.
12


correct any error in the judgment of the court nor to contradict or put in issue any
fact directly passed upon and affirmed by the judgment itself. If this could be,
there would be no end of litigation. . . . The writ of error coram nobis is not
intended to authorize any court to review and revise its opinions; but only to
enable it to recall some adjudication made while some fact existed which, if before
the court, would have prevented the rendition of the judgment; and which without
fault or negligence of the party, was not presented to the court.’ ” (People v.
Mooney (1918) 178 Cal. 525, 528.) As one Court of Appeal described it: “It is
not a writ whereby convicts may attack or relitigate just any judgment on a
criminal charge merely because the unfortunate person may become displeased
with his confinement or with any other result of the judgment under attack.”
(People v. Hayman (1956) 145 Cal.App.2d 620, 623.)
With the advent of statutory new trial motions, the availability of direct
appeal, and the expansion of the scope of the writ of habeas corpus, writs of error
coram nobis had, by the 1930’s, become a remedy “practically obsolete . . . except
in the most rare of instances” (People v. Lumbley (1937) 8 Cal.2d 752, 755) and
applicable to only a “very limited class of cases” (People v. Sandoval (1927) 200
Cal. 730, 737). (See Prickett, The Writ of Error Coram Nobis in California (1990)
30 Santa Clara L.Rev. 1, 14-24; 6 Witkin & Epstein, Cal. Criminal Law, supra,
Criminal Judgment, § 182, p. 211 [“the statutory motion for new trial has, for most
purposes, superseded the common law remedy; and, until recent years, coram
nobis was virtually obsolete in California”].)
The seminal case setting forth the modern requirements for obtaining a writ
of error coram nobis is People v. Shipman (1965) 62 Cal.2d 226. There we stated:
“The writ of [error] coram nobis is granted only when three requirements are met.
(1) Petitioner must ‘show that some fact existed which, without any fault or
negligence on his part, was not presented to the court at the trial on the merits, and
13
which if presented would have prevented the rendition of the judgment.’
[Citations.] (2) Petitioner must also show that the ‘newly discovered evidence . . .
[does not go] to the merits of issues tried; issues of fact, once adjudicated, even
though incorrectly, cannot be reopened except on motion for new trial.’
[Citations.] This second requirement applies even though the evidence in question
is not discovered until after the time for moving for a new trial has elapsed or the
motion has been denied. [Citations.] (3) Petitioner ‘must show that the facts upon
which he relies were not known to him and could not in the exercise of due
diligence have been discovered by him at any time substantially earlier than the
time of his motion for the writ. . . .’ ” (Id. at p. 230.) These factors set forth in
Shipman continue to outline the modern limits of the writ. (People v. McElwee
(2005) 128 Cal.App.4th 1348, 1352.)
Several aspects of the test set forth in Shipman illustrate the narrowness of
the remedy. Because the writ of error coram nobis applies where a fact unknown
to the parties and the court existed at the time of judgment that, if known, would
have prevented rendition of the judgment, “[t]he remedy does not lie to enable the
court to correct errors of law.” (People v. Banks (1959) 53 Cal.2d 370, 378; see
People v. McElwee, supra, 128 Cal.App.4th at p. 1352 [defendant’s belief he
would serve only 15 years in prison “was not a mistake of fact but one of law”].)
Moreover, the allegedly new fact must have been unknown and must have been in
existence at the time of the judgment. (People v. Shipman, supra, 62 Cal.2d at
p. 230.)
For a newly discovered fact to qualify as the basis for the writ of error
coram nobis, we look to the fact itself and not its legal effect. “It has often been
held that the motion or writ is not available where a defendant voluntarily and with
knowledge of the facts pleaded guilty or admitted alleged prior convictions
14
because of ignorance or mistake as to the legal effect of those facts.” (People v.
Banks, supra, 53 Cal.2d at p. 378.)
Finally, the writ of error coram nobis is unavailable when a litigant has
some other remedy at law. “A writ of [error] coram nobis is not available where
the defendant had a remedy by (a) appeal or (b) motion for a new trial and failed
to avail himself of such remedies.” (People v. Blalock (1960) 53 Cal.2d 798, 801;
see People v. Howard (1965) 62 Cal.2d 237, 238 [claims could have been raised
on direct appeal]; People v. Adamson, supra, 34 Cal.2d at p. 327 [claims should
have been raised in a petition for a writ of habeas corpus].) “The writ of error
coram nobis is not a catch-all by which those convicted may litigate and relitigate
the propriety of their convictions ad infinitum. In the vast majority of cases a trial
followed by a motion for a new trial and an appeal affords adequate protection to
those accused of crime. The writ of error coram nobis serves a limited and useful
purpose. It will be used to correct errors of fact which could not be corrected in
any other manner. But it is well-settled law in this and in other states that where
other and adequate remedies exist the writ is not available.” (People v. Martinez
(1948) 88 Cal.App.2d 767, 774.)
A quick perusal of the types of situations in which the writ of error coram
nobis has issued illustrates these limitations. Thus, the writ has issued in these
circumstances: “Where the defendant was insane at the time of trial and this fact
was unknown to court and counsel [citations].[11] Where defendant was an infant

11
In People v. Shipman, supra, 62 Cal.2d 226, we held that the defendant’s
allegations that he “was insane at the time of the offense, but did not present this
defense because he was also insane at the time of the plea” (id. at p. 229), “if true,
would meet the requirements for a writ of [error] coram nobis. His legal sanity at
the time of the crime is a material question that was neither put in issue nor tried.”

(footnote continued on next page)
15


and appeared by attorney without the appointment of a guardian or guardian ad
litem [citations]. Where the defendant was a feme covert and her husband was not
joined [citation]. Where the defendant was a slave and was tried and sentenced as
a free man [citation]. Where the defendant was dead at the time judgment was
rendered [citations]. Where default was entered against a defendant who had not
been served with summons and who had no notice of the proceeding [citations].
Where counsel inadvertently entered an unauthorized appearance in behalf of a
defendant who had not been served with process [citation]. Where a plea of guilty
was procured by extrinsic fraud [citation]. Where a plea of guilty was extorted
through fear of mob violence [citations]. Where defendants and their counsel
were induced by false representations to remain away from the trial under
circumstances amounting to extrinsic fraud [citation]. Where by the failure of the
clerk to properly file an answer the party was deprived of his defense [citation].”
(People v. Reid, supra, 195 Cal. at pp. 258-259.) More recently, a lower federal
court granted coram nobis relief where, many years after the fact, a Japanese-
American plaintiff convicted of a misdemeanor for failing to report to a civilian
control center in preparation for internment during World War II proved the
federal government had intentionally suppressed favorable evidence showing the
absence of any military necessity for removing those of Japanese ancestry from
the West Coast. (Hirabayashi v. United States (W.D.Wn. 1986) 627 F.Supp.
1445, affd. in part & revd. in part (9th Cir. 1987) 828 F.2d 592.)
By contrast, the writ of error coram nobis was found unavailable in the
following situations: where trial counsel “improperly induced” the defendant to

(footnote continued from previous page)
(Id. at p. 233; cf. People v. Welch (1964) 61 Cal.2d 786 [same, with regard to a
petition for a writ of error coram vobis].)
16


plead guilty to render him eligible for diversion and the trial court eventually
denied diversion (In re Nunez (1965) 62 Cal.2d 234, 236); where the defendant
pleaded guilty to having a prior felony conviction when he was eligible to have the
prior reduced to a misdemeanor (People v. Banks, supra, 53 Cal.2d at p. 379
[mistake of law]); where the defendant discovered new facts that would have
bolstered the defense already presented at trial (People v. Tuthill (1948) 32 Cal.2d
819, 827 [concluding that although the new facts “would have been material and
possibly beneficial to the defendant” at trial, they would not have precluded entry
of the judgment]); where the defendant mistakenly believed his plea to second
degree murder meant he would serve no more than 15 years in prison (People v.
McElwee, supra, 128 Cal.App.4th at p. 1352 [this was “not a mistake of fact but
one of law”]); where the defendant claimed neither his attorney nor the court had
advised him before he pleaded that his convictions would render him eligible for
civil commitment under the Sexually Violent Predators Act (SVPA) (People v.
Ibanez (1999) 76 Cal.App.4th 537, 546 [“[d]efendant’s ignorance regarding the
potential for civil commitment under the SVPA is a legal, not a factual,
question”]); and where the defendant challenged “the legality of his arrest, the
identity of the informant, and the failure of the court to make findings on the prior
convictions” (People v. Del Campo (1959) 174 Cal.App.2d 217, 220 [coram nobis
denied on the ground that “[a]ll of these matters could have been raised on
appeal”].)
Likewise any number of constitutional claims cannot be vindicated on
coram nobis. (See, e.g., People v. Howard, supra, 62 Cal.2d at p. 238 [claim of an
unconstitutional sentence and inadequate representation]; People v. Blalock,
supra, 53 Cal.2d at p. 801 [double jeopardy]; People v. Soriano (1987) 194
Cal.App.3d 1470, 1477 [ineffective assistance of counsel]; People v. Parseghian
(1957) 152 Cal.App.2d 1, 3 [improper admission of evidence]; see generally
17
Prickett, The Writ of Error Coram Nobis in California, supra, 30 Santa Clara
L.Rev. at pp. 24-28.)
We now apply these rules to the trial court’s decision to issue a writ of error
coram nobis, mindful that a lower court’s ruling on a petition for the writ is
reviewed under the abuse of discretion standard. (People v. McElwee, supra, 128
Cal.App.4th at p. 1352; People v. Ibanez, supra, 76 Cal.App.4th at p. 544; cf.
People v. Superior Court (Zamudio) (2000) 23 Cal.4th 183, 192 [trial court’s
ruling on the defendant’s motion to vacate his conviction under § 1016.5 reviewed
for abuse of discretion].)
2. Application to This Case
a. Procedural bars to relief
Defendant contends he is eligible for a writ of error coram nobis as a result
of two distinct mistakes of fact that, he claims, undermine the validity of his guilty
plea to felony petty theft with a prior theft-related conviction. First, he claims he
“was not aware, prior to entering his plea, of the fact that his plea to a petty theft
with a prior would qualify as a ‘crime of moral turpitude’ and subject him to
deportation to South Korea.” Second, he contends he did not know at the time of
his plea that “if deported, he would almost certainly face religious persecution,
including beatings and imprisonment by the authorities because of his religious
objections to serving in the South Korean army.” In his nonstatutory motion to
vacate his plea, he also contends he is entitled to relief because Worthington, his
trial counsel, was constitutionally ineffective in failing to adequately investigate
the true immigration consequences of defendant’s plea, and in failing to arrange
for defendant to plead to a nondeportable offense.
As a nonstatutory motion to vacate has long been held to be the legal
equivalent of a petition for a writ of error coram nobis (People v. Shipman, supra,
18
62 Cal.2d at p. 229, fn. 2; People v. Adamson, supra, 34 Cal.2d at p. 325), we
consider these claims together.
Before we turn to the merits of these claims, however, we find defendant’s
entitlement to the writ fails at the threshold for three distinct procedural reasons.
First, he has not satisfied the requirement that he show due diligence when seeking
such extraordinary relief. “It is well settled that a showing of diligence is
prerequisite to the availability of relief by motion for coram nobis” (People v.
Shorts (1948) 32 Cal.2d 502, 512; see People v. Carty (2003) 110 Cal.App.4th
1518, 1528), and the burden falls to defendant “to explain and justify the delay”
(People v. Castaneda (1995) 37 Cal.App.4th 1612, 1618). “[W]here a defendant
seeks to vacate a solemn judgment of conviction . . . the showing of diligence
essential to the granting of relief by way of coram nobis should be no less than the
similar showing required in civil cases where relief is sought against lately
discovered fraud. In such cases it is necessary to aver not only the probative facts
upon which the basic claim rests, but also the time and circumstances under which
the facts were discovered, in order that the court can determine as a matter of law
whether the litigant proceeded with due diligence; a mere allegation of the
ultimate facts, or of the legal conclusion of diligence, is insufficient.” (Shorts, at
p. 513, italics added; see also People v. Shipman, supra, 62 Cal.2d at p. 230
[defendant “ ‘must show that the facts upon which he relies were not known to
him and could not in the exercise of due diligence have been discovered by him at
any time substantially earlier than the time of his motion for the writ’ ”].)
This diligence requirement is analogous to that which we apply to petitions
for writs of habeas corpus, where we require a petitioner to set forth with
specificity when the “petitioner or his or her counsel knew, or reasonably should
have known, of the information offered in support of the claim and the legal basis
for the claim.” (In re Robbins (1998) 18 Cal.4th 770, 780.) Indeed, we previously
19
have recognized that petitions for writs of habeas corpus and error coram nobis are
essentially identical in this regard. (In re Clark (1993) 5 Cal.4th 750, 779 [“a
habeas corpus petitioner, like a petitioner who mounts a collateral attack by
petition for writ of [error] coram nobis,” must allege facts showing due
diligence].)
The diligence requirement is not some abstract technical obstacle placed
randomly before litigants seeking relief, but instead reflects the balance between
the state’s interest in the finality of decided cases and its interest in providing a
reasonable avenue of relief for those whose rights have allegedly been violated.
“[I]t is the trial that is the main arena for determining the guilt or innocence of an
accused defendant . . . . At trial, a defendant is afforded counsel and a panoply of
procedural protections, including state-funded investigation expenses, in order to
ensure that the trial proceedings provide a fair and full opportunity to assess the
truth of the charges against the defendant and the appropriate punishment.
Further, . . . [i]t is the appeal that provides the basic and primary means for raising
challenges to the fairness of the trial.” (In re Robbins, supra, 18 Cal.4th at p. 777.)
Thus, although coram nobis exists as a possible remedy in cases where this system
breaks down, the availability of that extraordinary remedy, like habeas corpus,
“properly must be tempered by the necessity of giving due consideration to the
interest of the public in the orderly and reasonably prompt implementation of its
laws and to the important public interest in the finality of judgments.” (Id. at
p. 778.) Nor is the diligence requirement for coram nobis unique, for in addition
to habeas corpus petitions, we require diligence for other types of collateral attacks
on the validity of a plea. (See, e.g., People v. Superior Court (Zamudio), supra,
23 Cal.4th at pp. 203-207 [diligence requirement for a motion to vacate a plea
under § 1016.5]; People v. Walker (1991) 54 Cal.3d 1013, 1023 [defendant’s
20
complaint that he was not advised of the collateral consequences of his plea
requires a timely objection].)
In this case, defendant — who presumably knew he was not a citizen —
entered his plea in April 1997 and initialed the statement stating he understood his
plea “could result in deportation, exclusion from admission to this country, and/or
denial of naturalization.” The INS first moved to deport him in December 1998,
filing a notice to appear. Upon his parole from state prison in February 1999, he
was immediately detained by federal immigration authorities. Although he was
involved in the state and federal judicial systems and was represented by counsel
throughout this time, he did not file his petition for a writ of error coram nobis or
move to vacate his plea until July 2005, almost seven years after the INS first
attempted to deport him. (See People v. Trantow (1986) 178 Cal.App.3d 842, 847
[filing a petition for a writ of error coram nobis eight years after filing a habeas
corpus petition and 14 years after conviction constitutes inexcusable delay].)
Further undermining his claims, defendant fails to allege with specificity
when he learned the facts forming the basis of his petition. He declared in an
affidavit accompanying his petition that (1) he is concerned he would be forced to
serve in the South Korean military if deported; (2) that he may be punished for
refusing on religious grounds; (3) that he was not aware at the time he entered his
plea that he was admitting a deportable offense; and (4) that had he known he had
the option of pleading to a different, nondeportable offense, “I would have worked
with my attorney to bring it to the attention of the court in negotiating an
equivalent plea and sentence that [would have] avoided my deportation.” But
nowhere does he allege when he learned these facts.
Counsel himself declared that at the time of the plea he was “unaware” the
plea would render defendant deportable, although he does not speak to whether he
failed to investigate. He further declares that had he been aware an alternative
21
plea to burglary in the language of the statute would have avoided deportation, “I
believe there is a reasonable probability the prosecution and court would have
been willing to agree to this plea.” Although counsel mentions he subsequently
became aware of the immigration consequences defendant faces, he does not
declare when he learned of these facts.
In sum, with regard to the allegedly new facts on which defendant relies for
his petition for the writ of error coram nobis, he fails to allege with specificity “the
time and circumstances under which the facts were discovered” so as to permit
this court to “determine as a matter of law whether [defendant] proceeded with
due diligence.” (People v. Shorts, supra, 32 Cal.2d at p. 513.)
Defendant’s claim fails for a second procedural reason: he failed to avail
himself of other remedies when he had the chance. “The maxim, ‘for every wrong
there is a remedy’ (Civ. Code, sec. 3523) is not to be regarded as affording a
second remedy to a party who has lost the remedy provided by law through failing
to invoke it in time—even though such failure accrued without fault or negligence
on his part.” (People v. Reid, supra, 195 Cal. at p. 260; see also Mendez v.
Superior Court (2001) 87 Cal.App.4th 791, 798 [quoting Reid with approval].)12

12
The federal courts apparently follow a different rule. (United States v.
Morgan (1954) 346 U.S. 502, 510-511 [rejecting the claim that a prisoner should
be prohibited from proceeding on coram nobis because he could previously have
filed a petition for a writ of habeas corpus in federal court]; U.S. v. Kwan (9th Cir.
2005) 407 F.3d 1005, 1012 [availability of other remedies is not a bar to coram
nobis
so long as petitioner shows he had a valid reason for the delay].) But these
decisions are linked to the purpose of the federal habeas corpus statute (28 U.S.C.
§ 2255; see Morgan, at pp. 510-511 [discussing the purpose of § 2255]) and do not
address our state writ practice or the purpose of our state procedural bar, which
has been a part of the law of coram nobis since at least 1924. (People v. Reid,
supra, 195 Cal. at p. 260.) Accordingly, we do not find these federal authorities
persuasive.
22


This procedural requirement is analogous to the general rule applicable to writs of
habeas corpus “that habeas corpus cannot serve as a substitute for an appeal, and,
in the absence of special circumstances constituting an excuse for failure to
employ that remedy, the writ will not lie where the claimed errors could have
been, but were not, raised upon a timely appeal from a judgment of conviction.”
(In re Dixon (1953) 41 Cal.2d 756, 759.) In the instant case, defendant could have
petitioned for a writ of habeas corpus while he was still in actual or constructive
state custody, that is, in prison or on parole.
Defendant argues that neither of these procedural bars (delay and other
remedies) precludes his entitlement to relief, but his arguments are unpersuasive.
The INS first moved to deport defendant by filing a notice to appear in December
1998 while he was still in prison and thus in actual custody. At this time
defendant could have sought to vacate his plea or otherwise invalidate his
conviction by way of a petition for a writ of habeas corpus. Although defendant
asserts the basis of the 1998 notice to appear was merely the length of his sentence
and not his plea, so that he could not have sought to vacate the plea, he is
mistaken. The 1998 INS filing against him was based on his status as an
“aggravated felon,” i.e., that he was an “alien who is convicted of an aggravated
felony at any time after admission.” (8 U.S.C. § 1227(a)(2)(A)(iii).) Thus, the
1998 notice to appear informed him he was deportable because (1) he had been
convicted (2) of a theft offense for which the term of imprisonment was at least
one year, i.e., an aggravated felony. (8 U.S.C. § 1101(a)(43)(G).) That
defendant’s conviction was achieved by a guilty plea rather than a jury trial is
irrelevant; the critical fact was his conviction of the type of offense authorizing
deportation. Thus, it cannot be said he was not fairly on notice in 1998 that the
INS intended to deport him based on his conviction for the Costco crimes.
(Compare People v. Gontiz (1997) 58 Cal.App.4th 1309, 1312-1313 & fn. 2
23
[defendant placed on notice of adverse immigration consequences when, four
years after his plea, the INS brought permanent deportation charges against him]13
with People v. Totari (2003) 111 Cal.App.4th 1202, 1209 [defendant had no notice
INS would deport him based on his criminal convictions when the initial
deportation proceedings were based on his alleged violation of his student visa,
not his convictions].) Although he asserts “[h]e was never sleeping on his rights,”
his assertion is belied by the record, for nearly seven years passed after the INS’s
first action against him — based on his conviction for an aggravated felony —
before he filed his petition for a writ of error coram nobis in the trial court and
sought to vacate his plea in the Costco crimes.
Defendant next claims he was not placed on notice he could actually be
deported until 2004, when the BIA reversed the immigration judge’s grant of his
motion for cancellation of removal. (8 U.S.C. § 1229b(a).) Although the BIA’s
action made his removal more likely, to conclude this ruling constituted the very
first time defendant learned he could actually be deported is unreasonable. The
INS’s December 1998 notice to appear notified defendant not merely of the
potential adverse immigration consequences of his guilty plea to felony petty theft
with a prior, but of the actual consequences. (Cf. People v. Superior Court
(Zamudio), supra, 23 Cal.4th at p. 204 [addressing § 1016.5].)
Even were we to assume defendant first learned the facts underlying his
coram nobis petition sometime around 2003 (when he first began challenging his
state convictions), the petition is procedurally defective for a third reason:
defendant has engaged in the piecemeal presentation of claims. Defendant

13
Gontiz was disapproved on another ground in People v. Superior Court
(Zamudio), supra, 23 Cal.4th at page 200, footnote 8.
24


maintains he has at all times taken a “[]holistic” view of his immigration
predicament, following a strategy that prioritized his legal challenges to attack first
the most serious of the various bases for his removal from the country, and that he
should not be penalized for “proceed[ing] in a logical progression to deal with the
worst threat first.” However prudent or efficacious defendant and his legal
representatives may have believed this strategy to be, a litigant seeking
extraordinary relief from a final judgment is not entitled to bring his legal claims
to court seriatim. The analogy to habeas corpus is again apt; for relief on habeas
corpus, it has long been the rule that “piecemeal presentation of known claims” is
prohibited. (In re Clark, supra, 5 Cal.4th at p. 777; see also In re Horowitz (1949)
33 Cal.2d 534, 547 [a habeas corpus petitioner “ ‘cannot be allowed to present his
reasons against the validity of the judgment against him piecemeal by successive
proceedings for the same general purpose’ ”]; In re Connor (1940) 16 Cal.2d 701,
705 [“a defendant is not permitted to try out his contentions piecemeal by
successive proceedings attacking the validity of the judgment against him”].) As
with petitions for writs of habeas corpus, one seeking relief via coram nobis may
not attack a final judgment in piecemeal fashion, in proceedings filed seriatim, in
the hopes of finally convincing a court to issue the writ. Although defendant
contends he has not violated this rule, his 2005 motion in the trial court to vacate
his guilty plea (and hence his conviction) for the Costco crimes frankly concedes
the motion was based “on the same grounds that all parties acknowledged in
2003” in support of his successful motion for resentencing in the same case. If
defendant knew of these grounds in 2003, he was not entitled to reraise them in
2005.
Defendant claims the People’s failure, in 2003, to contest his request for
resentencing to an aggregate 364 days for the Costco crimes and the tool shed
burglary necessarily conceded for all purposes that he has proceeded with
25
diligence. But the prosecutor’s equivocal statements at that 2003 hearing (“No.
I just want to say we’re not opposing it. That’s as far into it as I want to get”)
cannot fairly be read as a concession that defendant’s subsequent petition for a
writ of error coram nobis, filed two years later, was timely. Nor, as defendant
claims, did the People forfeit the timeliness objection by failing to raise the issue
below. As the party moving the court to issue the writ, defendant, not the People,
had the burden of producing evidence. (People v. Totari, supra, 111 Cal.App.4th
at p. 1206.) Moreover, in opposing both the habeas corpus and the coram nobis
writ petitions below, the People specifically argued that defendant “has failed to
prove diligence.”
In sum, defendant’s petition for a writ of error coram nobis is procedurally
defective. The petition was not diligently filed, defendant failed to avail himself
of the adequate legal remedy of habeas corpus, and the petition is successive and
improperly raises claims piecemeal.
b. The merits of the claim
Even were we to overlook the procedural flaws in defendant’s application
for a writ of error coram nobis, we would conclude he has not demonstrated that
facts existed at the time of his plea that satisfy the strict requirements for this
extraordinary type of collateral relief from a final judgment. Specifically, he has
not shown “ ‘that some fact existed which, without any fault or negligence on his
part, was not presented to the court at the trial on the merits, and which if
presented would have prevented the rendition of the judgment.’ ” (People v.
Shipman, supra, 62 Cal.2d at p. 230.)
As noted, defendant asserts as allegedly new facts that (1) he would be
deported because his 1997 plea to petty theft with a prior theft-related conviction
was his second conviction of a crime of moral turpitude “even without a sentence
26
of one year in custody” (underscoring omitted); (2) if deported, he would be
obligated to serve in the South Korean military and, on refusing such service on
religious grounds, he would be imprisoned there; (3) his trial attorney was
constitutionally ineffective for failing to investigate the immigration consequences
of the plea; and (4) his attorney was ineffective for failing to negotiate an
alternative plea to a nondeportable offense.
None of these alleged new facts supports issuance of a writ of error coram
nobis. To qualify for issuance of the writ, the alleged facts must be such that “ ‘if
presented would have prevented the rendition of the judgment.’ ” (People v.
Shipman, supra, 62 Cal.2d at p. 230.) As noted, ante, facts that have justified
issuance of the writ in the past have included a litigant’s insanity or minority, that
the litigant had never been properly served, and that a defendant’s plea was
procured through extrinsic fraud or mob violence. (People v. Reid, supra, 195
Cal. at pp. 258-259.) Defendant’s alleged new facts, in contrast, speak merely to
the legal effect of his guilty plea and thus are not grounds for relief on coram
nobis. (People v. Banks, supra, 53 Cal.2d at p. 378 [coram nobis is unavailable
where a defendant, “with knowledge of the facts,” pleads guilty “because of
ignorance or mistake as to the legal effect of those facts”]; see also People v.
McElwee, supra, 128 Cal.App.4th at p. 1352 [defendant’s belief, at the time of his
plea, that he would only serve 15 years in prison “was not a mistake of fact but
one of law”]; People v. Ibanez, supra, 76 Cal.App.4th at p. 546 [“[d]efendant’s
ignorance regarding the potential for civil commitment under the SVPA [as a
result of his plea] is a legal, not a factual, question”].)14

14
Defendant was in fact warned about the possibility of deportation prior to
entering his plea, and knowledge that the INS would actually seek to remove him
from the country as a result of his conviction is not a “new” fact for purposes of

(footnote continued on next page)
27


Defendant’s allegations that he would not have pleaded guilty had he been
armed with these additional facts, or that counsel would have been successful in
arranging a plea to a nondeportable offense had these facts been known,
fundamentally misapprehends the pertinent inquiry. To qualify as the basis for
relief on coram nobis, newly discovered facts must establish a basic flaw that
would have prevented rendition of the judgment. (People v. Shipman, supra, 62
Cal.2d at p. 230; see People v. Trantow, supra, 178 Cal.App.3d at p. 845
[defendant’s ignorance that her alien status might result in deportation would not
have “prevented” the judgment].) Such facts often go to the legal competence of
witnesses or litigants, or the jurisdiction of the court. New facts that would merely
have affected the willingness of a litigant to enter a plea, or would have
encouraged or convinced him or her to make different strategic choices or seek a
different disposition, are not facts that would have prevented rendition of the
judgment.
In arguing to the contrary, defendant relies heavily on People v.
Wiedersperg (1975) 44 Cal.App.3d 550, but that decision cannot bear the weight
of his argument. In that case, an Austrian national was charged with having
committed a minor drug offense. He submitted the case on the preliminary
hearing transcript, was convicted, and served his probation. Later, he successfully
convinced the trial court to expunge the conviction. He was thereafter deported
but filed a petition for a writ of error coram nobis seeking to vacate his conviction
on the ground that at the time of his plea no one knew he was an alien. The trial

(footnote continued from previous page)
coram nobis review. The INS’s decision to deport him speaks only to the relative
risk of deportation, not the fact of deportation itself. (Cf. People v. Castaneda,
supra, 37 Cal.App.4th at p. 1619 [addressing § 1016.5].)
28


court denied the coram nobis petition on the ground the court lacked jurisdiction
because the conviction had already been expunged. (Id. at p. 553.) The appellate
court disagreed on the jurisdictional point and remanded, opining that the trial
court, “in its discretion and if the proof is sufficient, could grant the relief sought.”
(Id. at p. 555.)
In so holding, the Wiedersperg court suggested that the defendant’s
allegations described errors of fact, not of law. (People v. Wiedersperg, supra, 44
Cal.App.3d at pp. 554-555; accord, In re Azurin (2001) 87 Cal.App.4th 20, 27,
fn. 7 [stating the denial of habeas corpus relief to an out-of-custody defendant was
without prejudice to “filing a petition for error coram nobis in the superior court,”
citing Wiedersperg].) Defendant asserts: “Wiedersperg remains a principled and
analytically sound example of when coram nobis relief is warranted.”
We disagree. The Wiedersperg court never explains why it considered
allegations of alienage an error of fact and not of law, nor why such an allegedly
unknown fact would have prevented rendition of the judgment. (People v.
Shipman, supra, 62 Cal.2d at p. 230.) Later courts have found the opinion
unpersuasive. As the Court of Appeal explained in People v. Soriano, supra, 194
Cal.App.3d at page 1475, the decision of the Wiedersperg court “was an extremely
limited one. It found only that the trial court to whom the writ was directed had
erred in finding it had no jurisdiction to consider the petition, and that [the
petitioner] had stated facts which, if they could be proven, would permit issuance
of the writ in the discretion of the trial court.” (See also People v. Ibanez, supra,
76 Cal.App.4th at p. 547 [making the same point].) In any event, as the Soriano
court observed, because the trial court in Wiedersperg did not advise the defendant
on the record of the possible immigration consequences of his plea, Wiedersperg
has effectively been superseded by the enactment of section 1016.5, which created
a statutory basis for a motion to vacate and to withdraw a guilty plea entered under
29
such circumstances.15 Because a statutory remedy is now available for the
situation posed in Wiedersperg, coram nobis cannot lie. (Mendez v. Superior
Court, supra, 87 Cal.App.4th at p. 798.)
Finally, with regard to defendant’s claims that his counsel was
constitutionally ineffective for failing to investigate and for failing to negotiate a
different plea, we conclude neither allegation states a case for relief on coram
nobis. 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
has long been the rule. (People v. Soriano, supra, 194 Cal.App.3d at p. 1477; In
re Nunez, supra, 62 Cal.2d at p. 236; People v. Buggs (1969) 272 Cal.App.2d 285,
289.) Although an attorney has a constitutional duty at least not to affirmatively
misadvise his or her client as to the immigration consequences of a plea (In re
Resendiz (2001) 25 Cal.4th 230, 235, 240 (plur. opn. of Werdegar, J.); id. at p. 255
(conc. & dis. opn. of Mosk, J.)), any violation in this regard should be raised in a
motion for a new trial or in a petition for a writ of habeas corpus. (See, e.g.,
People v. Bautista (2004) 115 Cal.App.4th 229 [issuing order to show cause on
habeas corpus].) Nor does defendant in any event assert he was misadvised.

15
Subdivision (b) of section 1016.5 provides in pertinent part: “If, after
January 1, 1978, the court fails to advise the defendant as required by this section
and the defendant shows that conviction of the offense to which defendant pleaded
guilty or nolo contendere may have the consequences for the defendant of
deportation, exclusion from admission to the United States, or denial of
naturalization pursuant to the laws of the United States, the court, on defendant’s
motion, shall vacate the judgment and permit the defendant to withdraw the plea
of guilty or nolo contendere, and enter a plea of not guilty. Absent a record that
the court provided the advisement required by this section, the defendant shall be
presumed not to have received the required advisement.”
30


3. Proposed Expansion of Coram Nobis
Perhaps recognizing that his case falls outside the traditionally narrow
limits of the writ of error coram nobis as that remedy has been defined in
California, defendant joined by amici curiae contends we should modify our
coram nobis procedure to make it consistent with what he terms the “vast majority
of all U.S. jurisdictions.” He characterizes coram nobis jurisprudence in this state
as “incoherent” and a “deformed and hobbled creature,” and insists some form of
postconviction remedy is necessary to ameliorate the harshness of the situation in
which fundamental constitutional violations have occurred but will go unremedied
because the offender is now out of custody and unable to seek relief on habeas
corpus.16

16
Defendant and amici curiae place much reliance on United States v.
Morgan, supra, 346 U.S. 502, contending it represents the modern trend of
broadening the scope of coram nobis. The petitioner in Morgan was no longer in
custody on a prior conviction, but sought relief on coram nobis (claiming he had
been denied counsel) when that prior conviction was alleged as the basis of a
sentence enhancement in a prosecution for a new New York State offense. The
high court held coram nobis was an available remedy under the “all writs” section
of the Judiciary Act of 1789 (28 U.S.C. § 1651), explaining the constitutional right
of which the petitioner allegedly was deprived was fundamental in nature.
“Although the term has been served, the results of the conviction may persist.
Subsequent convictions may carry heavier penalties [and] civil rights may be
affected.” (Morgan, at pp. 512-513.)

The continuing efficacy of Morgan’s holding is in doubt, however, for
more recently the high court has reiterated the limited nature of the writ of error
coram nobis. “[I]t was traditionally available only to bring before the court factual
errors ‘material to the validity and regularity of the legal proceeding itself,’ such
as the defendant’s being under age or having died before the verdict.” (Carlisle v.
United States
(1996) 517 U.S. 416, 429.) Moreover, although the petitioner in
Carlisle, as in Morgan, argued the writ of error coram nobis was available under
title 28 United States Code section 1651, the high court explained that with the
advent of the modern Federal Rules of Criminal Procedure, “ ‘it is difficult to
conceive of a situation in a federal criminal case today where [a writ of error
coram nobis] would be necessary or appropriate’ ” (Carlisle, at p. 429).
31


That other jurisdictions (see, e.g., Skok v. State (2000) 361 Md. 52 [760
A.2d 647]; U.S. v. Kwan, supra, 407 F.3d 1005) may have broadened the grounds
for coram nobis so that it resembles a generalized postconviction remedy available
to persons no longer in custody may be true, but for several reasons we are
unconvinced a similar change is appropriate in this state. First, the weight of
authority in this state holds that the writ of error coram nobis “ ‘is not broad
enough to reach every case in which there has been an erroneous or unjust
judgment on the sole ground that no other remedy exists, but it must be confined
to cases in which the supposed error inheres in facts not actually in issue under the
pleadings at the trial and were unknown to the court when the judgment was
entered, but which, if known, would have prevented the judgment.’ ” (In re
Lindley, supra, 29 Cal.2d at pp. 725-726; see also People v. Hayman, supra, 145
Cal.App.2d at p. 623 [coram nobis is a limited remedy]; People v. Martinez,
supra, 88 Cal.App.2d at p. 774 [same].)
Second, criminal defendants have ample opportunities to challenge the
correctness of the judgments against them. They are of course provided attorneys
to defend them and are guaranteed the right to a jury trial. Following a plea or
conviction, a defendant can move to withdraw a plea,17 or can appeal a judgment
of conviction and then if necessary seek discretionary review in this court. Having
exhausted those avenues of potential relief, the defendant during the time of actual
or constructive custody can file a petition for a writ of habeas corpus in an

17
Section 1018 provides in pertinent part: “On application of the defendant at
any time before judgment or within six months after an order granting probation is
made if entry of judgment is suspended, the court may, and in case of a defendant
who appeared without counsel at the time of the plea the court shall, for a good
cause shown, permit the plea of guilty to be withdrawn and a plea of not guilty
substituted.”
32


appropriate court.18 Following completion of probation, an offender may in some
circumstances petition the trial court to withdraw a guilty plea and enter a not
guilty plea or set aside a verdict of guilty and have the matter dismissed.
(§ 1203.4.) One convicted of a crime can also seek a pardon from the Governor.
(Mendez v. Superior Court, supra, 87 Cal.App.4th at p. 803.) In short, criminal
defendants do not lack reasonable opportunities to vindicate their constitutional
rights or otherwise correct legal errors infecting their judgments.
Third, when these established remedies have proved inadequate, the
Legislature has enacted statutory remedies to fill the void. For example, a
criminal defendant, even if no longer in custody, can now move to withdraw a
guilty plea if the trial court accepting the plea failed to admonish the accused of
the immigration consequences of the plea. (§ 1016.5.) Similarly, defendants
convicted in part by the false testimony of government agents may, even if no
longer in custody, move to vacate the judgment. (§ 1473.6; see People v.
Germany (2005) 133 Cal.App.4th 784, 791 [statute responded to a scandal in Los
Angeles County in which police officers falsified reports, planted evidence, and

18
The People argue that by enacting statutes implementing the habeas corpus
remedy, the Legislature has occupied the field, thereby undermining this court’s
ability to expand the coram nobis remedy. In support, they request that we take
judicial notice of the legislative history of section 1473, which sets forth a
nonexclusive list of grounds for authorizing issuance of a writ of habeas corpus.
The People also argue that expanding the coram nobis remedy as defendant
requests would “open the floodgates” because over 19,000 inmates (about 11
percent) were subject to an INS hold. In support, the People request that we take
judicial notice of certain statistics compiled by the Data Analysis Unit of the
California Department of Corrections and Rehabilitation. Because it is
unnecessary to address these arguments, the requested legislative and agency
materials are superfluous. Accordingly, we deny the requests for judicial notice.
(County of San Diego v. State of California (2008) 164 Cal.App.4th 580, 613,
fn. 29.)
33


committed perjury].) And because certain misdemeanor convictions related to
domestic violence might affect one’s right to own or carry a firearm under federal
law, the Legislature, in enacting section 12021, subdivision (c)(2), has created a
statutory remedy to permit peace officers to expunge such convictions and avoid
the federal firearm ban.19
As the foregoing examples indicate, the Legislature has been active in
providing statutory remedies when the existing remedies such as habeas corpus
have proven ineffective. Section 1016.5 especially shows the Legislature’s
concern that those who plead guilty or no contest to criminal charges are aware of
the immigration consequences of their pleas. Because the Legislature remains free
to enact further statutory remedies for those in defendant’s position, we are
disinclined to reinterpret the historic writ of error coram nobis to provide the
remedy he seeks. Indeed, by specifying in which court a person should file a
petition for a writ of error coram nobis (§ 1265), the Legislature has impliedly
recognized the existence of the common law writ and can modify it should it so
desire.

19
We take judicial notice, as requested by amici curiae California Rifle and
Pistol Association and the Law Enforcement Alliance of America, of an
information bulletin by the California Attorney General informing state criminal
justice agencies that the federal Bureau of Alcohol, Tobacco, Firearms and
Explosives does not recognize an expungement under Penal Code section 12021,
subdivision (c) and continues to prohibit persons with qualifying convictions from
owning or possessing firearms. (Evid. Code, § 452, subd. (c) [official acts of the
executive branch are subject to judicial notice].) We also take judicial notice, as
amici curiae request, of a petition for a writ of error coram nobis in a Los Angeles
County Superior Court action in which a police officer seeks to restore his right to
own and possess firearms by vacating his plea in 1993 to misdemeanor spousal
abuse, a violation of Penal Code section 273.5. (Evid. Code, § 452, subd. (d)
[court records are subject to judicial notice].)
34


Finally, expanding coram nobis to create a generalized common law
postconviction, postcustody remedy would accord insufficient deference to a final
judgment. We have addressed the importance of finality for the analogous remedy
of habeas corpus, explaining: “Generally, of course, habeas corpus claims must
surmount the presumption of correctness we accord criminal judgments rendered
after procedurally fair trials. ‘ “For purposes of collateral attack, all presumptions
favor the truth, accuracy, and fairness of the conviction and sentence; defendant
thus must undertake the burden of overturning them. Society’s interest in the
finality of criminal proceedings so demands, and due process is not thereby
offended.” ’ ” (In re Lawley (2008) 42 Cal.4th 1231, 1240.) Moreover, we reject
defendant’s argument that the interest in the finality of judgments predominates
only if the judgment is just and error free. “ ‘Endless litigation, in which nothing
was ever finally determined, would be worse than occasional miscarriages of
justice.’ ” (Cedars-Sinai Medical Center v. Superior Court (1998) 18 Cal.4th 1,
11 [declining, in a civil case, to create a new tort for spoliation of evidence despite
evidence of fraud and destruction of evidence].)
For the above stated reasons, we decline defendant’s invitation to expand
the historic boundaries of the writ of error coram nobis. In light of this
conclusion, we express no opinion as to whether the trial court possessed the
inherent power to do so.20

20
We also reject defendant’s contention that in light of the Legislature’s
enactment of section 1016.5, which necessarily reflects that body’s assessment of
the need for a remedy when pleading defendants are unaware of the immigration
consequences of their pleas, we should expand the scope of that statutory motion
to vacate to provide some form of relief for defendant here. We note the trial
court properly admonished defendant regarding the possible immigration
consequences of his plea, and his further claim that his trial attorney was somehow
ineffective is not a wrong encompassed by the statute. (See People v. Chien

(footnote continued on next page)
35


B. Availability of Habeas Corpus Relief
Finally, defendant argues he is entitled to relief via a writ of habeas corpus.
Although he did not file a petition for a writ of habeas corpus in the trial court, he
contends he should be excused from doing so because not until People v. Villa,
supra, __ Cal.4th ___, was filed in the Court of Appeal did case law authorize a
habeas corpus petition by a person in out-of-state custody. But the petitioner in
Villa alleged he was currently in ICE custody, whereas defendant here is
apparently free on bail from ICE custody. Even were we to assume such bail
status could constitute a form of constructive custody for habeas corpus purposes,
as explained in Villa and contrary to the Court of Appeal, persons like defendant,
who have completely served their sentence and also completed their probation or
parole period, may not challenge their underlying conviction in a petition for a
writ of habeas corpus because they are in neither actual nor constructive custody
for state habeas corpus purposes. Accordingly, we reject this claim as well.
III. CONCLUSION
The United States Congress has plenary power over matters of immigration
and naturalization (U.S. Const., art. I, § 8, cl. 4), including deportation, and
judicial power regarding immigration and naturalization is extremely limited
(Fiallo v. Bell (1977) 430 U.S. 787, 792). “In the exercise of its broad power over
naturalization and immigration, Congress regularly makes rules that would be
unacceptable if applied to citizens.” (Mathews v. Diaz (1976) 426 U.S. 67, 79-80.)
Because of federal immigration laws concerning the commission of certain types
of crimes by resident aliens, defendant is facing the possibly permanent separation

(footnote continued from previous page)
(2008) 159 Cal.App.4th 1283 [ineffectiveness of counsel claim is not cognizable
in a motion to vacate under § 1016.5].)
36


from his family, his friends, and the only home he has ever known. But despite
this harsh consequence flowing from his 1997 conviction for petty theft with a
prior theft-related conviction (following his conviction for the tool shed burglary
in 1996), we conclude that at this late date, he is procedurally barred from
obtaining relief by way of coram nobis because his presentation of claims is
untimely, he had other legal remedies, and he presented his legal claims
piecemeal. We also conclude that defendant has not stated a case for relief on the
merits because he alleges no mistake of fact which, had it been known at the time
of his plea, would have prevented rendition of the judgment. Accordingly, the
trial court abused its discretion in granting relief. Because the Court of Appeal
below correctly reversed the trial court’s decision to issue a writ of error coram
nobis, we affirm the judgment.
WERDEGAR, J.
WE CONCUR:
GEORGE, C. J.
KENNARD, J.
BAXTER, J.
CHIN, J.
MORENO, J.
CORRIGAN, J.


37
See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion People v. Kim
__________________________________________________________________________________

Unpublished Opinion


Original Appeal
Original Proceeding
Review Granted
XXX 150 Cal.App.4th 1158
Rehearing Granted

__________________________________________________________________________________

Opinion No.

S153183
Date Filed: March 16, 2009
__________________________________________________________________________________

Court:

Superior
County: Monterey
Judge: Terrance R. Duncan

__________________________________________________________________________________

Attorneys for Appellant:

Bill Lockyer and Edmund G. Brown, Jr., Attorney General, Robert R. Anderson, Mary Jo Graves and Dane
R. Gillette, Chief Assistant Attorneys General, Gerald A. Engler, Assistant Attorney General, Eric D.
Share, Laurence K. Sullivan and Amy Haddix, Deputy Attorneys General, for Plaintiff and Appellant.
__________________________________________________________________________________

Attorneys for Respondent:

Law Offices of Norton Tooby, Norton Tooby; Law Offices of A.J. Kutchins, AJ Kutchins; Law Offices of
Joel Franklin and Joel Franklin for Defendant and Respondent.

Ralph S. Greer as Amicus Curiae on behalf of Defendant and Respondent.

Immigrant Crime and Justice and Karl W. Krooth for National Immigration Project of National Lawyers
Guild as Amicus Curiae on behalf of Defendant and Respondent.

Linda Starr, Paige Kaneb; and Michael Willemsen for Northern California Innocence Project as Amicus
Curiae on behalf of Defendant and Respondent.

Law Offices of Michael K. Mehr, Michael K. Mehr and Rachael Keast for Immigrant Legal Resources
Center, San Francisco Public Defender, UC Davis Immigration Law Clinic, San Francisco Public
Defender’s Office, South Asian Network and Asian Law Caucus as Amici Curiae on behalf of Defendant
and Respondent.

Denise M. Gragg, Assistant Public Defender (Orange), for California Attorneys for Criminal Justice as
Amicus Curiae on behalf of Defendant and Respondent.

Trutanich • Michel, C. D. Michel, Brigid Joyce, Joseph A. Silvoso and Erin Eckelman for California Rifle
& Pistol Association, Inc., and Law Enforcement Alliance of America, Inc., as Amici Curiae on behalf of
Defendant and Respondent.


Counsel who argued in Supreme Court (not intended for publication with opinion):

Amy Haddix
Deputy Attorney General
455 Golden Gate Avenue, Suite 11000
San Francisco, CA 94102-7004
(415) 703-5893

Norton Tooby
Law Offices of Norton Tooby
6333 Telegraph Avenue, Suite 200
Oakland, CA 94609
9510) 601-1300


Document Outline

  • ��
    • ��
    • ��
    • ��
  • ��
    • ��
      • ��
      • ��
        • ��
        • ��
      • ��
  • ��

Petition for review after the Court of Appeal reversed orders in a criminal proceeding. This case includes the following issues: (1) Is a person who petitions for a writ of habeas corpus "restrained of his liberty" within the meaning of Penal Code section 1473, subdivision (a), when he is in the custody of federal immigration officials solely because of a California conviction on which the sentence has fully expired? (2) Is the writ of error coram nobis available to challenge a California conviction on which the sentence has fully expired if the conviction is presently the basis of federal immigration proceedings and the petitioner alleges that trial counsel failed to properly advise him as to the immigration consequences of the conviction and that he did not in fact know what those consequences would be? (3) Did the trial court have the power to grant petitioner's non-statutory motion to vacate judgment for ineffective assistance of counsel in failing to properly advise him of the

Opinion Information
Date:Citation:Docket Number:Category:Status:Cross Referenced Cases:
Mon, 03/16/200945 Cal. 4th 1078, 202 P.3d 436, 90 Cal. Rptr. 3d 355S153183Review - Criminal Appealclosed; remittitur issued

People v. Villa, 45 Cal.4th 1063 (2009).
People v. Mooney, 178 Cal. 525 (1918).
People v. Shipman, 62 Cal.2d 226 (1965).


Parties
1Kim, Hyung Joon (Defendant and Respondent)
Represented by Norton Tooby
Attorney at Law
6333 Telegraph Avenue, Suite 200
Oakland, CA

2Kim, Hyung Joon (Defendant and Respondent)
Represented by Joel Franklin
Attorney at Law
2100 Garden Road, Suite G
Monterey, CA

3Kim, Hyung Joon (Defendant and Respondent)
Represented by Albert J. Kutchins
Attorney at Law
6333 Telegraph Avenue, Suite 200
Berkeley, CA

4The People (Plaintiff and Appellant)
Represented by Amy Haddix
Office of the Attorney General
455 Golden Gate Avenue, Suite 11000
San Francisco, CA

5California Rifle & Pistol Association (Amicus curiae)
Represented by C. D. Michel
Trutanich-Michel, LLP
180 E. Ocean Boulevard, Suite 200
Long Beach, CA

6Law Enforcement Alliance Of America, Inc. (Amicus curiae)
Represented by C. D. Michel
Trutanich-Michel, LLP
180 E. Ocean Boulevard, Suite 200
Long Beach, CA

7National Immigration Project Of The National Lawyers Guild (Amicus curiae)
Represented by Karl William Krooth
Immigrant Crime & Justice, P.C.
550 Montgomery Street, Suite 550
San Francisco, CA

8Greer, Ralph S. (Amicus curiae)
Represented by Ralph S. Greer
Attorney at Law
2493 E. Colorado Boulevard
Pasadena, CA

9Immigrant Legal Resource Center (Amicus curiae)
Represented by Michael K. Mehr
Law Offices of Michael K. Mehr
100 Doyle Street, Suite A
Santa Cruz, CA

10Immigrant Legal Resource Center (Amicus curiae)
Represented by Rachael Elise Keast
Law Offices of Michael K. Mehr
100 Doyle Street, Suite A
Santa Cruz, CA

11Asian Law Caucus (Amicus curiae)
Represented by Michael K. Mehr
Law Offices of Michael K. Mehr
100 Doyle Street, Suite A
Santa Cruz, CA

12Defending Immigrants Partnership (Amicus curiae)
Represented by Michael K. Mehr
Law Offices of Michael K. Mehr
100 Doyle Street, Suite A
Santa Cruz, CA

13Immigration Law Clinic Of The School Of Law At U C Davis (Amicus curiae)
Represented by Michael K. Mehr
Law Offices of Michael K. Mehr
100 Doyle Street, Suite A
Santa Cruz, CA

14California Attorneys For Criminal Justice (Amicus curiae)
Represented by Denise M. Gragg
Orange County Public Defender's Office
14 Civic Center Plaza
Santa Ana, CA

15Northern California Innocence Project (Amicus curiae)
Represented by Linda Starr
Northern California Innocence Project
500 El Camino Real
Santa Clara, CA

16Northern California Innocence Project (Amicus curiae)
Represented by Paige Gustin Kaneb
Northern California Innocence Project
500 El Camino Real
Santa Clara, CA

17Northern California Innocence Project (Amicus curiae)
Represented by Michael A. Willemsen
Attorney at Law
991 Elsinore Drive
Palo Alto, CA

18Immigrant Rights Organizations (Amicus curiae)
Represented by Michael K. Mehr
Law Offices of Michael K. Mehr
100 Doyle Street, Suite A
Santa Cruz, CA

19Immigrant Rights Organizations (Amicus curiae)
Represented by Rachael Elise Keast
Law Offices of Michael K. Mehr
100 Doyle Street, Suite A
Santa Cruz, CA


Opinion Authors
OpinionJustice Kathryn M. Werdegar

Disposition
Mar 16 2009Opinion: Affirmed

Dockets
Jun 5 2007Received premature petition for review
  Hyung Joon Kim, respondent Norton Tooby, Counsel
Jun 5 2007Record requested
  via telephone
Jun 6 2007Received Court of Appeal record
  file jacket/briefs/transcripts
Jun 15 2007Request for depublication (petition for review pending)
  Law Enforcement Alliance of America, (non party) by counsel, C. D. Michel.
Jun 18 2007Case start: Petition for review filed
 
Jul 25 2007Petition for review granted (criminal case)
  Werdegar, J., was absent and did not participate. Votes: George, C.J., Kennard, Baxter, Chin, Moreno, and Corrigan, JJ.
Aug 20 2007Request for extension of time filed
  to and including November 26, 2007 to file Respondent Kim's Opening Brief on the Merits.
Aug 22 2007Extension of time granted
  On application of Respondent Kim and good cause appearing, it is ordered that the time to serve and file the Respondent's Opening Brief on the Merits is extended to and including November 26, 2007. No further extensions of time will be granted.
Nov 27 2007Received:
  Oversized Opening Brief on the Merits / CRC 8.25(b) Hyung Joon Kim, Respondent by Norton Tooby, counsel
Nov 27 2007Application to file over-length brief filed
  Hyung Joon Kim, Respondent by Norton Tooby, counsel
Nov 28 2007Opening brief on the merits filed
  With permission
Dec 21 2007Request for extension of time filed
  to and including January 28, 2008
Jan 2 2008Extension of time granted
  On application of respondent and good cause appearing, it is ordered that the time to serve and file Respondent's Answer Brief on the Merits is extended to and including January 28, 2008.
Jan 23 2008Request for extension of time filed
  to and including February 27, 2008 to file Appellant's Answer Brief on the Merits.
Jan 24 2008Extension of time granted
  On application of Respondent Kim and good cause appearing, it is ordered that the time to serve and file the Anwer Brief on the Merits is extended to and including February 27, 2008.
Jan 31 2008Order filed
  The order filed January 24, 2008 is hereby amended to read as follows: "On application of Appellant and good cause appearing, it is ordered that the time to serve and file the Answer Brief on the Merits is extended to and including February 27, 2008."
Feb 27 2008Application to file over-length brief filed
  Oversized (23,192 words) Appellant's Answer Brief on the Merits, in excess of the 14,000 word limit (CRC 8.520(c)(1)
Mar 3 2008Order filed
  The application of appellant (The People) for permission to file the answer brief on the merits containing 23,192 words that exceeds the 14,000 word limit prescribed by California Rules of Court rule 8.520(c) by 9, 192 words is hereby granted.
Mar 3 2008Answer brief on the merits filed
  The People, plaintiff and appellant by Amy Haddix, Deputy Attorney General
Mar 3 2008Request for judicial notice filed (granted case)
  The People, plaintiff and appellant by Amy Haddix, Deputy Attorney General
Mar 14 2008Request for extension of time filed
  to and including April 22, 2008, to file Respondent Kim's Reply Brief on the Merits by Norton Tooby, retained counsel
Mar 14 2008Request for extension of time filed
  to and including April 22, 2008, to file Respondent Kim's Objections to Appellant's Request for Judicial Notice by Norton Tooby, retained counsel
Mar 18 2008Extension of time granted
  The application of Respondent Kim and good cause appearing, it is ordered that the time to serve and file the reply brief on the merits is extended to and including April 22, 2008.
Mar 18 2008Extension of time granted
  On application of Respondent Kim and good cause appearing, it is ordered that the time to serve and file the objections to appellant's request for judicial notice is extended to and including April 22, 2008.
Apr 17 2008Request for extension of time filed
  to and including May 7, 2008, to file Respondent Kim's Reply Brief on the Merits by Norton Tooby, retained counsel
Apr 18 2008Extension of time granted
  On application of Respondent Kim and good cause appearing, it is ordered that the time to serve and file Respondent's Reply Brief on the Merits is extended to and including May 7, 2008.
May 9 2008Received:
  Respondent's. Hyung Joon Kim, oversized reply brief on the merits. by Norton Tooby et al., counsel
May 9 2008Application to file over-length brief filed
  Hyung Joon Kim, Respondent by Norton Tooby, counsel
May 14 2008Reply brief filed (case fully briefed)
 
May 14 2008Application to file over-length brief granted
  The application of repondent, Hyung Joon Kim, for permission to file the reply brief on the merits in excess of the word limitation is hereby granted.
Jun 4 2008Request for extension of time to file amicus curiae brief
  for a 30-day extension of time to file the Appilcation and Amici Curiae Brief of the California Rifle & Pistol Association, Inc. and the Law Enforcement Alliance of America, Inc. in support of Respondent Kim
Jun 5 2008Received application to file Amicus Curiae Brief
  Ralph S. Greer, Attorney at Law, in support of respondent
Jun 9 2008Request for extension of time to file amicus curiae brief
  for a 30-day extension f time to file the Appilcation and Amicus Curiae Brief of the National Immigration Project of the National Lawyers Guild in support of respondent by Karl W. Krooth, counsel
Jun 11 2008Request for extension of time to file amicus curiae brief
  30 day extension for The California Attorneys for Criminal Justice Attorney Denise M. Gragg
Jun 12 2008Request for extension of time to file amicus curiae brief
  Amici Immigrant Legal Resource Center, Asian Law Caucus, Defending Immigrants Partnership, Immigration Law Clinic of the School of Law at Univversity of California, Davis, South Asian Network, American Civil Liberties Union of Southern California, Northern California, and Imperial and San Diego Counties in support of Respondent Kim by Michael K. Mehr, counsel
Jun 13 2008Request for extension of time to file amicus curiae brief
  to July 13, 2008, to file the amicus curiae brief of Northern California Innocence Project (party supported not mentioned) by Linda Carol Starr, Legal Director for the NCIP
Jun 16 2008Permission to file amicus curiae brief granted
  The application of Ralph S. Greer, Attorney at Law, for permission to file an amicus curiae brief in support of respondent is hereby granted. An answer thereto may be served and filed by any party within twenty days of the filing of the brief.
Jun 16 2008Amicus curiae brief filed
  Ralph S. Greer, Attorney at Law, in support of respondent by Ralph s. Greer, Esq.
Jun 16 2008Extension of time granted
  On application of amicus curiae the California Rifle and Pistol Association, Inc., and the Law Enforcement Alliance of America, Inc., and good cause appearing, it is ordered that the time to serve and file its amicus curiae brief in support of respondent is hereby extended to and including July 13, 2008.
Jun 16 2008Extension of time granted
  On application of amicus curiae the National Immigration Project and the National Lawyers Guild and good cause appearing, it is ordered that the time to serve and file its amicus curiae brief in support of respondent is hereby extended to and including July 13, 2008.
Jun 16 2008Extension of time granted
  On application of amici curiae Immigrant Legal Resource Center, Asian Law Caucus, Defending Immigrants Partnership, Immigration Law Clinic of the School of Law at University of California Davis, South Asian Network, American Civil Liberties Union of Southern California, Northern California, and Imperial and San Diego Counties, and good cause appearing, it is ordered that the time to serve and file its amici curiae brief in support of respondent is hereby extended to and including July 13, 2008.
Jul 7 2008Request for extension of time filed
  15-day extension request of amici Calif. Rifle & Pistol Assoc., & The Law Enforcement Alliance of America, to file amicus brief and application.
Jul 10 2008Extension of time granted
  On application of Amici California Rifle & Pistol Association, Inc. and Law Enforcement Alliance of America, and good cause appearing, it is ordered that the time to serve and file the amici curiae brief is extended to and including July 29 2008.
Jul 14 2008Request for extension of time to file amicus curiae brief
  of the California Attorneys for Criminal Justice to and including July 28, 2008 by Denise M. Gragg, Chair, Amicus Curiae Committee.
Jul 15 2008Change of contact information filed for:
  Karl W. Krooth, Immigrant Crime and Justice, P.C., counsel for amicus National Immigration Project of National Lawyers Guild
Jul 15 2008Received application to file Amicus Curiae Brief
  Northern California Innocence Project in support of Respondent (Kim) by Linda Starr, counsel CRC 8.25(b)
Jul 15 2008Received application to file Amicus Curiae Brief
  National Immigration Project of National Lawyers Guild in support of Respondent Kim by Karl W. Krooth, Immigrant Crime and Justice, P.C., counsel CRC 8.25 (b) Received Notice of Change of Address for counsel, also noted on the amicus application and brief..
Jul 15 2008Extension of time granted
  On application of amicus curiae California Attorneys for Criminal Justice and good cause appearing, it is ordered that the time to serve and file its amicus curiae brief in support of Respondent Kim is hereby extended to and including July 28, 2008. An answer thereto may be served and filed by any party twenty days after the filing of the brief.
Jul 15 2008Received application to file Amicus Curiae Brief
  Amici Curiae Immigrant Rights Organizations (Immigrant Legal Resources Center, UC Davis Immigration Law Clinic, San Francisco Public Defender's Office, South Asian Network, Asian Law Caucus) and the San Francisco Public Defender in support of Respondent Kim by Michael K. Mehr, counsel CRC 8.25(b)
Jul 21 2008Permission to file amicus curiae brief granted
  The application of Northern California Innocence Project for permission to file an amicus curiae brief in support of Respondent Kim is hereby granted. An answer thereto may be served and filed by any party within twenty days of the filing of the brief.
Jul 21 2008Amicus curiae brief filed
  Northern California Innocence Project in support of Respondent Kim by Linda Starr and Michel Willemsen, counsel
Jul 21 2008Permission to file amicus curiae brief granted
  The application of Immigrant Rights Organizations (Immigrant Legal Resources Center, UC Davis Immigration Law Clinic, San Francisco Public Defender's Office, South Asian Network Asian Law Caucus) and the San Francisco Public Defender, for permission to file an amici curiae brief in support of Respondent Kim is hereby granted. An answer thereto may be served and filed by any party within twenty days of the filing of the brief.
Jul 21 2008Amicus curiae brief filed
  Amici Curiae Immigrant Rights Organizations (Immigrant Legal Resources Center, UC Davis Immigration Law Clinic, San Francisco Public Defender's Office, South Asian Network Asian Law Caucus and the San Francisco Public Defender in support of Respondent Kim by Michael K. Mehr, counsel
Jul 21 2008Permission to file amicus curiae brief granted
  The application of National Immigration Project of National Lawyers Guild for permission to file an amicus curiae brief in support of Respondent Kim is hereby granted. An answer thereto may be served and filed by any party within twenty days of the filing of the brief.
Jul 21 2008Amicus curiae brief filed
  National Immigration Project of National Lawyers Guild in support of Respondent Kim by Karl Krooth, Immigrant Crime and Justice, P.C., counsel
Jul 29 2008Amicus curiae brief filed
  California Attorneys for Criminal Justice in support of Respondent Kim by Denise M. Gragg, Amicus Chair, CACJ CRC 8.25(b)
Jul 30 2008Amicus curiae brief filed
  Amici Curiae California Rifle & Pistol Association, Inc. and Law Enforcement Alliance of Ameirca, Inc. in support of Respondent Kim by C.D. Michel, Trutanich Michel LLP, counsel CRC 8.25(b)
Jul 30 2008Request for judicial notice filed (granted case)
  Amici Curiae California Rifle & Pistol Association, Inc. and Law Enforcement Alliance of America, Inc. by C. D. Michel, Trutanich & Michel LLP, counsel
Aug 11 2008Request for extension of time filed
  to and inlcuding September 10, 2008, to file Appellant's (People) Consolidated Answer to Amicus Curiae Briefs in Support of Respondent by Amy Haddix, Deputy Attorney General - S.F.
Aug 13 2008Extension of time granted
  On application of appellant and good cause appearing, it is ordered that the time to serve and file appellant's consolidated answer to the amicus curiae briefs in support of respondent is extended to and including September 10, 2008.
Sep 9 2008Response to amicus curiae brief filed
  (Consolidated answer to amicus curiae briefs )The People, respondent by Amy Haddix, Deputy Attorney General
Dec 10 2008Case ordered on calendar
  to be argued on Wednesday, January 7, 2009, at 1:30 p.m., in San Francisco
Jan 7 2009Cause argued and submitted
 
Mar 13 2009Notice of forthcoming opinion posted
 
Mar 16 2009Opinion filed: Judgment affirmed in full
  The United States Congress has plenary power over matters of immigration and naturalization (U.S. Const. art. I, Section 8, cl. 4), including deportation, and judicial power regarding immigration and naturalization is extremely limited (Fiallo v. Bell (1977) 430 U.S. 787, 792. "In the exercise of its broad power over naturalization and immigration, Congress regularly makes rules that would be unacceptable if applied to citizens." (Mathews v. Diaz (1976) 426 U.S. 67, 79-80.) Because of federal immigration laws concerning the commission of certain types of crimes by resident aliens, defendant is facing the possibly permanent separation from his family, his friends, and the only home he has ever known. But despite this harsh consequence flowing from his 1997 conviction for petty theft with a prior theft-related conviction (following his conviction for the tool shed burglary in 1996), we conclude that at this late date, he is procedurally barred from obtaining relief by way of coram nobis because his presentation of claims is untimely, he had other legal remedies, and he presented his legal claims piecemeal. We also conclude that defendant has not stated a case for relief on the merits because he alleges no mistake of fact which, had it been known at the time of his plea, would have prevented rendition of the judgment. Accordingly, the trial court abused its discretion in granting relief. Because the Court of Appeal below correctly reversed the trial court's decision to issue a writ of error coram nobis, we affirm the judgment. Opinion by Werdegar, J. -- joined by George, C.J., Kennard, Baxter, Chin, Moreno, Corrigan, JJ.
Apr 17 2009Remittitur issued
 
Apr 24 2009Received:
  Acknowledgment of receipt of remittitur from Sixth District Appellate Court.

Briefs
Nov 28 2007Opening brief on the merits filed
 
Mar 3 2008Answer brief on the merits filed
 
May 14 2008Reply brief filed (case fully briefed)
 
Jun 16 2008Amicus curiae brief filed
 
Jul 21 2008Amicus curiae brief filed
 
Jul 21 2008Amicus curiae brief filed
 
Jul 21 2008Amicus curiae brief filed
 
Jul 29 2008Amicus curiae brief filed
 
Jul 30 2008Amicus curiae brief filed
 
Sep 9 2008Response to amicus curiae brief filed
 
Brief Downloads
application/pdf icon
National Immigration Project of the NLG Amicus brief.pdf (1700250 bytes) - National Immigration Project of the National Lawyers' Guild Amicus Brief
application/msword icon
CACJ letter.doc (67072 bytes) - California Attorneys for Criminal Justice Letter
If you'd like to submit a brief document to be included for this opinion, please submit an e-mail to the SCOCAL website
May 27, 2010
Annotated by zpalitz

Facts:
Hyung Joon Kim (Kim) was born in South Korea and entered the United States legally with his parents when he was a young child. He lived in the United States for more than two decades but never became a citizen.

While still a juvenile, Kim was arrested on several occasions. In 1995, the juvenile court placed him on probation on certain conditions, including a specific prohibition against possessing weapons or ammunition. In 1996, Kim (now 18 years old) was arrested and convicted for burglarizing a tool shed and stealing three firearms. Later in 1996, Kim was arrested and convicted for stealing items from the University of California at Santa Barbara bookstore.

In 1997, Kim was caught shoplifting at Costco. He was charged with multiple crimes including felony burglary for the Costco crimes, a strike for the tool shed burglary, and a misdemeanor petty theft. Kim negotiated a plea bargain and was sentenced to three years in prison.

As part of his plea deal, Kim signed the following waiver: “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.” On December 16, 1998, the Immigration and Naturalization Service (INS) initiated deportation proceedings against Kim, based on his status as an alien who has been convicted of an “aggravated felony” (as a result of his plea deal).

Kim claimed that when he entered his plea, he did not know the sentences would make him deportable by INS. Kim began filing collateral challenges to his criminal convictions to eliminate them as the basis for deportation.

After a series of unsuccessful challenges, Kim filed the motions that lead to this case. He filed a “Motion to Vacate Judgment Coram Norbis,” seeking to vacate his 1997 guilty plea on the grounds that 1) he didn’t know that the plea deal would making him deportable; and 2) he didn’t know that South Korea was imprisoning Jehovah’s Witnesses (like himself). He argued that the plea was therefore not knowing, intelligent, free or voluntary. He also argued that he had ineffective assistance of counsel because his attorney did not inform him of the immigration consequences of his criminal conviction.

The trial court granted Kim’s motion. The court based its decision in large part on the testimony of Kim’s lawyer who said that he was not fully aware of the immigration consequences of Kim’s plea bargain – and had he been aware he would have worked to structure a plea that didn’t have the same consequences. The Court of Appeals reversed.

Issue:
Does Kim deserve a writ of error coram nobis to vacate his 1997 guilty plea?

Legal term:
Writ of error coram nobis: English common law remedy designed “to secure relief, where no other remedy exists, from a judgment rendered while there existed some fact which would have prevented [the conviction] if the trial court had known it and which, through no negligence or fault of the defendant, was not then known to the court.”

Holding: The Court found that Kim was ineligible for a writ of error coram nobis.

The Court began by stating that the writ of coram nobis is a very limited remedy. It is only granted when all three of the following conditions are met: (1) Kim must show that some fact existed that, through no fault of his own, was not presented to the court that convicted him, but that would have changed the conviction; (2) the newly discovered evidence does not go to the merits of the issues tried; and (3) he did not know the new facts and could not have discovered them with due diligence at the time.

The Court then gave a few examples of times when it would be appropriate to issue the writ, such as: “[w]here the defendant was insane at the time of trial and this fact was unknown to court and counsel” or “[w]here the defendant was dead at the time judgment was rendered.”

The Court found that Kim failed to meet the very strict criteria for a writ of coram nobis for both procedural and substantive reasons.

Procedural reasons for denying relief:
First, the Court found that Kim failed to show due diligence. The Court noted that Kim knew he was not a citizen when he signed the waiver alerting him to the possibility of deportation. Even after INS moved to deport him, he waited seven years to file the motion for writ of coram nobis.

Second, he did not seek out other remedies when he had the chance. For example, he could have petitioned for a writ of habeas corpus while he was still in prison or on parole.

Third, the Court found that Kim has engaged in the piecemeal presentation of claims – which is problematic when asking for such extraordinary relief.

Substantive reasons for denying relief:
The Court found that Kim had not shown “that some fact existed which, without any fault or negligence on his part, was not presented to the court at the trial on the merits, and which if presented would have prevented the rendition of the judgment.”

The standard for coram nobis isn’t whether Kim would have plead guilty had he been armed with more facts. But rather, “newly discovered facts must establish a basic flaw that would have prevented rendition of the judgment.” There is no evidence that Kim’s sentencing judge would have refused to enter the plea deal, knowing that it might result in deportation.

Finally, the Court found that a claim of ineffective assistance of counsel was an inappropriate ground for coram nobis relief. Kim could have raised this as part of a claim for habeas corpus.

Tags: alternative remedy, deportation, due diligence, guilty plea, Habeas Corpus, immigration consequences of criminal conviction, ineffective assistance of counsel, newly discovered evidence, writ of error coram nobis