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Name: People v. Kim
Case #: H037320
Court: CA Court of Appeal
District 6 DCA
Opinion Date: 12/19/2012

Trial court lacked jurisdiction to dismiss defendant’s conviction 14 years after he pled guilty, in order to avoid deportation consequences of plea. Defendant, a South Korean citizen, has been a lawful permanent resident of the U.S. since 1986. As a juvenile he was made a ward after engaging in criminal behavior; as an adult, he suffered several theft-related convictions. In 1997 he pled guilty to petty theft with a prior, for which he served prison time. When immigration authorities commenced deportation proceedings, defendant mounted several collateral challenges to his convictions. In 2005 a trial court vacated the petty theft with a prior conviction, but this was overturned. (People v. Kim (2009) 45 Cal.4th 1078.) In 2011, defendant filed an invitation for the trial court to overturn his conviction based on Penal Code section 1385; this was granted. The prosecution appealed. Held: Reversed. Section 1385 was not intended to facilitate dismissal of an action after imposition of sentence and pronouncement of judgment. Defendant argued there had not yet been a judgment in his case because in 2003 the trial court made a retroactive change in his sentence – it vacated the sentence and ordered defendant to serve one day of probation, with 364 days local time. The prosecution had not objected to or appealed this order. However, the 2003 order was an act in excess of jurisdiction. The prosecution’s failure to appeal the 2003 judgment has no preclusive effect, as that order was void ab initio.