Deportation Risk No Exception to Expungement Requirements
While a juvenile, he was arrested multiple times and was placed on probation before he was eighteen. Within months after turning eighteen, he was convicted of first-degree burglary and placed on probation. Within the next two years, he was convicted two more times for theft-related crimes. One was first degree burglary again and he was again placed on probation.Main Point: Expungement of petty theft conviction a mistake, although defendant consequently faces deportation.
The second of the two offenses, in 1997, was petty theft with a prior. Kim was then sentenced to three years in state prison. It merits mention that with the passage of Proposition 47 in 2014, he would have only faced county jail because the petty theft with a prior charge would have been filed as a misdemeanor.
In 2011, he again attacked his 1997 petty theft conviction, by way of an “invitation” that the court dismiss the judgment of conviction under Penal Code § 1385. It merits mention parenthetically that only prosecutor can move to dismiss a case under section 1385. Thus, a defendant must instead “invite” the judge to exercise his discretion under 1385 to dismiss the case.
Kim’s “invitation” to the court was based on an argument of ineffective assistance of counsel (IAC). Kim argued that his attorney failed to advise him of the immigration consequences of his plea. The trial court granted the motion, most likely under Padilla v. Kentucky (2010) 559 U.S. 356.
The prosecution appealed to the Sixth District Court of Appeal. The prosecution argued that 1385 could not be used to attack a conviction. Penal Code § 1385 can only be used to dismiss a pending case. Kim’s case had proceeded to judgment twelve years earlier. Moreover, once a defendant begins serving a sentence, the court loses jurisdiction over the matter.
The prosecution also argued that Mr. Kim had failed to exercise reasonable diligence in challenging the conviction due to the immigration consequences, because deportation proceedings began in 2002, nine years earlier. Moreover, the challenge was barred because its sole purpose was to avoid deportation. People v. Mendoza (2009) 171 Cal. App. 4th 1142, 1159.
Lastly, even if Penal Code § 1385 were to apply, the dismissal would not serve “the interests of justice “ given Mr. Kim’s lengthy criminal history. Rather, the interests of justice would be to leave the conviction on the record with its attendant consequences.