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Orange County, Jury Verdict, 1473.7 Motion to Vacate Denied

When our client was growing up in South Korea, life was good until his parents had a second child.  At that point, our client was six years old.  That new child was developmentally disabled and our client’s parents were overwhelmed with the extra childcare duties required with a developmentally disabled child.

The parents made the tough decision to send our client to the United States to live with his aunt in Orange County.  This would allow our client’s parents more ability to provide childcare to their disabled son. 

Our client’s aunt was divorced and had a young boy about our client’s age.  She lived in Irvine in a condominium complex in a good school district.  The idea was to help the client’s cousin get to know Korean and our client would learn English, as well as help the aunt avoid spoiling her son, as an only child often becomes.

The trauma of moving to the United States at such a young age was very rough on our client.  He missed his friends in Korea, as well as his parents.  He did not like his aunt or his cousin.  His aunt, moreover, did not make much money, so our client was often hungry and, by age 13, learned to steal, at first just for food, but then for other purposes, too.

At age 21, in 2002, he was arrested for first-degree residential burglary after being caught stealing from another condominium within the complex where he grew up. 

His parents hired a local Korean attorney who did not have our client’s best interests in mind and obviously regarded the case as just a financial opportunity to set the case for a jury trial without ever even attempting any plea bargain that would avoid the adverse immigration consequences of a conviction for first degree burglary, which is a crime involving moral turpitude (CIMT).

This was quite sad because such a case often can be resolved for second degree burglary, which is not a CIMT.  It seems that the real victim of the theft was our client’s parents, as the attorneys charged an exorbitant fee.

The client, moreover, was a green card holder (permanent resident), so he may have considered the immigration warnings, even if given, as inapplicable to him.  The client may have believed that his right to remain in the United States would not be affected by a conviction for a CIMT even if he were convicted. 

At trial, the client was convicted of first-degree residential burglary and sentenced to five years of formal probation with 364 days in Orange County jail.  He was also ordered to pay restitution of $500 to the victim of the burglary.  Upon completing his one year (182 actual days) in custody, the client was transferred to the custody of Immigration and Customs Enforcement (ICE) and deported back to South Korea.  This was mid-2003.

When the client did not report to the probation office, the probation officer notified the judge supervising our client’s probation.  The judge then issued a bench warrant for our client’s arrest.

For the next 17 years, our client lived in Korea, fulfilling his mandatory military obligation of two years and starting a clothing company, through which he met a model who later became his wife.  She was blond-haired, with blue eyes and a U.S. citizen.

The client’s wife and our client had two children, but the wife and the kids moved back to the United States, leaving our client in Korea.

In mid-2021, the client’s wife reached out to Greg Hill & Associates about filing a motion to vacate the conviction due to a prejudicial error in the conviction, as generally permitted by Penal Code § 1473.7(a)(1).  Greg and the wife discussed the case facts and her husband.  Greg explained that because the conviction arose through a jury trial, the judge considered such a motion may deny the motion because Penal Code § 1473.7(a)(1) only applied to plea bargains, however, other appellate districts in California had ruled that 1473.7(a)(1)’s scope included jury verdicts.

The wife and the client agreed to move forward with the motion, but first, Greg had to appear under 977(b)(2) to recall the warrant, which the judge permitted.  Greg then had the client pay the outstanding restitution, with interest, which made the total owed over $2,000 with ten-percent interest compounding.

Greg then prepared the motion to vacate the client’s conviction, filed it and served it.

However, the judge denied the motion, ruling that the plain text of 1473.7(a)(1) limited its scope to conviction reached by plea bargains, although a pending assembly bill, Assembly Bill (2021) 1259 proposed expanding 1473.7(a)(1) to include convictions reached by jury verdict.  Consequently, the judge denied the motion without prejudice to filing it again, after AB 1259 was passed, it Governor Newsom did sign it.

This summary is presented for the reader to show not every motion to vacate is granted, and, as of late September 2021, the scope of 1473.7(a)(1) was limited to convictions reached by plea bargain only.  However, AB 1259 was anticipated to be signed, meaning our office would file the motion again on our client’s behalf.

Post Script: After the motion was denied and AB 1259 was passed, our office refiled the motion as suggested by the judge.  However, a new judge was assigned to the case and she denied the motion, finding that our client did not suffer prejudice from the conviction.  Greg argued that being deported back to South Korea, where his parents did not welcome him and where he knew no one, was very prejudicial, but the judge disagreed.  Nonetheless, the judge denied the motion without prejudice and we will be refiling the motion to vacate again, particularly because the female judge was transferred to a new courthouse due to numerous complaints by other attorneys and litigants about her demeanor and competency.

For more information about motions to vacate, please click on the following articles:
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