Page 1
Court of Appeal:
Judge-Induced Confusion Requires Invalidating 2013 Plea
Opinion Says Remark Could Have Caused Defendant to Think He Might Be Able to Skirt Deportation
By a MetNews Staff Writer
A citizen of South Korea who was convicted in 2013 of assault with a deadly weapon pursuant to a plea of no contest, and has served his term in prison, will be allowed to withdraw that plea, the Court of Appeal for this district held yesterday, because the judge, though providing the required advisement of the deportation consequence, intimated that ejection from the U.S. would be a possibility.
Authoring the unpublished opinion for Div. Seven was Santa Clara Superior Court Judge Audra Ibarra. The opinion reverses Los Angeles Superior Court Judge Mildred Escobedo’s 2020 denial of a motion by Hyo Kun Kim for an order vacating his conviction.
“[T]he record is clear Kim was confused about immigration consequences at the time of his plea.” Ibarra wrote.
Judge’s Advisement
The jurist recited that on the day trial was to start—Feb. 7, 2013—Kim’s lawyer advised the court that his client would plead no contest pursuant to a plea bargain. Then-Los Angeles Superior Court Judge Clifford L. Klein (now a mediator) told him:
“[I]f you’re found guilty or no contest, you will have the consequences—will—not maybe—but will have the consequences of deportation—you know what deportation is?—that’s where they’ll send you back to Korea —exclusion of admission to the United States, meaning you can’t be admitted to the United States—or denial of naturalization, meaning you can’t become a citizen and some other rights, pursuant to the laws of the United States. I’m explaining it a little more than I’m required to. Do you understand that?”
Kim replied:
“Your Honor, I do understand it, but then I guess I’m going to have to say I’m going to have to go with the trial, because that’s going to affect my immigration status.”
Changes Mind
After lunch, however, Kim again agreed to plead no contest, and Klein repeated his advisement. The defendant confirmed a comprehension of what he had been told but said, “I’m a little unclear about all that,” explaining:
“Um, well, I was, I went to school ever since I was in first grade and I can’t understand why I would be deported.”
Klein told him:
“I’m not here to explain immigration laws; I’m not an immigration lawyer. Yesterday I had an immigration lawyer in court, I asked him a question of something I didn’t think was fair but that’s up to the immigration authorities I just have to tell you; okay?”
The judge added:
“If you want to argue with them you should be allowed to stay here you can make that argument but I don’t have any control over that. I’ve told you what, what the law says I have to tell you. Okay. Do you understand that?”
Kim said, “Yes.”
Denial of Motion
On Sept. 11, 2020, Escobedo said, in denying Kim’s motion to withdraw his plea, that Klein “has taken probably thousands of pleas” and “was very clear with Mr. Kim,” adding:
“There was no confusion whatsoever.”
She noted that Kim had “the right under federal procedure to ask for a hearing in immigration court,” so that Klein’s statement that he could argue against deportation was “a correct statement of the law,” declaring that it was “absolutely incorrect” to assert that Klein confused the defendant.
Ibarra’s Opinion
Ibarra said in yesterday’s opinion that although Klein’s “comments were technically correct, Kim could have understood them to mean deportation may be avoidable if he made a persuasive argument against it.”
She continued:
“But deportation was not avoidable because Kim’s conviction subjects him to mandatory deportation. At a minimum, the court’s comments likely confused Kim even more.
“Finally, it is uncontroverted Kim suffered from a mental illness at the time of his plea. He was diagnosed with schizophrenia in 1993.”
Ibarra declared:
“Considering the totality of the circumstances and the evidence from Kim’s perspective, we conclude a reasonable probability existed that he would not have pleaded no contest had he comprehended its immigration consequences.”
The case is People v. Kim, B309035.
Copyright 2021, Metropolitan News Company