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
__________________________________ )


STORY CONTINUE FROM PART I….


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 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 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].)^[1] 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 [defendant placed on notice of adverse immigration consequences when, four years after his plea, the INS brought permanent deportation charges against him]^[2] 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 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 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 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”].)^[3]
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 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 such circumstances.^[4] 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.

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.^[5]
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,^[6] 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 appropriate court.^[7] 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 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.^[8]
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.
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.^[9]
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 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.

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



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