People v. Kim CA4/3

Filed 8/5/22 P. v. Kim CA4/3 Opinion following transfer from Supreme Court

NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE,

Plaintiff and Respondent, G059338

v. (Super. Ct. No. 08NF1399)

DAVE DAE HONG KIM, OPI NION

Defendant and Appellant.

Appeal from a postjudgment order of the Superior Court of Orange County, Cheri T. Pham, Judge. Reversed and remanded with directions. Robert L.S. Angres, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Julie L. Garland, Steve Oetting, and Arlene A. Sevidal, Assistant Attorneys General, Lynne G. McGinnis and Andrew Mestman, Deputy Attorneys General, for Plaintiff and Respondent.

In 2009, Dave Dae Hong Kim was convicted of premeditated attempted murder based on a gang assault involving multiple individuals. The natural and probable consequences doctrine was at issue at trial. In 2020, Kim filed a petition for resentencing 1 under former Penal Code section 1170.95, enacted by Senate Bill No. 1437 (SB 1437) “to amend the felony murder rule and the natural and probable consequences doctrine, as it relates to murder.” (Stats. 2018, ch. 1015, § 1, subd. (f).) The trial court denied Kim’s petition without appointing counsel because Kim was convicted of attempted murder. Former section 1170.95, as originally formulated, did not apply to attempted murder. We affirmed Kim’s appeal of the denial with directions to correct clerical errors in Kim’s abstract of judgment. The California Supreme Court granted review but deferred further action. It then issued People v. Lewis (2021) 11 Cal.5th 952 (Lewis), which focused on the procedural aspects of former section 1170.95. In response, the Legislature amended the statute through Senate Bill No. 775 (SB 775). The amendment codified Lewis’s holdings and extended resentencing benefits to persons convicted of “attempted murder under the natural and probable consequences doctrine.” (Stats. 2021, ch. 551, §§ 1 and 2.) The California Supreme Court then ordered this court to reconsider the cause given SB 775’s passage. The Legislature then renumbered former section 1170.96 to section 1172.6, without any change to the statutory text. (Stats. 2022, ch. 58, § 10.) The parties agree the trial court’s denial of Kim’s petition should be reversed and remanded for further proceedings in light of Lewis and section 1172.6. As a separate issue, the parties also agree the abstract of judgment should be modified to correctly reflect Kim’s parole eligibility date and presentence credits. We agree and reverse and remand with directions.