P. v. Kim

Filed 5/12/21 P. v. Kim CA4/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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,
v.
DAVID DAE HONG KIM,
Defendant and Appellant.
G059338
(Super. Ct. No. 08NF1399)
O P I N I O N
Appeal from a postjudgment order of the Superior Court of Orange County,
Cheri T. Pham, Judge. Affirmed as modified.
Robert L.S. Angres, under appointment by the Court of Appeal, for
Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant
Attorney General, Julie L. Garland, Assistant Attorney General, Arlene A. Sevidal and
Andrew Mestman, Deputy Attorneys General, for Plaintiff and Respondent.
* * *

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In 2009, appellant David Dae Hong Kim was convicted of premeditated
attempted murder. He appeals the trial court’s summary denial of his 2020 petition for
resentencing under Penal Code Section 1170.95 (all further undesignated statutory
references are to the Penal Code). That section was enacted by the Legislature as part of
Senate Bill No. 1437 ((2017-2018 Reg. Sess.); (Senate Bill 1437)), passed 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).)
Kim contends the trial court erred when it declined to apply section
1170.95 to his attempted murder conviction. He also separately contends we must
modify the abstract of judgment to correctly reflect his parole eligibility date and
presentence credits. For the reasons expressed below, we affirm the court’s postjudgment
order as modified.
I
FACTS AND PROCEDURAL HISTORY
We presented a detailed summary of the facts in our earlier opinion
affirming Kim’s convictions. (People v. Kim (Sept. 20, 2010, G042216) [nonpub. opn.].)
In short, the evidence showed that in March 2008, then 16-year-old Kim and one or two
other individuals attacked a group of people at a park with weapons, resulting in injuries
to one man hit with a bat, and another man hit with a bat and stabbed multiple times. At
trial, the prosecutor presented evidence Kim admitted stabbing the victim.
The jury convicted Kim of premeditated attempted murder (§ 664, subd.
(a); § 187, subd. (a)), aggravated assault, felony vandalism, and active participation in a
criminal street gang. (§ 186.22, subd. (a).) It also found Kim committed his crimes in
association with a gang (§ 186.22, subd. (b)(1)) and his victim suffered great bodily
injury. (§ 12022.7, subd. (a).)

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The trial court imposed an indeterminate life sentence for the attempted
murder conviction, with a 15-year minimum sentence before Kim was eligible for parole.
The court also imposed two consecutive 10-year prison terms for Kim’s gang association
and three years for the great bodily injury enhancement. The court stayed or imposed
concurrent sentences for Kim’s other convictions. Kim directly appealed.
We affirmed Kim’s convictions, but struck the 10-year gang enhancement
and stayed a concurrent prison term for active gang participation. We instructed the trial
court to prepare an amended abstract of judgment and to forward it to the Department of
Corrections and Rehabilitation.
Following the Legislature’s 2018 enactment of Senate Bill 1437, Kim
petitioned the trial court for resentencing under section 1170.95, alleging he was
convicted “pursuant to the felony murder rule or the natural and probable consequences
doctrine.” Section 1170.95 permits a defendant previously “convicted of felony murder
or murder under a natural and probable consequences theory” to petition the court to have
his or her “murder conviction vacated and to be resentenced” under certain
circumstances. (Italics added.) The court denied the petition, finding Kim had “not set
forth a prima facie case for relief under [section 1170.95].” The court explained: “A
review of court records indicates defendant [Kim] is not eligible for relief under the
statute because the defendant does not stand convicted of murder or defendant’s murder
conviction(s) is not based on felony-murder or on a natural and probable consequences
theory of vicarious liability for aiders and abettors.”
II
DISCUSSION
A. The Trial Court Did Not Error in Denying Kim’s Section 1170.95 Petition
Kim contends the trial court erred in issuing a summary denial of his
resentencing petition because section 1170.95 should be construed to apply to his

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attempted murder conviction. We review de novo questions of statutory meaning and
their application to undisputed facts. (Ribakoff v. City of Long Beach (2018)
27 Cal.App.5th 150, 163.) When construing a statute, our goal is to ascertain legislative
intent to accomplish the statute’s purpose. (People v. Jefferson (1999) 21 Cal.4th 86, 94.)
Where there is no ambiguity, our analysis begins and ends with applying the plain
statutory language (People v. Robles (2000) 23 Cal.4th 1106, 1111), except in “‘extreme
cases’ where . . . absurdity is patent.” (California School Employees Assn. v. Governing
Bd. of South Orange County Community College Dist. (2004) 124 Cal.App.4th 574, 588
(California School Employees Assn.).)
Senate Bill 1437 “‘amend[ed] the felony murder rule and the natural and
probable consequences doctrine, as it relates to murder, to ensure that murder liability is
not imposed on a person who is not the actual killer, did not act with the intent to kill, or
was not a major participant in the underlying felony who acted with reckless indifference
to human life.’” (People v. Gentile (2020) 10 Cal.5th 830, 842 [quoting Stats. 2018, ch.
1015, § 1, subd. (f).].)
Senate Bill 1437 contained both substantive and procedural aspects.
“Substantively, Senate Bill 1437 accomplishe[d the Legislature’s intent] by amending
section 188, which defines malice, and section 189, which defines the degrees of murder,
and as now amended, addresses felony murder liability.” (People v. Martinez (2019)
31 Cal.App.5th 719, 723 (Martinez).) For individuals already convicted, “Senate Bill
1437 also add[ed] . . . section 1170.95, which allows those ‘convicted of felony murder
or murder under a natural and probable consequences theory . . . [to] file a petition with
the court that sentenced the petitioner to have the petitioner’s murder conviction vacated
and to be resentenced on any remaining counts . . . .’” (Ibid., quoting section 1170.95,
subd. (a).)
Section 1170.95 specifies that “[a]n offender may file a petition . . . where
all three of the following conditions are met: ‘(1) A complaint, information, or indictment

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was filed against the petitioner that allowed the prosecution to proceed under a theory of
felony murder or murder under the natural and probable consequences doctrine[;] [¶] (2)
The petitioner was convicted of first degree or second degree murder following a trial or
accepted a plea offer in lieu of a trial at which the petitioner could be convicted for first
degree or second degree murder[;] [¶] [and] (3) The petitioner could not be convicted of
first or second degree murder because of changes to Section 188 or 189 made effective
January 1, 2019.’” (Martinez, supra, 31 Cal.App.5th at p. 723, quoting section 1170.95,
subd. (a).)
Kim argues the remedial provisions of section 1170.95 should apply to him
because attempted murder is a lesser included offense of murder. He also contends
Senate Bill 1437’s remedial provisions “must be read in pari materia with section 664
(commonly known as the attempt statute)” because they both “‘relate to the same person
or thing, to the same class of person or things, or have the same purpose or object.’”
From this premise Kim reasons there was no need to include attempted murder within
Senate Bill 1437 because the Legislature expected courts to read the attempt and murder
statutes together.
We find no merit in any of these contentions, but Kim would not benefit
even if we adopted his analysis. Senate Bill 1437 expressly prohibits relief for those
defendants who acted with the intent to kill. Kim’s conviction for deliberate and
premeditated murder necessarily includes the finding he acted with the intent to kill.
Thus, Kim would be ineligible even if we applied Senate Bill 1427 to his attempted
murder conviction.
We also reject Kim’s argument that applying the plain language of section
1170.95 leads to an absurd result. Kim asserts that not “extend[ing] the scope of [Senate
Bill] 1437 to attempted murder convictions” would mean “a defendant could suffer a
conviction for attempted murder as an accomplice without possessing any malice
whatsoever” if convicted under a natural and probable consequences theory, but if the

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victim died a defendant would be eligible for the resentencing benefits under section
1170.95.
Kim may not view the Legislature’s decision to limit Sen. Bill 1437’s
resentencing benefits as wise, but that does not render its statutory scheme absurd. (See
California School Employees Assn., supra, 124 Cal.App.4th at p. 588 [“[t]rue, in rare
cases, statutory ambiguity is not a condition precedent to further interpretation, and the
literal meaning of the words may be disregarded to avoid absurd results. But this
approach is reserved for ‘extreme cases’ where the absurdity is patent”].) Providing one
category of convicted individuals certain benefits while denying those same benefits to a
different category of defendants is not an absurd result. Indeed, Alcarez’s argument has
been presented in the form of equal protection challenges to Senate Bill 1437 and
appropriately rejected. (See, e.g., People v. Munoz (2019) 39 Cal.App.5th 738, 760-766,
review granted Nov. 26, 2019, S258234 [equal protection principles do not support the
view that Senate Bill 1437 applies to attempted murder convictions]; see also People v.
Love (2020) 55 Cal.App.5th 237, 360-361 [treating those convicted of murder and
attempted murder differently does not offend equal protection principles].) In sum, we
reject Kim’s arguments to look beyond the plain language of section 1170.95, subdivision
(a).
We also note in passing that no appellate court has applied Senate Bill 1437
to an attempted murder conviction after a final judgment. (See, e.g., Munoz, supra,
39 Cal.App.5th 738, review granted Nov. 26, 2019, S258234.) We declined to apply the
statute to attempted murder convictions in People v. Dennis (2020) 47 Cal.App.5th 838,

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review granted July 29, 2020, S262184, and we see no compelling reason to alter our
view. 1
B. Amended Abstract of Judgment Clerical Errors
Next, Kim and the Attorney General agree two clerical corrections should
be made on Kim’s abstract of judgment. First, Kim correctly notes that after this court
disposed of his direct appeal, the trial court failed to include in its November 2010
amended abstract of judgment the intervening 549 days Kim had served in prison since
the court’s initial judgment in June 2009. Accordingly, a second amended jbstract of
judgment should be issued to correctly incorporate Kim’s custody credits—which the
parties agree was 986 days as of November 8, 2010. Of course, the second amended
abstract should also account for whatever additional time Kim has served. (§ 2900.5,
subd. (d).)
Finally, Kim also correctly notes that paragraph 11 on the second page of
the trial court’s 2010 amended abstract of judgment incorrectly reflects he will be eligible
for parole after 28 years of imprisonment, instead of the correct 18 years. Accordingly,
in addition to correcting Kim’s custody credits, a second amended abstract of judgment
should also correctly reflect Kim’s minimum parole eligibility date.
1 The Supreme Court will have the final word since it has granted review on
whether Senate Bill 1437 applied to attempted murder under the natural and probable
consequences doctrine. (People v. Lopez (2019) 38 Cal.App.5th 1087, review granted
Nov. 13, 2019, S258175.)

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III
DISPOSITION
The postjudgment order denying Kim’s section 1170.95 petition is
affirmed. The trial court is directed to prepare a corrected abstract of judgment consistent
with this opinion and to forward a certified copy to the Department of Corrections and
Rehabilitation.
ARONSON, ACTING P. J.
WE CONCUR:
FYBEL, J.
IKOLA, J.

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