In re Kim
Filed 12/17/12 In re 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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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opinion has not been certified for publication or ordered published for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
In re KIRN KIM
on Habeas
Corpus.
G046677
(Super. Ct. Nos. M-14102 & 93ZF0012)
O P I N I O N
Original proceedings;
petition for a writ of habeas corpus. Petition dismissed.
Michael
Evan Beckman for Petitioner.
Kamala D. Harris,
Attorney General, Jennifer A. Neill, Assistant Attorney General, Julie A.
Malone and Jennifer O. Cano, Deputy Attorneys General, for Respondent.
Petitioner Kirn Kim
challenges the Governor’s reversal of the parole board’s 2011 decision to grant
him parole. He contends that ruling was
erroneous as a matter of law and must be reversed. However, because the Governor has recently
let stand a 2012 decision granting Kim parole, Kim’s challenge to the Governor’s
earlier reversal is now moot. We
therefore dismiss his petition.
DISCUSSION
In 1995, Kim was
convicted of first degree murder for
his role in the beating death of Stuart Tay.
The beating occurred on New Year’s Eve 1992, at which time Kim was 16
years old. It is undisputed that Kim did
not personally participate in the beating.
However, there was evidence showing that he knew Tay
was going to be attacked and that he acted as a lookout during the beating. Found vicariously liable for the murder, he
was sentenced to 25 years to life in prison with the possibility of
parole.
Prior
to Tay’s murder, Kim had no criminal record. He was raised in a stable home, received good
grades in school and was not involved with gangs, drugs or alcohol. And since his incarceration in 1995, Kim has
been a model prisoner; he has worked hard to further his education, remained
free of any disciplinary problems and received many positive commendations from
correctional officers and staff.
Kim’s first request for
parole was turned down in 2008. But
three years later, in 2011, the parole board determined he was suitable for
parole and set a release date for him. At
that hearing, Kim presented psychological reports indicating he was a very low
risk for reoffending. He also told the
board he was fairly convicted and accepted responsibility for his actions. Nonetheless, believing Kim had still not come
clean about his role in Tay’s murder, the Governor
reversed the board’s decision to grant him parole.
After Kim’s request for
relief was denied in the superior court, he challenged the Governor’s decision
by way of a petition for writ of habeas corpus in this court. While that petition was pending, another
parole hearing was held for Kim in July 2012.
Again, the board found Kim was suitable for parole. However, this time the Governor did not
exercise his constitutional authority
to review the board’s decision. Instead,
he took no action during the statutorily prescribed period for him to do so,
thus allowing the parole board’s decision to become effective. (See Pen. Code, § 3041.2; In
re Tokhmanian (2008) 168 Cal.App.4th 1270, 1275-1277.)
As
the parties admit, that means Kim’s challenge to the Governor’s reversal of the
parole board’s 2011 decision is now moot.
(See In re Miranda (2011) 191
Cal.App.4th 757, 762-764.) We therefore
grant the parties’ request to dismiss Kim’s petition on that basis. (Ibid.)
DISPOSITION
The petition for writ of
habeas corpus is dismissed as moot.
BEDSWORTH,
ACTING P. J.
WE CONCUR:
MOORE, J.
FYBEL, J.
