Opinion
B301351
06-25-2020
THE PEOPLE, Plaintiff and Respondent, v. ERNEST JIM CHOI, Defendant and Appellant.
Wayne C. Tobin, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Los Angeles County Super. Ct. No. BA437763) APPEAL from an order of the Superior Court of Los Angeles County, Drew E. Edwards, Judge. Dismissed. Wayne C. Tobin, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent.
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In his direct appeal from his judgment of conviction, Choi successfully obtained relief from his plea of nolo contendere. (People v. Choi (May 30, 2017, B272080) [nonpub. opn.].) Following remand, Choi chose not to withdraw his plea. Since then, Choi has filed numerous motions to vacate his judgment of conviction. This court previously affirmed the trial court's denial of another motion by Choi to vacate his judgment of conviction. (People v. Choi (Oct. 16, 2019, B296177) [nonpub. opn.]) The current appeal is from an order denying his motion to vacate his conviction pursuant to Penal Code section 1473.7. Section 1473.7, subdivision (a)(2) provides in pertinent part that "[a] person who is no longer in criminal custody may file a motion to vacate a conviction" on the basis that "[n]ewly discovered evidence of actual innocence exists that requires vacation of the conviction or sentence as a matter of law or in the interests of justice."
Undesignated statutory citations are to the Penal Code.
Appointed counsel filed a brief pursuant to People v. Wende (1979) 25 Cal.3d 436, 441 (Wende) and requested this court independently review the record. We conclude that Choi is not entitled to Wende review and dismiss the appeal.
BACKGROUND
In 2015, the People charged Choi with a single count of stalking (section 646.9, subd. (a)) and alleged that the conduct occurred on or between November 1, 2014 and April 20, 2015. The People alleged that Choi suffered seven felonies within the meaning of section 1203, subdivision (e)(4) and three felonies within the meaning of section 667.5, subdivision (b).
We previously described the evidence at Choi's preliminary hearing as follows: "In October 2015, Choi was charged with stalking Christine Y. According to preliminary hearing testimony, Choi contacted her many times over a period of several months, sending her multiple emails and letters and on several occasions trying to talk to her at her place of work and outside her home. On one afternoon in April 2015, he followed her car on his bicycle and repeatedly knocked on her window when she stopped in traffic. She called the police, and he continued to knock on the window and tried to get her to talk to him while she waited for police to arrive to arrest him." (People v. Choi, supra, B272080.)
On March 8, 2016, Choi waived his jury trial and pleaded nolo contendere to the stalking charge. The trial court struck the punishment for the three section 667.5, subdivision (b) priors. Over the People's objection, the trial court sentenced Choi to a three year determinate term.
Choi appealed the conviction, and this court reversed the judgment because the trial court did not properly advise Choi of the maximum sentence. (People v. Choi, supra, B272080.) This court ordered the trial court to permit Choi the opportunity to withdraw his plea. (Ibid.) Following our disposition, the trial court advised Choi of the possible maximum sentence and provided Choi an opportunity to withdraw his plea. On September 27, 2017, Choi chose not to withdraw his plea of no contest.
On July 12, 2019, Choi filed a motion in propria persona to vacate his conviction pursuant to section 1473.7, subdivision (a)(2). Choi argued that evidence of actual innocence exists and requires vacating his conviction. Choi indicated that he served 18 months and was no longer incarcerated on the stalking charge. Choi also represented, however, that he remained in custody on a different charge, but did not identify that charge.
In support of his motion, Choi filed a transcript from the Los Angeles County District Attorney's Office dated August 2018. In the August 2018 interview, the victim stated, "I was scared." She indicated, "I was just scared, like he [Choi] just kept following me. . . ." When asked if she was afraid, the victim testified, "Yes, yes." The victim also stated that she was worried Choi might report the fact that she used drugs. The victim stated she was afraid for two reasons: Choi beat up an unidentified person and Choi threatened to report her drug use.
The trial court denied Choi's section 1473.7 motion. Choi timely appealed. After his appointed counsel filed a brief pursuant to Wende, Choi filed a supplemental brief.
DISCUSSION
Review pursuant to Wende is required only in the first appeal of right from a criminal conviction. (People v. Serrano (2012) 211 Cal.App.4th 496, 500-501 (Serrano); cf. Conservatorship of Ben C. (2007) 40 Cal.4th 529, 536-537.) As the Serrano court stated, a defendant is not entitled to Wende review when appointed counsel finds no arguable issues on appeal from "an order denying a postjudgment motion to vacate judgment . . . ." (Serrano, at p. 501; see id. at p. 503.)
As discussed above, this is not Choi's first appeal. In Choi's first appeal from a criminal conviction, Choi successfully obtained relief from his plea. Choi then chose not to withdraw his plea. The current matter is a purported appeal from a postjudgment motion to vacate the judgment. Under Serrano, Choi has no right to Wende review.
We also observe that in his supplemental brief, Choi fails to demonstrate any error. Choi argues that the victim of the stalking charge later reported that Choi never threatened her and that she was only afraid of Choi because she did not want Choi to report her drug use. Choi's argument is inconsistent with the victim's statements considered in their entirety, which show that the victim was afraid of Choi for reasons other than Choi's threat to expose her drug use.
Choi additionally argues that: "If every element is met—beyond a reasonable doubt—the accused is guilty. If every element is not met and reasonable doubt exists—then the accused is innocent."
Choi equates evidence of actual innocence with evidence raising a reasonable doubt. To demonstrate actual innocence, the evidence "if credited, must undermine the entire prosecution case and point unerringly to innocence or reduced culpability." (In re Lawley (2008) 42 Cal.4th 1231, 1239.) Choi makes no showing that he was actually innocent.
Choi contends that he lacked an opportunity to present a defense that he was simply contacting the victim to request she stop using drugs. Choi's purported defense that he told the victim he would report her drug use was within Choi's knowledge at the time he chose to plead guilty. It is not newly discovered evidence as required for relief under section 1473.7, subsection (a)(2).
DISPOSITION
The appeal is dismissed.
NOT TO BE PUBLISHED.
BENDIX, J. We concur:
ROTHSCHILD, P. J.
CHANEY, J.