People v. Jeff Young Suk Moon

1

THE PEOPLE, Plaintiff and Respondent, v. JEFF YOUNG SUK MOON, Defendant and Appellant.

B316450

California Court of Appeals, Second District, Fourth Division

June 29, 2023

NOT TO BE PUBLISHED

APPEAL from an order of the Superior Court of Los Angeles County No BA041528, Stephen A. Marcus, Judge. Affirmed.

Sandra Gillies, under appointment by the Court of Appeal, for Defendant and Appellant.

Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Senior

Assistant Attorney General, Idan Ivri and Nikhil Cooper, Deputy Attorneys General, for Plaintiff and Respondent.

MORI J.

In 1993, a jury convicted defendant and appellant Jeff Young Suk Moon of one count of second degree murder and five counts of attempted murder for his participation in a drive-by shooting. In 2019, defendant filed a petition to vacate his murder conviction and resentence on any remaining counts under former Penal Code section 1170.95 (now § 1172.6).^[1] After issuing an order to show cause and holding an evidentiary hearing, the trial court denied the petition, concluding beyond a reasonable doubt that defendant aided and abetted the killing with intent to kill or alternatively was the actual killer. On appeal, defendant challenges the sufficiency and admissibility of evidence supporting the trial court's findings. He also contends that the trial court committed legal errors regarding the preclusive effect of jury findings. We conclude substantial and properly admitted evidence supports the court's finding beyond a reasonable doubt that defendant aided and abetted the murder with the intent to kill.^[2] We affirm the order denying defendant's petition.

BACKGROUND^[3]

A. Trial Evidence

1. Prosecution Evidence

On June 28, 1991, Byun Yoon Cho and seven of his friends went to a Koreatown restaurant to celebrate Cho's 21st birthday. Also at the restaurant but not part of the birthday celebration were defendant and three of his friends. While at the restaurant, one of defendant's friends, Chin O Pae, recognized his ex-girlfriend, Susan Lee, and an acquaintance, Paul Lee.^[4] Pae approached the birthday group and spoke briefly with Paul and Susan.

Around midnight, the birthday group left the restaurant and went to a nearby billiards bar, located on the second floor of a shopping plaza. Two members in the birthday group, Seung Myung and Chan Hui Choh,^[5] got into a disagreement inside the bar and both were asked to leave. The birthday group followed the men to the outdoor parking lot. As the men continued to argue, a red Hyundai sedan pulled into the parking lot. Members of the birthday group saw defendant sitting in the driver's seat, Pae sitting in the front passenger seat, and two people sitting in the back seats.

Pae got out of the car and asked Paul about the ongoing argument. Paul told Pae to go home. When Paul and Susan left, Choh approached the red Hyundai thinking Seung Myung was inside. Choh yelled at the car, "'do not leave' and 'let's finish talking.'" Recognizing Choh's mistake, the birthday group told defendant and his friends to leave. As the red car exited the parking lot, someone inside yelled out "you guys are fucking lucky tonight." Choh ran after the car and kicked its rear bumper as defendant drove away.

Two minutes later, the red car returned. Members of the birthday group watched as defendant stopped the car in the street approximately 40 feet away from them, driver's side facing the parking lot exit. Defendant shouted, "come on over," and someone else in the car said, "let's get it on." Then, the group heard between four and six gunshots and saw flashes coming from the driver's side window. Cho, who had been standing in the parking lot exit, was hit with one bullet and fell to the ground. The shooting stopped, and the red car drove away. Cho died from a single gunshot wound to his heart.

Nine days after the shooting, law enforcement officers in Arizona arrested defendant, Pae, and two friends. After the men were released to the Los Angeles Police Department, Pae directed several officers to Big Bear Lake to recover a fully loaded .357 magnum revolver buried in the dirt. A firearms examiner compared test-fired bullets from the revolver against the bullet recovered from Cho's body and determined that it had fired the bullet that killed Cho.

2. Defense Evidence

Defendant testified that he drove Pae and his two other friends around in a red sedan on the night of the shooting. When he was picked up by defendant, Pae showed defendant a loaded .357 revolver he would carry for the night. The four companions went to drink at a Koreatown restaurant. Pae and one of defendant's friends brought the revolver with them inside the restaurant.

A few hours later, defendant and his friends left the restaurant to go home. Defendant got into the driver's seat, Pae sat in the front passenger's seat, and the two other friends sat in the back. Defendant drove toward the highway but stopped at a shopping plaza to use the restroom. Defendant used the restroom while Pae stood outside talking with Paul and Susan. When defendant returned from the restroom, he saw Pae yelling at a member of the birthday group. Defendant got into the driver's seat and told Pae to get into the car. As defendant drove away, someone in the birthday group kicked defendant's car.

After driving a block away from the parking lot, defendant's friends asked him to turn around and "confront" the person who had kicked the car. Someone in the car said, "let's go back and handle them." Angry at the man, defendant agreed.

Defendant drove back toward the plaza parking lot and stopped the car in middle of the street. He looked to his left and saw the birthday group congregated in the plaza parking lot. Sitting in the front passenger seat, Pae leaned over defendant and extended his right arm in front of defendant, placing the gun about 18 inches "right in front of [defendant's] face." Pae then fired five rounds through the driver's side window. Despite knowing that guns "spit fire and they explode," defendant testified that the gunshots did not burn his face.

B. Information, Jury Instructions, and Verdicts

By information, defendant was charged with one count of first degree murder (§ 187, subd. (a), count 1), and five counts of attempted murder (§§ 664/187, subd. (a), counts 2-6). The information alleged that in the commission of murder, defendant personally used a firearm (12022.5, subd. (a)), and "with the intent to do so, inflicted great bodily injury and death . . . as a result of discharging a firearm from a motor vehicle" (§ 12022.55).^[6]

Trial commenced in 1993. Among the jury instructions given were principles of aiding and abetting (CALJIC Nos. 3.00-3.01); attempted murder (CALJIC Nos. 8.66-8.67); murder (CALJIC Nos. 8.10-8.11); first and second degree murder (CALJIC Nos. 8.20, 8.30-8.31); and aiding and abetting murder as a natural and probable consequence of assault with a deadly weapon (CALJIC No. 3.02, 1992 rev.).

The jury also received one instruction on the firearm enhancement allegations, which provided as follows: "It is alleged in Counts [1 through 6] that the defendant personally used a firearm during the commission of the crimes charged. [¶] If you find the defendant guilty of one or more of the crimes charged . . ., you must determine whether the defendant personally used a firearm in the commission of such felon[ies]. [¶] . . . [¶] The term 'used a firearm,' . . . means to display a firearm in a menacing manner, intentionally to fire it, or intentionally to strike or hit a human being with it." (CALJIC No. 17.19, citing §§ 667.5, subd. (c)(8), 1203.06, subd. (a)(1), 12022.5, subd. (a).)

During closing argument, the prosecutor identified the firearm enhancement allegations and argued, "did the defendant personally use a firearm? If you found that he personally used a firearm, then you just mark true. If you find he didn't personally use a firearm, someone else in the car did, that is marked not true." The prosecutor did not discuss or otherwise identify the section 12022.55 allegation, and defense counsel did not mention the firearm allegations in closing argument.

By general verdict, the jury convicted defendant of second degree murder for the killing of Cho and found both firearm allegations on count 1 not true. As reflected in the verdict form on the section 12022.55 allegation, the jury found not true the allegation that defendant, "with the intent to do so, inflicted great bodily injury and death upon [ ] Cho as a result of discharging a firearm from a motor vehicle in violation of Penal Code section 12022.5...." The jury also found defendant guilty of all six counts of attempted murder, but on all counts found not true each firearm enhancement allegation under section 12022.5, subdivision (a).

In August 1993, defendant was sentenced to an upper base term of nine years for attempted murder (§§ 664/187, subd. (a), count 2), plus a consecutive term of 15 years to life for second degree murder (§ 187, subd. (a), count 1).^[7] We affirmed defendant's conviction in his direct appeal. (Moon I, supra, at pp. 2, 7.)

C. Section 1172.6 Proceedings

In February 2019, defendant filed a petition to vacate his murder conviction and be resentenced under section 1172.6. The court appointed counsel, accepted briefing by the parties, and issued an order to show cause.

Defendant filed an evidentiary motion requesting that the court apply the Evidence Code to his proceedings. At the time, former section 1170.95 had not incorporated the Evidence Code into its resentencing proceedings. (Former § 1170.95.) Effective January 1, 2022, Senate Bill No. 775 (2021-2022 Reg. Sess.) (Stats. 2021, ch. 551, §...