Opinion
B316450
06-29-2023
THE PEOPLE, Plaintiff and Respondent, v. JEFF YOUNG SUK MOON, Defendant and Appellant.
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.
NOT TO BE PUBLISHED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). 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. We affirm the order denying defendant's petition.
Subsequent references to statutes are to the Penal Code. Effective June 30, 2022, former section 1170.95 was renumbered 1172.6 without substantive change. (Stats. 2022, ch. 58, § 10.)
In light of our conclusion, we do not consider the Attorney General's contention regarding defendant's ineligibility for relief under section 1172.6 as a matter of law. Nor do we consider defendant's arguments challenging the sufficiency or consideration of evidence supporting the trial court's alternate ruling that he was the actual killer.
We previously granted defendant's request to take judicial notice of the reporter's transcript and clerk's transcript from his direct appeal (People v. Moon (Oct. 18, 1994, B078296) [nonpub. opn.] (Moon I)). We recite the factual background from these transcripts and a post-conviction parole risk assessment report the trial court admitted during the evidentiary hearing.
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. Pae approached the birthday group and spoke briefly with Paul and Susan.
Paul and Susan Lee share the same last name. For ease of reading, we refer to them by their first name.
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, 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.
Witnesses at trial identified a man named Seung Meung and Seung Myung. We refer to the man as Seung Myung; we intend no disrespect.
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).
Though named as a defendant in the information, Pae was dismissed as a defendant prior to the commencement of trial. The court instructed the jury that it must not discuss or give any consideration why any person other than defendant was not prosecuted.
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 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). We affirmed defendant's conviction in his direct appeal. (Moon I, supra, at pp. 2, 7.)
The court also imposed concurrent seven-year terms on the attempted murder convictions in counts 3 through 6.
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, § 2) (S.B. 775) incorporated the Evidence Code into section 1172.6
The prosecution filed a motion seeking to admit defendant's statements appearing in a 2012 parole risk assessment report. The prosecution contended the statements were not privileged or coerced and were admissible as an official record under Evidence Code section 1280. As stated in the parole risk assessment report, a psychologist evaluator met with defendant on April 20, 2012, and informed him that his interview was not confidential. "When asked to provide his own account of his offense, [defendant] reported the following: [¶] . . . He (the inmate's friend) said, 'Lean back,' and he shot... maybe five times. I had a feeling he was going to shoot."
Following argument of counsel at the evidentiary hearing, the court admitted defendant's statements as party admissions appearing in the risk assessment report, which it found constituted a public record under Evidence Code section 1280. The court also admitted defendant's statements for purposes of impeaching his trial testimony. The court then found the prosecution had met its burden of proving beyond a reasonable doubt that defendant was guilty of murder under two alternative theories. It identified them as follows: "[The first theory,] and the one that is the strongest and certainly subject to less controversy, is that [defendant] aided and abetted the shooting by passenger Pae with the specific intent to kill. The court is also, though, going to . . . find . . . that the second theory of murder, that there is sufficient evidence to support that [defendant] is guilty, because he is the actual killer in the shooting incident."
At the hearing, defense counsel stated that he had emailed the court a written brief addressing evidentiary issues with the parole risk assessment report. When the court expressed concern about receiving the emailed brief, defense counsel repeated the arguments appearing therein. Defendant has filed a motion to augment the record to include a written opposition to the prosecutor's motion to admit the risk assessment report. The attached written opposition does not bear a file stamp, and the motion does not indicate whether the attached opposition was filed. We deny defendant's motion. (Cal. Rules of Court, rule 8.155(a)(1)(A).)
As to the first theory of culpability, the court found the evidence demonstrated beyond a reasonable doubt that defendant aided and abetted the killing with intent to kill. In so finding, the court noted defendant's motive to retaliate against the birthday group for chasing and hitting his car, his decision to return to the parking lot knowing Pae had a loaded gun, and his affirmative conduct of yelling for the unarmed birthday group to come over, making them "better targets for Pae's shooting." Defendant also admitted he leaned back to allow Pae to shoot the victims, evidencing his knowledge of the shooting and intent to kill. The court found defendant's trial testimony evasive and not credible, as it was "completely inconsistent" with all of the other evidence introduced at trial. Defendant "acted like nothing out of the ordinary happened" during the shooting and exhibited consciousness of guilt by fleeing the state. The court denied defendant's petition.
The court then found beyond a reasonable doubt that defendant was the actual shooter. The court noted that all of the evidence, except for defendant's own testimony, pointed to him as the shooter. The court found it "extremely difficult to fire a gun" from the passengerside seat through the driver's side window. "The explosive blast of a gun would have caused damage to the ears of [defendant] and Pae. There would have likely been powder burns on either Pae or [defendant], or both." Absent evidence of explosive sounds and gunpowder burns, the court determined that defendant must have extended the revolver outside and away from the car before firing. The court also acknowledged the jury could have convicted defendant of second degree murder under an implied malice theory. However, the court declined to issue findings of fact on that theory of culpability.
DISCUSSION
A. Governing Law: Section 1172.6
Through Senate Bill No. 1437 (Stats. 2018, ch. 1015, § 1) (S.B. 1437), the Legislature clarified the felony murder rule and eliminated the natural and probable consequences doctrine to ensure that any murder conviction and attached sentence is commensurate with individual culpability. (People v. Gentile (2020) 10 Cal.5th 830, 842-843; People v. Lewis (2021) 11 Cal.5th 952, 957, 971 (Lewis); accord, § 189, subd. (e).) The Legislature also added former section 1170.95 (now section 1172.6), pursuant to which individuals convicted of felony murder or murder under the natural and probable consequences doctrine may petition for vacatur of their convictions and resentencing. (§ 1172.6, subd. (a).)
Where the petitioner makes a prima facie showing of entitlement to relief, the trial court must issue an order to show cause and hold a hearing to determine whether to vacate the murder conviction, recall the sentence, and resentence the petitioner on any remaining counts. (§ 1172.6, subds. (c)-(d)(1).) At the hearing, the court may consider evidence admitted at any prior hearing or trial that is admissible under current law, or any new or additional evidence submitted by the parties. (§ 1172.6, subd. (d)(3).) Effective January 1, 2022, the burden of proof at the evidentiary hearing is on the prosecution "to prove, beyond a reasonable doubt, that the petitioner is guilty of murder . . . under California law as amended by the changes to Section 188 or 189. . . ." (§ 1172.6, subd. (d)(3); see S.B. 775; Stats. 2021, ch. 551, § 2.) Persons liable for murder under current law include actual killers, aiders and abettors who act with intent to kill, or "major participant[s] in the underlying felony [who] act[] with reckless indifference to human life, ...." (§ 189, subd. (e)(3).)
B. The Trial Court Properly Conducted the Evidentiary Hearing
Prior to challenging the sufficiency of the evidence supporting his murder conviction as a direct aider and abettor, defendant contends the trial court committed several legal errors when conducting the evidentiary hearing. As we shall discuss, we disagree with each contention.
1. Collateral Estoppel Principles Do Not Apply
Defendant first contends that the jury's not true findings on the firearm enhancement allegations precluded the trial court from finding he harbored an intent to kill as an aider and abettor. In support, defendant relies on principles of collateral estoppel and double jeopardy.
Defendant acknowledges that he "did not specifically raise" this argument at the evidentiary hearing below. To avoid forfeiture on appeal (People v. Schell (2022) 84 Cal.App.5th 437, 444 (Schell)), defendant contends his trial counsel rendered ineffective assistance by failing to object on collateral estoppel-double jeopardy grounds.
It is presently unclear whether the statutory right to counsel under section 1172.6 includes the right of a petitioner to raise an ineffective assistance claim on appeal. (See People v. Delgadillo (2022) 14 Cal.5th 216, 222; Lewis, supra, 11 Cal.5th at p. 972.) We need not decide this issue, however, as we find defendant's claim to be meritless.
To demonstrate ineffective assistance of counsel, defendant must show that his trial counsel's performance fell below an objective standard of reasonableness, and that he was prejudiced by trial counsel's performance. (Strickland v. Washington (1984) 466 U.S. 668, 687.)
Defendant has failed to establish ineffective assistance in this case for several reasons. To begin with, "it is not clear whether collateral estoppel [and double jeopardy] principles apply in section 117[2.6] proceedings." (People v. Cooper (2022) 77 Cal.App.5th 393, 412-413 (Cooper I); People v. Myles (2021) 69 Cal.App.5th 688, 704 (Myles) [same].)
In any event, defendant has not demonstrated that the requirements of collateral estoppel have been met. "The rule of collateral estoppel-'embodied' in the double jeopardy clause and 'extremely important' to the criminal justice system-requires 'that when an issue of ultimate fact has once been determined by a valid and final judgment, that issue cannot again be litigated between the same parties in any future lawsuit.' (Ashe v. Swenson (1970) 397 U.S. 436, 443 (Ashe).)" (People v. Zavala (2008) 168 Cal.App.4th 772, 776-777.) Collateral estoppel applies in criminal proceedings "'if (1) the issue necessarily decided at the previous trial is identical to the one which is sought to be relitigated; if (2) the previous trial resulted in a final judgment on the merits; and if (3) the party against whom collateral estoppel is asserted was a party or in privity with a party at the prior trial.' [Citation.]" (People v. Santamaria (1994) 8 Cal.4th 903, 916.)
"In general, 'a jury verdict acquitting a defendant of a charged offense does not constitute a finding that the defendant is factually innocent of the offense or establish that any or all of the specific elements of the offense are not true.' (In re Coley (2012) 55 Cal.4th 524, 554.)" (People v. Flint (2022) 75 Cal.App.5th 607, 614.) As such, "[w]e must determine 'whether a rational jury could have grounded its verdict upon an issue other than' [defendant's] intent to kill. [Citation.] To do so, 'we examine the record of [the] prior proceeding taking into account the pleadings, evidence, charge, and other relevant matter. . . .' [Citation.]" (Schiro v. Farley (1994) 510 U.S. 222, 233 (Schiro).)
The jury's not true findings on the enhancement allegations in this case are not identical to the issue the prosecutor sought to prove at the section 1172.6 evidentiary hearing, namely that defendant intended to kill as an aider and abettor. The verdict form returned by the jury reflected not true findings that defendant (1) "personally used a firearm(s)" during the commission of murder (§ 12022.5, subd. (a)); and (2) "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" (§ 12022.55).
These findings establish only that the jury found defendant was not the actual shooter or harbored reasonable doubt that he was; they say nothing about defendant's intent to kill as an aider and abettor. Indeed, the jury may well have found that defendant intended to kill beyond a reasonable doubt but found the section 12022.5 allegation not true because it did not believe defendant was the actual shooter. "Section 12022.55 enhancements may only be imposed upon the person who actually fires the weapon; [they] cannot be imposed on an aider and abettor." (See People v. Myers (1997) 59 Cal.App.4th 1523, 1533.) As such, the not true findings "did not necessarily depend on a finding that [defendant] lacked an intent to kill." (Schiro, supra, 510 U.S. at p. 234; accord, id. at pp. 233-236.; People v. Santamaria (1994) 8 Cal.4th 903, 922; People v. Prock (2014) 225 Cal.App.4th 812, 818-819.)
The record supports this conclusion. Despite providing two enhancement allegations on the verdict form on count 1, the court gave the jury one instruction on the personal use of a firearm enhancement under section 12022.5, subdivision (a). The jury did not receive an instruction under section 12022.55 regarding intent to inflict death as a result of personally discharging a firearm, and the prosecutor did not argue that particular enhancement to the jury. Instead, the prosecutor directed the jury to make not true findings on their verdict forms only if the jury found defendant "didn't personally use a firearm." As the pleadings, evidence, charge, and other relevant matter demonstrate, the jury did not necessarily find defendant lacked intent to kill as a nonshooter. Even if defendants do not pull the trigger, they can still possess the intent to kill. Thus, defendant's counsel cannot be ineffective for failing to raise double jeopardy or collateral estoppel objections.
The cases on which defendant relies are readily distinguishable. (Compare Cooper I, supra, 77 Cal.App.5th at p. 412 ["[w]hile we do not adopt Cooper's collateral-estoppel theory, we agree that any evidence he possessed or used a gun should not have played a role in the court's analysis" whether he was a major participant in felony murder]; People v. Henley (2022) 85 Cal.App.5th 1003, 1007, 1020-1021 [same]; People v. Piper (2018) 25 Cal.App.5th 1007, 1010, 1015 [acquittal of firearm-related charges and not true findings that appellant was "'armed'" in the commission of offenses "foreclosed any later finding beyond a reasonable doubt that appellant was 'armed with a firearm'" during a section 1170.126 proceeding].)
2. The Court Did Not Improperly Admit the Parole Risk Assessment Report
Defendant acknowledges that "a parole risk assessment report, including a defendant's statements in that report, falls within the ambit of 'new or additional evidence'" the court may consider under section 1172.6, subdivision (d)(3). (People v. Duran (2023) 84 Cal.App.5th 920, 927-928 (Duran), citing Myles, supra, 69 Cal.App.5th at pp. 698, 703; People v. Mitchell (2022) 81 Cal.App.5th 575, 586 (Mitchell).) He argues, however, that the court improperly admitted the parole risk assessment report for two reasons. First, he contends the report lacked sufficient foundation to be admitted under Evidence Code section 1280 as a public record. Second, he contends the statements he made in the report must be excluded under the "use immunity" doctrine.
We review the admission of evidence for abuse of discretion and review the application of use immunity de novo. (Duran, supra, 84 Cal.App.5th at pp. 927-928; see People v. Dworak (2021) 11 Cal.5th 881, 895.)
a. The Parole Risk Assessment Report Met the Foundational Requirements of a Public Record
Evidence Code section 1280 provides that a writing made "as a record of an act, condition, or event is not made inadmissible by the hearsay rule when offered in any . . . criminal proceeding to prove the act, condition, or event if all of the following applies: [¶] (a) The writing was made by and within the scope of duty of a public employee. [¶] (b) The writing was made at or near the time of the act, condition, or event. [¶] (c) The sources of information and method and time of preparation were such as to indicate its trustworthiness."
Defendant recognizes his parole risk assessment report may be admissible as a public record under Evidence Code section 1280 and that his statements appearing in the report are admissible for their truth under the hearsay exception as a party admission. (See People v. Sanchez (2016) 63 Cal.4th 665, 675; see Rupf v. Yan (2000) 85 Cal.App.4th 411, 430, fn. 6 (Rupf); see also § 1220). However, defendant contends that because the "prosecutor did not present the psychologist who prepared the risk assessment, only the document," there was insufficient foundational evidence for the report itself to qualify as a public record, and thus it was inadmissible hearsay. Defendant is mistaken.
"In contrast to the business records exception (Evid. Code, § 1271), Evidence Code section 1280, . . . 'permits the court to admit an official record or report without necessarily requiring a witness to testify as to its identity and mode of preparation if the court takes judicial notice or if sufficient independent evidence shows that the record or report was prepared in such a manner as to assure its trustworthiness.' [Citation.] 'In addition to taking judicial notice, a court may rely on the rebuttable presumption that official duty has been regularly performed (Evid. Code, § 664) as a basis for finding that the foundational requirements of Evidence Code section 1280 are met.' [Citation.]" (People v. George (1994) 30 Cal.App.4th 262, 274.)
A trial court's "ruling on admissibility [under Evidence Code section 1280] 'implies whatever finding of fact is prerequisite thereto; a separate or formal finding is, with exceptions not applicable here, unnecessary.'" (People v. Martinez (2000) 22 Cal.4th 106, 120 (Martinez), citing Evid. Code, § 402, subd. (c), People v. Williams (1997) 16 Cal.4th 153, 196.) Thus, it may be inferred that a court has taken judicial notice of regulations imposing official obligations on a public employee and applied the presumption that official duty has been regularly performed (Evid. Code, § 660). (Martinez, supra, at p. 121; accord, People v. Dunlap (1993) 18 Cal.App.4th 1468, 1477 ["findings [on the foundational requirements under Evidence Code section 1280] may be inferred from the court's ruling admitting the [official record]".)
Defendant has offered nothing to rebut the implied findings made by the trial court under Evidence Code section 1280. (See People v. Miles (2008) 43 Cal.4th 1074, 1083 ["[u]nless rebutted, such a document, standing alone, is sufficient evidence of the facts it recites about the nature and circumstances" of the official act or duty performed].) As defendant concedes, preparation of the parole risk assessment report, including assessment of all reliable information on the circumstances of defendant's commitment offenses, was mandated by regulation. (Cal. Code Regs. tit. 15, §§ 2240, subd. (a), 2281, 2402.) We presume from this procedure that the psychologist evaluator and supervisor acted within the scope of their duties, and that the sources of information (i.e., defendant himself) and method and time of preparation are indicative of trustworthiness.
Raised for the first time in his reply brief, defendant also contends that the report "was not made close in time to the shooting, which is one of the foundational requirements" under Evidence Code section 1280. Defendant did not raise this argument in the trial court or in his opening brief. He has therefore forfeited the argument on appeal. (People v. Clark (2016) 63 Cal.4th 522, 552; People v. Bolin (1998) 18 Cal.4th 297, 321.)
Even on the merits, we reject defendant's argument. To qualify as an official writing under section 1280, the psychologist had to prepare the report at or near the time of the defendant's psychological assessment, not the shooting. (See Evid. Code, § 1280, subd. (b) ["The writing was made at or near the time of the act, condition, or event"].) The proximity in time helps to ensure that the report accurately reflects what transpired during the assessment, including the answers that defendant provided in response to questions posed by the psychologist. As defendant acknowledged, his statements are admissible for their truth, not simply as part of a public record, but under the separate hearsay exception for party admissions. (See Rupf, supra, 85 Cal.App.4th at p. 431; Evid. Code, § 1220.) We find no abuse of discretion in the admission of the risk assessment report as a public record.
b. Use Immunity Does Not Apply
Defendant also contends the prosecutor was prohibited from using his statements appearing in the parole risk assessment report under "use immunity," a judicially crafted doctrine of exclusion announced in People v. Coleman (1975) 13 Cal.3d 867 (Coleman). According to defendant, "without use immunity a person would decide not to speak [at a parole risk assessment] when it was in his interests to do so." Defendant concedes he did not specifically object on use immunity grounds below. He has therefore forfeited this argument. (People v. Anderson (2001) 25 Cal.4th 543, 586; Evid. Code, § 353, subd. (a).)
If considered on the merits, defendant's argument also fails, as the use immunity doctrine is not as broad as he portrays it. In Coleman, the prosecution initiated probation revocation proceedings "on grounds which were also the basis for independent criminal charges" for which the defendant had not yet been tried. (Coleman, supra, 13 Cal.3d at p. 871.) Fearful of "incriminating himself at his pending trial," defendant elected not to testify at the probation revocation hearing, and his probation was revoked. (Id. at pp. 871, 873.) On appeal from the revocation order, the defendant argued he "was forced to forego his opportunity to testify in his own behalf at his revocation hearing" for fear of self-incrimination. (Id. at p. 871.) Our Supreme Court found, "[t]he choice forced upon [the probationer-defendant] at his revocation hearing was unnecessarily inconsistent with constitutional values," and in particular, the "policies underlying the privilege against self-incrimination." (Id. at pp. 872, 875.) To avoid these constitutional concerns, the Court declared "as a judicial rule of evidence that . . . the testimony of a probationer at a probation revocation hearing held prior to the disposition of criminal charges arising out of the alleged violation of the conditions of his probation" is inadmissible during subsequent proceedings on the related criminal charges, unless used for impeachment or rebuttal. (Id. at p. 867.)
Every case to consider the use immunity doctrine in the context of a section 1172.6 proceeding has refused to apply it. (Duran, supra, 84 Cal.App.5th at p. 930; accord, Mitchell, supra, 81 Cal.App.5th at pp. 588-590; People v. Anderson (2022) 78 Cal.App.5th 81, 89-93; Myles, supra, 69 Cal.App.5th at pp. 704-706.) "By its plain text, the privilege applies only during a 'criminal case' or 'cause.' (U.S. Const., 5th amend.; Cal. Const., art. I, § 15; Spielbauer v. County of Santa Clara (2009) 45 Cal.4th 704, 714 [privilege applies where person 'reasonably believes the answers might incriminate him or her in a criminal case', italics added].) Once a defendant's 'sentence has been fixed and the judgment of conviction has become final,' the 'general rule' is that 'there can be no further incrimination' and hence 'no basis for the assertion of the privilege.' [Citations.]" (Duran, supra, 84 Cal.App.5th at p. 930.) During a section 1172.6 hearing, the petitioner's existing judgment of conviction and sentence remain presumptively authorized and intact. "This is no doubt why the panoply of rights that attach at trial do not apply during a section 1172.6 evidentiary hearing, such as the right to a jury trial or the protection against double jeopardy. (Mitchell, supra, 81 Cal.App.5th at pp. 588-589 [collecting cases].) As a result, use of a defendant's prior statements during such an evidentiary hearing does not implicate the privilege against self-incrimination, and Coleman's core rationale-and hence its holding-is not implicated." (Id. at p. 931.)
Defendant offers no persuasive argument to depart from these cases. As Coleman and its progeny explain, the use immunity doctrine exists to protect the policies behind the Constitutional right against self-incrimination. It does not immunize all statements made at parole hearings that defendants later find were not in their best interests.
In sum, we conclude that defendant's statements appearing in the parole risk assessment report were properly admitted into evidence and were not made inadmissible under the use immunity doctrine.
2. The Trial Court Did Not Improperly Rely on the Attempted Murder Verdicts When Making Findings of Fact
Defendant contends the trial court erred by relying on the jury's attempted murder verdicts as evidence "to prove [his] intent to kill," rather than acting as an independent factfinder at the hearing. We disagree.
In support of his argument, defendant's appellate briefs cite the following colloquy between the trial court and the parties at the evidentiary hearing:
"I'm going to address -- the defense argued . . . I couldn't find him to be the actual shooter because the jury found that he did not personally use the gun, . . .; however, the defense hasn't noticed there is a two-sided sword to this. That jury also found and convicted him on counts 3 through 6 of attempted murder. Attempted murder is a specific intent crime. And if I were to buy your argument . . . I would tell you that . . . I would be able to find that the jury -- and could not change that -- had found that he had specific intent to kill because the found the attempted murders, and, therefore, that would relate back to the murder, . . . . "
While the court might have considered the attempted murder verdicts (see People v. Coley (2022) 77 Cal.App.5th 539, 547 ["as the trial court correctly found, appellant's conviction for attempted murder demonstrates that he was convicted of second-degree murder with express rather than implied malice"]), when viewed in context, these comments show that the trial court did not rely on the attempted murder verdicts to find defendant's intent to kill. It simply used the verdicts as a "two-sided sword" to reject one of defense counsel's arguments. (See People v. Superior Court (Du) (1992) 5 Cal.App.4th 822, 835 [a party attacking the judgment "must clearly and affirmatively demonstrate that the trial court relied on improper considerations" and may not rely on isolated remarks].) The comments have no bearing upon, and do not overcome, the independent assessment undertaken by the trial court in reaching its findings. (Ibid.)
D. Sufficiency of Evidence Supporting Direct Aiding and Abetting
Finally, defendant challenges the sufficiency of the evidence supporting the trial court's finding beyond a reasonable doubt that he harbored intent to kill as an aider and abettor. We review the trial court's findings for substantial evidence. (People v. Clements, 75 Cal.App.5th 276, 298; People v. Williams (2020) 57 Cal.App.5th 652, 663.) Under that standard, "we review the record 'in the light most favorable to the judgment below to determine whether it discloses substantial evidence-that is, evidence which is reasonable, credible, and of solid value-such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.' [Citation.]" (People v. Westerfield (2019) 6 Cal.5th 632, 712.) Reversal is unwarranted unless it appears "'that upon no hypothesis whatever is there sufficient substantial evidence to support [the judgment].' [Citation]" (People v. Bolin (1998) 18 Cal.4th 297, 331.)
Defendant requests that we independently review the record under People v. Vivar (2021) 11 Cal.5th 510 (Vivar). We decline his request. (See People v. Oliver (2023) 90 Cal.App.5th 466, 479-480 [rejecting application of Vivar to review evidentiary hearings under section 1172.6 proceedings]; Mitchell, supra, 81 Cal.App.5th at pp. 590-591 [same].)
Murder is the unlawful killing of a human being with malice aforethought. (§ 187, subd. (a).) Express malice is the manifestation of "intent to kill." (§ 188, subd. (a); see People v. Soto (2018) 4 Cal.5th 968, 976 ["[t]he primary difference between express malice and implied malice is that the former requires an intent to kill but the latter does not"].)
"A person aids and abets the commission of a crime when he or she, (i) with knowledge of the unlawful purpose of the perpetrator, (ii) and with the intent or purpose of committing, facilitating or encouraging commission of the crime, (iii) by act or advice, aids, promotes, encourages or instigates the commission of the crime." (People v. Cooper (1991) 53 Cal.3d 1158, 1164; see § 31.) For aiding and abetting express malice murder, the aider and abettor must "know and share the murderous intent of the actual perpetrator." (People v. McCoy (2001) 25 Cal.4th 1111, 1118.) Factors to consider when determining whether a person aided and abetted the commission of a crime "'include presence at the scene of the crime, failure to take steps to attempt or prevent the commission of the crime, companionship, flight, and conduct before and after the crime.' [Citation.]" (People v. Garcia (2008) 168 Cal.App.4th 261, 273 (Garcia).)
Here, the trial court found that "the strongest [theory] and certainly subject to less controversy, is that [defendant] aided and abetted the shooting by passenger Pae with the specific intent to kill." Substantial evidence supports this determination. As defendant drove away from the shopping plaza parking lot, a member of the birthday group who had argued with Pae kicked defendant's car. Angered by this act of aggression, and knowing Pae was carrying a loaded revolver, defendant agreed with Pae and their companions to "go back and handle" the group. Defendant turned the car around, drove to a position in the street in front of the parking lot, and yelled "come on over" to entice the group to get closer. Suspecting Pae would fire on the group, defendant leaned back to allow Pae to shoot through the driver's side window. Defendant took no steps to aid Cho after the shooting, and instead he drove away from the scene, was present when Pae disposed of the murder weapon, and fled the state. (Accord, Garcia, supra, 168 Cal.App.4th at p. 274 [codefendant "fled from the scene with Garcia in Pineda's car, took the murder weapon . . ., and fled with the gun when the police stopped the car and ultimately disposed of it"].) Taken together, these facts support the trial court's finding that defendant knew and shared Pae's intent to commit the murder, and he engaged in conduct to achieve that goal.
DISPOSITION
The order denying defendant's petition for resentencing under section 1172.6 is affirmed.
We concur: CURREY, Acting P. J., ZUKIN, J. [*]
[*] Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to Article VI, section 6, of the California Constitution.