P. v. Eom

Filed 6/30/06 P. v. Eom CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

Appeal from a judgment of the Superior Court of Orange County, Richard W. Stanford, Jr., Judge. Affirmed as modified.

Jean Ballantine, under appointment by the Court of Appeal, for Defendant, Appellant and Petitioner.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Barry J. T. Carlton and Teresa Torreblanca, Deputy Attorneys General, for Plaintiff and Respondent.

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Hyo Yeol Eom appeals from the judgment sending him to prison for 19 years after a jury convicted him of first degree robbery-in-concert and first degree burglary, both offenses in which he allegedly used a firearm. (See Pen. Code, §§ 211, 212.5, subd. (a), 213, subd. (a)(1)(A), 459, 460, subd. (a), 12022.53, subd. (b).)

In the appeal, Eom contends his two attorneys ineffectively assisted in his defense, and also contends the personal use enhancement must be stricken as to the burglary count. As to this last point, the Attorney General agrees, and we order the enhancement attached to count two--the burglary count--stricken. Eom likewise contends the enhancement attached to count one--the robbery charge--should be stricken for insufficiency of evidence and for an inadequate jury instruction. Finally, Eom complains that the verdict form for the robbery count fails to reflect the subdivision for the robbery-in-concert charge. Thus, he was only convicted of first degree robbery, not first degree robbery-in-concert. He also avers the court imposed an unauthorized sentence for the robbery-in-concert charge because the court selected the upper term instead of the midterm. We strike the enhancement attached to count two, order the clerk of the superior court to correct the verdict form to properly reflect the charge as robbery-in-concert as defined in Penal Code section 213, subdivision (a)(1)(A), and affirm the judgment as modified.

FACTS

Andrew Park, owner of Intsys Corporation, lost a lawsuit to a Korean supplier. The judgment in that lawsuit ordered him to pay $30 million, an amount neither he nor his corporation had. He filed for bankruptcy.

Soon thereafter, Park began receiving strange phone calls from one individual--calling himself Minn--who alleged that a hit man had been hired to kill him and that Minn would be glad to protect him for the measly sum of two million dollars. Park responded that he had no money, much less two million dollars. A couple of months after this, a man named William Cho contacted Park and warned him that robbers in Korea were posing as flower deliverymen to gain access to homes.

One day, Park's wife, Whi, was at home alone when the doorbell rang and the person verbally identified himself as a flower deliveryman. Whi opened the door, only to have the man push past her and knock her down. A second man then entered, and the two men beat her. Both men wore latex gloves, and the second man wore a stocking over his face. He carried a gun with which he pistol-whipped Whi, while demanding she tell them the location of the money. Whi repeated that they had no money; they had filed for bankruptcy. The gunman insisted that her husband had five million dollars and he demanded she tell him where it was.

The men tied her up and pulled the bedclothes over her. However, the masked man had to remove one of his gloves to tape her hands and feet because the tape kept getting caught on the latex glove. The men then ransacked the place, taking jewelry, a Sig Sauer handgun, a movie camera, two laptops, some children's tapes and her Chevy Suburban. They left behind two rolls of duct tape, a latex glove and a Home Depot bag.

The Suburban was found about two weeks later in the parking lot of a nearby hospital. The only latent fingerprints found on the duct tape roll were two prints from two different fingers. They both matched those of Eom. On the other hand, Whi was unable to pick out Eom's photograph from those in a photographic lineup, even though she once got a very quick glance at the assailant when he briefly took the stocking from his face after covering her with a pillow.

After the preliminary hearing, his appointed defense attorney informed the Anaheim Police Department that his client would like to be interviewed by them.[1] A detective, Robert Wardle, went to the jail and advised Eom of his Miranda rights (see Miranda v. Arizona (1966) 384 U.S. 436), obtaining his waiver. Eom then explained to the officers that he came to California only to assist a friend--Jun Choi--who was helping other people move to Texas. Eom was a resident of Sardinia, New York.

According to Eom, Choi arranged for Eom's flight and picked him up at the airport in a large Mercedes. Eom had brought his toolbox with duct tape and screwdrivers. Choi and his friend, Jae Kim, drove Eom around, introducing him to their employer, Soo Chan So, who Kim said was affiliated with the Asian gangs and Triads. Later that night, Eom went out drinking with So, Kim, Choi and others. So asked Eom to help them out the next day, saying that all he had to do was drive the car.

The next morning, Kim grabbed the things out of Eom's toolbox before departing. Eom really didn't know what they were going to do, but he knew the group was going to be leaving for Texas immediately afterwards. He drove them to a location as they directed him, and then drove in circles, eventually parking in a hospital lot while waiting for their return. Several men in a Suburban drove up beside them and had them unload some things. They put everything in the Mercedes, and then the men climbed into the car, and they all returned to the motel.

Later, Eom figured they had committed a robbery based on the things they were saying. Kim handed Eom $500 for helping them, and Eom continued to do things with and for them during the trip to Texas and after arriving there. For instance, the men tried to both sell and give away some jewelry, and Eom did errands for them.

Eom testified at trial in his own defense, essentially reiterating the same points given in his statement. Additionally, he testified that he was afraid of these men because they were connected with Korean criminal gangs.

DISCUSSION

A. The Personal Use Enhancement

1. Sufficiency of Evidence

The personal use enhancement for the robbery was charged pursuant to Penal Code section 12022.53, subdivision (b). This statute provides, in pertinent part, that â€