People v. DuranPeople v. Duran
I. The Underlying Murder
In 1984, Michael Duran (defendant) was a member of the El Monte Flores street gang who went by the moniker “Tiger” or “Tigre.”
In the early morning hours of a Sunday in August 1984, a fight broke out between members of the El Monte Flores gang and its rival, the El Sereno gang. In retaliation, members of the El Monte Flores gang stormed a complex of apartments built around a courtyard. Defendant accompanied those gang members. While there, defendant grabbed James Torres (Torres) from behind, and took him to the ground. In the ensuing melee between Torres, defendant, and three other El Monte Flores gang members, Torres was punched, kicked, and repeatedly stabbed by two different knives. Torres sustained 20 stab wounds and died from those injuries.
II. Charging, Conviction and Sentencing
The People charged defendant and the three other El Monte Flores gang members in the melee with Torres‘s murder (
The matter proceeded to a joint jury trial.
Two percipient witnesses testified to defendant‘s role in the melee with Torres.2 Sharon Noble (Noble) testified that she saw
The trial court instructed the jury on the crimes of first and second degree murder, voluntary manslaughter due to heat of passion, and involuntary manslaughter due to imperfect self-defense. The court instructed the jury that defendant could be convicted of first degree murder on the basis of the felony-murder rule, and could be convicted of second degree murder as (1) the actual killer, (2) a person who directly aided and abetted the actual killer in murdering Torres, or (3) a person who directly aided and abetted the actual killer in committing other crimes (including assault), of which murder was a natural and probable consequence.
The jury convicted defendant of second degree murder with a general verdict, but found not true the allegation that defendant personally used a dangerous and deadly weapon.
The trial court sentenced defendant to prison for 15 years to life.
We affirmed defendant‘s conviction and sentence. (People v. Duran (Mar. 27, 1987, B017105) [nonpub. opn.].)
III. Section 1172.6 Petition
In February 2019, defendant filed a petition seeking resentencing under
The matter (eventually) proceeded to an evidentiary hearing.3
At the hearing, the People introduced defendant‘s statements from a January 2013 interview with a psychologist who was responsible for drafting a comprehensive risk assessment for an upcoming parole hearing. Before the interview, defendant was “informed” that the interview was “not confidential,” and that “he had a right not to participate in the examination.” Defendant agreed to be interviewed. Defendant told the psychologist that when he learned that El Monte Flores “homeboys” were getting beaten up, he eventually told his fellow gang members, “Fuck it. Let‘s go!” to the location of that melee; that defendant and other El Monte Flores gang members entered the apartment complex across from the park; that defendant shouted “Tiger Monte Flores” while inside the complex; that defendant, after almost getting into a fist fight with someone in the complex, ran out of the complex and into the street to yell “[N]ow let‘s kill these mother fuckers“; and that defendant then tossed a few empty beer bottles at the complex before departing in a car when the police arrived.
The trial court denied the petition after finding, beyond a reasonable doubt, that defendant was liable under the still-valid theory of being a direct “aider and abettor” to Torres‘s murder “who acted with the requisite intent to kill.” The court found “overwhelming” evidence that defendant had acted to aid and abet Torres‘s murder because the trial testimony of Noble and Hernandez established defendant‘s role in bringing Torres down and assisting the others with their group assault of Torres. The court also found that defendant had undertaken those acts with the intent to kill because (1) there was direct evidence of intent, because he yelled, “Let‘s kill these mother fuckers,” which the trial court found defendant had yelled at the outset of the assault on the apartment complex (rather than, as defendant testified, at the very end and to no one), and (2) there was circumstantial evidence of intent, because a person like defendant, who was “embedded in that gangster lifestyle,” would not have gone to the apartment complex to rescue younger gang members and to “support his gang” without knowing at least some of his compatriots were armed, and because his acts of assistance—
Defendant filed this timely appeal.
DISCUSSION
Defendant argues that the trial court erred in denying his
Our Legislature enacted what is now
It is well settled that a parole risk assessment report, including a defendant‘s statements in that report, falls within the ambit of “new or additional evidence.” (Myles, supra, 69 Cal.App.5t at pp. 698, 703; Mitchell, supra, 81 Cal.App.5th at p. 586.) The admission of evidence is usually reviewed for an abuse of discretion (People v. Dworak (2021) 11 Cal.5th 881, 895), but a court abuses its discretion when it misapprehends the pertinent law (Prigmore v. City of Redding (2012) 211 Cal.App.4th 1322, 1334). Whether use immunity exists and whether a statement is involuntary within the meaning of due process are questions of law we review de novo. (Haworth v. Superior Court (2010) 50 Cal.4th 372, 383, fn. 8 [questions of law on undisputed facts];
Because defendant did not object to the admission of his 2013 statement on either ground that he now advances on appeal—use immunity or involuntariness—he has forfeited these arguments. (People v. Anderson (2001) 25 Cal.4th 543, 586;
I. Use Immunity
Defendant argues that the People should be barred from using his 2013 statement from the parole risk assessment report against him at the
In our view, defendant reads Coleman and its progeny too broadly.
In Coleman, the defendant committed a criminal act, and the People charged the same act as a violation of his current probation and as the basis for a separate prosecution. After defendant testified at his probation violation hearing, the People sought to use that testimony at the subsequent trial in its case in chief. Coleman held this was impermissible: “We . . . declare as a
Coleman explicitly rested its holding on two “policies underlying the privilege against self-incrimination.” (Coleman, supra, 13 Cal.3d at p. 875.) If prosecutors were able to use a defendant‘s probation revocation testimony to prove his guilt at a subsequent trial for the very same conduct, the People‘s constitutionally mandated burden of proof would be “substantially lightened.” (Id. at pp. 875-876.) This would put a defendant to an unfair choice: Give up the “opportunity to be heard” at the probation revocation hearing by remaining silent; be heard at the probation revocation hearing by testifying truthfully, thereby incriminating himself because that testimony could be used against him to prove his guilt at the subsequent trial; or “testify falsely” at the probation revocation in a way “which will not damage his defense at [the] subsequent criminal trial.” (Id. at p. 878.) “To force an individual to choose one of three such unpalatable alternatives,” Coleman reasoned, “runs counter to our historic aversion to cruelty reflected in the privilege against self-incrimination.” (Ibid.) Coleman‘s rationale mirrored the rationale of Simmons v. United States (1968) 390 U.S. 377, which Coleman cited. Simmons held that a defendant‘s testimony to establish standing to challenge a search at a suppression hearing could not be used at the subsequent criminal trial; if denied use immunity for any testimony offered at the
The cases applying Coleman‘s use immunity are similarly limited to situations where a defendant‘s prior statements might be later used against him in a manner that offends the privilege against self-incrimination. This is why the People may not use the statements a defendant made (even if the defendant waives the attorney-client privilege that might attach to those statements) in support of a motion for new trial at the subsequent retrial that occurs after the new trial motion is granted. (People v. Dennis (1986) 177 Cal.App.3d 863, 873-876; People v. Ledesma (2006) 39 Cal.4th 641, 692-695.) It is why the People may not use the statements a defendant made (even if the defendant waives the attorney-client privilege that might attach to those statements) at a pretrial hearing challenging the competency of his appointed counsel at the subsequent trial. (People v. Knight (2015) 239 Cal.App.4th 1, 5-8.) It is why the People may not use a juvenile defendant‘s statements made at a fitness hearing at the subsequent juvenile adjudication trial. (Ramona R. v. Superior Court (1985) 37 Cal.3d 802, 806-811.) And it is why the People may not use a parent-defendant‘s statements made during juvenile dependency proceedings for child neglect at the subsequent trial for child abuse arising out of the same neglect. (In re Jessica B. (1989) 207 Cal.App.3d 504, 520-521.)
First, and as Myles, Anderson, and Mitchell have all recognized, the use of a defendant‘s statements at a subsequent
Second, and as Coleman made clear, the use immunity it acknowledged does not apply when a defendant‘s prior statements are to be introduced “for purposes of impeachment” because the privilege against self-incrimination “does not . . . encompass a right of an accused to lie.” (Coleman, supra, 13 Cal.3d at pp. 889, 892.) Here, defendant‘s petition for relief under
II. Due Process
Defendant further argues that the statements he made to the psychologist in 2013 are inadmissible at the
Due process bars the admission of an involuntary confession. (People v. Linton (2013) 56 Cal.4th 1146, 1176.) For this purpose, “a confession is involuntary if official coercion
Defendant‘s statement to the psychologist was not involuntary under due process. To begin, defendant was explicitly told that he did not have to make a statement. Although he knew he might obtain the benefit of more favorable consideration for parole from doing so, his calculus to make a statement in order to obtain that benefit does not render his statement involuntary. Further, there is a disconnect between this incentive and defendant‘s actual statement because his statement does not admit his complicity in the crime: He merely says he was there and shouted some things; at no point does he admit to having any involvement with Torres‘s killing. Moreover, a finding that defendant‘s statement was involuntary means it would have been inadmissible at the parole hearing itself because involuntary statements are, by definition, coerced and utterly unreliable. Yet defendant is not asserting that his 2013 interview statement should not have been considered at the parole hearing. At bottom, defendant seems to be urging us to construe the due process clause as a sort of “super use immunity” that would, unlike Coleman‘s use immunity, preclude the use of his prior statement even to impeach. (E.g., People v. Underwood (1964) 61 Cal.2d 113, 124 [“involuntary” statements may not be used to impeach because they are inherently unreliable].) We decline to fashion an end-run around Coleman‘s limitations using a doctrine that, on its own terms, has not been satisfied here.
The order is affirmed.
CERTIFIED FOR PARTIAL PUBLICATION.
______________________, J.
HOFFSTADT
We concur:
_________________________, Acting P. J.
ASHMANN-GERST
_________________________, J.
CHAVEZ
Notes
All further statutory references are to the Penal Code unless otherwise indicated.