THE PEOPLE, Plaintiff and Respondent, v. MICHAEL DURAN, Defendant and Appellant.
B317640
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA, SECOND APPELLATE DISTRICT, DIVISION TWO
Filed 10/27/22
CERTIFIED FOR PARTIAL PUBLICATION*; (Los Angeles County Super. Ct. No. A532898);
Randy S. Kravis, under appointment by the Court of Appeal, for Defendant and Appellant.
* Pursuant to
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Idan Ivri and Allison H. Chung, Deputy Attorneys General, for Plaintiff and Respondent.
******
A defendant convicted of second degree murder in 1984 for a gang-related stabbing petitioned for relief under
FACTS AND PROCEDURAL BACKGROUND
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 defendant pull Torres
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
Defendant then took the stand. He testified that after learning that his “little homies” were getting assaulted in the park, he said, “Fuck it. Let‘s go.” He testified that he ran inside the apartment complex and was challenged to a fistfight, but rather than fight, ran to the complex‘s main exit and shouted, “Tigre, Monte Flores.” Then he ran into the street outside the complex and yelled, “Now let‘s kill these mother fuckers,” but insisted that “nobody” was in earshot and that he was merely shouting at the “wind.” He denied ever forming the “intention of killing anybody.”
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—taking someone down and participating in the collective assault—were done with the intent to kill.
Defendant filed this timely appeal.
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.5th at pp. 698, 703; Mitchell, supra, 81 Cal.App.5th at p. 586.) The admission of evidence is
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 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, and any evidence derived from such testimony, is inadmissible against the probationer during subsequent proceedings on the related criminal charges.” (Coleman, supra, 13 Cal.3d at p. 889.)
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
We conclude there are two reasons why this brand of use immunity does not apply to bar the use of a defendant‘s prior statements in a parole risk assessment at a subsequent
First, and as Myles, Anderson, and Mitchell have all recognized, the use of a defendant‘s statements at a subsequent
Even if we assume that the Ninth Circuit is merely tweaking the edges of the United States Supreme Court‘s precedent rather than impermissibly ignoring it, the
in Mitchell would apply use immunity during a
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 caused the defendant‘s will to be overborn, such that the resulting statement is not the product of ‘a rational intellect and free will.‘” (People v. Orozco (2019) 32 Cal.App.5th 802, 819, quoting Linton, at p. 1176.) In assessing whether a statement is involuntary, we look to the totality of the circumstances. (Linton, at p. 1176.)
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.
DISPOSITION
The order is affirmed.
CERTIFIED FOR PARTIAL PUBLICATION.
HOFFSTADT, J.
We concur:
ASHMANN-GERST, Acting P. J.
CHAVEZ, J.