People v. SonPeople v. Son
Doeur Michael Son appeals his jury-tried convictions of two murders while armed with a firearm. (
I
INTRODUCTION
Son helped his accomplice shoot and kill two people. Son admitted his involvement in the killings to his girlfriend‘s brother. Later, Son told police he had participated in the homicides but had done so only because his accomplice threatened to kill him if he did not help.
At trial, Son denied participating in the killings and asserted an alibi defense. Son testified he made a false confession because police assertedly promised he would be incarcerated for only one year. When Son proffered expert testimony on false confessions, the court excluded such proffered testimony as irrelevant and as unnecessary in light of Son‘s testimony he had confessed falsely because of the police offer of leniency. The court also rejected Son‘s request for a jury instruction on the lesser included offense of voluntary manslaughter under his theory of “imperfect duress,” to wit, that he participated in the killings in the honest but unreasonable belief his life would otherwise be endangered.
II
FACTS
A
The Killings
Son and Mon Smann were friends and fellow members of the Crazy Oriental Crips gang.
On the night of February 1, 1992, Son and Smann invited Chang Lee and Sisouphanh Kamphila (Nick) to go out with them purportedly to pick up females. After Son and Smann got into the back seat of Lee‘s black Toyota Supra, Smann directed Lee and Nick to Skyline Drive in San Diego to pick up the girls.
Eventually, Smann told Lee and Nick to pull over beside Morse High School. However, no girls were there. Instead, Smann took out a Titan semi-automatic .25 caliber handgun and made Lee lie face down on the school lawn. Smann shot Lee four times.2 Lee was also strangled before he died. Son then took Nick from the car and held Nick on the ground while Smann shot Nick four times.3 The killings were retaliatory in that Smann believed that Lee and Nick had robbed Smann‘s house on the previous Halloween.
B
Son‘s Girlfriend‘s Brother Learns Details of Killings and Tells Police
After the killings, Smann returned to Cambodia and escaped arrest. However, Son made inculpatory statements about the killings to Soeun Ricky Sim (Ricky), the brother of Son‘s girlfriend Kim Sim (Kim). Ricky had also overheard some of the details of the killings when Smann was talking to Son about fleeing because police were looking for him. In October 1995 and December 1996, Ricky gave Detective Gallivan statements detailing Son‘s admissions about his participation in the killings.4 Police also found Son‘s fingerprint on Lee‘s car.
C
Son‘s Post-Arrest Inculpatory Statements to Police
On October 9, 1997, at 5:45 a.m., Detective Gallivan arrested Son. Half an hour later, Gallivan began a four-hour interview with Son. Son denied having been present when the killings occurred. At 12:27 p.m., after Gallivan told Son‘s girlfriend Kim he believed Son was involved in the killings, Kim was taken into the interview room. Kim told Son she had told district attorney Investigator Marquez some things about the killings. After speaking to Son, Kim was taken home by Gallivan and Marquez. Gallivan told Kim to contact him if Son contacted her and said he wanted to talk to police.
A few hours later at 4:20 p.m., Kim paged Detective Gallivan and said she had Son on the line, Son admitted being present when Lee and Nick were killed, and Son wanted to talk to Gallivan. Gallivan taped his three-way conversation with Son and Kim. During that three-way conversation, Gallivan told Son there were no guarantees about what would happen if Son talked. Gallivan also asked Son to tell him what happened. Son stated: Smann killed the two victims because they had robbed Smann‘s house; Smann telephoned the two
After the three-way phone conversation, Detective Gallivan went to the jail and interviewed Son further. The interview was tape recorded. During the interview Son stated: Smann told Son that Lee and Nick robbed Smann‘s house on Halloween when Smann was not home but Smann‘s parents were; either on that day or a week after the robbery, Smann told Son that Smann wanted to kill Lee and Nick because they had robbed Smann‘s house; Smann telephoned Nick and talked about picking up some girls; when Lee and Nick arrived, Son and Smann got into the back-seat of the Toyota where Smann showed his .25 caliber handgun to Son; Smann told driver Lee to stop at Morse High School and then pulled the gun from his (Smann‘s) waistband; Smann took a rope out of his pocket and put it around Lee‘s neck; however, because Smann was unable to kill Lee with the rope, Smann shot Lee; meanwhile, Son and Nick stayed in the car; Smann told Son that if Nick escaped, Smann would shoot Son; and after Smann finished killing Lee, Smann had Son take Nick from the car and hold Nick while Smann shot Nick. Son also told Gallivan that Son had brought the rope and put it around the neck of one of the victims.
III
SUPERIOR COURT PROCEEDINGS
In December 1997 by information, the People charged Son with two counts of murder while armed with a handgun. (
In October 1998 the matter came on for jury trial. Ricky testified he had given Detective Gallivan extensive statements about Son‘s admitting his involvement in the killings, but Ricky claimed his statements had been a lie since Ricky was mad at Son for impregnating Ricky‘s 13-year-old sister Kim and for cheating on Kim by also seeing other girls. However, Ricky was unable to explain why the details of the killings he gave Gallivan closely matched the physical evidence and Son‘s later post-arrest admissions. The People introduced into evidence Son‘s taped interviews with police and the transcripts of those interviews.
Asserting an alibi defense, Son testified he was with his girlfriend Tina when the killings occurred. In that vein, Son asserted he was sure he had gone to see a movie and cruise around Mission Beach with Tina on the night of the killings. However, on cross-examination Son testified he did not know Tina‘s last name or where she could be found and had never told police or anyone else about Tina. Further, although initially testifying the movie started at 5 or 5:30 p.m., Son later testified he could not remember if Smann and the two victims had left the front of his apartment about 6 or 7 p.m., testimony indicating that Son had not left for the movies by that time.
Additionally, Son testified that he made the inculpatory taped statements to Detective Gallivan because Gallivan promised Son and Kim that Son would serve only one year in county jail if Son admitted his involvement in the killings. Son also testified he knew certain details about the killings because Gallivan had shown him photos
In rebuttal, Detective Gallivan and Investigator Marquez testified they had not promised Son or Kim that Son would serve only one year in county jail if he admitted participating in the killings. Marquez also testified that although Son said he had been in Texas at the time of the killings, Marquez‘s investigation revealed Son was not in Texas at that time.
The jury convicted Son of the first degree murder of Nick and the second degree murder of Lee. The jury also found true the handgun allegations and the multiple-murder special-circumstance allegation. Son appeals.
IV
DISCUSSION
A
Court‘s Failure to Instruct on Voluntary Manslaughter Based on Imperfect Duress
As noted, there was evidence at trial indicating Son believed he had to assist Smann in the killings or his own life would otherwise have been endangered. Accordingly, asserting such belief—even if unreasonable—negated the material element of malice aforethought for murder, Son asked the court to instruct the jury on voluntarily manslaughter as a lesser included offense of murder based upon the theory of imperfect duress. Son contends the trial court reversibly erred in declining to give such instruction. However, we find no instructional error.
“‘Murder is the unlawful killing of a human being with malice aforethought. (
Case Law Does Not Support Use of Imperfect Duress to Mitigate Murder to Voluntary Manslaughter By Negating Malice
“In a criminal trial, it is ordinarily the trial court‘s duty to instruct the jury not only on the crime with which the defendant is charged, but also on any lesser offense that is both included in the offense charged and shown by the evidence to have been committed.” (People v. Barton, supra, 12 Cal.4th at p. 190, 47 Cal.Rptr.2d 569, 906 P.2d 531.) In that vein, Son contends an instruction was required on the lesser included offense of voluntary manslaughter on the theory of “imperfect” duress since the record contained evidence Son helped Smann kill the victims only because Son feared Smann would kill him if he did not help. In response, the People contend that since under subdivision Six of
Although the People did not seek the death penalty here, Son was charged with crimes punishable with death, to wit, two first degree murders (
Nothing in case law relied upon by Son warrants a contrary result. In People v. King, supra, 1 Cal.App.4th 288, 2 Cal. Rptr.2d 197, the appellate court rejected the defendants’ contention that the trial court erred in not instructing the jury sua sponte that an honest but unreasonable belief as to duress could negate the specific intent necessary for robbery and felony murder based on robbery. (Id at p. 297, 2 Cal.Rptr.2d 197.) In a footnote relied upon by Son, the appellate court simply noted: “Without citation to authority or argument, defendant briefly states that an honest but unreasonable belief in duress would negate the premeditation and deliberation necessary to support the prosecution‘s alternative murder theory. Failure to argue the matter and to cite to authority is deemed a waiver of the point. [Citation.] In his reply brief, defendant for the first time contends incorrect language was used by the court in instructing the jury that an honest but unreasonable belief in duress would negate malice. Obvious reasons of fairness militate against consideration of an issue raised initially in the reply brief. [Citation.] In any event, where, as here, it appears beyond a reasonable doubt that the jury based its verdicts on a theory of felony murder supported by competent evidence, it is unnecessary to address these issues.... Since the jury was correctly instructed under the felony-murder doctrine, any error in instructions concerning premeditated and deliberate murder could not possibly have affected the jury‘s verdict so as to result in a miscarriage of justice.” (Id, at p. 297, fn. 12, 2 Cal. Rptr.2d 197.)
In People v. Anderson, supra, 233 Cal. App.3d 1646, 285 Cal.Rptr. 523, relied upon by Son, the appellate court discussed People v. Smith, supra, 187 Cal.App.3d 666, 231 Cal.Rptr. 897, a case also relied upon by Son.13
In People v. Jacobs, supra, 230 Cal. App.3d 1337, 281 Cal.Rptr. 733 (Jacobs), relied upon by Son, the appellate court discussed People v. Smith, supra, 187 Cal. App.3d 666, 231 Cal.Rptr. 897, and another case relied upon by Son, to wit, People v. McKelvy, supra, 194 Cal.App.3d 694, 239 Cal.Rptr. 782 (McKelvy ).15 Specifically, in Jacobs, the appellate court stated that in
Finally, the portions of People v. Smith, supra, 187 Cal.App.3d 666, 231 Cal.Rptr. 897, relied upon by Son have been disapproved by the Supreme Court. Specifically, in People v. Bacigalupo, supra, 1 Cal.4th 103, 2 Cal.Rptr.2d 335, 820 P.2d 559, the Supreme Court stated: “Defendant cites People v. Smith (1986) 187 Cal. App.3d 666, 679, 231 Cal.Rptr. 897, ... as authority that duress can provide an imperfect defense to robbery and that the trial court had an obligation to instruct the jury on that theory, without request. Smith concluded without analysis that an honest but unreasonable belief that the defendant acted under duress might negate the specific intent necessary for robbery. [Citation.] We disapprove Smith on this point.” (People v. Bacigalupo, supra, at p. 126, fn. 4, 2 Cal.Rptr.2d 335, 820 P.2d 559.)16
2
Imperfect Duress Does Not Negate Specific Intent to Aid and Abet Murder
Moreover, we also determine that Son‘s asserted imperfect duress did not operate to negate the element of specific intent necessary for his murder convictions to the extent Son‘s culpability was based on his having aided and abetted Smann in the homicides. As discussed, California law has rejected application of the doctrine of imperfect duress to negate a crime‘s element of specific intent. (People v. Bacigalupo, supra, 1 Cal.4th at p. 126, fn. 4, 2 Cal.Rptr.2d 335, 820 P.2d 559; see also People v. Kearns, supra, 55 Cal. App.4th at pp. 1135-1137, 64 Cal.Rptr.2d 654; People v. King, supra, 1 Cal.App.4th at pp. 298-299, 2 Cal.Rptr.2d 197; People v. Jacobs, supra, 230 Cal.App.3d at p. 1345, 281 Cal.Rptr. 733.) For example, in People v. King, supra, the appellate court stated: “Flannel‘s holding that an honest but unreasonable belief in the need to defend can negate malice is inapplicable to specific intent. Flannel held there was inherent incompatibility between malice as it defined that term and the honest belief in the need to defend oneself—i.e., that one ‘cannot genuinely perceive the need to repel imminent peril or bodily injury and simultaneously be aware that society expects conformity to a different standard.’ [Citation.] Here, there is no such incompatibility. [11] One who acts under an honest but unreasonable belief in duress faces an agonizing choice: the defendant simultaneously genuinely perceives the need to defend himself and understands that he can negate the threat to himself only by performing a specific unlawful act against an innocent third party. To protect himself, the defendant must both specifically intend to perform the unlawful act and act on that specific intent. There is no inconsistency here but a concurrence of act and intent. The existence of intent is not negated by the legal fiction of transferring it to the aggressor. Even in the context of self-defense, it has been recognized that ‘[o]ne could have an honest but unreasonable belief in the necessity of self-defense and still have the specific intent to inflict great bodily injury.‘” (People v. King, supra, at pp. 298-299, 2 Cal.Rptr.2d 197, italics added, fn. omitted.)
Further, in People v. Bacigalupo, supra, 1 Cal.4th 103, 2 Cal.Rptr.2d 335, 820 P.2d 559, the Supreme Court specifically rejected the defendant‘s contention that “an honest but unreasonable belief in duress would negate the specific intent element of robbery.” (Id. at p. 126, 2 Cal.Rptr.2d 335, 820 P.2d 559.) The court stated: “In the case of robbery, ... the unreasonable belief that a defendant is acting under duress will not negate the requisite specific intent; that intent is to deprive the owner of the property taken. [Citation.] Here, even if defendant took the jewelry from [the] jewelry store under the unreasonable belief that doing so was necessary to protect life—his own or that of a family member—that unreasonable belief alone would have no effect on his intent to deprive the rightful owner permanently of the jewelry.” (Ibid.) The Supreme Court also expressly disapproved the conclusion in People v. Smith, supra, 187 Cal.App.3d 666, 231 Cal.Rptr. 897, that “an honest but unreasonable belief that the defendant acted
In People v. Mendoza (1998) 18 Cal.4th 1114, 77 Cal.Rptr.2d 428, 959 P.2d 735, the Supreme Court concluded that “the intent requirement for aiding and abetting liability is a ‘required specific intent’ for which evidence of voluntary intoxication is admissible under
Hence, in light of case law rejecting application of the doctrine of imperfect duress to negate a crime‘s element of specific intent (People v. Bacigalupo, supra, 1 Cal.4th at p. 126 & fn. 4, 2 Cal.Rptr.2d 335, 820 P.2d 559; People v. Kearns, supra, 55 Cal.App.4th at pp. 1135-1137, 64 Cal. Rptr.2d 654; People v. King, supra, 1 Cal.App.4th at pp. 298-299, 2 Cal.Rptr.2d 197; People v. Jacobs, supra, 230 Cal. App.3d at p. 1345, 281 Cal.Rptr. 733), we conclude Son‘s asserted imperfect duress did not negate the specific intent necessary for imposing culpability on Son for having aided and abetted Smann in the killings. (People v. Mendoza, supra, 18 Cal.4th at pp. 1127, 1129, 1131, 77 Cal.Rptr.2d 428, 959 P.2d 735.)
3
Conclusion
Based upon the foregoing analysis, we conclude the trial court properly denied Son‘s request to instruct the jury on the lesser included offense of voluntary manslaughter under the theory of “imperfect” duress.’17
Exclusion of Son‘s Proffered Expert Testimony on False Confessions
As noted, at trial the People introduced into evidence Son‘s taped interviews with police and transcripts of those interviews. Testifying in his defense, Son denied participating in the killings and asserted an alibi defense. Son also testified his inculpatory statements to Detective Gallivan were false and made only because Gallivan assertedly promised that Son would be incarcerated for no more than one year.
After Son testified, the defense sought to present the expert testimony of sociologist Richard Ofshe on the subject of false confessions. Son asserted Ofshe could testify about police tactics in wearing down suspects into making false admissions. The court declined to admit Ofshe‘s testimony. The court stated such expert testimony was unnecessary in light of Son‘s testimony that he had confessed falsely due to Detective Gallivan‘s asserted offer of no more than one year in custody. The court also stated there was no evidence that police engaged in tactics wearing down Son into making false admissions.18 The court noted the only issue bearing on the veracity of Son‘s confession was whether the jury believed Son‘s testimony about Gallivan‘s asserted offer of leniency.
Son contends the trial court reversibly erred in excluding Ofshe‘s testimony about false confessions. Specifically, Son asserts such proffered expert evidence was relevant on the issue of tactics employed by police to elicit confessions as tending to show why Son‘s statements to Gallivan were unreliable even if the jury concluded Gallivan had not promised a maximum of one year‘s incarceration. However, where, as here, “expert opinion is offered, much must be left to the trial court‘s discretion.” (People v. Carpenter (1997) 15 Cal.4th 312, 403, 63 Cal.Rptr.2d 1, 935 P.2d 708; see also People v. Rowland (1992) 4 Cal.4th 238, 266, 14 Cal. Rptr.2d 377, 841 P.2d 897.) As the trial court noted, there was no evidence that police engaged in tactics wearing down Son into making false admissions. Hence, the proffered expert testimony on police tactics was irrelevant. Further, given Son‘s testimonial admission that his confession to Gallivan was false and made only because Gallivan assertedly promised that Son would serve no more than one year in custody—a matter easily understood by a layperson without expertise (
V
DISPOSITION
The judgment is affirmed.
BENKE, J., and HALLER, J., concur.
Notes
In People v. Barton, supra, 12 Cal.4th 186, 47 Cal.Rptr.2d 569, 906 P.2d 531, the Supreme Court observed: “The sole difference between true self-defense and ‘unreasonable self-defense’ is that the former applies only when the defendant acts in response to circumstances that cause the defendant to fear, and would lead a reasonable person to fear, the imminent infliction of death or great bodily injury (