People v. Duran

Filed 10/27/22

CERTIFIED FOR PARTIAL PUBLICATION*

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE, B317640

Plaintiff and Respondent, (Los Angeles County

Super. Ct. No. A532898)

v.

MICHAEL DURAN,

Defendant and Appellant.

APPEAL from an order of the Superior Court of Los

Angeles County, Mike Camacho, Judge. Affirmed.

Randy S. Kravis, under appointment by the Court of

Appeal, for Defendant and Appellant.

* Pursuant to California Rules of Court, rules 8.1100 and

8.1110, this opinion is certified for publication as to all parts

except part II of the Discussion.

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 Penal Code

section 1172.6 (former section 1170.95),1 and proceeded to an

evidentiary hearing. The People introduced statements the

defendant made to a psychologist in 2013 during a parole risk

assessment interview. The defendant argues that admitting his

prior statements was error because those statements are (1)

inadmissible under a judicially crafted “use immunity” doctrine,

and (2) involuntary under the due process clause. So far, three

courts have rejected the first argument. (See People v. Myles

(2021) 69 Cal.App.5th 688, 704-706 (Myles); People v. Anderson

(2022) 78 Cal.App.5th 81, 88-93 (Anderson); People v. Mitchell

(2022) 81 Cal.App.5th 575, 580-581 (Mitchell).) We join these

courts, and publish because we walk a different path to get there.

Because, in the unpublished portion of this opinion, we also

conclude that the defendant’s statement was in no sense

involuntary, we affirm the trial court’s denial of relief.

1 Effective June 30, 2022, section 1170.95 was renumbered

section 1172.6, with no change in text. (Stats. 2022, ch. 58, § 10.)

For the sake of simplicity, we will refer to the section by its new

numbering.

All further statutory references are to the Penal Code

unless otherwise indicated.

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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 (§

187). The People further alleged that each of the defendants

personally used a deadly or dangerous weapon (that is, a knife) (§

12022, subd. (b)).

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

2 Another witness testified that defendant subsequently

confessed to stabbing Torres, but the jury necessarily rejected

this testimony when it subsequently found “not true” the

allegation that defendant personally used a dangerous or deadly

weapon. As discussed below, the trial court adjudicating

3

defendant pull Torres backwards and to the ground, at which

point the group of El Monte Flores gang members started

kicking, punching, and stabbing Torres. Alfredo Hernandez

(Hernandez) testified to seeing the same.

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 section 1172.6. Along with his petition,

defendant filed a declaration attesting, “under penalty of

perjury,” that he was “qualif[ied] to be resentenced” under section

1172.6 “because [his] murder conviction is invalid due to changes

defendant’s section 1172.6 petition also found this witness not to

be credible.

4

to Penal Code §188 and 189 made effective January 1, 2019.”

Because, as discussed below, a person convicted as a direct aider

and abettor is not qualified to be resentenced under section

1172.6, defendant’s declaration necessarily constituted a sworn

statement that he was not a direct aider and abettor in Torres’s

murder.

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.

3 The trial court had summarily denied defendant’s petition,

but we reversed the summary denial and remanded for an

evidentiary hearing. (People v. Duran (May 7, 2020, B297673)

[nonpub. opn.], pp. 2, 7.)

5

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—

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taking someone down and participating in the collective assault—

were done with the intent to kill.

Defendant filed this timely appeal.

DISCUSSION

Defendant argues that the trial court erred in denying his

section 1172.6 petition because its ruling was infected by its

wrongful admission of his 2013 interview statement. Specifically,

defendant argues that the statement should have been excluded

because (1) he made the statement in anticipation of an upcoming

parole hearing, such that the People should be barred from using

it in the section 1172.6 proceeding under a judicially created “use

immunity” doctrine, and (2) the statement is involuntary under

the due process clause.

Our Legislature enacted what is now section 1172.6 and

simultaneously amended sections 188 and 189 in order to

eliminate criminal liability for murder, attempted murder, and

manslaughter absent a showing of the defendant’s personal

intent; no longer can a conviction for these crimes rest on notions

of vicarious intent—that is, on the imputation of someone else’s

intent to the defendant based solely on the defendant’s

“participation in a crime.” (§§ 188, 189, 1172.6, subd. (a).) Now,

a conviction for these crimes requires proof that the defendant (1)

was the actual killer (who acted with the requisite express or

implied malice), (2) directly aided and abetted the actual killer

while acting with the intent to kill, or (3) was a major participant

in a felony who acted with reckless indifference to the value of

human life. (§§ 188, 189.) While the amendments to sections 188

and 189 narrow the elements of murder prospectively, section

1172.6 is the statutory mechanism for determining whether to

retroactively vacate a final murder, attempted murder, or

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manslaughter conviction that does not comply with the new,

narrower definitions. A defendant seeking relief under section

1172.6 must “file a petition” alleging entitlement to relief along

with “[a] declaration” attesting to eligibility for relief. (§ 1172.6,

subds. (a) & (b)(1)(A).) If the defendant “makes a prima facie

showing” of entitlement to relief (that is, if the record of

conviction does not establish ineligibility for relief as a matter of

law), then the court must in most cases convene an evidentiary

hearing where the People bear the burden of establishing beyond

a reasonable doubt that the defendant is guilty of the pertinent

crime under the new, narrower definitions. (§ 1172.6, subds. (c)

& (d).) At that evidentiary hearing, the court may consider

“evidence previously admitted at any prior hearing or trial” that

is admissible under current law, as well as “new or additional

evidence” that is admissible under current law. (§ 1172.6, subd.

(d)(3).) If the People “fails to sustain its burden of proof” at the

evidentiary hearing, then the conviction must be “vacated” and

the defendant resentenced. (§ 1172.6, subd. (d)(3).)

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];

8

People v. McCurdy (2014) 59 Cal.4th 1063, 1086

[involuntariness].)

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; Evid.

Code, § 353, subd. (a).) However, we have the discretion to

disregard the forfeiture and reach the merits, and elect to do so

here.

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 section 1172.6 evidentiary hearing because a

judicially fashioned doctrine of “use immunity” precludes

prosecutors from using, at a subsequent proceeding, a defendant’s

earlier statements that were made under circumstances where

the defendant had little choice but to speak. In support,

defendant cites the seeming progenitor of this line of cases in

California, People v. Coleman (1975) 13 Cal.3d 867 (Coleman), as

well as subsequent cases that apply Coleman in a variety of other

contexts. Defendant urges that this line of cases should be

extended to the situation presented in this case.

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

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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.)

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

10

suppression hearing, Simmons reasoned, a defendant would be

put to the “intolerable” choice of being forced to “give up what he

believed . . . to be a valid Fourth Amendment claim [by foregoing

testifying to his standing at the suppression hearing] or, in legal

effect, to waive his Fifth Amendment privilege against self-

incrimination” by testifying at the suppression hearing but

having that testimony used to prove his guilt at a later trial. (Id.

at p. 394.)

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.)

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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 section

1172.6 evidentiary hearing.

First, and as Myles, Anderson, and Mitchell have all

recognized, the use of a defendant’s statements at a subsequent

section 1172.6 evidentiary hearing does not implicate the

privilege against self-incrimination. By its plain text, the

privilege applies only during a “criminal case” or “cause.” (U.S.

Const., amend. V; Cal. Const., art. I, § 15; Speilbauer 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.” (Mitchell v. United States (1999) 526 U.S. 314, 326;

accord, In re Strick (1983) 34 Cal.3d 891, 899 [“a witness retains

the privilege against self-incrimination during the pendency of an

appeal,” and hence up until a judgment is “final”].) Although the

United States Supreme Court has suggested that the privilege

ceases at the time a judgment of conviction becomes final, the

Ninth Circuit Court of Appeals has carved out an exception to

that rule: If a final judgment is overturned on collateral review,

use immunity attaches to bar the use of statements the

defendant made during that collateral review at any subsequent

retrial or sentencing on the overturned convictions. (See, e.g.,

Lambright v. Ryan (9th Cir. 2012) 698 F.3d 808, 823-824; Milke

v. City of Phoenix (D. Ariz. 2018) 325 F.Supp.3d 1008, 1014-1015

[following Lambright].)

12

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 section

1172.6 evidentiary hearing where defendant’s 2013 parole risk

assessment statement was used is, contrary to what defendant

argues, neither a subsequent retrial nor a new sentencing.

Although the People at a section 1172.6 evidentiary hearing bear

the burden of proving beyond a reasonable doubt that the

defendant is not eligible for relief under section 1172.6, it is only

“if”—and hence only after—“the prosecution fails to sustain its

burden of proof” that “the prior conviction” “shall be vacated and

the petitioner shall be resentenced on the remaining charges.” (§

1172.6, subd. (d)(3); accord, id., subd. (d)(2) [specifying one

situation where evidentiary hearing may be bypassed so that

court may “vacate” the final conviction and “resentence” the

defendant].) During the hearing itself, a defendant’s final

judgment of conviction is still intact. (E.g., People v. Burhop

(2021) 65 Cal.App.5th 808, 815 [“Until a section [1172.6] petition

is filed and adjudicated, . . . the petitioner’s existing judgment of

conviction and sentence remains presumptively authorized and

unaffected by [section 1172.6].”].) 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.4 Presiding Justice Stratton’s dissent

4 Whether a defendant’s statements during a parole risk

13

in Mitchell would apply use immunity during a section 1172.6

evidentiary hearing because, in her view, “[t]he use of [a

defendant’s] statements” at such a hearing is “fundamentally

unfair,” which she views as “the only rationale upon which

Coleman is based.” (Mitchell, at p. 604 (dis. opn. of Stratton,

P.J.).) We respectfully disagree, because what made the use of a

defendant’s statements in Coleman unfair was putting the

defendant in the untenable position of having to forfeit his

privilege against self-incrimination at a subsequent trial or

sentencing where the privilege applies, as the price for exercising

a different right; absent a potential violation of the privilege, any

unfairness is insufficient to justify the judicial creation of use

immunity. (Accord, People v. Collins (1986) 42 Cal.3d 378, 386

[“Coleman . . . [was] concerned with protecting a fundamental

constitutional right—freedom from self-incrimination during a

criminal trial.”].)

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 section 1172.6 was accompanied by his sworn declaration

that he was “qualif[ied] to be resentenced” under section 1172.6

because his conviction was invalid under the current murder

assessment may be used at a subsequent retrial or resentencing

should the defendant’s section 1172.6 petition be granted is a

question that more closely parallels the Ninth Circuit precedent,

but is not implicated in this case where the petition has yet to be

granted. We accordingly offer no opinion on that issue.

14

statutes. In other words, defendant offered his own sworn

testimony that he was not a direct aider and abettor to Torres’s

murder, and hence did not act with the intent to kill.

Defendant’s statements in the 2013 parole risk assessment report

recounting how he yelled, “[N]ow let’s kill these mother fuckers”

is “clearly inconsistent” with a disclaimer of an intent to kill

(Coleman, at p. 889), and hence was admissible even if we

assume that Coleman applies here.5

II. Due Process

Defendant further argues that the statements he made to

the psychologist in 2013 are inadmissible at the section 1172.6

hearing because they are involuntary within the meaning of due

process. Specifically, he urges that there was a benefit to

admitting to his complicity in Torres’s murder during his

interview with the psychologist in advance of his parole hearing

because a defendant’s failure to take full responsibility for his

crime of conviction—although it cannot be used as a basis for

denying parole (§ 5011; 15 Cal. Code Regs., tit. 15, § 2236)—is

nevertheless relevant to his future dangerousness (In re Tapia

(2012) 207 Cal.App.4th 1104, 1108, 1112; In re Swanigan (2015)

240 Cal.App.4th 1, 14). The existence of this incentive to speak,

defendant reasons, rendered his resulting statement involuntary.

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

5 Defendant does not attack on appeal the trial court’s ruling

that his 2013 statement is admissible hearsay because (1) his

own statement is an adverse party admission (Evid. Code, §

1220), and (2) the 2013 risk assessment report containing his

statement is a public record (id., § 1280).

15

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.

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DISPOSITION

The order is affirmed.

CERTIFIED FOR PARTIAL PUBLICATION.

______________________, J.

HOFFSTADT

We concur:

_________________________, Acting P. J.

ASHMANN-GERST

_________________________, J.

CHAVEZ

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