People v. Duran

84 Cal.App.5th 920

300 Cal.Rptr.3d 761

The PEOPLE, Plaintiff and Respondent,

v.Michael DURAN, Defendant and Appellant.

B317640

Court of Appeal, Second District, Division 2, California.

Filed October 27, 2022

Certified for Partial Publication.^*

Randy S. Kravis, under appointment by the Court of Appeal, Santa Monica, for Defendant and Appellant.

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.

HOFFSTADT, J.

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, 284 Cal.Rptr.3d 650 ( Myles ); People v. Anderson (2022) 78 Cal.App.5th 81, 88-93, 293 Cal.Rptr.3d 217 ( Anderson ); People v. Mitchell (2022) 81 Cal.App.5th 575, 580-581, 297 Cal.Rptr.3d 223 ( 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 Because, in the unpublished portion of this opinion, we also conclude that the defendant's statement was in no sense involuntary, we affirm the trial court's denial of relief.

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 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 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.

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.

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 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...