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Because, in the unpublished portion of this opinion, we also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

2
 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—

6
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

7
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

9
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.)

11
 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.

16
 DISPOSITION
The order is affirmed.
CERTIFIED FOR PARTIAL PUBLICATION.

______________________, J.
HOFFSTADT

We concur:

_________________________, Acting P. J.
ASHMANN-GERST

_________________________, J.
CHAVEZ

17