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Statements made to Psychologist for Parole Hearing Report Are Admissible at 1172.6 Evidentiary Hearing

People v. Duran (Cal. Ct. App., Oct. 27, 2022, No. B317640) 2022 WL 15121275, at *1

Summary: Duran was 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).  During the  evidentiary hearing, the prosecution introduced statements that Duran made to a psychologist in 2013 during a parole risk assessment interview.  Duran argued 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. 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. (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. The Court of Appeal agreed with those courts and concluded that the Duran’s statement was in not involuntary. The Court of Appeal affirmed the trial court’s denial of relief.

 Section 1172.6 Petition

Duran filed a petition seeking resentencing under section 1172.6. Duran asserted “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.” A person convicted as a direct aider and abettor is not qualified to be resentenced under section 1172.6.

Evidentiary Hearing and Use of Statements made to CDCR Psychologist for Parole Hearing

At the  evidentiary hearing, the prose union  introduced defendant’s statements from a January 2013 interview with a psychologist who drafted  a comprehensive risk assessment for an upcoming parole hearing. Duran was “informed” that the interview was “not confidential,” and that “he had a right not to participate in the examination.” Duran agreed to be interviewed. Duran told the psychologist that

he  told his fellow gang members, “Fuck it. Let’s go!” to the location of a melee with rival gang members 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.

The trial court denied the petition after finding, beyond a reasonable doubt, that Duran was liable under the still-valid theory of being a direct “aider and abettor” to murder “who acted with the requisite intent to kill.” The court found “overwhelming” evidence that Duran had acted to aid and abet a murder. The court also found that Duran 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 he was “embedded in that gangster lifestyle,” and 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.

Admission of 2013 interview statement

Duran argued 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.

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 falls within the ambit of “new or additional evidence.” Whether use immunity exists and whether a statement is involuntary within the meaning of due process are questions of law reviewed de novo.

Use Immunity

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; Spielbauer v. County of Santa Clara (2009) 45 Cal.4th 704 [privilege applies where person “reasonably believes the answers might incriminate him or her in a criminal case”]) 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) Use of a defendant’s prior statements during such an evidentiary hearing does not implicate the privilege against self-incrimination.

Use immunity  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 “qualified to be resentenced” under section 1172.6 because his conviction was invalid under the current murder statutes. Duran offered his own sworn testimony that he was not a direct aider and abettor to Torres’s murder, and did not act with the intent to kill. Duran”s statements in the 2013 parole risk assessment report that he  yelled, “[N]ow let’s kill these mother fuckers” is “clearly inconsistent” with a denial of an intent to kill and was admissible.

Due Process

Duran argued 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; In re Swanigan (2015) 240 Cal.App.4th 1, 14). The existence of this incentive to speak rendered his resulting statement involuntary.

Due process bars the admission of an involuntary confession.

Duran”s statement to the psychologist was not involuntary under due process. He  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 decision to make a statement in order to obtain that benefit does not render his statement involuntary.

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