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In Re Filberto Duran

December 7, 2010

IN RE FILBERTO DURAN ON HABEAS CORPUS.


The opinion of the court was delivered by: Nares, Acting P. J.

In re Duran CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

(San Diego County)

Petition for writ of habeas corpus following the Governor's reversal of a grant of parole. Petition denied.

In September 1986, when he was almost 22 years of age, Filberto Duran murdered 16-year-old Alberto Gomez by stabbing him in the chest. Duran pleaded guilty in 1987 to one count of second-degree murder and was sentenced to an indeterminate prison term of 15 years to life. Now 45 years of age, Duran became eligible for parole in 1996. In February 2009 the Board of Parole Hearings (the Board) found Duran suitable for parole. However, the Governor reversed the Board's decision on June 30, 2009, finding Duran "would pose an unreasonable risk of danger to society [if released from prison] at this time."

Duran filed a petition for writ of habeas corpus in the superior court, which the court denied in October 2009. In November of that year, he filed a petition for writ of habeas corpus in this court and later filed an amended petition for writ of habeas corpus. We issued an order to show cause (OSC) to the warden of the correctional facility where Duran is incarcerated. The Attorney General filed a return to the OSC on the warden's behalf, and Duran filed a traverse to the return.

We conclude the evidence presented at the Board's parole suitability hearing supports the Governor's decision to reverse the Board's grant of parole. Accordingly, we deny Duran habeas corpus relief.

FACTS AND PROCEEDINGS

A. Commitment Offense (Second Degree Murder)

As Duran pleaded guilty in this matter, the following description of the commitment offense, which was read into the record during the February 3, 2009 parole suitability hearing, is taken from the probation report that was prepared in connection with his 1987 conviction.

"On [September 27, 19]86, a Saturday, at approximately 11:10 at night, police officers responded to 2900 Market Street because a fight at the Filipino Hall occurred. Upon arrival, officers drove into the parking lot area of the building and stopped for about five minutes to monitor the activity in the area. Officers noted that most of the people were leaving the area and they began to concentrate on both sides of the sidewalk on Market Street. Officers drove slowly through the area and observed a group of people, mostly females, standing on the south side of the intersection at 29th and Market Streets. Officers heard one of the females yelling, "Don't do it, don't do it!" At this time, officers saw [Duran] who was wearing a dark gray sweater and black pants break from the group and move toward a white convertible car which was stopped at the intersection. [Duran] reached in the car and struck 16-year-old victim Alberto Gomez in the chest area with a knife while Mr. Gomez was seated on the passenger side of the vehicle. The driver of the vehicle then accelerated from the area while [Duran] ran south on 29th Street. A police officer chased after [Duran]. Mr. Duran was caught at the rear of a complex about half way down the street. Officers handcuffed [Duran] and saw a knife which [Duran] dropped next to the building. The knife was recovered.

"[Duran] identified himself to officers as Filberto Ruano. While sitting in the police vehicle, [Duran] made unsolicited statements to officers in Spanish. He said, '(translated) I was mad because my sister was involved. I was high on beer and PCP. I blame myself because I stabbed him, but my friends dropped the ball. The dude is my friend. I hope he doesn't press charges. I'm not sad. It will just be some years in jail. I'm very thirsty. I threw the knife before they got me. But the cops beat me up anyway. I hope that fucker lives. They had my sister on the floor. That's why I was mad. The cops had her on the floor. I even thought about stabbing a cop. I ran up and stabbed the one in front. I was going to do the one in the back but I didn't have time. My little sister. It was their fault. My friends. They had her on the floor. That wasn't good. But if he doesn't die he better not press charges. They don't like him in the 'hood anyway. He is a snitch. I had just smoked a PCP joint. I just wanted to stick him about three inches, but the knife got away from me. I know I'm going to go. This is my second time. The first time was a cab driver.'

"At approximately 2:20 in the morning on [September 28, 19]86, [Duran] was interviewed at the San Diego Police Department Homicide Office. After being advised of his constitutional rights in Spanish, [Duran] chose to speak with officers. Mr. Duran was asked if he knew why he had been brought to the police station. After pausing, he replied, "No, tell me." [Duran] was then told that officers were investigating a homicide and they advised Mr. Duran that an individual had been stabbed and they had reason to believe that he was involved. [Duran] then replied, "I stabbed him." [Duran] was then asked to tell officers what happened and he said the following: 'I got to the dance about 10 o'clock. I danced awhile and then later, a few small fights broke out. The police arrived and started breaking up the dance. After the fight, I left and went outside. I had been drinking and smoking some PCP so I went across the street to the corner. I was just standing there with some other people. Then, I saw that the police had my sister and brother-in-law on the ground and were beating them up. I got pissed off about that time, this white car drove by and this guy started talking shit and pointing at me. I lost my cool, my mind, and I stabbed him. It happened real fast so there's not really much to say.'

"[Duran] was then asked if he had attempted to stab the passenger in the backseat . . . and he replied, "No, I didn't. When I stabbed [Gomez], the car took off real fast. Everything happened real fast.' Mr. Duran was then asked about what he had done after the stabbing and he said, 'I ran but the police chased me. Then, they caught me. As soon as they got me I dropped the knife right there. That's it.' At one point during the interview, [Duran] asked, 'How's the other guy? The one that I hit.' The officers responded, 'He died.' And, [Duran] said, 'He died, really?' Mr. Duran was placed in County Jail."

Duran pleaded guilty in 1987 to one count of second-degree murder. The court sentenced him to an indeterminate prison term of 15 years to life.

B. The Present Proceedings

1. Suitability hearing

At the February 3, 2009 parole suitability hearing before the Board, it was noted that Duran's minimum parole eligibility date was July 10, 1996, and this was his sixth subsequent parole consideration hearing since that date. The presiding commissioner read into the record the statement of facts (quoted, ante) contained in the probation officer's report and then asked Duran, "Does that sound right?" Duran responded, "Sounds right," but then remarked, "There's some few things that I don't remember saying."

In response to questions regarding the commitment offense, Duran indicated he was a member of the Sherman gang and he had been drinking beer and smoking PCP and marijuana and "doing all kinds of drugs" before he stabbed Gomez. Duran "had a fight . . . with some other people" that night in the dance hall, and the fight made him "mad." When asked whether he knew why he had a fight inside the hall, Duran stated he was "just pushing and throwing [gang] signs" and "that pushing and shoving turn[ed] into a fight and I got into a little fight inside and then I got out of the hall." (Italics added.)

When asked to explain how he could "start flashing signs and killing people," Duran replied, "[i]t was just like a game," and it was just a "normal" and "macho" thing to do at a party, and he "just want[ed] to show the other guys" where he was from, even though they were all from the same neighborhood. Although he acknowledged that what he did inside the hall was "stupid," he also stated that "it just happened because [of] drugs." He also indicated he had lost his job for missing work and had "started getting frustrated" when he ran out of money.

When asked why he focused on and stabbed Gomez, Duran replied, "I was always mad. I was real mad." He then explained that he "thought [Gomez] was going to continue the fight" that occurred inside the dance hall. Duran also explained he was already mad when the police arrived to break up that fight and he saw an officer restraining his sister on the ground. When asked what he thought about Gomez's death, Duran replied that "it's something that fills my heart with sadness." Although Duran acknowledged that Gomez and his family were "friends because we used to live like three blocks away from each other," he then claimed he "just lost it" and "didn't know who I was stabbing. Just the person that I was then who was talking to me."

When asked whether he was paranoid the night of the stabbing as a result of smoking PCP and "tak[ing] all kinds of drugs," Duran answered, "[N]o, no, no. Because see, I smoked PCP early that day. Probably like [seven] or [eight] hours before that fight. Because before that day, I went to the beach and smoke[d] a little bit of weed. We just smoked one cigarette of PCP. That was early. . . . I went home and took a shower and I just went to the party and I smoked a little bit of weed and drinked [sic] beer."

When asked about "some pretty cold statements" he made to the police following his arrest, Duran said he "[didn't] really remember much of what [he] said that night." When the presiding commissioner told Duran "it's unusual you couldn't remember what you said," Duran eventually replied, "I've tried to remember if I said those. I might have."

Reviewing Duran's criminal history, the presiding commissioner noted that Duran was convicted of several juvenile offenses: burglary, resisting, disorderly conduct, and failure to participate in a court-mandated work program project. The presiding commissioner also noted that Duran was "convict[ed] of assault, likely [to] produce great bodily injury after apparently you and several others beat a 31 year old cab driver who was walking home, breaking his jaw bone and the orbital bone under his eye." When asked why he got into the fight with the cab driver, Duran initially replied, "I don't know." He then explained, "I don't remember what we said, but he just stood up face to face and he just punched me and then we just start[ed] fighting." He then acknowledged he had been drinking.

In response to questions from the Board regarding his personal background, Duran indicated he was born in Mexico on February 4, 1965, the third of six children. One brother was shot and killed in prison during a riot, and his other two brothers were deported and live in Tijuana. His ...


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