People v. Son

Decision Date21 March 2000
Docket NumberNo. D032612.,D032612.
CourtCalifornia Court of Appeals Court of Appeals
PartiesThe PEOPLE, Plaintiff and Respondent, v. Doeur Michael SON, Defendant and Appellant.


Doeur Michael Son appeals his jury-tried convictions of two murders while armed with a firearm. (Pen.Code,1 §§ 187, subd. (a), 190.2, subd. (a)(3), 12022, subd. (a)(1).) Son contends the court erred in not instructing the jury on the lesser included offense of voluntary manslaughter under the theory he acted with "imperfect duress." Son also contends the court erred in excluding his proffered expert testimony about false confessions. We affirm the judgment.


Son helped his accomplice shoot and kill two people. Son admitted his involvement in the killings to his girlfriend's brother. Later, Son told police he had participated in the homicides but had done so only because his accomplice threatened to kill him if he did not help.

At trial, Son denied participating in the killings and asserted an alibi defense. Son testified he made a false confession because police assertedly promised he would be incarcerated for only one year. When Son proffered expert testimony on false confessions, the court excluded such proffered testimony as irrelevant and as unnecessary in light of Son's testimony he had confessed falsely because of the police offer of leniency. The court also rejected Son's request for a jury instruction on the lesser included offense of voluntary manslaughter under his theory of "imperfect duress," to wit, that he participated in the killings in the honest but unreasonable belief his life would otherwise be endangered. The jury convicted Son of one first degree murder and one second degree murder.

A The Killings

Son and Mon Smann were friends and fellow members of the Crazy Oriental Crips gang.

On the night of February 1, 1992, Son and Smann invited Chang Lee and Sisouphanh Kamphila (Nick) to go out with them purportedly to pick up females. After Son and Smann got into the back seat of Lee's black Toyota Supra, Smann directed Lee and Nick to Skyline Drive in San Diego to pick up the girls.

Eventually, Smann told Lee and Nick to pull over beside Morse High School. However, no girls were there. Instead, Smann took out a Titan semi-automatic .25 caliber handgun and made Lee lie face down on the school lawn. Smann shot Lee four times.2 Lee was also strangled before he died. Son then took Nick from the car and held Nick on the ground while Smann shot Nick four times.3 The killings were retaliatory in that Smann believed that Lee and Nick had robbed Smann's house on the previous Halloween.

B Son's Girlfriend's Brother Learns Details of Killings and Tells Police

After the killings, Smann returned to Cambodia and escaped arrest. However, Son made inculpatory statements about the killings to Soeun Ricky Sim (Ricky), the brother of Son's girlfriend Kim Sim (Kim). Ricky had also overheard some of the details of the killings when Smann was talking to Son about fleeing because police were looking for him. In October 1995 and December 1996, Ricky gave Detective Gallivan statements detailing Son's admissions about his participation in the killings.4 Police also found Son's fingerprint on Lee's car.

C Son's Post-Arrest Inculpatory Statements to Police

On October 9, 1997, at 5:45 a.m., Detective Gallivan arrested Son. Half an hour later, Gallivan began a four-hour interview with Son. Son denied having been present when the killings occurred. At 12:27 p.m., after Gallivan told Son's girlfriend Kim he believed Son was involved in the killings, Kim was taken into the interview room. Kim told Son she had told district attorney Investigator Marquez some things about the killings. After speaking to Son, Kim was taken home by Gallivan and Marquez. Gallivan told Kim to contact him if Son contacted her and said he wanted to talk to police.

A few hours later at 4:20 p.m., Kim paged Detective Gallivan and said she had Son on the line, Son admitted being present when Lee and Nick were killed, and Son wanted to talk to Gallivan. Gallivan taped his three-way conversation with Son and Kim. During that three-way conversation, Gallivan told Son there were no guarantees about what would happen if Son talked. Gallivan also asked Son to tell him what happened. Son stated: Smann killed the two victims because they had robbed Smann's house; Smann telephoned the two victims and invited them to go out with Son and Smann to pick up some girls; when the victims arrived in a black Toyota Supra, Son and Smann got into the car; Smann directed Lee and Nick to Skyline Drive to pick up the girls and told them to pull over by Morse High School; both victims were shot outside the car; Son held one of the victims while Smann shot such victim; Son held the victim because Smann told him to do so; Son feared Smann would also shoot Son if Son let the victim go instead of holding him; and when Son and Smann had first entered the Toyota, Smann showed his gun to Son causing Son to believe that Smann was going to carry out his prior plan to kill Lee and Nick for having robbed Smann's house.

After the three-way phone conversation, Detective Gallivan went to the jail and interviewed Son further. The interview was tape recorded. During the interview Son stated: Smann told Son that Lee and Nick robbed Smann's house on Halloween when Smann was not home but Smann's parents were; either on that day or a week after the robbery, Smann told Son that Smann wanted to kill Lee and Nick because they had robbed Smann's house; Smann telephoned Nick and talked about picking up some girls; when Lee and Nick arrived, Son and Smann got into the back-seat of the Toyota where Smann showed his .25 caliber handgun to Son; Smann told driver Lee to stop at Morse High School and then pulled the gun from his (Smann's) waistband; Smann took a rope out of his pocket and put it around Lee's neck; however, because Smann was unable to kill Lee with the rope, Smann shot Lee; meanwhile, Son and Nick stayed in the car; Smann told Son that if Nick escaped, Smann would shoot Son; and after Smann finished killing Lee, Smann had Son take Nick from the car and hold Nick while Smann shot Nick. Son also told Gallivan that Son had brought the rope and put it around the neck of one of the victims.


In December 1997 by information, the People charged Son with two counts of murder while armed with a handgun. (§§ 187, subd. (a), 12022 subd. (a)(1).) The information also alleged Son committed multiple murders within the meaning of section 190.2, subdivision (a)(3).

In October 1998 the matter came on for jury trial. Ricky testified he had given Detective Gallivan extensive statements about Son's admitting his involvement in the killings, but Ricky claimed his statements had been a lie since Ricky was mad at Son for impregnating Ricky's 13-year-old sister Kim and for cheating on Kim by also seeing other girls. However, Ricky was unable to explain why the details of the killings he gave Gallivan closely matched the physical evidence and Son's later post-arrest admissions. The People introduced into evidence Son's taped interviews with police and the transcripts of those interviews.

Asserting an alibi defense, Son testified he was with his girlfriend Tina when the killings occurred. In that vein, Son asserted he was sure he had gone to see a movie and cruise around Mission Beach with Tina on the night of the killings. However, on cross-examination Son testified he did not know Tina's last name or where she could be found and had never told police or anyone else about Tina. Further, although initially testifying the movie started at 5 or 5:30 p.m., Son later testified he could not remember if Smann and the two victims had left the front of his apartment about 6 or 7 p.m., testimony indicating that Son had not left for the movies by that time.

Additionally, Son testified that he made the inculpatory taped statements to Detective Gallivan because Gallivan promised Son and Kim that Son would serve only one year in county jail if Son admitted his involvement in the killings. Son also testified he knew certain details about the killings because Gallivan had shown him photos of the victims. However, Son later acknowledged he gave specific details about the killings during his three-way conversation with Gallivan and Kim, a conversation that occurred an hour before Son was taken to jail where, according to Son, Gallivan showed him the photos of the killings and told Son details.5

In rebuttal, Detective Gallivan and Investigator Marquez testified they had not promised Son or Kim that Son would serve only one year in county jail if he admitted participating in the killings. Marquez also testified that although Son said he had been in Texas at the time of the killings, Marquez's investigation revealed Son was not in Texas at that time.

The jury convicted Son of the first degree murder of Nick and the second degree murder of Lee. The jury also found true the handgun allegations and the multiple-murder special-circumstance allegation. Son appeals.

A Court's Failure to Instruct on Voluntary Manslaughter Based on Imperfect Duress

As noted, there was evidence at trial indicating Son believed he had to assist Smann in the killings or his own life would otherwise have been endangered. Accordingly, asserting such belief—even if unreasonable—negated the material element of malice aforethought for murder, Son asked the court to instruct the jury on voluntarily manslaughter as a lesser...

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