The People v. Duarte CA1/3

Filed 9/30/13 P. v. Duarte CA1/3 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE, Plaintiff and Respondent, A134634 v. KEVIN DUARTE, (Alameda County Super. Ct. No. C159175) Defendant and Appellant.

A jury convicted Kevin Duarte of first degree murder (Pen. Code, §§ 187, subd. (a), 189)1 during the commission of an attempted robbery (§ 190.2, subd. (a)(17)(A)), among other offenses. The court sentenced defendant to life in prison without the possibility of parole. (§ 190.2, subd. (a)(17)(A).) Defendant appeals. He contends his confession was obtained by the police without proper advisement of his right to remain silent and should have been suppressed. (Miranda v. Arizona (1966) 384 U.S. 436 (Miranda).) In the discussion that follows, we conclude the confession was properly admitted. We shall affirm the judgment. Facts Tony Simon was shot and killed at an Oakland gas station shortly after midnight on September 4, 2007. The police viewed a surveillance videotape of the incident. The videotape shows Simon driving into the gas station, where he speaks with a man standing at the passenger window. Two men then approach the driver‟s window. The police

1 All further section references are to the Penal Code.

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recognized one of the men as Roland Davis but did not recognize the other man. The two men exchanged words with Simon after which Simon speeds out of the gas station. As Simon drives away, the unidentified man raises a handgun and fires multiple shots at him. Simon suffered gunshot wounds to his back and died at the scene. The police interviewed Davis, who identified defendant as the shooter. The police then interviewed defendant, who admitted shooting Simon while trying to rob him. In a recorded statement, defendant said: “I walked over to him. I reached in the car, and I tried to rob him. I told him man „Give it up.‟ And he tried to grab me like[,] like grab the gun[,] like fight me[,] like pull on me . . . Like pull off with me in the car. And the gun went off. I kept shootin‟ . . . .” Pretrial Proceedings The prosecution filed an in limine motion seeking admission of defendant‟s confession. The defense opposed the motion, claiming defendant was not properly advised of his right to remain silent. (Miranda, supra, 384 U.S. 436.) The court held an evidentiary hearing to decide the matter. At the hearing, Oakland Police Sergeant Tony Jones testified that defendant was arrested for an unrelated burglary on September 18, 2007. Officers investigating the burglary advised defendant of his Miranda rights and defendant elected to remain silent. The exchange between the investigators and defendant lasted less than 10 minutes and is documented by an Oakland Police Department statement form. The one-page form contains case information, a Miranda admonition, a waiver section and blank lines to write a statement.2 The waiver section contains two questions with spaces for the suspect‟s responses and initials. The first question asks “Do you understand each of these rights I have explained to you?” The burglary investigator wrote defendant‟s response as “yeah.” The second question asks “Having these rights in mind, do you wish to talk to us