People v. Kincaid CA4/3

Filed 4/18/14 P. v. Kincaid CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE,

Plaintiff and Respondent, G048359

v. (Super. Ct. No. 09WF1991)

JOHNATHAN ALLEN KINCAID, OPINION

Defendant and Appellant.

Appeal from a judgment of the Superior Court of Orange County, William R. Froeberg, Judge. Affirmed. Michelle May Peterson, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, A. Natasha Cortina and Christine Levingston Bergman, Deputy Attorneys General, for Plaintiff and Respondent.

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A jury convicted defendant Johnathan Allen Kincaid of first degree felony murder (Pen. Code, § 187, subd. (a); all further statutory references are to this code). The jury found the murder was committed during the commission of a robbery (§ 190.2, subd. (a)(17)(A)) and that defendant personally used a deadly weapon during the commission of the murder (§ 12022, subd. (b)(1)). The trial court found true two strike priors. The court sentenced him to six years in state prison, plus life without the possibility of parole. Defendant appeals, contending the court erred in failing to suppress his statement to the police following his arrest as violating his invocation of his right to remain silent. We agree this was error but nevertheless affirm the conviction as the error was harmless. He also contends the court erred by failing to instruct on voluntary manslaughter. We disagree with this contention and affirm the judgment.