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                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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              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

2
 The admonition reads as follows: “You have the right to remain silent. Anything you
say can be used against you in a court of law. You have the right to talk to a lawyer and
have him present with you while you are being questioned. If you cannot afford a lawyer,
one will be appointed to represent you before any questioning if you wish one.”


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now?” Defendant‟s response is listed as “No I don‟t want to give a statement.”
Defendant‟s initials appear next to each response. The investigators concluded the
interview at 7:42 a.m., booked defendant for burglary, and placed him in jail.
       Later that day, Sergeant Jones, who was investigating the Simon homicide, learned
that defendant was in custody. Jones read defendant‟s statement form in the burglary case
“to see exactly what it was he said to the investigators.” Jones arrested defendant for
murder and had him transported from jail to the homicide division. Defendant was placed
in an interview room at 9:00 p.m., as documented by an interview log posted on the
room‟s door to record movements in and out of the room. Defendant was given a meal
and, at 10:45 p.m., Jones and another officer entered the room to interview defendant.
       The room was not equipped with a video or audio system. Jones testified: “At the
time, the practice of the police department was we would interview subjects, witnesses
and suspects; we would talk to him; take handwritten notes and ask them to provide a
written statement, once we were done talking about whatever we were talking about; and
the person would have the option to be okay with [an audio recording], or to decline. And
if they said okay, we would take the recorded statement from them.”
       Jones testified that, “prior to interviewing the defendant,” he read the Miranda
rights “verbatim” from the police statement form. Jones asked defendant if he understood
his rights and defendant said “yes.” Jones asked defendant: “Having those rights in mind,
would you like to talk to us now?” Defendant said “yes.” Jones wrote defendant‟s
responses on the form and wrote Xs on the form for defendant to place his initials in
acknowledgement of his waiver of rights. Jones testified: “immediately after the two
responses, I had him place his initials on the form.” Jones “sat right there and watched”
defendant write his initials on the form, the officer said. The initials “RD” (for Rafael
Duarte) appear on the form. Jones‟s handwritten notes of the interview report: “2252
[10:52 p.m.] Admonished/Yes/Yes.” The other officer‟s notes are almost identical: “2252
Admonished „Yes‟ „Yes.‟ ”
       Jones testified that nothing suggested defendant did not understand his rights.
Jones said defendant started talking immediately after being Mirandized and no threats or


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promises were made by the police during the interview. The officers‟ notes show the
interview started with a denial; defendant said “I didn‟t do anything.” Jones told
defendant that Davis identified him as the shooter and showed defendant the gas station
videotape. Police notes show that defendant asked “How do you know Roland [Davis is]
not full of shit?” The notes also report that defendant said “you can‟t see my face in the
video” and “man, I think I can beat this. I know that video‟s not admissible in court.”
After a long interrogation, defendant reportedly said “Okay man. I‟m going to keep it
real. I didn‟t mean to shoot him. I got nervous and he pulled off. [¶] We was going to
strip him. We weren‟t going to shoot him.” After defendant admitted the crime, an
audiotape statement was taken at 2:33 a.m., almost four hours after the interview began.
The audiotape statement is 13 minutes long.
       A transcription of the recording begins with a discussion of defendant‟s waiver of
rights. “Q. . . . I guess you came to the police department sometime early, early in the
mornin[g]? Something unrelated to this? We‟re not going to get into that – is that right?
[¶] A. Yes. [¶] Q. At that time, some detectives talked to you? [¶] A. Mm hm. [¶] Q. I
mean, did they? [¶] A. Yeah. [¶] Q. Okay. They read you your rights? [¶] A. Yeah.
[¶] Q. Okay. I read you your rights -- [¶] A. Yeah. [¶] Q. – when we came in here, too,
off this white piece of paper? [¶] A. Yes. [¶] Q. Um . . . I asked you if you knew what
they were . . . before I read [th]em to you? [¶] A. Yes. [¶] Q. Okay. And, I, uh, told you
„You have the right to remain silent. Anything you say can be used against you in a court
of law. You have the right to talk to a lawyer and have him present with you while you
are being questioned. If you cannot afford a lawyer, one will be appointed to represent
you before any questioning if you wish one.‟ Is that correct?” [¶] A. Yes. [¶] Q. Okay.
And, . . . – I asked you „Do you understand each of these rights I explained to you?‟ You
said, „Yes,‟ is that correct? [¶] A. Yes. [¶] Q. And I asked you, „Having these rights in
mind, do you wish to talk to us now?‟ You said „Yes,‟ is that correct? [¶] Yes. [¶] Q.
Those are your initials right there on those two lines? [¶] A. Yes.”
       Defendant admitted on the audiotape that he shot Simon: “[W]e planned on
robbin‟ ‟em, and everything went bad. Cuz when I tried to rob him, he grabbed the gun


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and I got nervous. I got scared and I accidentally shot the gun off. . . . I didn‟t mean to
kill him.”
       At the pretrial hearing, defendant recanted his confession and denied waiving his
Miranda rights. Defendant testified that Sergeant Jones never advised him of his Miranda
rights before turning on the tape recorder. Defendant also denied placing his initials on
the statement form waiving his rights. Defendant said Jones coerced him into confessing
by threatening him with the death penalty and promising him a voluntary manslaughter
deal. Jones told defendant to “play along” with everything the officer said during the
recorded portion of the interview to obtain the deal. Defendant agreed. Defendant
therefore said on tape that he had been read his Miranda rights and waived them when, in
fact, he had not.
       An expert in forensic document interpretation examined the initials on the waiver
form and compared them with known writings of defendant. The expert found
“significant differences” between the waiver form initials and known writings that led her
to conclude it “highly probable” that defendant did not initial the waiver form. On cross
examination, the expert conceded she could not “positively eliminate” defendant as the
source of the initials and acknowledged the possibility that defendant intentionally
distorted his writing so he could later deny initialing the form.
       A second document expert opined that “it is highly probable that [defendant] did
not write these questioned RD initials” on the waiver form but could not eliminate
defendant as the author. The expert saw no similarity between the written initials and
Jones‟s handwriting to suggest that the officer initialed the form.
       The court ruled the confession admissible. The court noted that the question of
whether Jones provided a Miranda admonishment at the start of the homicide
interrogation was “a straight credibility question” that required the court to weigh the
conflicting testimony of Sergeant Jones and defendant. The court said “I‟ll come down on
the side of Sergeant Jones on that one.” The court found expert testimony questioning the
authenticity of defendant‟s initials on the waiver form to be largely irrelevant because,
whether the form was initialed by defendant or someone else, defendant acknowledged


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on the audio recording that he had been advised of his Miranda rights at the outset of the
interview and waived his rights. The court found his recorded acknowledgement
voluntary and rejected defendant‟s testimony that his acknowledgment was coerced by
threats or promises.
                                    Trial Proceedings
       The prosecution presented defendant‟s confession and other evidence as
summarized above in the statement of facts. Defendant testified consistent with his
pretrial testimony; he denied the shooting and said the police coerced his confession by
threatening the death penalty and promising a reduced charge of voluntary manslaughter.
The document experts testified, as they had at the pretrial hearing, that it was “highly
probable” defendant did not write his initials on the Miranda waiver form.
       The jury convicted defendant of first degree murder (§§ 187, subd. (a), 189) and
found true allegations that the murder was committed during an attempted robbery
(§ 190.2, subd. (a)(17)(A)) and that defendant personally and intentionally discharged a
firearm resulting in Simon‟s death (§ 12022.53, subd. (d)). The jury also convicted
defendant of shooting at an occupied motor vehicle (§ 246) committed with personal use
of a firearm (§ 12022.53, subd. (b)).
       The court sentenced defendant to prison for life without the possibility of parole
on the murder conviction (§ 190.2, subd. (a)(17)(A)) enhanced by 25 years to life for
firearm use resulting in death (§ 12022.53, subd. (d)). The conviction for shooting at an
occupied vehicle and related gun enhancement were stayed. (§ 654.) Defendant filed a
timely appeal.
                                        Discussion
       Defendant raises a single claim on appeal. He contends his confession was
obtained by the police without proper advisement of his right to remain silent and should
have been suppressed.
       “No person . . . shall be compelled in any criminal case to be a witness against
himself.” (U.S. Const., 5th Amend.) To protect a suspect‟s constitutional right against
self-incrimination, law enforcement officers conducting custodial interrogation must


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advise the suspect that “he has the right to remain silent, that anything he says can be
used against him in a court of law, that he has the right to the presence of an attorney, and
that if he cannot afford an attorney one will be appointed for him prior to any questioning
if he so desires.” (Miranda, supra, 384 U.S. at p. 479.) “The defendant may waive
effectuation of these rights, provided the waiver is made voluntarily, knowingly and
intelligently. If, however, he indicates in any manner and at any stage of the process that
he wishes to consult with an attorney before speaking there can be no questioning.
Likewise, if the individual is alone and indicates in any manner that he does not wish to
be interrogated, the police may not question him.” (Id. at pp. 444-445.)
       Once a suspect invokes his or her right to remain silent, law enforcement officers
must “scrupulously honor” the invocation and end the interrogation. (Miranda, supra,
384 U.S. at p. 479.) However, unlike an invocation of the right to counsel (Edwards v.
Arizona (1981) 451 U.S. 477, 484-485), a suspect‟s invocation of the right to silence does
not create “a per se proscription of indefinite duration upon any further questioning by
[the] police.” (Michigan v. Mosley (1975) 423 U.S. 96, 102-103 (Mosley).) When a
suspect asserts his or her right to remain silent, the police must stop the interrogation but
may conduct a second interrogation concerning a separate crime following “the passage
of a significant period of time and the provision of a fresh set of warnings.” (Id. at
p. 106.)
       In Mosley, supra, 423 U.S. at page 97, the defendant was arrested for robberies
and, after being advised on his Miranda rights, declined to discuss the robberies. The
robbery detective ended the interrogation and placed defendant in a jail cell. (Ibid.) More
than two hours later, a homicide detective transferred defendant from the jail cell to the
homicide division, read Miranda warnings, and questioned the defendant about a fatal
shooting during a separate robbery not mentioned in the first interrogation. (Id. at pp. 98,
104.) Defendant made a statement implicating himself in the homicide and, later, moved
to suppress the statement. (Id. at pp. 98-99.) The trial court denied the motion to suppress
and defendant was convicted of murder. (Id. at p. 99.)



                                              7
       The United States Supreme Court held that admission of the incriminating
statement did not violate the principles of Miranda. (Mosley, supra, 423 U.S. at p. 107.)
The court found the defendant‟s “„right to cut off questioning‟ was fully respected” when
the detective stopped questioning him about the robberies. (Id. at p. 104.) The
defendant‟s invocation of the right to remain silent was not violated by later questioning
by another detective at another location about an unrelated crime. (Id. at pp. 104-105.)
The defendant “was given full and complete Miranda warnings at the outset of the
second interrogation. He was thus reminded again that he could remain silent and could
consult with a lawyer, and was carefully given a full and fair opportunity to exercise
these options. The subsequent questioning did not undercut [the defendant‟s] previous
decision not to answer [the robbery detective‟s] inquiries.” (Ibid.)
       Mosley applies here. Officers investigating a burglary advised defendant of his
Miranda rights and defendant said “I don‟t want to give a statement.” The investigators
immediately ended the interview, booked defendant for burglary, and placed him in jail.
Thirteen hours later, defendant was transported from jail to the homicide division for
questioning by another investigator in the unrelated Simon shooting. Sergeant Jones
testified that defendant was advised of his Miranda rights at the outset of this second
interrogation and voluntarily waived his right to remain silent. Defendant disputed this
testimony but, in reviewing a claim under Miranda, “ „[w]e must accept the trial court‟s
resolution of disputed facts and inferences, and its evaluations of credibility, if they are
substantially supported.‟ ” (People v. Bradford (1997) 14 Cal.4th 1005, 1033.)
       The trial court‟s resolution of disputed facts and its evaluations of credibility are
substantially supported by the testimony presented at the evidentiary hearing, two sets of
handwritten notes of the interview, and defendant‟s recorded confession, whatever weight
may be accorded the initialed waiver form. The recorded confession includes defendant‟s
acknowledgment that he received a Miranda advisement at the outset of the interrogation
and waived his right to remain silent. “Q. Okay. I read you your rights . . . when we came
in here, . . . off this white piece of paper? [¶] A. Yes. [¶] Q. . . . I asked you if you knew
what they were . . . before I read [th]em to you? [¶] A. Yes. [¶] Q. Okay. And, I . . . told


                                               8
you „You have the right to remain silent. . . .‟ Is that correct? [¶] A. Yes. [¶] Q. . . . I
asked you „Do you understand each of these rights I explained to you?‟ You said, „Yes,‟
is that correct? [¶] A. Yes. [¶] Q. And I asked you, „Having these rights in mind, do you
wish to talk to us now?‟ You said „Yes,‟ is that correct? [¶] Yes. [¶] Q. Those are your
initials right there on those two lines? [¶] A. Yes.” Substantial evidence supports the trial
court‟s determination that this acknowledgment was voluntary and not coerced by threats
or promises as defendant claimed.
                                          Disposition
       The judgment is affirmed.




                                                     _________________________
                                                     Pollak, J.


We concur:


_________________________
McGuiness, P.J.


_________________________
Jenkins, J.




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