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                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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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.


                                          *                  *                  *
              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.


                                           FACTS


1. The murder
              Tayroh Stinson was a marijuana merchant. He preferred to sell marijuana
from his car because he felt this was safer. He also handled marijuana transactions for
his friend Lee Walker. Early in the afternoon, Walker received a call from defendant and
passed his phone to Stinson. Defendant stated he wished to purchase an ounce of
marijuana for $300. Stinson and defendant agreed to meet at a Mae’s Café to effect the
sale. Stinson’s friend Jermaine Bradley accompanied Stinson to this planned encounter.
              In the Mae’s Café parking lot, defendant approached and, on Stinson’s
invitation, entered Stinson’s car. Defendant then directed Stinson to drive across the
street and park in the visitor’s parking area of a condominium complex. He then told
Stinson to get out of the car and to go into the garage. Bradley testified Stinson would
not normally get out of the car to conduct his marijuana sales. When Stinson did not



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return after 10 minutes or so, Bradley tried to phone him but got no answer. He then got
out of the car, walked in the direction Stinson had gone, and saw police and a body on the
ground. Jason Moreno, who was seated near a window at Mae’s Café, saw Stinson
stagger and fall down. Another customer at Mae’s Café, Carlos Herrera, saw two men
running, one Black being chased by a White person, and then saw both of them fall into
the bushes. The Black person fell first. Herrera saw the White man with a large knife.
Shortly thereafter, the police arrived.
              Stinson suffered stab wounds, one fatal. He was found to have carried
$1,173 cash and marijuana on his person. Defendant’s DNA was found in the victim’s
car.
              After the murder, defendant was next seen by Jeffery McDonald, Jr., his
cousin. McDonald testified defendant seemed “upset, kind of somewhat frantic, or
excited” and stated “he had gotten jumped or something like that.” Trisha Palmer,
McDonald’s girlfriend, was in her car when defendant entered the vehicle and told her he
needed a ride. As Palmer drove defendant asked her to take him to Santa Ana.
Defendant said “he tried to rob them and it went bad, so he took them all the way.”
Palmer then told defendant to get out of her car.
              McDonald saw defendant again later that evening. Defendant told him he
had stabbed someone because the victim refused to give him drugs. Defendant also
admitted having stabbed someone to his friend Bryan Arroyo, when he asked the latter
for help to get out of town.
              Defendant was eventually arrested in Las Vegas where he was interviewed
by Garden Grove detectives. After his arrest, defendant called Palmer twice and
threatened her.




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2. The police interrogation
              During the interview, which took place after defendant had been advised of
his rights under Miranda v. Arizona (1966) 384 U.S. 436 [86 S.Ct. 1602, 16 L.Ed.2d 694]
(Miranda), defendant essentially denied knowing anything about the crime. During the
interview, defendant stated many times “I’m done talking” or words to that effect, but the
inquiring officers ignored his statement. Four of these statements took place during the
portion of the interview that was presented to the jury. The trial court excluded the
remainder of the interview.
              Specifically, the following exchanges took place during the portion of the
interview that was given to the jury: Detective: “And I know you know what I’m talking
about.” [¶] Defendant: “I don’t know shit.” [¶] Detective: “You know what? You
do.” [¶] Defendant: “I’m done talking.” [¶] Detective: “Well something
happened. . . .” The interrogation continued.
              Later, a detective stated, “That’s where we don’t think that you’re being
truthful with us. And if there was a reason that this happened the way it did, we want to
hear it from you. Otherwise there’s no explanation for what happened.” Defendant
responded, “I don’t – I don’t know what the fuck you guys are talking about. I really
don’t. And I’m done talking.” The detective said, “We’re not done asking questions
though. . . .” The detective continued questioning defendant.
              On a third occasion, a detective asked, “Say again?” Defendant responded,
“I said what is this – like what the fuck? Are we done?” The detective said, “No.”
Defendant responded, “I’m done.” The detective stated, “We want the truth from
you . . . .” The interrogation continued.
              Finally, defendant stated, “I don’t know who Brian is so I don’t – I
wouldn’t be able to tell you that” and “I told you I’m done talking. I don’t know about




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none of this shit and I need to use the restroom real bad.” Nonetheless, the interrogation
continued.


                                      DISCUSSION


1. The interrogation violated defendant’s Miranda rights.
              As noted in Miranda: “if the individual is alone and indicates in any
manner that he does not wish to be interrogated, the police may not question him. The
mere fact that he may have answered some questions or volunteered some statements on
his own does not deprive him of the right to refrain from answering any further inquiries
until he has consulted with an attorney and thereafter consents to be questioned.”
(Miranda, supra, 384 U.S. at p. 445.) As the Attorney General recognizes, “No
particular form of words or conduct is necessary on the part of a suspect in order to
invoke his or her right to remain silent.” (People v. Crittenden (1994) 9 Cal.4th 83, 129.)
              To stop the questioning, “the suspect ‘must articulate his desire to [remain
silent] sufficiently clearly that a reasonable police officer in the circumstances would
understand the statement to be [an invocation of the right to remain silent].’” (People
v. Thomas (2012) 211 Cal.App.4th 987, 1005.) “‘If the suspect’s response is unequivocal
and unambiguous, the interrogation must stop. Police may not seek clarification of a
suspect’s response in an attempt to change the suspect’s mind after an invocation of
Miranda rights. [Citation.] Nor may police continue with the interrogation in an attempt
to confuse a suspect about the nature of his constitutional rights.’” (People v. Sauceda-
Contreras (2012) 55 Cal.4th 203, 214.) The statements made by defendant were
sufficiently unequivocal to impose a duty on the officers to terminate the questioning.
              Relying on People v. Musselwhite (1998) 17 Cal.4th 1216 and similar
cases, the Attorney General contends that statements such as “I’m done talking,” and



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“I’m done,” do not unambiguously indicate invocation of a right to remain silent. But in
Musselwhite, the defendant’s statement was limited to “‘I don’t want to talk about this.
You all are getting me confused.’” (Id. at p. 1239, italics omitted.) Here, defendant
repeatedly made unequivocal and unambiguous statements that he was “done talking.”
The court erred in admitting the statements following his invocation of the right to be
silent.


2. The error was harmless.
              But we do agree with the Attorney General that the error in admitting the
statements was harmless beyond a reasonable doubt. (Chapman v. California (1967) 386
U.S. 18, 24 [87 S.Ct. 824, 17 L.Ed.2d 705].)
              The statements admitted into evidence were not inculpatory; the only use
the prosecutor made of the statements during closing argument was to argue that they
demonstrated defendant was not truthful. And the evidence of defendant’s guilt in killing
Stinson in the course of the robbery was overwhelming. As Palmer drove defendant, he
told her “[h]e tried to rob them and it went bad, so he took them all the way.” Defendant
told McDonald he had stabbed someone because the victim refused to give him drugs.
Defendant also admitted having stabbed someone to Arroyo. After his arrest, defendant
called Palmer twice and threatened her. Acquaintances of the victim testified the latter
did not want to conduct drug deals except in his car; defendant persuaded him to get out
of the car. Eye witnesses saw defendant chase the victim. And defendant came prepared
for the robbery with a large knife. Finally, defendant fled the scene of the incident and
later fled to Las Vegas.




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3. The court did not err in failing to instruct on voluntary manslaughter.
              Defendant was convicted under the felony-murder rule. “[I]n People
v. Dillon (1983) 34 Cal.3d 441[], the court noted that in a felony-murder prosecution, the
defendant is not permitted to offer any proof at all that he acted without malice.
[Citation.] The court explained: ‘In Wigmore’s words, the issue of malice is therefore
“wholly immaterial for the purpose of the proponent’s case” when the charge is felony
murder. In that event . . . as a matter of law malice is not an element of felony murder.’
[Citation.] As the court concluded, ‘“. . . malice aforethought is not an element of murder
under the felony-murder doctrine.”’ [Citation.] [¶] Regarding the doctrine of imperfect
self-defense, ‘. . . when the trier of fact finds that a defendant killed another person
because the defendant actually, but unreasonably, believed he was in imminent danger of
death or great bodily injury, the defendant is deemed to have acted without malice and
thus can be convicted of no crime greater than voluntary manslaughter.’ [Citation.]
Because malice is irrelevant in . . . felony-murder prosecutions, a claim of imperfect self-
defense, offered to negate malice, is likewise irrelevant.” (People v. Tabios (1998) 67
Cal.App.4th 1, 8, italics omitted, disapproved on another point in People v. Chun (2009)
45 Cal.4th 1172, 1197.)
              We therefore agree defendant was not entitled to an instruction on
voluntary manslaughter. In addition, an instruction on a lesser included offense is only
required where the evidence would support conviction on such a theory. (People v.
Souza (2012) 54 Cal.4th 90, 114-115.) Here, the only evidence points to a preplanned
intention to rob Stinson of his drugs. There is no interpretation one could place on the
evidence to conclude defendant was guilty of voluntary manslaughter. This also explains
defense counsel’s agreement the court should not instruct on voluntary manslaughter.




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                                    DISPOSITION


            The judgment is affirmed.




                                            RYLAARSDAM, ACTING P. J.

WE CONCUR:



MOORE, J.



THOMPSON, J.




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