(Contra Costa County Super. Ct. No. 041945-7) Trial Judge: Hon. Richard E. Arnason.
The opinion of the court was delivered by: Margulies, J.
CERTIFIED FOR PUBLICATION
Defendant was convicted of second degree murder and other offenses. Following his arrest, he was interviewed by the police. Prior to beginning the interview, the officers quizzed defendant about his knowledge of the Miranda*fn1 warnings from prior arrests and watching television. Although the officers eventually mentioned three of the four required warnings during the discussion, they omitted any reference to the use of defendant's statements against him. After an extended subsequent interrogation, defendant confessed to the shooting.
The trial court found the Miranda warnings adequate and admitted defendant's statement in the prosecution's case-in-chief. We conclude that defendant's statement should have been suppressed and that its admission was not harmless error. Accordingly, we reverse.
Defendant was charged in an information, filed December 29, 2004, with murder (Pen. Code, § 187), being a felon in possession of a firearm (Pen. Code, § 12021, subd. (a)(1)), and being a felon in possession of ammunition (Pen. Code, § 12316, subd. (b)(1)). The information also alleged that defendant personally used a firearm (Pen. Code, § 12022.53) and had suffered three prior prison convictions (Pen. Code, § 667.5, subd. (b)).
The testimony at trial demonstrated that defendant shot the victim, Dale Jones, during an argument, killing him. The only witness who acknowledged being in the room at the time of the shooting was Mia, the 11-year-old daughter of a woman who lived in Jones's home. According to Mia's testimony, she, her mother, and Jones were talking in Jones's bedroom about 1:00 a.m., when defendant came to the door of the home. Mia had seen defendant at the house before. Jones left the bedroom to talk to defendant. When Jones returned to the bedroom, Mia was ready for bed. She asked Jones to ask defendant to leave the house. Jones left to make the request and then returned to the bedroom, followed a minute later by defendant. As an argument began, Jones stood up from the bed, and the two men stood close to each other, arguing angrily. Mia, who told the police she thought defendant perceived Jones's standing to be "a threat, that he was going to fight or something," agreed at trial that defendant "could have" taken Jones's conduct in that way. Defendant then stepped back and pulled a gun from his jacket. While Mia acknowledged telling the police that defendant had " 'pulled out the gun to defend,' " she testified at trial that he then laid the gun on the corner of the bed, saying to Jones, " [']Just shoot me,['] or [']kill me,['] or something like that," before picking it up again. As the argument continued, Mia covered her head with a pillow. She heard a shot, Jones speaking indistinctly, two more shots, and footsteps leaving. By the time Mia ran from the room, defendant had left the house.
Mia's mother gave testimony consistent, in its broad outlines, with her daughter's. The mother, however, claimed that the shooter was not defendant but another man who "look[s] almost identical" to defendant. That testimony was inconsistent with her statement to police shortly after the shooting, when she identified defendant as the shooter. The mother also testified that she had left the bedroom by the time the shooting began. After the first shot, she testified, the shooter emerged from the bedroom and headed to the door of the house, but he turned back, returned to the bedroom, and fired the second and third shots.
Defendant was arrested by police later in the day of the shooting and interrogated. At the beginning of the interrogation, a detective delivered an incomplete version of the Miranda warnings:
"Detective: Well, you've been arrested before. You know how this game works, right?
"[Defendant]: Never like this before, though.
"Detective: Okay. When you got arrested in the past, what happened?
"[Defendant]: Took me straight up to booking.
"Detective: Nobody ever talked to you?
"[Defendant]: I ain't never been talked to by detectives.
"Detective: Well, you probably need to now. I want to talk to you about the case that you're here for. Before I do-you watch television, right?
"Detective: You watch television?
"Detective: You watch cop shows?
"[Defendant]: Yes, sir. Yes, sir.
"Detective: What happens when people get arrested on cop shows?
"[Defendant]: It seem like this a halfway trick question. They interview them.
"Detective: Well, sure, but I mean what happens before they get interviewed?
"[Defendant]: They get arrested.
"Detective: They get arrested. And they go, you got ...