Filed 7/17/14

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

THE PEOPLE,

Plaintiff and Respondent,

v.

BRITTANY KIM DOWDELL et al.,

Defendants and Appellants.

 H037404

 (Santa Clara County

 Super. Ct. Nos. EE907147,

 CC501296, and CC754220)

Defendants Terrance Ray Lincoln and Brittany Kim Dowdell were tried before 

dual juries for offenses arising out of a robbery/carjacking/kidnapping incident in 

Sunnyvale. The jury trying Lincoln (the Lincoln jury) found him guilty on five counts as 

charged: Count One—kidnapping for ransom or extortion; Count Two—kidnapping 

during a carjacking; Count Three—carjacking; Count Four—kidnapping for robbery; and 

Count Five—criminal threats. (Pen. Code, §§ 209, subd. (a), 209.5, 215, 209, 

subd. (b)(1), 422.) The trial court found two prior prison term allegations true and 

sentenced Lincoln to two concurrent terms of life with the possibility of parole, 

consecutive to four years.

1

Dowdell was charged with the same counts as Lincoln, except she was not charged 

with Count Five––criminal threats. The jury trying Dowdell (the Dowdell jury) found 

her guilty on two counts: Count One—kidnapping for ransom or extortion; and Count 

 

1

The court also sentenced Lincoln on two unrelated felonies not at issue in this 

appeal.
2

Four—kidnapping for robbery. The jury hung on Counts Two and Three. The trial court 

sentenced Dowdell to life in prison with the possibility of parole.

On appeal, Lincoln claims: (1) the trial court should have excluded his allegedly 

coerced confession; (2) the prosecutor committed misconduct by stating that “The 

presumption of innocence is over” in closing argument; (3) the trial court erred in 

denying his midtrial motion to relieve his retained trial counsel; (4) his sentence on either 

Count One or Count Two should have been stayed under Penal Code section 654 (section 

654); and (5) his conviction on Count Three for carjacking must be reversed because it is 

a lesser included offense of kidnapping during a carjacking. As to the fourth claim, we 

conclude that section 654 requires the sentence to be stayed on either Count One or 

Count Two. And the Attorney General concedes the fifth claim relating to Count Three;

we accept her concession. Accordingly, we will stay the sentence on Count Two and

strike the conviction on Count Three (carjacking). We find all other claims without 

merit, and we will affirm the judgment as modified.2

Dowdell claims: (1) the trial court’s jury instructions erroneously limited the 

jury’s ability to consider evidence of intimate partner battering in determining whether 

she formed the specific intent necessary to commit the charged offenses; (2) the 

prosecution committed misconduct by referring to the possibility of probation during 

closing argument; and (3) her sentence on Count Four should have been stayed under 

section 654. As to Dowdell’s first claim, we agree that the court erroneously instructed 

the jury on intimate partner battering, but we find the error harmless. And we find 

Dowdell’s second claim of prosecutorial misconduct to be without merit. As to her third 

claim, the trial court’s oral pronouncement stayed the sentence on Count Four, but the 

 

2

In a separate petition for writ of habeas corpus (In re Lincoln, H039399), Lincoln 

raises an additional claim of ineffective assistance of counsel. By separate order of this 

date, we deny Lincoln’s petition for habeas corpus.
3

abstract fails to reflect the court’s pronouncement. We will therefore order the abstract 

corrected to stay the sentence on Count Four and we will otherwise affirm the judgment.

I. FACTUAL AND PROCEDURAL BACKGROUND

At the time of the offenses, Lincoln was a 36-year-old, self-employed musical 

entertainer. Dowdell, his girlfriend of six months, was 20 years old and unemployed. 

She was pregnant with Lincoln’s child at the time of arrest. Dowdell’s childhood friend, 

Derric Shavens, also participated in the robbery/carjacking/kidnapping incident. Shavens 

testified for the prosecution under a grant of immunity.

A. Facts of the Offenses

On the evening of April 13, 2009, Shavens, under Lincoln’s direction, picked up 

both defendants in his car and drove them to Sunnyvale. Shavens saw a gun tucked into 

Lincoln’s waistband under his shirt. Dowdell later testified—and Lincoln told police—

that the gun was a plastic, toy gun that Lincoln had colored black with a Sharpie pen.

Lincoln said he needed money, and he told Dowdell and Shavens that he planned

to rob someone. At around 10:00 p.m., they approached a car wash in Sunnyvale. 

Lincoln told Shavens to pull over, whereupon Shavens parked his car on the street just 

beyond the car wash. Lincoln got out of the car and walked toward the car wash while 

Dowdell and Shavens stayed in the car. 

Benjamin Toma, the victim, was washing his Chevrolet Avalanche truck at the car

wash. While Toma was replacing the floor mats in his truck, Lincoln approached him 

from behind, put his hand on Toma’s neck, and held the gun to Toma’s head. Toma 

resisted and swung his fist backward, knocking the gun out of Lincoln’s hand. Toma 

grabbed the gun, but Lincoln punched him four times in the side of the head, causing 

Toma to lose consciousness. When Toma regained consciousness, Lincoln had regained 

control of the gun. Lincoln shoved Toma back into his truck and pushed him onto the 

floor of the rear seating area. Lincoln said “Don’t move until I call my partners,” and 

demanded that Toma give him $300. 
4

Lincoln then waved and whistled at Dowdell and Shavens. Shavens pulled his car 

into the car wash, and Dowdell got out of the car to walk to Toma’s truck. Lincoln got 

into the front of the truck and told Dowdell to get into the back of the truck with Toma. 

Lincoln gave the gun to Dowdell and told her to hold it on Toma. Dowdell put her feet 

on top of Toma and held the gun against his back. Lincoln told Toma not to move and 

instructed Dowdell to shoot Toma in the back to paralyze him if he disobeyed. Lincoln 

also threatened to shoot Toma if Lincoln did not get more money. At some point during 

this time, Lincoln took Toma’s phone, keys, and wallet, including $50 in cash and his 

Automated Teller Machine (ATM) card. 

Lincoln drove Toma’s truck out of the car wash while Dowdell kept Toma in the 

back of the truck at gunpoint. Shavens followed them in his car. After driving for about 

five minutes, Lincoln stopped the truck at a Wells Fargo bank with an ATM. Lincoln 

demanded the Personal Identification Number (PIN) for Toma’s ATM card and

threatened to kill him if he supplied the wrong number. Toma revealed the PIN. Lincoln 

then told Dowdell to take the card to the ATM while he stayed in the truck with the gun 

to guard Toma. Dowdell did as she was told, but she was unable to extract any cash from 

the machine. Lincoln cursed angrily at Toma, and Toma believed he was about to be 

killed. Toma begged them to go to a Bank of America, where Toma kept his bank 

account. 

Lincoln then drove the truck to an ATM at a Bank of America while Dowdell 

again used the gun to keep Toma in the back of the truck. Shavens continued to follow

them in his car. Lincoln again threatened to kill Toma if the PIN did not work. At the 

Bank of America, Dowdell went to the ATM while Lincoln kept Toma in the truck. 

Dowdell once again failed to extract money from the ATM. Lincoln also attempted to 

extract money from the Bank of America ATM, but he too failed. 

Surveillance video from a camera at the ATM showed Dowdell using the machine

shortly after 11:30 p.m., and bank records showed several attempts to extract cash from 
5

the ATM around the same time. Surveillance video from a camera in the bank parking 

lot showed Shavens’ car and Toma’s truck parked in the lot. At trial, Shavens identified 

Lincoln in the video footage, but he also testified that he did not know whether Lincoln 

had gotten out of the truck at that bank.

Before leaving Toma, Lincoln threatened to send “bad cops” to visit Toma and his 

family if Toma tried to contact the police. Lincoln removed Toma’s pants and shoes, 

pushed him inside the truck, and told him not to move. Shavens saw Lincoln throw the 

shoes and pants across the parking lot. 

Dowdell left the truck and got into Shavens’ car. Dowdell told Shavens that 

Lincoln had just robbed somebody and left him in the back of the truck. She said Lincoln 

had instructed her to hold Toma in the back of the truck with the gun while Lincoln drove 

to the ATM locations. 

Lincoln then joined Dowdell in Shavens’ car and told Shavens to drive away, 

leaving Toma in the bank parking lot. They stopped at another ATM, and they stopped at 

a gas station, where Lincoln used Toma’s card to buy gasoline for Shavens’ car. 

After Toma heard Shavens’ car drive away, Toma walked to a nearby Denny’s 

restaurant to get help. When police arrived, they observed swelling, abrasions, and 

broken skin on Toma’s head. They found Toma’s truck in the Bank of America parking 

lot, where it appeared to have been ransacked. 

The next day, April 14, 2009, Lincoln called Toma on his home telephone. 

Dowdell saw Lincoln make the call. Toma recognized the voice as that of his attacker.

3

Lincoln asked for Toma, but Toma claimed he was someone else and that Toma was in 

the hospital. Lincoln called Toma again on April 22, 2009, and threatened to send a “bad 

cop from Oakland” to visit Toma if he went to the police. Lincoln also said he had 

Toma’s driver’s license, which Lincoln had taken during the robbery. 

 

3 At trial, Toma testified that his home phone number was stored in his cell phone, 

which Lincoln had stolen during the robbery.
6

Police traced both phone calls to a cell phone registered to Devante Ray, the name 

of Lincoln’s son. The cell phone was also registered with a birth date of August 17, 

1972, which is Lincoln’s date of birth. Phone records showed the cell phone had made 

frequent calls to a phone number belonging to Dowdell. The cell phone had also been 

used to make a call shortly after midnight on the night of the robbery. The call went 

through a cell tower near a Bank of America where one of the fraudulent transactions had 

been attempted. Police later recovered the phone from Lincoln’s person, and he admitted 

the phone was his. 

B. Lincoln’s Statement and Testimony

After police took Lincoln into custody, he waived his Miranda rights and police 

interrogated him at length. An audio recording of the interrogation was played for the 

Lincoln jury, but not the Dowdell jury. In the statement, Lincoln admitted his 

involvement in the crime. He stated that the initial plan was to steal a purse or wallet, not 

to kidnap the victim. He admitted that he and Dowdell took Toma’s truck while Shavens 

followed them to two different banks, but he repeatedly claimed that the gun was merely 

a toy. 4 He denied making any phone calls to Toma after the robbery. 

Lincoln testified at trial before both juries. He denied any involvement in the 

robbery and claimed he was elsewhere at the time. He testified at length, in narrative 

fashion,

5

about his relationship with Dowdell. Lincoln and Dowdell were romantically 

involved at the time of the crime, although Lincoln remained married to another woman.

He claimed he first learned of Dowdell’s involvement in the crime when he saw a 

photograph of her on a website called “Fugitive Watch” that had published details of the 

crime to the public. He testified that Dowdell was involved with another man at the time 

of the robbery, and that she was pregnant. Lincoln claimed that Dowdell did not know 

whether Lincoln or the other man had impregnated her. 

 

4

The jury found all gun enhancements not true. 

5

Lincoln gave most of his testimony without questions from his attorney.
7

In his testimony, Lincoln admitted that he had given a statement to police 

confessing to his involvement in the robbery. But he also testified that his prior statement 

was not true, and that he had given a false confession to the police “to deflect as much 

information as I possibly could away from [Dowdell]” in an attempt to lessen her 

liability. Lincoln claimed he had loaned his cell phone to Dowdell and Shavens after 

learning of the robbery. On cross-examination, he also claimed that he had also loaned 

his phone to Dowdell on the night of the robbery. Lincoln admitted having prior 

convictions and he admitted he had been required to register as a sex offender. 

C. Dowdell’s Defense and Evidence of Intimate Partner Battering

Dowdell also gave a statement to police admitting her involvement in the crime. 

An audio recording of her statement was played for the Dowdell jury, but not the Lincoln 

jury.6 She told police that Lincoln instructed her to remain silent throughout the offense 

so as not to reveal to Toma that she was female. 

At trial, Dowdell testified that when she first met Lincoln in November 2008, she 

was unemployed and her self-esteem was low. As the relationship progressed, Lincoln 

became more possessive and controlling. Lincoln would call her 15 or 20 times a day, 

and he insisted she be alone when they talked on the phone. He was “authoritative,” or 

“strong and stern” with his voice and she reacted “kind of like a dog with his tail between 

his legs.” He once told her to stand in a corner after an argument. She testified that “he 

was in charge. What he said goes.” Lincoln wanted to control every aspect of Dowdell’s 

life, telling her how to dress and how to wear her hair. He pressed her to surrender her 

will to him. She wrote a letter in response stating, “I surrender and give all of myself to 

you, do whatever you ask, when you ask without question or hesitation.” He once 

convinced her to prostitute herself. She did not want to prostitute herself, but she was

 

6 Dowdell testified before the Dowdell jury, but not the Lincoln jury. 
8

afraid he would leave her if she refused. On another occasion, while they were having

sex, Lincoln struck her hard and hurt her, causing her to cry. 

Dowdell testified in detail to the facts of her involvement in the crime. She 

testified that she did not intend to rob, kidnap, or carjack Toma. She claimed she was 

merely obeying Lincoln’s instructions. She further testified that she did not know, prior 

to the offense, that Lincoln intended to kidnap anyone or carjack a vehicle, and she did 

not know Lincoln intended to drive the truck away when she first got into the back of the 

truck with Toma. She admitted that she had the chance to withdraw from the crime and 

retreat to Shavens’ car, but she testified that she was afraid Lincoln might hurt her if she 

did not follow his instructions. She admitted that she had remained silent throughout the 

offense, but she denied that Lincoln had instructed her to do so. 

Shavens testified to the Dowdell jury (but not to the Lincoln jury) that he was 

fearful of Lincoln because of past threats Lincoln had made. Lincoln once threatened to 

harm Dowdell’s stepsister, and Lincoln said he knew people who could bring harm to 

other people. Shavens also testified that Dowdell became less fun and outgoing after she 

met Lincoln, and that she abandoned her family after meeting him. 

Dowdell’s mother and stepsister both testified in Dowdell’s defense. Dowdell’s 

mother testified that Lincoln took advantage of Dowdell, and that he manipulated and 

controlled her. Dowdell’s mother also testified that Lincoln once called their house and 

said “he knew people in Oakland that would come and kill all of us.” Dowdell told her 

mother that Lincoln’s threat was serious. 

Dowdell’s stepsister testified that Lincoln would call Dowdell 15 to 25 times a 

day, and that Dowdell would do anything Lincoln told her to do. Dowdell’s stepsister 

also testified that she once found fraudulent checks in Dowdell’s purse. After telling

Dowdell’s mother about the checks, Lincoln left the stepsister a voicemail telling her, 

“You fucked up, kiss your baby goodbye.” 
9

Lincoln’s wife testified that after she discovered Dowdell was dating Lincoln, she 

sent an email to Dowdell stating, “I’m writing because I thought, here we go again. 

[Lincoln] has found some young woman to use and destroy.” 

Family therapist Linda Skerbic testified in Dowdell’s defense as an expert on

intimate partner battering syndrome, historically called “battered woman syndrome.” 

Skerbic set forth four factors that establish the syndrome, and she described the effect of 

the syndrome on a woman. First, a woman accepts responsibility for the problems in the 

relationship and she accepts responsibility for fixing them. Second, she takes on the fault 

for any problems. Third, she has a fear of harm to herself or family members. Fourth, 

she develops a mental mindset wherein she feels the abuser is all wise and omnipresent 

and that she cannot escape from his constant involvement or control. Intimate partner 

battering syndrome does not have to involve physical abuse; it can involve mental and 

emotional abuse based on the abuser’s tone of voice or intimidating physical presence. 

Over time, the battered partner learns helplessness, stops thinking for herself, and gives

control of her life to the abuser. She can be easily intimidated and becomes overly 

trusting, allowing herself to be manipulated by the abuser even to the point of becoming 

“robotic,” such that she acts on command. 

Mary Ann Yaeil Kim, a licensed clinical psychologist, testified for the defense as 

an expert in psychological testing and assessment. She performed a diagnostic study of 

Dowdell and evaluated her for about six or seven hours. She diagnosed Dowdell with 

post-traumatic stress syndrome and concluded that she has aspects of a dependent 

personality disorder. This meant that Dowdell was “fearful for her well-being” and 

“spent a lot of time in [. . .] dissociative episodes,” making her unable to make clear 

choices. She further described Dowdell as “extremely immature and naïve” and

“extremely conflict avoidant,” with a “low interpersonal I.Q.” As a result of her 

background, Dowdell was “very vulnerable to the direction of others” and “extremely 

compliant” with any person in a position of authority. 
10

D. Procedural Background

On February 25, 2010, the prosecution charged both Lincoln and Dowdell by 

information with: Count One—kidnapping for ransom or extortion (Pen. Code, § 209, 

subd. (a)); Count Two—kidnapping during a carjacking (Pen. Code, § 209.5); Count 

Three—carjacking (Pen. Code, § 215); and Count Four—kidnapping for robbery (Pen. 

Code, § 209, subd. (b)(1)). The information charged Lincoln only with Count Five—

criminal threats. (Pen. Code, § 422). The information further alleged that both 

defendants personally used a handgun in the commission of Counts One through Four.

(Pen. Code, § 12022.53, subd. (b)). The information also alleged that Lincoln had a prior 

juvenile adjudication for a forcible lewd or lascivious act on a child under 14 (Pen. Code,

§§ 288, subd. (b), 667, subd. (b)-(i), 1170.12), and that he had served two prior prison 

terms. (Pen. Code, § 667.5, subd. (b).)

On June 6, 2011, the court granted a prosecution motion to try appellant and 

codefendant Dowdell before dual juries in the same trial. At the request of the 

prosecution, the court ordered Shavens to testify under a grant of immunity. (Pen. Code,

§ 1324.) Jury selection began on June 7, and the evidentiary phase of the trial began on 

June 20. On July 1, the jury found Lincoln guilty as charged on all five counts, and 

Dowdell guilty on Counts One and Four. The jury hung on Counts Two and Three as to 

Dowdell, and the jury found the gun enhancement allegations not true as to both 

defendants. 

As to Lincoln, the trial court imposed an aggregate term of life in prison with the 

possibility of parole, consecutive to four years, as follows. First, the court granted 

Lincoln’s Romero motion to strike his prior adjudication. The trial court then found true

the two prior prison sentences and imposed one-year enhancements for each. On each of 

Counts One, Two, and Four, the court sentenced Lincoln to concurrent terms of life in 

prison with the possibility of parole, but the court stayed the sentence on Count Four 

under section 654. On Count Three, the court sentenced Lincoln to the upper-term of 
11

nine years and stayed the sentence under section 654. On Count Five, the court 

sentenced Lincoln to a consecutive mid-term sentence of two years. Thus, Lincoln’s 

aggregate sentence consisted of life in prison with the possibility of parole consecutive to 

four years.

At Dowdell’s sentencing, the prosecution moved to dismiss Counts Two and 

Three, and the trial court granted the motion in the interest of justice. The court then 

sentenced Dowdell to life in prison with the possibility of parole on each of Counts One 

and Four, but the court stayed the sentence on Count Four under section 654. 

II. DISCUSSION

A. Admissibility of Lincoln’s Statement to Police

At trial, Lincoln moved to exclude his statement to police on the basis that police 

coerced him into involuntarily admitting his involvement in the crime. After a hearing 

under Evidence Code section 402, the trial court denied the motion. Lincoln contends the 

trial court erred in denying his motion. The thrust of his argument is that the police made 

implicit promises of leniency for Dowdell, who was pregnant with Lincoln’s child, in 

exchange for Lincoln’s admissions. 

1. Legal Standards

“An involuntary confession is inadmissible under the due process clauses of both 

the Fourteenth Amendment to the federal Constitution [citation] as well as article I, 

sections 7 and 15 of the California Constitution [citation].” (People v. Weaver (2001) 

26 Cal.4th 876, 920.) “Under both state and federal law, courts apply a ‘totality of 

circumstances’ test to determine the voluntariness of a confession.” (People v. Massie

(1998) 19 Cal.4th 550, 576.) “[C]oercive police activity is a necessary predicate to the 

finding that a confession is not ‘voluntary’ within the meaning of the Due Process Clause 

of the Fourteenth Amendment.” (Colorado v. Connelly (1986) 479 U.S. 157, 167.) 

“[T]he question in each case is whether the defendant’s will was overborne at the time he 

confessed. [Citations.] If so, the confession cannot be deemed ‘the product of a rational 
12

intellect and a free will.’ ” (Lynumn v. Illinois (1963) 372 U.S. 528, 534.) The burden is 

on the prosecution to show by a preponderance of the evidence that the statement was 

voluntary. (People v. Vasila (1995) 38 Cal.App.4th 865, 873.) “When, as here, the 

interview was tape-recorded, the facts surrounding the giving of the statement are 

undisputed, and the appellate court may independently review the trial court’s 

determination of voluntariness.” (Ibid.)

“Mere advice or exhortation by the police that it would be better for the accused to 

tell the truth, when unaccompanied by either a threat or a promise[] does not [. . .] make a 

subsequent confession involuntary.” (People v. Boyde (1988) 46 Cal.3d 212, 238

(Boyde).) “However, where a person in authority makes an express or clearly implied 

promise of leniency or advantage for the accused which is a motivating cause of the 

decision to confess, the confession is involuntary and inadmissible as a matter of law.” 

(Ibid.) Furthermore, “A threat by police to arrest or punish a close relative, or a promise 

to free the relative in exchange for a confession, may render an admission invalid.” 

(People v. Steger (1976) 16 Cal.3d 539, 550.)

2. Lincoln Voluntarily Made His Statement to Police

We agree with the trial court that the circumstances of the interrogation were 

“upsetting” but that Lincoln’s admissions were voluntary under the totality of the 

circumstances. 

At the start of the interrogation, police told Lincoln they had Dowdell in custody 

and that they had just questioned her about the crime. They repeatedly emphasized the 

fact that she was pregnant with Lincoln’s child:

“[LINCOLN:] So you’ve already spoken to Brittany? What are you gonna do for 

her?

“[OFFICER:] For Brittany’s sake? I don’t need you. But you know who needs 

you, is uh, your little boy. Okay. Your little girl. Brittany, she’s pregnant with your 

child. 
13

[¶]

“[OFFICER:] Okay, how about the baby’s [sic] Brittany’s carrying? How you 

think that’s gonna affect her when she has that baby in prison?” 

Second, police repeatedly emphasized that Dowdell was facing great liability for 

her involvement in the offense, including the possibility of life in prison, and they told 

Lincoln that “Brittany needs you” to “save her”—i.e., to make a statement lessening her 

liability:

“[OFFICER:] You know what, we’re in a position to burn her right? 

[¶]

“[OFFICER:] Here’s what’s on the table. Okay. Brittany goes for armed 

robbery, kidnapping with enhancement, okay, life.” (Italics added.)

[¶]

“[OFFICER:] Armed robbery, kidnapping, okay. It’s a serious charge, okay. 

We’ve been talking to Brittany’s parents who came down here, okay. Crying their eyes 

out, you know, because their kid got into this mess. Their kid’s pregnant, okay. You 

want—you want to know what’s on the table? That’s what’s on the table, okay. We need 

to know how involved she is.

“[LINCOLN:] Life?

“[OFFICER:] It’s a serious charge.

“[LINCOLN:] Life?

“[OFFICER:] I don’t know if it’s gonna be life or not, but yeah, kidnapping, 

carjacking, armed to a murder weapon, robbery. You’re on probation. You want, you 

want us to write about it that way? We don’t want to write that Brittany’s the 

mastermind behind this. 

[¶]

“[OFFICER:] What you’re dealing with also is, you’re [sic] pregnant girlfriend is 

locked up for robbery for some shit that you pulled her into, ‘cause obviously, you 
14

influenced—into this, into this whole thing, but she has to say, she has to share some 

culpability and responsibility ‘cause she’s older than 18. She had to know what’s going 

on. That’s why she’s busted. Do you understand? I don’t need you. I don’t need 

Brittany. Brittany needs you.

[¶]

“[OFFICER:] But hey, how are you gonna uh, save Brittany.” (Italics added.)

The officers specifically emphasized the fact that Dowdell was facing an 

enhancement for use of a firearm, but that she was claiming the gun was a toy. Police 

insisted they needed Lincoln to corroborate her statement: 

“[OFFICER:] Okay, she’s facing armed robbery. She’s trying to make a defense 

that was a fake gun, that it was a silver gun that was painted black, it was chipping away. 

Believable, but now she’s the only one saying that right now. Okay? Can we go with her 

statement? No, man, she’s our suspect. But she’s saying, ‘Ask him, he’ll tell you. He’ll 

tell you the exact same detail.’ Okay. Armed robbery, we gotta go with that. Her first 

time out she’s gonna have this baby in prison. She wants to terminate it? She’s gonna be 

really sad. ‘Cause she’s not going to do that. 

[¶]

“[OFFICER:] But once we get the truth from you, then we should just start 

talking about Brittany and see whatever you’re saying about that case is true for Brittany 

and then we start discussing, okay, Brittany said, it was a painted gun, you know. . . .” 

Throughout the interrogation, the police exhorted Lincoln to “do the right thing,” 

to be the “voice” for Dowdell and “save her.” They also repeatedly told Lincoln that his 

cooperation would “matter”—i.e., that it would result in a more positive outcome for 

Dowdell. After Lincoln told the officers that “you can’t help me or hurt me” because the 

District Attorney was in charge, the officers insisted otherwise:
15

“[OFFICER:] I don’t know what she- she’s uh, playing a part in your life, but you 

gotta do the right thing, okay. And you’re wrong when it talks about cooperation and 

recommendations. 

[¶]

“[OFFICER:] I gotta put myself in your shoes. Even in that scenario, man, I gotta 

do the right thing. I gotta do the right thing for, for a young lady. Okay, I do this job 

because I protect people. I protect that victim, I’m the voice for that victim, I’m the voice 

for Brittany, I’m a voice for you, I’m a voice for Derric, I gotta do the right thing. This 

interview could have been done a long time ago. I gotta do the right thing. You gotta do 

the right thing. And you’re wrong. When you think that your voice and your opinion 

doesn’t matter.” (Italics added.)

Lincoln contends these statements constituted implicit promises of leniency for 

Dowdell. We agree. Based on our review of the recorded interrogation, we conclude that 

the officers’ repeated statements of “what’s on the table” in reference to Dowdell’s 

exposure implicitly suggested leniency in exchange for Lincoln’s statement. Moreover, 

the officers repeatedly told Lincoln that his statements would “matter” to Dowdell—i.e.,

that there would be a positive outcome for her as a result of his statements. While the 

officers’ promises were not explicit, they specifically set forth the possibility of a firearm 

enhancement for Dowdell and implied that Lincoln could reduce that possibility by 

confirming her statement that the gun was a toy. These statements constituted “clearly 

implied” promises of leniency for Dowdell—the mother of Lincoln’s child—and hence

were improper. (Boyde, supra, 46 Cal.3d at p. 238; People v. Steger, supra, 16 Cal.3d at 

p. 550.)

To determine whether Lincoln’s confession was coerced, we must assess whether

the implicit promises of leniency caused the defendant to confess. (Boyde, supra, 46 

Cal.3d at p. 238.) In this prong of the analysis, we consider Lincoln’s sophistication, his 

prior experience with the criminal justice system, and his emotional state. (In re Shawn 
16

D. (1993) 20 Cal.App.4th 200, 209.) Here, all of these factors weigh against a finding of 

coercion. First, Lincoln has a substantial criminal history, including four felony 

convictions for conspiracy, three convictions for possession of a controlled substance, 

and one misdemeanor conviction for driving with a suspended license. In his 

interrogation, Lincoln demonstrated familiarity with his legal rights and the interrogation 

process. He expressly volunteered to waive his Miranda rights before the police 

admonished him. Audio of the interview shows he was calm and rational throughout the 

interrogation. He made numerous statements demonstrating careful calculations about 

the details of his admissions in a deliberate effort not to incriminate Shavens.

We conclude that Lincoln’s confession was not coerced by the officers’ implicit 

promises of leniency. Because of his sophistication and experience with the criminal 

justice system, Lincoln knew the officers’ implicit promises were hollow. In fact, he 

explicitly stated that he was aware the police lacked the authority to make charging 

decisions regarding Dowdell in exchange for his statements:

“[LINCOLN:] Well, gentlemen, ultimately, this is—right now, where I’m 

leaning; the only person who is qualified and capable of um, making any type of deals is 

the District Attorney.” 

Lincoln then reiterated this understanding, and the police responded that they 

could not make guarantees:

“[LINCOLN:] Okay. The only person that’s in any position to make any deals 

and/or promises, um, regarding Brittany is the District Attorney. So as of right now, 

because we all share the same concern for her, I believe um, the only way that I would be 

willing to, in anyway, share anything uh, regarding this situation, is that I would, I would 

need to know that, I doing so—

“[OFFICER:] We can’t guarantee you anything man.

“[LINCOLN:] I know, I know you can’t. I know ya’ll can’t. And that’s why I 

started by—by saying just the way I said it. I believe you—you—I mean, I talked to a lot 
17

of police. You know I did the good cop/bad cop, I did the asshole, I did the street cop, 

the motherfucker from the block, the nigga that know what’s going on; I’ve dealt with all 

that. You can’t put a face on with me. I’m not gonna put no faces on with ya’ll.”

These passages show that Lincoln gave his statement voluntarily. But even if 

Lincoln could show his statement was coerced, we would find its admission harmless 

beyond a reasonable doubt under Chapman v. California (1967) 386 U.S. 18 (Chapman). 

As set forth above, the prosecution presented an abundance of evidence—apart from his

statement—establishing Lincoln’s guilt. First, Shavens testified consistently and 

convincingly about the facts of Lincoln’s involvement. Cell phone records put Lincoln 

near the scene of the crime within minutes of its commission, and they show he made the 

subsequent phone calls to Toma. Lincoln presented no evidence to corroborate his claim 

that Dowdell was dating another man at the time of the offense. Furthermore, Lincoln 

admitted to being a convicted felon and a registered sex offender, and the prosecutor

attacked his testimony effectively on cross-examination. The jury was not likely to credit 

Lincoln’s self-serving testimony.

On this record, even without hearing Lincoln’s statement, the jury would have 

convicted Lincoln as charged based on the overwhelming evidence of his guilt. Thus, 

even if we were to assume the statement should have been excluded, we would find that 

any error was harmless beyond a reasonable doubt.

B. Prosecutorial Misconduct in Closing Argument Before the Lincoln Jury

Closing arguments were given separately to the Lincoln and Dowdell juries. In 

closing argument before the Lincoln jury, the prosecutor stated twice that “The 

presumption of innocence is over.” Lincoln’s trial counsel lodged no objections. Lincoln 

argues that the prosecution abnegated the presumption of innocence in violation of his 

due process rights, and that his trial counsel provided ineffective assistance of counsel by 

failing to object. 
18

1. Legal Standards

“The presumption of innocence, although not articulated in the Constitution, is a 

basic component of a fair trial under our system of criminal justice.” (Estelle v. Williams

(1976) 425 U.S. 501, 503.) “To implement the presumption, courts must be alert to 

factors that may undermine the fairness of the fact-finding process.” (Ibid.) “The 

presumption of the innocence of an accused attends him throughout the trial, and has 

relation to every fact that must be established in order to prove his guilt beyond 

reasonable doubt. ‘This presumption,’ [the United States Supreme Court] has said, ‘is an 

instrument of proof created by the law in favor of one accused, whereby his innocence is 

established, until sufficient evidence is introduced to overcome the proof which the law 

has created.’ [Citation.]” (Kirby v. United States (1899) 174 U.S. 47, 55.) Moreover, 

“the presumption of innocence continues not only during the taking of the testimony, but 

during the deliberations of the jury and until they reach a verdict.” (People v. Arlington

(1900) 131 Cal. 231, 235 (Arlington).)

When prosecutorial misconduct “infects the trial with such a degree of unfairness 

as to render the subsequent conviction a denial of due process, the federal Constitution is 

violated.” (People v. Panah (2005) 35 Cal.4th 395, 462 (Panah).) A prosecutor’s 

conduct at trial may also constitute misconduct under state law if it involves the use of 

“deceptive or reprehensible methods to persuade the trial court or the jury.” (Ibid.) 

“ ‘[W]hen the claim focuses upon comments made by the prosecutor before the jury, the 

question is whether there is a reasonable likelihood that the jury construed or applied any 

of the complained-of remarks in an objectionable fashion.’ ” (People v. Ayala (2000) 

23 Cal.4th 225, 284 [quoting People v. Ochoa (1998) 19 Cal.4th 353, 427].) 

Generally, “[i]t is misconduct for the prosecutor to misstate the applicable 

law. . . .” (People v. Boyette (2002) 29 Cal.4th 381, 435.) However, “To preserve a 

claim of prosecutorial misconduct for appeal, a criminal defendant must make a timely 

objection, make known the basis of his objection, and ask the trial court to admonish the 
19

jury.” (People v. Brown (2003) 31 Cal.4th 518, 553.) There are two exceptions to 

forfeiture: (1) the objection or the request for an admonition would have been futile; or 

(2) the admonition would have been insufficient to cure the harm occasioned by the 

misconduct. (Panah, supra, 35 Cal.4th at p. 462.) A defendant claiming one of these 

exceptions must find support for it in the record. (Ibid.)

“To prevail on a claim of ineffective assistance of counsel, a defendant must show 

both that counsel’s performance was deficient and that the deficient performance 

prejudiced the defense. [Citations.] Counsel’s performance was deficient if the 

representation fell below an objective standard of reasonableness under prevailing 

professional norms. [Citation.] Prejudice exists where there is a reasonable probability 

that, but for counsel’s errors, the result of the proceeding would have been different.” 

(People v. Benavides (2005) 35 Cal.4th 69, 92-93, citing Strickland v. Washington (1984) 

466 U.S. 668, 687-688, 693-694 (Strickland).) “ ‘Finally, prejudice must be affirmatively 

proved; the record must demonstrate “a reasonable probability that, but for counsel’s 

unprofessional errors, the result of the proceeding would have been different. A 

reasonable probability is a probability sufficient to undermine confidence in the 

outcome.” ’ ” (People v. Bolin (1998) 18 Cal.4th 297, 333.) “It is the defendant’s burden 

on appeal [. . .] to show that he or she was denied effective assistance of counsel and is 

entitled to relief. [Citations.] ‘[T]he burden of proof that the defendant must meet in 

order to establish his [or her] entitlement to relief on an ineffective-assistance claim is 

preponderance of the evidence.’ [Citation.]” (In re Hill (2011) 198 Cal.App.4th 1008, 

1016.)

2. The Prosecutor’s Misstatements of the Law

Prior to closing arguments, the court instructed both juries, “A defendant in a 

criminal case is presumed to be innocent. This presumption requires the people prove a 

defendant guilty beyond a reasonable doubt.” Subsequently, in closing argument before 

the Lincoln jury, the prosecutor twice argued that the presumption of innocence was 
20

“over.” First, he argued that “The evidence is overwhelming. My goal was to give 

[Lincoln] a fair trial, he just got one. You have the evidence. The presumption of 

innocence is over. I have the evidence. It wasn’t a fair fight, it wasn’t supposed to be. 

Go and deliberate, be thorough and come back guilty on all counts.” (Italics added.) 

Similarly, he later argued that “It’s fairly obvious that Mr. Lincoln committed all of the 

crimes we are accusing him of. The presumption of innocence is over. He has gotten his 

fair trial. Be thorough, deliberate, and come back with guilty verdicts on all counts.” 

(Italics added.)

The Attorney General contends the prosecutor’s comments were not improper, and 

that defendant forfeited his claim by failing to object. For the former proposition, the 

Attorney General relies on Panah, supra, 35 Cal.4th 395, and People v. Goldberg (1984) 

161 Cal.App.3d 170 (Goldberg). In Panah, the prosecutor in closing argued that the 

evidence had “stripped away” the defendant’s presumption of innocence. (Panah, supra,

35 Cal.4th at p. 463.) The California Supreme Court interpreted the prosecutor’s remark 

as an argument that the strength of the prosecution’s evidence had overcome the 

presumption of innocence, not as a legal statement about the presumption no longer 

applying. For this reason, the court found no prosecutorial misconduct. 

In Goldberg, supra, 161 Cal.App.3d 170, the prosecutor told the jury in closing 

that “once the evidence is complete, once you’ve heard this case, once the case has been 

proven to you—and that’s the stage we’re at now—the case has been proved to you 

beyond any reasonable doubt. I mean, it’s overwhelming. There is no more presumption 

of innocence. Defendant Goldberg has been proven guilty by the evidence.” (Id. at 

p. 189, original italics.) In reasoning similar to the analysis in Panah, the Court of 

Appeal found the prosecutor’s argument to be a rhetorical statement about the weight of 

the evidence, not an improper statement about the law. The court also noted that the jury 

had been properly instructed on the presumption of innocence, and held that “Once an 

otherwise properly instructed jury is told that the presumption of innocence obtains until 
21

guilt is proven, it is obvious that the jury cannot find the defendant guilty until and unless 

they, as the fact-finding body, conclude guilt was proven beyond a reasonable doubt.” 

(Goldberg, at pp. 189-190, original italics.)

Here, we find the prosecutor’s statements distinguishable from those in Panah and 

Goldberg. First, it is indisputable that the prosecutor misstated the law. It is well 

established that the presumption of innocence continues into deliberations, and the 

presumption was in no sense “over” when the prosecutor declared it to be so. (People v. 

Arlington, supra, 131 Cal. at p. 235.) Second, the prosecutor twice made this 

misstatement of the law. Arguably, the first version of the statement—prefaced by a 

reference to the “overwhelming” state of the evidence—was comparable to the 

prosecutors’ statements in Goldberg and Panah. But then the prosecutor repeated the 

misstatement, together with the assertions that it was “fairly obvious” Lincoln was guilty,

and most critically, “He has gotten his fair trial.” (Italics added.) This last statement 

implied that the “fair trial” was over, and with it, the jury’s legal obligation to respect the 

presumption of innocence. Defense counsel should have objected. And if he had, the 

trial court should have sustained his objection and the court should have admonished the 

jury that the presumption of innocence remained in effect. The trial court properly 

instructed the jury on this point before jury deliberations. But the prosecutor should not 

have contradicted this instruction in his closing argument.

Trial counsel did not object when the prosecutor made the misstatements of law 

during closing argument, and Lincoln does not identify any portion of the record that 

would satisfy the two exceptions to forfeiture set forth in Panah, supra, 35 Cal.4th at 

page 462. The claim is therefore forfeited. As to the claim that his trial counsel is 

ineffective, Lincoln has not established prejudice—that is, he has not shown a reasonable 

probability of a more favorable outcome had his trial counsel objected to the remarks. As 

set forth above in Section II.A.2, the prosecutor presented abundant evidence of 

Lincoln’s guilt on all counts. The weight of the evidence is even greater than that 
22

described above given that the jury could properly consider Lincoln’s admissions in his 

statement to police. Accordingly, we find no ineffective assistance of counsel based 

upon a failure to object to the prosecutor’s misstatements of the law.

7

C. The Trial Court’s Denial of Lincoln’s Motion to Relieve Counsel

Lincoln contends the trial court erred in denying his midtrial motion to relieve his 

retained counsel. He argues that the trial court improperly applied the standard for relief 

of appointed counsel under People v. Marsden (1970) 2 Cal.3d 118 (Marsden), instead of 

the standard for relief of retained counsel under People v. Ortiz (1990) 51 Cal.3d 975

(Ortiz). Lincoln contends that under Ortiz, the trial court should have granted his motion 

because he and his attorney were “embroiled in an irreconcilable conflict” resulting in 

ineffective representation. He argues that this error is structural and reversal is 

automatic, requiring no showing of prejudice. 

Given the untimely nature of the motion and the inevitable disruption that would 

have followed from the relief of counsel midtrial, we find no abuse of discretion in the 

trial court’s denial of Lincoln’s motion to relieve his retained counsel.

1. Procedural Background

Jury selection began on June 7, 2011, and continued for five days until June 14. 

Opening arguments and presentation of evidence began on June 20. On June 22, the 

eighth day of trial, Lincoln moved to replace his retained counsel, Ron Berki. The trial 

court cleared the courtroom of all parties except for Lincoln and Berki, and held a hearing 

on Lincoln’s motion. Lincoln stated that his rapport and communication with Berki were

“very good,” but Lincoln said he wanted to exercise greater strategic control over his 

case, and he expressed his disappointment with Berki’s refusal to adhere to his desires. 

The trial court told Lincoln his options were to relieve Berki and represent himself, or 

 

7 Moreover, because we find no error in the admission of defendant’s statement to 

police, we find no merit to Lincoln’s claim that he was prejudiced by the cumulative 

harm from these asserted errors. 
23

continue with Berki and “hopefully meet in the middle.” Lincoln again expressed his 

frustration with Berki and complained that Berki was not examining witnesses with the 

questions Lincoln wanted him to ask. Lincoln asked if he would be given a law clerk or 

if he would be given leeway in posing questions, and the court told him he would have 

neither. The court then denied Lincoln’s motion, which the court characterized as a 

“Marsden motion.” 

On June 27, 2011, after another day of trial, Lincoln again complained to the court 

about Berki’s representation. Lincoln stated that Berki had given the prosecution 

information that Lincoln believed was subject to the attorney-client privilege. The 

prosecutor confirmed that Berki had shared the information with him, but Berki 

explained that he did so for the purpose of defending Lincoln. The court then told 

Lincoln that Berki was permitted to reveal privileged information for that purpose and 

explained, “Sometimes he has to do what’s right for his client and I believe that was his 

intention.” Berki then told the court, “I have been accused and maligned by my client 

throughout this whole trial that I am not working for him. I am not doing what he wants, 

that I am working in cahoots with the District Attorney. Your honor, I want to withdraw 

from this case. I mean it. I can’t take this anymore. I can’t do a job effectively for him 

if he is continuously doing everything he can to tie my hands.” The court stated, “What I 

am going to do is let you think on this overnight and come back and we will talk about it 

tomorrow morning, because tempers are a little high right now. People are a little upset, 

and everybody will sleep on it, and come back, and let me know what you want.” 

The next morning, Lincoln read a prepared statement to the court outside the 

presence of the juries. Lincoln reiterated his claim that Berki had provided the 

prosecution with privileged information without Lincoln’s permission. Lincoln stated, 

“Because of this violation, I can’t imagine taking the witness stand in my own defense 

without wondering what other sacred communications have been relayed to the District 

Attorney or anyone else for that matter. Regardless, to whether an attorney trusts and/or 
24

believes in his client’s innocence it is imperative that the client be able to trust his 

attorney.” Lincoln again moved to relieve Berki and moved for a mistrial. 

The trial court denied the motion for a mistrial and found that, even assuming 

there had been a violation of attorney-client privilege, there was no prejudice to Lincoln.

As to the motion to relieve counsel, the court again gave Lincoln the option of relieving 

Berki and representing himself. The court also ruled that no continuance would be 

granted and explained that “my fear and everybody’s fear is that we are going to run out 

of jurors and it’s going to drop below 12 and we are going to have to do this all over 

again and I don’t think that’s something anyone wants to do. So it’s going to be done 

tomorrow one way or the other.” Lincoln again complained about Berki’s alleged 

violation of the attorney-client privilege. The court responded, “The only way he would 

be removed is that he was so incompetent that he fell below the level as a lawyer who 

should be doing his job and representing his client and he hasn’t fallen below that 

threshold, because what he’s done so far is he has represented you effectively and asked 

the right kind of questions, so I can’t remove him. I don’t have the reasons to. The law 

doesn’t allow me to, but at any time you can decide you don’t want him and you want to 

go at it on your own, that’s your choice.” Lincoln declined to represent himself, stating 

“Let’s move forward.” 

2. Legal Standards

“The right of a criminal defendant to counsel and to present a defense are among 

the most sacred and sensitive of our constitutional rights.” (Ortiz, supra, 51 Cal.3d at 

p. 982.) A nonindigent criminal defendant has a due process and Sixth Amendment right 

to retained counsel of his choice, and he can discharge retained counsel at any time with 

or without cause. (People v. Verdugo (2010) 50 Cal.4th 263, 310-311; People v. Lara

(2001) 86 Cal.App.4th 139, 152 (Lara).) “[T]he right to counsel of choice reflects not 

only a defendant’s choice of a particular attorney, but also his decision to discharge an 

attorney whom he hired but no longer wishes to retain.” (Ortiz, supra, at p. 983.)
25

“The right to discharge retained counsel is not absolute, however. . . .” (Lara,

supra, 86 Cal.App.4th at p. 153.) The court must “balance the defendant’s interest in 

new counsel against the disruption, if any, flowing from the substitution.” (Ibid.) A 

defendant who seeks to discharge retained counsel in a timely manner ordinarily must be 

permitted to do so. (Ortiz, supra, 51 Cal.3d at p. 981; Lara, supra, at p. 152.) “However, 

a defendant who desires to retain his own counsel is required to act with diligence and 

may not demand a continuance if he is unjustifiably dilatory or if he arbitrarily desires to 

substitute counsel at the time of the trial.” (People v. Blake (1980) 105 Cal.App.3d 619, 

623-624.) “A criminal defendant’s right to decide how to defend himself should be 

respected unless it will result in ‘significant prejudice’ to the defendant or in a ‘disruption 

of the orderly processes of justice unreasonable under the circumstances of the particular 

case.’ ” (Ortiz, supra, at p. 982.) The erroneous denial of a motion to substitute counsel 

constitutes structural error and mandates reversal of the defendant’s conviction without 

requiring a showing of prejudice. (Id. at p. 988.) However, we apply an abuse of 

discretion standard of review to a trial court’s denial of a motion to relieve retained 

counsel.8 (People v. Verdugo, supra, 50 Cal.4th at p. 311; People v. Trapps (1984) 

158 Cal.App.3d 265, 271; cf. Lara, supra, at pp. 153-154.)

3. The Trial Court Did Not Err By Denying Lincoln’s Motion to Relieve Berki

Lincoln argues that the trial court erroneously treated his motion under the 

standard set forth in Marsden, supra, 2 Cal.3d 118, because Marsden applies to appointed 

counsel, and Berki was retained. “The trial court’s improper reliance on Marsden, 

however, does not mean that appellant is entitled to the automatic reversal of his 

conviction.” (Lara, supra, 86 Cal.App.4th at p. 155.) Even under the proper standard, 

 

8

The abuse of discretion standard of review is particularly appropriate here 

because the trial court’s ruling was tantamount to a denial of a continuance. (See People 

v. Johnson (1970) 5 Cal.App.3d 851, 858-859 [applying abuse of discretion standard of 

review to denial of continuance needed to seek private counsel].)
26

set forth in Ortiz, supra, 51 Cal.3d 975, a trial court does not abuse its discretion if the 

defendant’s motion is untimely and would result in “ ‘disruption of the orderly processes 

of justice unreasonable under the circumstances of the particular case.’ ” (Id. at p. 982

[quoting People v. Crovedi (1966) 65 Cal.2d 199, 208].)

We conclude that Lincoln’s motion was untimely. The court spent five days 

selecting two juries for a complex, two-defendant trial.9 Lincoln made his first request to 

relieve Berki eight days into trial, after the prosecution had already presented the bulk of 

its evidence. The court implicitly found that granting Lincoln a continuance long enough 

to retain new counsel could cause an unreasonable “disruption of the orderly processes of 

justice” from the loss of too many jurors.

10

 

Lincoln argues that the record does not support a finding that his motion was 

untimely. But the record shows the trial lasted nearly a month because it dealt with 

complex legal issues, numerous witnesses and exhibits, and hours of recorded audio. A 

competent attorney would have required substantial time to prepare before substituting

for Berki. Had the court relieved Berki, a significant delay in the proceedings would 

have been required.

Lincoln is correct that he and Berki had expressed frustration with each other. But

their conflicts were not so irreconcilable as to warrant such a lengthy and disruptive 

delay. In Lincoln’s initial motion to relieve counsel on June 22, his complaints about 

Berki focused solely on strategic and tactical disagreements; Lincoln actually 

characterized their working relationship positively. Lincoln’s second motion, made on 

June 27, centered on an alleged violation of the attorney-client privilege, which the trial 

court properly rejected. It is true that Berki expressed his own doubts about his ability to 

 

9

The court granted the prosecution’s motion for dual juries in part because 

Shavens, a key prosecution witness, was suffering from a serious illness, and the court 

was concerned about delay that would be caused if the trials were to proceed separately. 

10 One juror had previously asked to be excused by July 1. The court was later 

required to excuse the juror and seat an alternate juror on June 30. 
27

continue representing Lincoln effectively, but the record shows that he represented 

Lincoln effectively throughout the entire trial. Berki cross-examined the prosecution’s 

witnesses aggressively, he effectively lodged objections, and he put forth a strong closing 

argument. As the trial court noted, many of the defense tactics that Lincoln disputed 

appeared to be based on Berki’s wisdom and experience, and the use of these tactics 

likely benefited Lincoln.11

On these facts, we find no abuse of discretion in the trial court’s denial of 

Lincoln’s motion to relieve his trial counsel. We therefore reject this claim.

D. Sentencing on Counts One and Two Under Section 654

The trial court sentenced Lincoln to concurrent terms of life in prison with the 

possibility of parole on both Count One (kidnapping for extortion) and Count Two

(kidnapping for carjacking). The court stayed the sentence of life with parole on Count 

Four (kidnapping for robbery) under section 654. Lincoln contends the trial court also

should have stayed one of the two sentences for Counts One and Two under section 654 

because the two offenses were committed during the same indivisible transaction with the 

common objective of obtaining money. Reasonable minds can differ as to whether the 

offenses occurred during a single, indivisible transaction, but we agree with Lincoln that 

he committed both offenses with a single intent and objective. Under this standard, the 

court should have stayed one of the two sentences. (Neal v. State of California (1960) 

55 Cal.2d 11, 19 (Neal) [overruled in part on another ground as stated in People v. 

Correa (2012) 54 Cal.4th 331].)

1. Legal Standards

Section 654, subdivision (a) provides, in relevant part: “An act or omission that is 

punishable in different ways by different provisions of law shall be punished under the 

 

11 At a later hearing, after Lincoln made alternating requests to represent himself, 

then for appointment of counsel, and then again to represent himself, the trial court found 

that Lincoln’s conduct showed a “pattern of manipulating the system.”
28

provision that provides for the longest potential term of imprisonment, but in no case 

shall the act or omission be punished under more than one provision.” Section 654 

thereby bars the imposition of multiple sentences for a single act or omission, even 

though the act or omission may violate more than one provision of the Penal Code. 

(People v. Mesa (2012) 54 Cal.4th 191, 195.) This is true even where the court orders 

multiple sentences to be served concurrently. “It has long been established that the 

imposition of concurrent sentences is precluded by section 654 [citations] because the 

defendant is deemed to be subjected to the term of both sentences although they are 

served simultaneously.” (People v. Miller (1977) 18 Cal.3d 873, 887 (Miller)

[disapproved on another ground in People v. Oates (2004) 32 Cal.4th 1048, 1068, fn. 8].) 

Instead, the accepted “procedure is to sentence defendant for each count and stay 

execution of sentence on certain of the convictions to which section 654 is applicable.” 

(Miller, supra, at p. 886.) “The purpose of the protection against multiple punishment is 

to insure that the defendant’s punishment will be commensurate with his criminal 

liability.” (Neal, supra, 55 Cal.2d at p. 20.)

“[S]ection 654 applies not only where there was but one act in the ordinary sense, 

but also where there was a course of conduct which violated more than one statute but 

nevertheless constituted an indivisible transaction. [Citation.] Whether a course of 

conduct is indivisible depends upon the intent and objective of the actor. [Citation.] If 

all the offenses were incident to one objective, the defendant may be punished for any 

one of such offenses but not for more than one.” (People v. Perez (1979) 23 Cal.3d 545, 

551.) “On the other hand, if the evidence discloses that a defendant entertained multiple 

criminal objectives which were independent of and not merely incidental to each other, 

he may be punished for the independent violations committed in pursuit of each objective 

even though the violations were parts of an otherwise indivisible course of conduct.” 

(Ibid.) Conversely, where reasonable minds can differ on whether multiple crimes 

involve a single act, we consider whether the crimes were focused on a single “intent and 
29

objective.” (Neal, supra, 55 Cal.2d at p. 19; People v. Latimer (1993) 5 Cal.4th 1203, 

1205-1206.) “Whether a course of criminal conduct is divisible and therefore gives rise 

to more than one act within the meaning of section 654 depends on the intent and 

objective of the actor. If all of the offenses were incident to one objective, the defendant 

may be punished for any one of such offenses but not for more than one.” (Neal, supra,

55 Cal.2d at p. 19.) By contrast, “If [the defendant] entertained multiple criminal 

objectives which were independent of and not merely incidental to each other, he [or she] 

may be punished for independent violations committed in pursuit of each objective even 

though the violations shared common acts or were parts of an otherwise indivisible 

course of conduct.” (People v. Beamon (1973) 8 Cal.3d 625, 639.)

“Whether the facts and circumstances reveal a single intent and objective within 

the meaning of Penal Code section 654 is generally a factual matter; the dimension and 

meaning of section 654 is a legal question.” (People v. Guzman (1996) 

45 Cal.App.4th 1023, 1028.) We apply the substantial evidence standard of review to the

trial court’s implied finding that a defendant harbored a separate intent and objective for 

each offense. (People v. Braz (1997) 57 Cal.App.4th 1, 10; People v. Blake (1998) 

68 Cal.App.4th 509, 512.)

2. Section 654 Requires a Stay of the Sentence on Count One or Count Two

Lincoln contends that his offenses occurred during one continuous, indivisible

course of action with the sole objective to obtain money. Lincoln’s argument focuses 

exclusively on his initial abduction of Toma and the movement of Toma’s truck. First, 

Lincoln notes that the offense of kidnapping during a carjacking was not complete until 

the carjacking was complete, which in turn required the vehicle to be moved. (People v. 

Contreras (1997) 55 Cal.App.4th 760, 765 [kidnapping during commission of carjacking

requires completed offense of carjacking]; People v. Medina (2007) 41 Cal.4th 685, 693; 

People v. Lopez (2003) 31 Cal.4th 1051, 1061-1063 [carjacking requires movement of

the vehicle].) Similarly, Lincoln notes that the offense of kidnapping for extortion was 
30

also completed when the vehicle was first moved. He argues that whatever slight 

movement of Toma might have occurred when Lincoln initially forced Toma into the 

back of the truck was merely “incidental to the commission of the [extortion].” (People 

v. Daniels (1969) 71 Cal.2d 1119, 1139 [kidnapping for robbery requires more than mere 

movement of the victim incidental to the commission of the robbery].) Thus, Lincoln 

argues, both offenses were complete at the moment Lincoln moved the truck, and both 

offenses occurred during the same act of kidnapping.

Lincoln’s characterization of these facts ignores subsequent events. After 

stopping at the first ATM, Lincoln and Dowdell were unable to extract money from it. 

Lincoln threatened Toma again, whereupon Toma begged them to go to a Bank of 

America ATM. Lincoln and Dowdell then drove the truck and the victim to a second 

ATM location. Thus, the crime arguably consisted of multiple acts, as compared to a 

single indivisible act. But where reasonable minds can differ as to whether the 

defendant’s conduct entailed more than one act, we must consider whether he acted with 

a single intent and objective. (Neal, supra, 55 Cal.2d at p. 19; People v. Latimer, supra,

5 Cal.4th at pp. 1205-1206.) In that respect, the evidence shows Lincoln’s intent was 

singular. Throughout the course of the kidnapping, Lincoln’s sole objective was to 

obtain money. When the police, in their interrogation, questioned Lincoln as to his 

motive, he told them it was money, and that his plan prior to the robbery was to “try and 

get a purse or wallet.” Lincoln made this abundantly clear to the victim as well, with 

constant, repeated demands for money throughout the course of the crime. 

The Attorney General argues that Lincoln took the victim’s truck because Lincoln 

was “motivated by a desire to avoid detection” after Toma resisted the initial abduction.

Even if Lincoln sought to avoid detection, that tactic was merely incidental to his primary 

goal of getting Toma’s money. We find no substantial evidence for the proposition that 

Lincoln harbored any other intent or objective “independent of and not merely incidental 

to” the acquisition of money. (People v. Beamon, supra, 8 Cal.3d at p. 639.) Under 
31

Neal, then, section 654 requires a stay of one of the two sentences. Accordingly, we will 

order that the sentence on Count Two be stayed.

E. Carjacking as a Lesser Included Offense of Kidnapping During a Carjacking

The jury also found Lincoln guilty of both carjacking (Pen. Code, § 215) and 

kidnapping during a carjacking (Pen. Code, § 209.5). Lincoln contends the trial court 

should have dismissed the conviction for carjacking because it is a lesser included 

offense of carjacking during a kidnapping. The Attorney General concedes this claim

and agrees that we should reverse the conviction for carjacking. 

We accept the Attorney General’s concession. It is well settled that carjacking is a 

necessarily included offense of kidnapping during a carjacking. (People v. Jones (1999) 

75 Cal.App.4th 616, 624-625; People v. Contreras, supra, 55 Cal.App.4th at p. 765.) 

When a defendant is convicted of a greater and a lesser included offense, reversal of the 

conviction for the lesser included offense is required. (People v. Pearson (1986) 

42 Cal.3d 351, 355.) Therefore, we will strike Lincoln’s conviction for carjacking 

(Count Three).

F. Jury Instructions Regarding Evidence of Intimate Partner Battering

Dowdell, who presented evidence of intimate partner battering at trial, contends 

that the trial court erroneously and prejudicially instructed the jury on the permissible 

uses of the evidence. Dowdell requested a special instruction that would have allowed 

the jury to consider evidence of intimate partner battering in deciding whether she formed 

the specific intent required for the charged offenses. But the trial court limited the jury’s 

use of such evidence to deciding whether Dowdell committed the crime to defend herself 

from an immediate threat of great bodily injury or death, not whether she formed the 

specific intent to commit the crimes. Dowdell argues that by limiting the jury’s ability to 

consider the evidence in this fashion, the trial court violated her federal due process right 

to present a defense, requiring harmless error analysis under the federal standard set forth 

in Chapman, supra, 386 U.S. 18. We agree that the court erred, but we conclude that the 
32

appropriate harmless error analysis is the state law standard set forth in People v. Watson

(1956) 46 Cal.2d 818 (Watson). We conclude that the error was harmless under the

Watson standard.

1. Procedural Background

In pretrial motions and again at trial, Dowdell requested special instructions

regarding intimate partner battering. As relevant here, she requested the following 

instruction: “You have heard testimony from (Linda Skerbec/Dr. Mary Ann Kim) 

regarding the effect of battered women’s syndrome and/or intimate partner battering, 

including the nature and effect of physical, emotional, or mental abuse on the beliefs, 

perceptions, or behavior of victims of domestic violence. You may consider this 

evidence in deciding whether the defendant’s conduct was consistent with the conduct of 

someone who has been abused, in evaluating the believability of defendant’s testimony, 

and in determining whether the defendant possessed the specific intent necessary to 

commit the crimes charged.” (Italics added.) 

The trial court rejected Dowdell’s proposed instructions and instructed the 

Dowdell jury with a combination of CALCRIM No. 851 and CALJIC 9.35.1. As 

relevant here, the court instructed the jury, “You are [sic] heard evidence regarding 

battered woman’s syndrome, also known as intimate partner battering. You should 

consider this evidence for a certain limited purpose only, namely, you may consider this 

evidence only in deciding whether the battered woman’s syndrome applied in this case; 

and whether the defendant actually believed that she needed to commit the charged 

crimes in order to defend herself against an immediate threat of great bodily injury or 

death; and if so, whether the defendant’s belief was reasonable or unreasonable.” (Italics 

added.) The court then defined “immediate” and instructed the jury on reasonableness in 

the context of intimate partner battering.

Prior to sentencing, Dowdell moved for a new trial on the ground that the court 

erred by limiting the jury’s consideration of intimate partner battering to the issue of 
33

whether she acted under duress, and not whether she otherwise formed the specific intent 

to commit the charged offenses. The trial court set forth its reasoning for instructing the 

jury as above and denied Dowdell’s motion. 

2. Legal Standards

“Under appropriate circumstances, ‘a trial court may be required to give a 

requested jury instruction that pinpoints a defense theory of the case by, among other 

things, relating the reasonable doubt standard of proof to particular elements of the crime 

charged. [Citations.] But a trial court need not give a pinpoint instruction if it is 

argumentative [citation], merely duplicates other instructions [citation], or is not 

supported by substantial evidence [citation].’ ” (People v. Coffman and Marlow (2004) 

34 Cal.4th 1, 99 (Coffman) [quoting People v. Bolden (2002) 29 Cal.4th 515, 558].) In 

determining whether the evidence is sufficient to warrant a jury instruction, the court 

does not determine the credibility of the defense evidence, but only whether there was 

evidence, if believed by the jury, sufficient to raise a reasonable doubt. (People v. Salas

(2006) 37 Cal.4th 967, 982.)

We apply a de novo standard of review in assessing whether jury instructions 

correctly state the law or whether they effectively direct a finding adverse to a defendant 

by removing an issue from the jury’s consideration. (People v. Posey (2004) 

32 Cal.4th 193, 218.) “[T]he proper test for judging the adequacy of instructions is to 

decide whether the jury was fully and fairly instructed on the applicable law.” (People v. 

Partlow (1978) 84 Cal.App.3d 540, 558.)

3. The Trial Court Erroneously Instructed the Jury on Intimate Partner Battering

Dowdell relies on Coffman, supra, 34 Cal.4th 1, for the proposition that the trial 

court should have instructed the Dowdell jury that it could consider evidence of intimate 

partner battering in determining whether she formed the requisite specific intent. In 

Coffman, the prosecution charged Coffman and her codefendant with murder, 

kidnapping, kidnapping for robbery, robbery, residential burglary, and forcible sodomy. 
34

(Id. at p. 16.) The trial court instructed the jury that it could consider evidence of 

intimate partner battering solely for the purpose of determining whether Coffman had 

actually formed the mental state required for these offenses as well as the special 

circumstance allegations. (Id. at p. 98) The trial court further instructed that a person is 

not guilty when the person is acting under threats or menaces that would cause a 

reasonable person to fear that his or her life would be in immediate danger if he or she 

did not engage in the conduct charged. (Ibid.) The California Supreme Court held that 

these instructions were correct: “We conclude the instructions given here correctly and 

(with one exception) [12]adequately informed the jury that it could consider the evidence 

of battered woman syndrome in determining whether Coffman had formed the mental 

state or specific intent required for the charged offenses. . . .” (Id. at p. 99, italics added.) 

Neither the trial court’s instructions in Coffman nor the Supreme Court’s holding in that 

case limited the applicability of intimate partner abuse evidence to a determination of 

duress.

The wording of Dowdell’s proposed instruction closely tracked the applicable 

language in Coffman. Although the instruction ultimately given to the jury relied on the 

language set forth in the pattern jury instructions, the trial court did not apply the Judicial 

Council Bench Notes to CALCRIM 851, which cite to the above holding from Coffman,

as follows: “The court may need to modify this instruction if the defense offers testimony 

on intimate partner battering and its effects on an issue other than whether the defendant 

actually and reasonably believed in the need for self-defense. (See Coffman, [supra,]

34 Cal.4th [at pp.] 98-101 [citation] [evidence offered to show defendant did not act with 

intent to kill but acted out of fear of codefendant].)” (Judicial Council of Cal., Crim. Jury 

Instns., (2013) Bench Notes to CALCRIM No. 851 (1st ed. 2013).) The Attorney 

General argues that the supplied instructions did allow the jury to consider whether 

 

12 The exception concerned duress as a defense to felony murder, which is not 

relevant here.
35

Dowdell form specific intent because the court instructed on duress, and duress negates 

intent. Coffman, however, allows the jury to consider intimate partner abuse as it pertains 

to specific intent even absent a finding of duress. For this reason, we conclude that 

Dowdell’s proposed instruction properly stated the law under Coffman.

Furthermore, Dowdell presented substantial evidence sufficient to warrant such an 

instruction. First, there was substantial evidence to establish that Dowdell suffered from 

intimate partner abuse. She testified that Lincoln controlled many aspects of her life 

through emotional manipulation, dominating behavior, and threats to her family. She 

testified—and Lincoln confirmed—that he once struck her during sex. She presented 

several witnesses who corroborated the abusive and controlling nature of her relationship 

with Lincoln, and she presented testimony from two experts who offered opinions

supporting this characterization.

Second, Dowdell testified that she did not intend to rob, kidnap, or carjack Toma. 

She testified that she was merely following Lincoln’s commands, and that she was afraid 

he would hurt her if she did not comply. She further testified that when she initially 

entered Toma’s truck, she did not know that Lincoln intended to drive the truck or kidnap

Toma. Although Dowdell’s testimony was self-serving and aspects of it were 

contradicted by other evidence, we do not consider the credibility of a witness’s 

testimony in determining whether the record holds substantial evidence to warrant a 

particular jury instruction. (People v. Salas, supra, 37 Cal.4th at p. 982.) If the jury had 

believed Dowdell’s testimony, in conjunction with the evidence of intimate partner 

abuse, this evidence would have been sufficient to support a reasonable doubt about 

whether she had formed the specific intent required to commit the charged offenses. 

Hence, it was the jury’s role, not the court’s role, to make that determination. We 

therefore conclude that the trial court erred in not allowing the jury to consider evidence 

of intimate partner abuse for the purpose of assessing whether Dowdell formed the 

specific intent required to commit the charged crimes.
36

4. Harmless Error Analysis

Dowdell contends we must reverse her convictions unless the error is shown to be 

harmless beyond a reasonable doubt under Chapman, supra, 386 U.S. at page 24. She 

argues that the proper standard for prejudice is set forth under Chapman rather than 

Watson, supra, 46 Cal.2d 818, because the erroneous instruction violated her federal due 

process right to present a defense. But the California Supreme Court has specifically 

rejected this argument in the context of an instructional error concerning intimate partner 

abuse. (People v. Humphrey (1996) 13 Cal.4th 1073, 1089 (Humphrey).) 

In Humphrey, the defendant offered evidence of intimate partner abuse to support 

a claim of self-defense. The trial court instructed the jury that it could consider the 

evidence in deciding whether the defendant believed it was necessary to kill in selfdefense, but not in deciding whether that belief was reasonable. (Humphrey, supra, 

13 Cal.4th at p. 1076.) The Supreme Court held that the latter portion of this instruction 

was erroneous. (Id. at p. 1089.) But the court rejected the defendant’s argument that the 

erroneous instruction deprived her of the right to present a defense. The court reasoned,

“The erroneous instruction may have adversely affected the defense, but it did not deprive 

her of the right to present one or deny her equal protection. In effect, the [trial] court 

excluded some evidence as to one element of the defense. When the reviewing court 

applying state law finds an erroneous exclusion of defense evidence, the usual standard of 

review for state law error applies: the court must reverse only if it also finds a reasonable 

probability the error affected the verdict adversely to defendant.” (Ibid., original italics.) 

Like the trial court in Humphrey, the trial court here did not prevent Dowdell from 

presenting a defense; indeed, she introduced substantial evidence demonstrating intimate 

partner abuse. Rather, the court effectively excluded the evidence as to the element of 

specific intent in the absence of duress. Accordingly, we will apply the Watson standard 

for prejudice. 
37

Under the Watson standard, we conclude Dowdell has not met her burden of 

showing a reasonable probability of a more favorable outcome had the jury been properly 

instructed. Dowdell presented abundant evidence demonstrating the emotionally and 

psychologically abusive nature of her relationship with Lincoln in the months preceding 

the crime. But the issue for the jury concerned her intent during the charged offense. 

Furthermore, the evidence specific to her conduct during the crime shows she was not so 

tightly controlled by Lincoln that she acted without the requisite specific intent—e.g., 

that she acted as an automaton without intending to engage in the kidnapping and 

robbery. Most significantly, her own testimony on this point was self-serving and 

contradicted by other facts; therefore, the jury was not likely to be persuaded by it. The 

record shows that it is not reasonably likely the jury would have found in Dowdell’s 

favor had it been allowed to consider whether intimate partner battering negated the 

specific intent necessary for the charged offenses. Accordingly, we conclude the error 

was harmless.

Harmless error aside, the outcome here—imposition of a life sentence 

notwithstanding Dowdell’s comparatively lesser culpability—is a cause for concern. 

This sentiment was apparently shared by the trial court. In pretrial discussions, the trial 

court suggested that an appropriate disposition would result in a total sentence of seven 

years, less time served—a proposal agreed to by defense counsel, but rejected by the 

prosecution. At sentencing, the trial court, as required by law, imposed life in prison with 

the possibility of parole, but the court advised Dowdell she should be released in five 

years with good behavior. It is difficult to square such a statement with the imposition of 

a life sentence, but like the trial court, we are bound by the law, and so we will affirm this 

sentence.

G. Prosecutorial Misconduct in Closing Argument Before the Dowdell Jury

In his closing argument to the Dowdell jury, the prosecutor stated, “You are not to 

consider punishment. The judge is to consider punishment whether she goes to jail or 
38

whether she gets probation, that’s not—” Defense counsel immediately objected, and the 

trial court instructed the jury, “Ladies and gentlemen, you are not to consider anything 

regarding penalty or punishment, that’s my job, not the jurors’ job.” The prosecutor then 

stated, “That’s what I said. You are not to consider that, that’s outside your purview.”

Dowdell contends the prosecutor’s reference to probation constituted prosecutorial 

misconduct requiring reversal. Dowdell argues that the prosecutor’s mere mention of 

probation introduced the possibility of leniency into jurors’ minds and suggested that they 

need not be concerned about the harshness of the charges. Dowdell contends this was 

part of an intentional strategy by the prosecutor designed to encourage jurors to ignore 

the evidence of Lincoln’s psychological control over Dowdell. 

Even assuming the prosecutor’s statement constituted misconduct, we conclude 

the misconduct was harmless. First, it was not the case that the misconduct “infect[ed] 

the trial with such a degree of unfairness as to render the subsequent conviction a denial 

of due process. . . .” (Panah, supra, 35 Cal.4th at p. 462.) “[T]he question is whether 

there is a reasonable likelihood that the jury construed or applied any of the complainedof remarks in an objectionable fashion.’ ” (People v. Ayala, supra, 23 Cal.4th at p. 284.) 

In answering this question, we note that the trial court properly admonished the jury not 

to consider punishment. (People v. Thomas (2011) 51 Cal.4th 449, 487 [no harm from 

prosecutor’s comment regarding penalty where the court promptly admonished the jury].) 

We presume the jury heeded the court’s instructions. (Ibid.)

Furthermore, as set forth above, the evidence of Dowdell’s guilt was strong. She 

admitted participating in the offenses, and surveillance video from the ATM placed her at 

the scene of the crime. Her sole defense—that she did not intend to rob or kidnap Toma

but was merely following Lincoln’s orders—was not credible. Therefore, it is not 

reasonably likely the jury applied the prosecutor’s remark in an objectionable fashion. 

The jury likely rejected Dowdell’s defense based solely on the weight of the evidence

against her. Accordingly, we find this claim without merit.
39

H. Correction of the Abstract to Reflect the Trial Court’s Oral Pronouncement

Dowdell contends her sentence on Count Four must be stayed under section 654. 

At sentencing, the trial court pronounced the sentence on Count Four stayed under 

section 654, but the abstract of judgment incorrectly indicates the sentence is to be served 

concurrently with the sentence on Count One. The Attorney General concedes the error. 

We accept the Attorney General’s concession. “An abstract of judgment is not the 

judgment of conviction; it does not control if different from the trial court’s oral 

judgment and may not add to or modify the judgment it purports to digest or summarize.” 

(People v. Mitchell (2001) 26 Cal.4th 181, 185.) Accordingly, we will order the abstract 

corrected.

III. DISPOSITION

As to Lincoln, the sentence of life in prison with the possibility of parole for Count 

Two is stayed, and the conviction for carjacking on Count Three is stricken. As to 

Dowdell, the trial court shall correct the abstract of judgment to reflect that the trial court 

stayed the sentence on Count Four. The corrected abstract shall be forwarded to the 

Department of Corrections and Rehabilitation. As modified, both judgments are

affirmed.

_________________________

MÁRQUEZ, J.

We concur:

_________________________

RUSHING, P.J.

_________________________

PREMO, J.
Trial Court: Santa Clara County

Superior Court Nos.: EE907147,

CC501296 and CC754220

Trial Judge: The Honorable Paul R. Bernal 

Attorney for Defendant and Appellant Eric Weaver

Brittany Kim Dowdell: under appointment by the Court of 

Appeal for Appellant

Attorney for Defendant and Appellant Jonathan E. Berger

Terrance Ray Lincoln: under appointment by the Court of 

Appeal for Appellant

Attorneys for Plaintiff and Respondent Kamala D. Harris,

The People: Attorney General

Dane R. Gillette,

Chief Assistant Attorney General

Gerald A. Engler,

Senior Assistant Attorney General

Jeffrey M. Laurence,

Supervising Deputy Attorney General

Alisha M. Carlile,

Deputy Attorney General

People v. Dowdell, et al.

H037404