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. , Defendant s and Appellant s

. H037404 (Santa Clara Count y Super. Ct. No s . EE907147 , CC501296, and CC754220 )

Defendants Terrance Ray Lincoln and Brittany Kim Dowdell were tried before dual ju ri es for offenses arising out of a robbery/carjacking/kidnapping incident in Sunnyvale . The jury trying Li ncoln (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 allegation s true and
sentenced Lincoln to two concurrent terms of life with the possibility of parole , consecutive to four years

. 1 Dowdell was charg ed with the same counts as Lincoln, except she was not char g ed
with Count Five

–– criminal threats. T he 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 robber y. The jury hung on Counts Two and Three

. The trial court

sentence d 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 comm itted misconduct by stating that “T he presumption of innocence is over” in closing argument; (3) the trial court erred in denying his mid trial 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 requir es 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

. A ccordingly , we will stay the sentence on Count Two and
strike the conviction on Count Thr ee ( 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 instruction s erroneously limited the jury’s ability to consider evi dence of intimate partner battering in de t ermining 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 st ayed 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 w e find Dowdell’s second c laim of prosecutorial miscondu ct 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 co rpus ( 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 th e court’s pronouncement

. W e will therefore order the abstract
corrected to stay the sentence on Count Four and we will ot herwise affirm the judgment.

I. F ACTUAL AND P ROCEDURAL B ACKGROUND At the time of the offenses, Lincoln was a 3 6

- year

- old, self

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

. She was pregnant with Linco ln’s child at the time of arrest. Dowdell’s childhood friend, Derric Shavens, also participa ted 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 un der 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
be yond 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
resis ted and swung his fist backward , knocking the gun out of Lincoln’s hand. Toma
gra bbed the gun, but Lincoln punched him four times in the side of the head, causing
Toma to lo se consciousness. When Toma regained consciousness , Lincoln had regained control of the gun

. Lincoln shoved Toma back into his truck and pushe d him onto the
floor of the rear seat ing 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 wa lk to Toma’s truck

. Lincoln got
into the front of the truck and told Dowdell to ge t 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 b ack. 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 followe d them in his car. After driving for about
fiv e 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 Do wdell 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 curs ed 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 Am erica while Dowdell again used the gun to ke ep To ma 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 f

rom 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 from5

the ATM around the same time. Su rveilla nce video from a camera i n 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 th at 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 thro w the shoes and p ants across the parking lot. Dowdell left the truck and got into Shavens’ car. Dowdell told Shavens that Lincoln had just robbed somebody and left h im in the back of the truck. She said Lincoln
had instructed her to hold Toma in the b ack 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 . T hey stopped at another ATM , and they stopped at a gas station, wh ere Lincoln used Toma’s card to buy gasoli ne 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. The y found Toma’s truck in the Bank of America parking lot, where it appeared to have been ransacked.
T he next day, April 14, 2009, Lincoln called Toma on his home telephone.
Dowdell saw Lincoln mak e the call. Toma recognized the voice as that of his att acker

. 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 sai d he had Toma’s drive r’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
thro ugh 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 a udio 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 stat ed 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 mere ly a toy. 4 He denied making any phone calls to Toma after the robbery.
Lincoln testified at trial before both jur ies

. 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 wi th 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 photo graph 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 cl aimed 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
Do wdell 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 offe nse 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 contro lling. 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.” H e once tol d 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 . S he 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, wh ile 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. S he
testified that she did not intend to rob, kidnap, or carjack Toma

. S he 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 Li ncoln 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 sh e 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 Lin coln because of past threats Lincoln had made. Lincoln once threatened to harm Dowdell’s step sister, 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 Linc oln, and that she abandoned her family after meeting him. Dowdell’s mother and step sister 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 mot her 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 step sister testified that Lincoln would call Dowdell 1 5 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 t elling Dowdell’s mother about the checks, Lincoln left the stepsister a v oicemail 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 so me 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 synd rome , 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 f ear 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 hav e to involve physical abuse ; it can involve mental and
emotional abuse based on the abuser’s tone of voice or intimidating physical presence

. Ov er 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, testi fied for the defense as an expert in psycholog ical 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 as pects 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 im mature 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 posit ion of authority.10

D. Procedural Backgr ound On February 25, 2010, t he 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

— carjack ing ( 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 us ed 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, t he 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 ch arged on all five counts, and Dowdell guilty on Counts One and Four. The jury hung on Counts Two and Three as to Dowdell, an d the jury found the gun enhancement allegations not true as to both
defendants. As to Lincoln, the trial court imposed an aggreg ate 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. T he trial court then found true
the two prior prison sentences and impose d 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, t he court sentenced Lincoln to the upper

- term of11

nine years and stayed the sentence under section 654. On C ount Five, the court
sentenced Lincoln to a consecutive mid

- term sentence of two years. Thus, Lincoln’s aggregate sentence consisted of life in pris on with the possibility of parole consecutive to four years.
At Dowdell’s sente ncing, 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 pr ison 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. D ISCUSSION A. Admissibility of Lincoln’s Statement to Police At trial, Lincoln moved to exclude his s tatement to police o n 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 o f 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 bo th 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 ‘total ity 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 rational12

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 exh ortation 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 )

. ) “Howev er, 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. ) Furth ermore, “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 Voluntaril

y Made His Statement to Pol ice 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 Britta ny’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 a ffect 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 ki d’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 gon na 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 y ou’re dealing with also is, you’ re [ sic ] pregn ant girlfriend is locked up for robbery for some shit that you pulled her into, ‘cause obviously, you14

influenced

— into this, into this whole thing, but she has to say, she has to share some culpability and respo nsibility ‘ cau se 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. ” (Itali cs added.)
T he 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, m an, 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, y ou know.

. . .” Throughout the interrogation, the police exhorted Lincoln to “do the right thing,” to be the “voice” for Dowdell and “save her.” T hey 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 kno w 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 thin g. 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 statement s con stituted implicit promises of leniency for
Dowdell

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

t he 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 ex plicit, 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. T he se 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

. )
T o determine whether Lincoln’s confession was coerced , we must a ssess whether
the implicit prom ises of leniency caused the defendant to confess. ( Boyde , supra , 46 Cal.3d at p. 238.) In this p rong of the analysis , we consider Lincoln’s sophistication , his prior experience with the criminal justice system, and his emotional state

. ( In re Shawn16

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 substanc e, and one misdemeanor conviction for driving with a suspended l icense

. In his interrogation, Lincoln demonstrated familiarity with his legal rights and the interrogation process. He exp ressly volunteered to waive his Miranda rights before the police
adm onished him. Audio of the interview shows he was calm and rational throughout the interrogation. He made numerous statements demonstrat ing careful calculation s about
the details of his admissions in a deliberate effort not to incriminate S havens

. We con clude that Lincoln ’s confession was not coerced by the officers’ impli cit 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 explicitl y 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 ca pable of um , making any type of deals is the District Attorney. ”
Lincoln then reiterated this underst anding, 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 lot17

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.”
The se 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 Linc oln near the scene of the crime within minutes of its commission, and t hey show he made the subsequent phone call s 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 hi s testimony effectively on cross

- examination

. T he jury was not likely to credit Lincoln’s self

- serving testimony.
On this record , even without hear ing Lincoln’s statement , the jury would have convicted Lincoln as charged based on the overwhelming evidence of his guilt. Thus ,

e ven if we were to assume the statement should have been excluded, we would find that any error was harmless beyond a reasonab le 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 “T he presumption of in nocence 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
fa iling 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 th e 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 at tends 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 feder al 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 o r 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 fashio n.’ ” ( 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, “ T o 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 the19

jury.” ( People v

. Brown (2003) 31 Cal.4th 518, 553.) There are two exceptions to forfeiture: (1) the objection or the request for an ad monition 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 prejudice d 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 affirmati vely 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

o utcome.” ’ ” ( 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 defendan t 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. T

he Prosecutor ’s Misstatement s of the Law
Prior to cl osing arguments, the court instructed both jur ies , “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 , t he prosecutor twice argued that the presumption of innocence wa s20

“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 ove r . 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

c rimes 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 wer e 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 e vidence 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 pres umption of innocence . Defendant Goldberg has been proven guilty by the evidence. ” ( Id. at
p. 189, original italics.) In reasoning s imilar to the analysis in Panah , the C ourt of
A ppeal found the prosecutor’s argument to be a rhetorical statement about th e weight of the evidence, not an improper statement about the law. The court also noted that the jury had been properly instructe d on the presumption of innocence , and held that “Once an otherwise properly instructed jury is told that the presumption of i nnocence obtains until21

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 , w e 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
presum ption 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 “overw helming” state of the evidence

— wa s comparable to the prosecutors’ statements in Goldberg and Panah

. But then the prosecutor repeated the misstatement, together with the assertion s that it was “fairly obvious” Lincoln was guilty , and most cri tically, “ 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. D efense counsel should have objected

. A nd 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

. T he trial court properly instructed the jury on this point before jury deliberations . But the prosecu tor should not
have contradict ed th is instruction in his closing argument

. T rial 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 t he two exceptio ns 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 proba bility 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 that22

desc ribed above given that the jury could properly cons ider 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 Cour t’s Denial of Lincoln’s Motion to Relieve Counsel
Lincoln contends the trial court erred in denying his mid trial 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 hi s 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 ine vitable disruptio n 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 2 2, the eight h 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 Linco l n’s motion. Lincoln stated that his rapport and communication with Berki were “very good,” but L incoln said he wanted to exercise greater strategic control over his case, and he expressed his disap pointment 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 a nd 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
info rmation 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
thro ughout 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 D istrict A ttorney. Your honor, I want to withdraw from this case. I mean it. I can’t take this anymore. I can’t do a job effecti vely 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 w ithout 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/or24

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 f or 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 t he 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 responde d, “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 represent ed 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.” Linco ln 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. La ra (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 decid e 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, w e apply an abuse of
discretion standard of rev iew 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 p p

. 153

- 154. )
3. T he Trial Court Did Not Err By Den ying Lincoln’s Mo tion 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 relia nce 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 par ticularly 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 priva te counsel].)26

set forth in Ortiz , supra , 51 Cal.3d 975, a trial court does not abus e its discretion if the defendant’s motion is untimely and would r esult 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, 20 8 ]. )
W e 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 t he bulk of
its evidence. T he 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 tha t the record does not support a finding that his motion was untimely . But the record shows t he trial lasted nearly a month because it dealt with complex legal issues , numerous witnesses and exhibits, and hours of recorded audio. A competent attorney woul d have required substantial time to prepare before substitut ing
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

c haracterized 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 doubt s 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 represent ing 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 pu t forth a strong closing argument. As the trial court noted, many of the defense ta ctics 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. W e 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 t he 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
Fou r ( kidnapping for robbery ) under s ection 654. Lincoln contends the trial court also should have stayed one of the two sentences for Counts One and Two under s ection 654 because the two offenses were committed during the same indivisible transaction with the

common objective of obtain ing money

. Reasonable minds can differ as to wheth er the
of fenses occurred during a single, indivisible transaction, but w e 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 diffe rent 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 simultaneo usly.” ( 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 o n 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.” ( Nea l , 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 on e.” ( 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 indepen dent violations committed in pursuit of each objective even though the violations were parts of an otherwise indivisible course of conduct.” ( Ibid. ) Conversely, whe re reasonable minds can differ on whether multiple crimes
involve a single act, we conside r whether the crimes were focused on a single “intent and29

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 t he 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 defen dant 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 Require s a Stay o f the Sentence on Count One o r 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 t he 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 offen se 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 was30

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 the se 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 whe re reasonable minds can differ as to whethe r 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 Linco ln’s intent was singular . T hroughout 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 robbe ry 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.
E ven 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 fo r 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.) Under31

Neal , then, section 654 requires a stay of one of the two s entences

. 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 car

jacking ( 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 Atto rney General concedes th is claim and agrees that we shou ld reverse the conviction for carjacking. We accept the Attorney General’s conc ession

. 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, w e 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 preju dicially 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 f or 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 o r death , not whether she formed the specif ic 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 f orth
in Chapman , supra , 386 U.S. 18. We agree that the court erred, but we conclude that the32

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 harmles s under th e Watson standard

. 1. Procedural Background In pretrial motions and again at trial , Dowdell requested special instruction s 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 domest ic 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 poss essed 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 d eciding 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 batter ing

. Prior to sentencing, Dowdell moved for a new tria l on the ground that the court erred by limiting the jury ’s consider ation of intimate partner batter ing to the issue of33

whether she acted under duress , and not whether she otherwise formed the specific intent
to commit the charged offenses

. The trial cour t 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 nov o standard of review in assessing whether jury instructions correctly state the law or whether they effectively direct a finding adverse to a defendant by re moving 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. T he Trial Court Err oneous ly Instruct ed the Jury on Intimate Pa rtner 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 batter ing in determining whether she forme d the requisite specific intent

. In Coffman , the prosecution charged Coffman and her codefendan t 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 consi der evidence of intimate partner batter ing 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 inst ructed 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. ) T he Californi a Supreme Court held that
the se 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 Co ffman had formed the mental state or specific intent required for the charged offenses

. . . .” ( Id. at p. 99, i talics added.)
Neither the trial court’s instructions in Coffman nor the Supreme Court’s holding in that

case limited the applicability of inti mate partner abuse evidence to a determination of
duress. The wording of Dowdell’s proposed instruction closely tracked the applicable language in Coffma n. Although the instruction ultimately given to the jury relied on the language set forth in the patt er n 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 partn er 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
inte nt to kill but acted out of fear of codefendant].)” (Judicial Council of Cal., Crim. Jury
Ins tns., (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

Do wdel l 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 conc lude 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
i ntimate 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

s everal 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 Linc oln 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 substa ntial evidence to warrant a particular jury instruction

. ( People v. Sala s , 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. W e 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 unles s 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 instructi on 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 107 3, 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 ne cessary to kill in self

defense, but not in deciding whether that belief was reasonable. ( Humphrey , supra , 13 Cal.4th at p. 1076.) The Supreme C ourt held that the latter portion of this instruction

was erroneous. ( Id. at p. 1089.) But the court rejecte d the defendant’s argument that the erroneous instruction deprived her of the right to present a d efense. 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 den y 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 a pplies: 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 present ing 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 stan dard for prejudice.37

Under the Watson standard, we conclude Dowdell has not met her burden of
show ing a reasonable probability of a more favorable outcome had the jury been properly
instructed. Dowdell present ed abundant evidence demonstrating the emotio nally 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 sh ows 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, h er own testimony on this point was s elf

- 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 like ly 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 def ense 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 sh ould be released in five
years with good behavior

. I t is difficu lt 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 t he Dowdell jury, the prosecutor stated, “You are not to consider punishment. The judge is to consider punishment whether she goes to jail or38

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 con tends 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 juror s’ minds and suggested that they
need no t be concerned about the harshness of the charges. Dowdell contends this was part of an intentional strategy by the pr osecutor designed to encourage jurors to ignore
the evidence of Lincoln’s psychological control over Dowdell. Even assuming the prosec utor’s statement constituted misconduct, we conclude
the mis conduct 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 complained

of remarks in an objectionable fashion.’ ” ( People v. Ayala , supra , 23 Cal.4th at p. 284.)
In ans wering 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 whe re 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 participati ng in the offenses, and surveillance video from the ATM placed her at the scene of the crim e. 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

. T he jury likely re

jected 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 Ab s tract 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

concurrent ly with the sentence on Count One

. The Att orney 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 i t purports to digest or summarize.” ( People v. Mitchell (2001) 26 Cal.4th 181, 185.) Accordingly, we will order the abstract
corrected.
III. D ISPOSITION As to Lincoln , the sentence of life in prison with the possibility of parole for Count Two is stayed, and the conviction for carjacking o n Count Three is stricken. As to Dowdell, t he trial court shall correct the abstract of judgment to reflect that the trial court stayed the sentence on Count Four. T he corrected abstract shall be forwarded to the Departmen t of Corrections and Rehabilitation. As modified, both judgment s 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 a ppointment 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 A ttorney General

Alisha M. Carlile , Deputy Attorney General

People v. Dowdell, et al. H037404