Filed 6/23/15 P. v. Green CA2/4 Opinion following transfer from Supreme Court

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California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FOUR

THE PEOPLE,
Plaintiff and Respondent,

v.
BRIAN GREEN,
Defendant and Appellant. B246518
(Los Angeles County Super. Ct. No. PA062567)

APPEAL from a judgment of the Supe rior Court of Los Angeles County, Cynthia L. Ulfig, Judge. Affirmed as modified. Lynne S. Coffin, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Lanc e E. Winters, Assistant Attorney General, Jonathan J. Kline and Gary A. Lieberman, Deputy Attorney s General, for Plaintiff and Respondent.2 INTRODUCTION
This case arises out of a racially-motivated attack on Thomas Johnson by defendant Brian Clay Green, G unnar Stine and Jacob Gurfinkiel. 1 The jury convicted defendant of attempted murder (§§ 664/187, subd. (a)), assault with a deadly weapon or by force likely to cause great bodily injury (§ 245, subd. (a)(1)), and making criminal threats (§ 422). 2 In regard to the attempted murder conviction, the jury found true the allega tions that defendant personally inflicted great bodily injury (§ 12022.7, subd. (a)) and that the offense was a hate crime committed in concert with others (§ 422.75, subd. (b)). 3 In regard to the assault conviction, the jury found true the allega tions that defendant personally used a deadly weapon, a knife (§ 12022, subd. (b )(1)); that he personally inflicted great bodily injury (§ 12022.7, subd. (a)), and that the offense was a hate crime committed in concert with others (§ 422.75, subd. (b)). In regard to the criminal threats conviction, the jury found true the allegations that defendant personally used a deadly weapon, a knife (§ 12022, subd. (b)(1)) and that the offense was a
hate crime committed in concert with others (§ 422.75, subd. (b)). After the jury rendered its verdicts, a bench trial was conducted in which the
trial court found that defendant had suffe red two prior serious felony convictions within the meaning of the Three Strikes law (§§ 667, subd. (a)(1), 667, subds. (b)- (i), 1170.12, subds. (a)-(d)) and section 667, subdivision (a)(1). The trial court

1 Stine and Gurfinkiel were charged as codefendants but were not tried with defendant.

2 All statutory references are to the Penal Code.

3 The jury found “not true” the allega tion that defendant personally used a dangerous weapon (a knife) during the co mmission of the attempted murder.3 sentenced defendant to an aggregate term of 125 years plus three consecutive life

terms. In his appeal, defendant raised three cl aims of instructional error: (1) the trial court erred in failing to instruct on th e principles of self-defense, defense of others and mutual combat; (2) the trial had a sua sponte duty to instruct on the lesser included offense of attempted volunt ary manslaughter; and (3) the trial court erred in rejecting defense c ounsel’s request for the unanimity instruction. Next, defendant urged that his sentence viol ated section 654. Lastly, defendant contended that trial counsel provided inef fective assistance because he failed to object to the admission of defendant’s pret rial interview with two detectives, an interview that defendant claims, for the first time on appeal, was coerced. In our opinion, filed on January 7, 2015, we found no prejudicial error and, other than correcting a minor error in th e award of pre-sentence custody credit, affirmed the judgment. Defendant filed a petition for review in the California Supreme Court. He raised only two contentions: (1) the tria l court’s rejection of his request for the unanimity instruction constituted prejudicial error; and (2) his sentence violated
section 654. The California Supreme Court granted re view but not on the issues raised by defendant. Instead, it transferred the cas e to us “with directions to consider
whether to remand to the trial court fo r resentencing in accordance with Penal Code section 667, subdivision (e)(2)(A) (see People v. Smith (2001) 24 Cal.4th 849, 852 [exception to the waiver rule fo r unauthorized sentence].)” (See Cal. Rules of Court, rules 8.500(b) & 8.528(d).) We directed the parties to file lette r briefs addressing our Supreme Court’s order. (See Cal. Rules of Court, rule 8.200(b)(1).) Having r eceived and reviewed those letters, we conclude that the trial court erred in two respects in calculating4 defendant’s sentence but that a remand is not necessary to correct those errors. Instead, we re-file our earlier opinion w ith the addition of a new section G (“Sentencing”) and dispositional paragr aph correcting the sentencing errors.

STATEMENT OF FACTS
A. Factual Overview
The crimes were committed around midnight on February 16, 2008. Johnson, the victim, is black. Johnson wa s accompanied by his roommate Daniel Boston, who is white, when he (Johnson) was attacked by defendant, Stine and Gurfinkiel. During the attack, Johns on was punched, kick ed, stabbed and threatened as the men yelled multiple racist epithets. De fendant is a member of the SFV Peckerwoods, a white-supremacist gang in the San Fernando Valley. Stine
and Gurfinkiel are members of the Ch atsworth Skinheads, another whitesupremacist gang. The two gangs share a hatred of African-Americans. It is common for the two gangs to commit crimes together. On the day of the attack, Johnson was 26 years old, five feet six inches tall and weighed 145 pounds. Boston was betw een 19 and 21 years old, weighed 130 to 135 pounds and was five feet, eight or nine inches tall. 4 Defendant was 27 years old. He weighed 220 pounds and was five feet 11 inches tall. Stine was 17 years old, five feet eight inches tall, and we ighed between 130 to 140 pounds. Gurfinkiel was almost 18 years old, five feet, seve n inches tall, and weighed 140 pounds.
Defendant testified at trial and denied attacking Johnson. Defendant claimed that Stine assaulted Johnson and that he (d efendant) entered the struggle to stop it.

4 Boston did not testify at trial.5 B. The Prosecution’s Case-in-Chief
1. Johnson’s Testimony At approximately midnight on the ev ening of February 16, 2008, Johnson and Boston were walking on Winnetka Avenue in the San Fernando Valley, heading towards their home. Johnson and Boston were on the opposite side of the street from defendant, Stine and Gurfinkiel . Johnson heard a man say, in an “aggressive, angry tone[,]” “There is a fucking nigger over there.” Johnson ignored the statement and continued to wa lk with Boston as a man stated: “What are you doing over here, nigger[ ?].” To get home, Johns on and Boston needed to
cross the street. To minimi ze the potential of any confrontation, they crossed to
the north of the three men. Everyone was now on the sa me side of the street. Johnson “heard footsteps coming towards [him], running towards [him] at a fast pace.” Johnson turned around and St ine threw a “knock-out- punch” at him. Johnson ducked and Stine’s pu nch “missed.” Johnson testified: “I kind of went back and I hit him [Stine] and he fell to th e ground. . . . I kind of just put my hand on his chest or, like, upper neck area and I kneeled on the ground, [and] was asking him if he knew me or what his problem was.” (When Johnson first turned around,
he saw defendant and Gurfinkiel standing next to a car.) Johnson knelt with one knee on the groun d and used one arm to try “to hold [Stine] in place.” Suddenly, defendant ca me up and kicked Johnson “pretty hard”
on the left side of his face. Defendant tr ied to kick Johnson again but Johnson used his “arm to sweep [defenda nt’s] leg away.” Johnson looked up at defendant and said: “Are you guys going to jump me now or whatever?” Defendant came around to Johnson’s back, put his arm around him and pointed a knife within one or two inches of Johnson’s eyes. Defe ndant said “Fuck you, nigger” and told Johnson that if he did not “get off his fri end [Stine], he [was] going to cut [his] fucking throat.” Johnson, believing his life was in danger, pushed defendant’s6 hand away, jumped up, and started boxing with defendant. Stine stood up and joined defendant in fighting Johnson. Johnson punched Stine in the face. Gurfinkiel ran toward Johnson and jo ined in the attack. Johnson hit
Gurfinkiel before Gurfinkiel could hit him. Gurfinkiel said: “Fucking nigger[] hit
me in the face.” Defenda nt, Stine, and Gurfinkiel fo rmed a circle around Johnson, and “operat[ing] as a team,” hit him. Defendant was behind Johnson most of the time as the three men punched him. Johns on tried to get out of the circle but defendant and Stine pushed him back. At one point, Johnson saw that he was bleeding “everywhere.” Johnson “kind of stopped” fighting and, accompanie d by Boston, “rush[ed]” back to their home. As he left the scene, Johnson h eard bottles breaking. One of his three
assailants stated: “It’s time for some white power on this motherfucker” and “Heil
Hitler.”
Johnson and Boston returned home a nd contacted the paramedics. Johnson was transported to the hospital. He had be en stabbed twice, once in his lower back and once in his upper back. The latter stab punctured his right lung and would
have been fatal if he had not quickly received medical treatment. Johnson underwent surgery and was hospitalized for se veral weeks. In addition, his vision “is worse in [his] left eye than it is in [the] right eye.” Boston did not help Johnson during the attack. During the assault, one of
the three men called Boston “a fucking nigger lover.”

2. Testimony from Two Eyewitnesses Shortly before their attack on Johns on, defendant, Gurfinkiel and Stine had been at a party. They, along with thr ee young women, left the party and drove to
Gurfinkiel’s home. It was at that loca tion that defendant and his accomplices7 attacked Johnson. At trial, two of th e women, Kirsten Ma rlow and Samantha Parker, testified for the People.

a. Marlow’s Testimony Marlow testified that the group arrive d by car at Gurfinkiel’s home. Marlow saw Johnson and Boston walking in their di rection on the opposite side of the street. Everyone except Stine exited the ca r. Defendant first said: “If you yell nigger, [Stine will] come out of the car.” and then he yelled “Nigger.” As Johnson
and Boston crossed the street in his directi on, Stine left the car and yelled: “What the hell are you staring at, you dumb nigge r?” Stine ran towards Johnson and “[t]hat’s when the fight started breaking out.” Johnson and Stine were “fighting on the ground,” “[t]hey were all just in a fi ght” for a “few minutes.” Johnson did not have any weapon in his hand during the fight. Defendant approached the fight and “kicked [Johnson] in the head.” At some point, Gurfinkiel joined the fight. According to Marlow, Johnson hit Gurfinkiel “for self-defense.” Marlow did not
see who stabbed Johnson. Eventually, the three men, Marlow and Parker retreated to Gurfinkiel’s
home. Defendant and Stine each had a bl oody knife. Defendant told the group: “Look what I did. I stabbed the nigger.” Initially, Marlow did not speak with the police about the events. She “fear[ed]” for her “life” be cause defendant, Stine and Gurfinkiel were white supremacists.

b. Parker’s Testimony Parker testified that she, Marlow and another women had been at a party with defendant, Gurfinkiel and Stine. Th e men had been drinking. The six of them left by car to return to Gurfinkiel’s home. When they arrived, everyone left8 the car except for Stine. Defendant told the group that he knew how to get Stine
out of the car. Defendant then stated: “There is a fucking nigger.” Marlow saw Johnson and Boston walking on the other side of the street. Stine left the car and pursued Johnson. As Stine approached Johnson, Stine made a Nazi salute and loudly said: “Nigger” and “White Power. ” At the same time , defendant shouted
“White Power.” When Stine reached Johnson, Stine thre w the first blow and “[t]hey started fighting.” Defendant joined the fight as Johnson and Stine “were wrestling on the ground.” Defendant kicked Johnson “pretty hard” in the face. Soon, Gurfinkiel joined the fight, “yelling out racial stuff. ” The three men “pile d on [Johnson],” “all attacking [him] at the same time.” “Towards the very end of the fight,” Gurfinkiel gave a Nazi salute. The fight ended when Johnson, who was bleeding, “[got] up and [left]” with Boston. As Johnson was “walking [away] real quick,” Gurfinkiel
walked towards him but defendant held him back. Marlow did not see who
stabbed Johnson.
The three men and the women went to Gurfinkiel’s home. Defendant showed Parker a bloody knife and said: “I stabbed a fucking nigger.” Parker saw
that Stine also had a knife.

C. The Defense Case
1. Defendant’s Testimony
Defendant testified at trial on his own behalf as follows. He and the others arrived by car at Gurfinkiel’s home. He (defendant) was
intoxicated and Stine “was drunk.” Defenda nt pulled Stine out of the car. Johnson
and Boston walked near them on the other si de of the street. Gurfinkiel yelled: “What the fuck are you doing?” Johns on and Boston crossed the street immediately in front of their car. From defendant’s point of view, Johnson became9 the aggressor at this point. Defendant expl ained: “If we say something to him and he doesn’t want to engage or isn’t involve d in it, why didn’t he just keep walking . . . instead of crossing the street to where we were at in front of us?” Stine approached Johnson and Boston. Stine started “talking smack to
them [ 5 ] ; and they [Johnson and Boston] star ted talking smack back, and [Johnson] threw a beer bottle and then they started fighting.” (The bottle did not hit anyone.) Stine and Johnson punched each othe r and fell to the ground where they continued to fight. Johnson “was stra ddling [Stine], punching [him] in the head and torso area.” Stine was trying to fight back. Meanwhile, Gurfinkiel “was talking trash” with Boston. At that point, Marlow and Parker were “yelling a nd screaming” and
Gurfinkiel’s mother came out of her ho me “and was yelling at [defendant] that they were fighting, to stop them. ” (Italics added.) Defenda nt told Marlow, Parker
and Gurfinkiel’s mother to calm down. After the women “had calmed down some,” defendant approached “and tried to pull [Johnson] off the top of [Stine].” Defendant testified that he “was trying to break up the fight because they were drunk.” He “was trying to stop the alte rcation and incident so that nobody got in
trouble.” Defendant grabbed “Johnson by his shoulders to pull him off” of Stine but he (defendant) slipped on the wet gras s and fell. Johnson and defendant were soon on their feet. Stine remained on the ground “a little bit longer” “because he
was drunk.” Defendant told Johnson to “just, get the fuck out of here.” Defendant and Johnson “kind of squa red off” but then Gurfinkiel “came back up” behind Johnson and “either pushe d him or punched him.” Stine stood up and attempted to join the fight. Defenda nt grabbed Stine, “wrapped him up like a

5 Defendant explained that Stine said some thing along the lines of “What you want, mother fucker. What are you doing, mother [fucker].”10 bear[,] . . . wrapped [h is] arms around [Stine], holding him” and pulled him
towards Gurfinkiel’s home in an effort to stop Stine from fighting again. Stine “jerked away” and “went after” Boston w ho was walking away. Stine yelled to Boston: “Come back here, mother fucker; it’s white pow er.” Boston ran away so Stine rejoined the fight between Johnson and Gurfinkiel. Defendant “yell[ed] at them to get the fuck in the house.” Boston started walking back towards the melee.
Defendant testified that at that mo ment, he “grabbed [Stine] again and [Gurfinkiel’s] mother grabbed [Gurfinkiel], and we pulled them back” and Johnson
“walked off.”
Defendant did not “recall ever kicki ng [Johnson] in his face” but conceded that when they fell down, he “may have” “kicked him in his s houlder.” Defendant
claimed that “there wasn’t a time all th ree of us [defendant, Stine and Johnson] were fighting. I’m trying to break up the fight .” (Italics added.) Defendant denied having a knife, having threatened to cut Johnson’s throat, having stabbed Johnson, having seen anyone stab Johnson, or ha ving said “nigger” during the incident.
Defendant claimed that after the fi ght had ended, he saw Stine’s bloody knife on the sidewalk. Defendant picked up the knife and took it with him to
Gurfinkiel’s home. Defendant asked Stine if he (Stine) had stabbed Johnson. Stine replied “that he just cut himself.” In regard to gang affilia tion, defendant denied be ing a member of the SFV
Peckerwoods but testified that he believed in “White Power” wh ich he defined as “procreation,” “[w]hite people with wh ite people[,]” “sticki ng with my own.”

2. Impeachment of Defendant Through His 2008 Interview With the Police The police arrested defendant on Novemb er 12, 2008. That day, Detectives Fajardo and Doerbecker interviewed him. The interview was tape recorded.11 During cross-examination of defendant, the prosecutor sought to enter the
interview into evidence. 6 The defense did not object. 7 The tape recording was played for the jury and a transcript of the interview was ente red into evidence. 8 As will be explained in more detail when we discuss de fendant’s contention that trial counsel provided ineffective assistance because he failed to object to the
introduction of the intervie w, defendant’s statements to the police were, in large part, consistent with his trial testimony. He denied attacki ng or stabbing Johnson and claimed he entered the fight only to stop it. However, some of his statements were inconsistent with his trial testimony.
Defendant did not tell the detectives that Johnson had been the aggressor, either by crossing the street, talking “smack,” or throwing a beer bottle and, at one point,
defendant conceded to the detectives th at Johnson fought only in self-defense.
While defendant testified that he did not know who stabbed Johnson, defendant repeatedly told the detec tives that Stine had stabbed Johnson and that he (defendant) knew where to find the knife Stine had used. In addition, defendant, in the interv iew, set forth a more racially charged context for the fight and described a more a ggressive Stine than he had in his trial testimony. Defendant told the detectives th at the incident started when Stine called Johnson a “fucken nigger” and “ran up from the car[], . . . swinging at [Johnson] [whereupon the two men] started fighting.”

6 Defendant testified that he had reviewed that interview to prepare his testimony.

7 As stated in our introductory paragra phs, defendant contends that he received ineffective assistance of counsel because hi s attorney failed to move to exclude the interview on the basis it was co erced. The facts relevant to that contention will be set forth later.

8 During deliberations, the jury aske d to listen again to the tape.12 Defendant also gave the detectives a di fferent chronology of the latter part of the struggle and his role in it. As oppos ed to his trial testimony in which he claimed that only Stine was fighting with Johnson, defendant told the detectives that Johnson was “beating [Stine] up and then [Gurfinkiel] ran over and started fighting with [Johnson].” Defendant “ran over there” to pull Stine and Gurfinkiel off of Johnson because “they had gained the upper hand again.”

DISCUSSION
A. FAILURE TO INSTRUCT ON SELF-DEFENSE, DEFENSE OF
OTHERS AND MUTUAL COMBAT
Defendant contends that the trial c ourt committed prejudicial error because it failed sua sponte to instruct on the theories of self-defense, defense of others and
mutual combat. We disagree.

1. Factual Background Before closing argument, the trial cour t instructed the jury. The court read, among other instructions, CALJIC No. 9.00 which defines assault. The last paragraph of that instruction reads: “A willful application of physical force upon the person of another is not unlawful when done in self-defense or in defense of others. The People have the burden to prove that the application of physical force
was not in lawful self-defense or defens e of others. If you have a reasonable doubt that the application of physical force was unlawful, you must find the defendant not guilty.”
After the trial court finished readi ng the instructions to the jury, the prosecutor requested a sidebar conferen ce. The following exchange occurred. “[THE PROSECUTOR]: I believe that [the last paragraph in CALJIC No. 9.00] is inapplicable here. Defense has not sought any13 self-defense instructions and, in fact, there is a series of instructions in the 5 section [of CALJIC] indicating that they shouldn’t be available in this case. . . . I would ask it be stricken from the written copy. . . .
“THE COURT: [Defense counsel?]
“[DEFENSE COUNSEL]: Well, we heard testimony from the defendant, defense of others.
“[THE PROSECUTOR]: Well, the thing is, though, that that is a genuine defense that requires suppl emental instructions that defense counsel did not ask for and, in fact, it’ s mutual combat. It’s contrived. There was the failure to retreat from the fight. There was a whole series of instructions that would have been relevant.
“[The last] paragraph [of CALJ IC No. 9.00] is not merited under these facts. . . . I think that putting it in front of the jury is raising an issue that defens e, so far, has not raised , and it would be likely to lead to confusion if we have it in front of them.
“[DEFENSE COUNSEL]: Again, he [defendant] testified one of the reasons that he got involved in this was to pull Mr. Johnson off of Mr. Stine . . . because he was getting beat up.
“[THE PROSECUTOR]: But if defense intends to argue that and wants to rely upon that paragr aph, there is a whole series of instructions which are actually not favorable to this defendant dealing with mutual combat, contrived self-d efense, et cetera. That paragraph [in CALJIC No. 9.00] is not the way to do it.
“If defense counsel wants to litig ate whether he can be allowed to give other instructions, that’s a separate issue, but that paragraph would need to be accompanied by thos e instructions and should not be in front of the jury right now.
“[DEFENSE COUNSEL]: I think those other instructions are sua sponte. . . .14 “THE COURT: . . . We sp ent three days going over jury instructions, and I asked both counsel numerous occasions if there were any other instructions that were required or requested.
“And I specifically asked [defense counsel] twice if there were any instructions that were being requested, and none were requested. [ 9]
“[DEFENSE COUNSEL]: I’m satisfied with the jury instruction that we have here.
“[THE PROSECUTOR]: I thi nk legally that argument is unsupportable because that brackete d paragraph which one would . . . have expected to have been stricken requires genuine instructions that weren’t requested.
“I will submit on that, Your Honor.
“THE COURT: At this point in time, I am going to strike the self-defense paragraph 9.00.
“And I guess we are going to just send the jury away and litigate the other issues regarding the other instructions if defense is seeking to add them at this point in time.
“[DEFENSE COUNSEL]: Well, I believe, even if that is struck, I can argue to the jury th at that fact itself of him pulling someone away goes to his intent to commit a crime and is a specific intent, also.
“THE COURT: So you are not going to argue self-defense, then. Because if you are going to ar gue self-defense, we are going to have the self-defense instructions, with which there are a series of those.

9 The trial court’s recollection was correct. On three occasions, the court and the parties discussed jury instructions. Twice, the court asked defense counsel if he had any additional instructions he wanted the court to review. Each time, defense counsel replied “no.”15 “I know [the] People, obviously, can argue that it was contrived and not legitimate self-defense; so they may or may not be given. This is why I asked for jury instructions at the beginning of trial so we are all on the same page a nd we don’t hold the jury up.
“[DEFENSE COUNSEL]: I understand.
“Then – I am still able to argue his act, however it may be characterized on the issue of his specific intent.

“THE COURT: Of course. . . .
“[THE PROSECUTOR]: I think that’s legally not supportable [for defense counsel to argue self-def ense or defense of others]. The thing I think defense counsel can argue is that the physical action of the defendant was intended not to promote the fight, but to pull someone out of it. But as to legally arguing it was defense of another, if defense counsel starts to make that argument, I would be entitled to a series of instructions whic h would invalidate that claim.
“[DEFENSE COUNSEL]: I will submit.

“THE COURT: . . . . I will strike [the last] paragraph [of CALJIC No. 9.00] and . . . will just go with argument of counsel. We won’t include the extra instructions because testimony of the defendant seemed to be pretty clear that he was trying to break up the fight that was happening .” (Italics added.)

Proceedings resumed in the jury’s pres ence. The trial court stated: “With respect to the assault charge[, ] the jurors are not to consid er self-defense or defense of others, so that paragraph will be strick en.” The trial court then reread CALJIC No. 9.00 to the jury, omitting the paragraph set forth earlier. Th e court also struck that paragraph from the written inst ruction submitted to the jury.16 In closing argument, defense couns el urged, among other points, that defendant lacked any criminal intent beca use “when you look at the totality of the actions, according to [defendant], he tried to break up this fight.”

2. Discussion
Defendant contends that the trial cour t erred “by failing to instruct the jury sua sponte on self defense/defense of others and mutual combat.” The parties agree that “a defendant has a right to have the trial court, on its own initiative, give a jury instruction on any affirmative defense for which the
record contains substantial evidence [citation] — evidence sufficient for a reasonable jury to find in favor of de fendant [citation] — unless the defense is inconsistent with the defendant’s theory of the case [citation] . In determining
whether the evidence is sufficient to warrant a jury instruction, the trial court does not determine the credibility of the defe nse evidence, but only whether ‘there was evidence which, if believed by the jury, was sufficient to raise a reasonable doubt . . . .’” ( People v. Salas (2006) 37 Cal.4th 967, 982.) Bu t if the evidence of the purported defense(s) is minimal or insu bstantial there is no duty to instruct on them. ( People v. Barnett (1998) 17 Cal.4th 1044, 1145.) In this case, however, defendant mis frames the issue as being whether the trial court had a sua sponte duty to instruct upon self-defense, defense of others, or
mutual combat. As can be seen from the colloquy set forth above, the trial court and the parties discussed whether these ve ry instructions were warranted. The court ultimately ruled that it would not submit the instructions “because testimony of the defendant seemed to be pretty clea r that he was trying to break up the fight that was happening.” Thus, the issue is not whether the trial court had a sua sponte duty to instruct but, instead, whether th e trial court, once the issue of these additional instructions had been brought to its attention, correctly ruled that the17 record did not contain substantial evidence to support their submission. We conclude that the trial court’s ruling was correct.
Self-defense or defense of others re quires the defendant: (1) to reasonably believe that bodily injury is about to be inflicted upon himself or a third person and (2) to use the force reasonably necessary to prevent that imminent harm. (CALJIC Nos. 5.30 & 5.32.) It is the prosecuti on’s burden to prove beyond a reasonable
doubt that the defendant did not act in ex ercise of one of those defenses. (See CALJIC No. 9.00.) If the jury ente rtains a reasonable doubt whether the defendant’s use of force was lawful, it mu st find the defendant not guilty. ( Ibid .) Here, nothing in the People’s case sugge sted that defendant acted in selfdefense or defense of others. Johnson’ s testimony and the testimony of the two eyewitnesses (Marlow and Park er) described, in detail, an unprovoked and vicious attack fueled by racial hatred in whic h Johnson was the only individual who acted
in self-defense. In the defense case, defendant never te stified that he acted to defend either Stine or himself. Instead, defendant, on multiple occasions, testified that the reason he entered the fight between Stin e and Johnson was to end it. Defendant explained that he intervened after Gurfink iel’s mother asked him to stop the fight. Defendant testified that he “was trying to break up the fight because they were drunk”; that he “was trying to stop the a ltercation and incident so that nobody got in trouble”; and that he was “trying to break up the fight.” None of defendant’s testimony supports his appella te argument that he “reas onably perceived Mr. Stine to be in imminent danger” so that he acte d first out of a desire to defend Stine and
later a desire to defend himself. Stated another way, defendant failed to present substantial evidence that could persuade a reasonable jury to entertain a reasonable doubt that he (defendant) acted lawfully, e. g., to defend Stine or himself. (See,18 e.g., People v. Kanawyer (2003) 113 Cal.App.4th 1233, 1243.) The trial court therefore did not err in declining to instruct on those defenses. 10 Lastly, we reject defendant’s argument that the trial court erred in failing to submit CALCRIM No. 3471, the pattern instru ction about mutual combat. Mutual combat “consists of fighting by mutual intention or consent, as most clearly reflected in an express or implied agreement to fight.” ( People v. Ross (2007) 155 Cal.App.4th 1033, 1046-1047.) CALCRIM No. 3471 sets forth the specific actions that a person who engages in mutual combat must take before he can claim self-defense: (1) he must actually and in good faith try to stop fighting; (2) he must communicate to his opponent, by wo rds or conduct, his intent to stop the fight; and (3) he must give his opponent a chance to stop fighting. If a defendant’s actions fulfill all of those requirements bu t the opponent continues to fight, then the defendant has a right to act in self-defense. In this appeal, defendant argues: “The fight was mutual combat when it began because all testimony agreed that [the victim Johnson] crossed the street to [defendant’s] and his friends’ location when it was not necessary for him to do so. Thus, when the fight began and con tinued it was by implied consent or agreement.” Based upon that characterization of the re cord, defendant contends that the trial erred in not submitting an in struction about mutual combat. We are not persuaded.

10 The trial court’s decision to delete the la st paragraph to CALJIC No. 9.00 absent the submission of other instructions was co rrect. The Use Note to CALJIC No. 9.00 states, in pertinent part: “The last brackete d paragraph should only be used where there is a defense of self-defense and should be gi ven with CALJIC No. 5.30 [defining selfdefense] and other appropriate instructions.” As alluded to by both the prosecutor and the court, the potentially a ppropriate instructions included CALJIC Nos. 5.52 (“SelfDefense--When Danger Ceases”), 5.53 (“Sel f-Defense Not an Excuse After Adversary Disabled”), 5.54 (“Self-Defense by an Aggr essor”), 5.55 (“Plea of Self-Defense May Not Be Contrived”), and 5.56 (“Self-Defense —Participants in Mutual Combat”).19 The trial court is required to instru ct on mutual combat only if there is
substantial evidence from which the jury “could reasonably find that both combatants actually consented or intended to fight before the claimed occasion for self-defense arose. ” ( People v. Ross, supra, 155 Cal.App.4th at p. 1047.) The singular fact that Johnson and Boston cro ssed the street (a lawful act) does not
constitute substantial evidence that Johns on agreed to engage in combat with defendant or his accomplices. In a si milar vein, defendant’s testimony that
Johnson threw a bottle that did not hit anyone does not constitute substantial evidence from which a reasonable jury coul d find that Johnson agreed to fight. Further, there was no absolutely no eviden ce that, after the fight began, defendant (or Stine or Gurfinkiel for that matter) ever communicated to Johnson an intent to end the fight. Thus, the predicate requirements for the instruction were not supported by substantial evidence. In sum, the trial court properly found that the
record did not warrant an in struction on mutual combat.

B. FAILURE TO INSTRUCT SUA SPONTE ON ATTEMPTED
VOLUNTARY MANS LAUGHTER Attempted voluntary manslaughter is a lesser included offense of attempted
murder. Defendant contends that the tria l court had a sua sponte duty to instruct on that offense based upon the theory that if he (defendant) did not act in “selfdefense, defense of another or in mutual combat, that he acted in the heat of passion .” 11 (Italics added.)

11 During a reported discussion about jury instructions, the court asked defense counsel: “Are you seeking any lessers with resp ect to any of the charges?” He replied: “No.” The court then asked: “And you co nsidered this in making your tactical decision?” Defense counsel answered: “Yes.” However, the trial cour t’s duty to instruct on a lesser included offense exists even when, as a matter of trial tactics, defense counsel20 The crux of defendant’s contention is th at there “was substantial evidence of provocation” in that he “ acted upon a sudden quarrel or in the heat of passion when he attempted to assist . . . Stine.” In pa rticular, defendant argues: “Regardless of whether Stine approached Johnson, this approach did not occur until after Johnson had intentionally crossed the street in front of Stine and [defendant]. Moreover, if Johnson’s approach was not sufficient provoca tion, the ensuing fight surely was.” This contention is not persuasive. The actions of a victim (here, J ohnson) can constitute legally adequate provocation only if those actions are “‘su fficiently provocative that it would cause an ordinary person of average disposition to act rashly or without due deliberation and reflection. [Citations.] “Heat of passion arises when ‘at the time of the [attempted] killing, the reason of the accu sed was obscured or disturbed by passion
to such an extent as would cause the ordinarily reasonable person of average disposition to act rashly and without de liberation and reflection, and from such passion rather than from judgment.’”’” ( People v. Manriquez (2005) 37 Cal.4th 547, 583-584.) However, the trial court is not obligated to instruct about a lesser included offense (here, attempted voluntary manslaughter) unle ss “‘there is “substantial
evidence” from which a rationa l jury could conclude that the defendant committed the lesser offense, and that he is not guilty of the greater offense.’” ( People v.
Whalen (2013) 56 Cal.4th 1, 68.) “‘“[T]he existence of ‘ any evidence, no matter how weak’ will not justify instructions on a lesser included offense.”’” ( Ibid .) In this case, the trial record does not contain substantial evidence of legally adequate provocation.

elects not to request the instruction. ( People v. Barton (1995) 12 Cal.4th 186, 195; People v. Elize (1999) 71 Cal.App.4t h 605, 612-613.)21 Contrary to what defendant suggests, Johnson and Boston’s lawful decision to
cross the street to the side where defenda nt and his companions were standing does not constitute legally adequate provocation. That defendant may have been offended by the action or found it pr ovocative does not matter because an ordinarily reasonable man would not have felt that way. “‘“[N]o defendant may set up his own standard of conduct and justif y or excuse himself because in fact his passions were aroused, unless further th e jury believe that the facts and circumstances were sufficient to arouse the passions of the ordinarily reasonable

man .”’” ( People v. Manriquez, supra, 37 Cal.4th at p. 584.) In a similar vein, defendant’s claim that the subsequent struggle between Johnson and Stine constitutes legally adequate provocation that caused him to join the fight must fail. As explained above , there is no substantial evidence that Johnson initiated the fight or that the fight was mutual combat. Instead, the record
contains substantial evidence that Johnson simply defended himself against a racist
attack that defendant had set in motion by taunting Stine with racist epithets.
These were not circumstances that woul d have caused a reasonable person to respond rashly by joining the fight. “T he focus is on the provocation—the surrounding circumstances—and whether it was sufficient to cause a reasonable person to act rashly. How the [defendant] responded . . . is not relevant to sudden quarrel or heat of passion.” ( People v. Najera (2006) 138 Cal.App.4th 212, 223.)

C. REJECTION OF THE UNANIMITY INSTRUCTION
Defendant contends that the trial cour t’s rejection of its request to submit CALJIC No. 17.01, the standard unanimity instruction, constitutes prejudicial error. We disagree.22 1. Factual Background On several occasions, defense counsel asked the trial court to submit CALJIC No. 17.01 to the jury. He argued that because e ither defendant’s kick to Johnson’s head or the stabbing of Johnson could form the basis of the assault or attempted murder charge, it was imperative th at the jury be instructed that it had to agree which act constituted each crime. The trial court rejected defense counsel ’s request for two reasons. First, it found that a unanimity instruction wa s not required because the People were proceeding under multiple theories, one bei ng that defendant was guilty because he
kicked the victim in the head and later st abbed him in the back and the other being that defendant was guilty on a theory of ai ding and abetting. S econd, the trial court relied upon the Use Note to CALJIC No. 17.01 that explains that the instruction does not have to be given “where the two crimes are so closel y connected in time that they form part of one transaction.” The trial court explained that “from the testimony I have heard[,] [i t] is basically an ongoing fight and donnybrook that’s taking place. It happened very quickly. [¶ ] And it’s not an incident where there is
a break-off in the acts.” The trial court co ncluded: “In light of the events that transpired, the conduct engaged in by the defendant and his c odefendants, as well as the aiding and abetting theory proposed by the People, I do not think the jury needs to have the unanimity instruction.” The trial court, however, did submit CA LJIC No. 17.02 that explained that each count charged a distin ct crime and that each count was to be decided separately. In addition, the court subm itted the pattern instructions about aiding and abetting (CALJIC Nos. 3.00 (“Princ ipals—Defined”), 3.01 (“Aiding and Abetting—Defined”) and 3.02 (“Principal s—Liability for Natural and Probable Consequences”)). The last instructi on explained the circumstances under which defendant could be found liable for attemp ted murder based upon the theory that23 the attempted murder was a natural a nd probable consequen ce of defendant’s aiding and abetting the commission of an assault with a deadly weapon. In closing argument, the prosecutor ar gued: “[T]here were a number of things that the defendant did that could constitute felony assault, they can include kicking, beating and stabbing. . . . It would be very, very reasonable for you to [find that defendant’s] extremely hard kick to the left side of [Johnson’s] face constitutes the type of felony assault that can result in GBI.” As for the attempted murder charge, she argued: “There are three possibilities for convicting the defendant of attempted murder . You may find that the defendant, himself, with his own hands, tried to kill the victim [or] th rough his actions [that] he was actually trying to contribute to killing the victim hi mself. [¶] You may also find that he aided and abetted [Stine and Gurfinkiel] in the attempted murder of victim
Johnson. And then the third avenue for you to convict him is that he aided and
abetted assault with a dead ly weapon either with a deadly weapon or in a way which would produce great bodily injury and that the attempted murder was a natural and probable consequence of that assault.” “For you to convict the defendant of attempted murd er, you do not need to know whether he did both stab
wounds or either one of them.” “If the 12 of you . . . decide that the defendant is guilty of attempted murder, you do not have to agree as to the legal theory that gets you there.” “You just need to agree that that’s the crime that was committed.”

2. Discussion “The key to deciding whether to gi ve the unanimity instruction lies in considering its purpose. The jury must agree on a ‘particular crime’ [citation]; it would be unacceptable if some jurors be lieved the defendant guilty of one crime and other jurors believed [him] guilty of a nother. But unanimity as to exactly how
the crime was committed is not required. Thus, the unanimity instruction is24 appropriate ‘when convictio n on a single count could be based on two or more discrete criminal events,’ but not ‘where multiple theories or acts may form the basis of a guilty verdict on one discrete criminal event.’ [Citation.] In deciding whether to give the instruction, the trial court must ask whether (1) there is a risk the jury may divide on two discrete crimes and not agree on any particular crime, or (2) the evidence merely presents the possibility the jury may divide, or be uncertain, as to the exact way the defendant is guilty of a single discrete crime. In the first situation, but not the second, it should give the unanimity instruction.” ( People v. Russo (2001) 25 Cal.4th 1124, 1134-1135.) This case presents the second situ ation because the prosecutor properly proceeded on multiple theories: defendant wa s the actual perpetrator of the assault and attempted murder and defendant was liable for those offenses on an aiding and abetting theory. In this situation, the ju rors need not unanimously agree “‘whether
the defendant is an aider and abettor or a principal even when different evidence and facts support each conclusion.’ [Citations.]” ( People v. Jenkins (2000) 22 Cal.4th 900, 1026.) In other words, “as long as each juror is convinced beyond a reasonable doubt that defendant is guilty of [the charged crime] as that offense is defined by statute, it need not decide una nimously by which theory he is guilty. [Citations.] . . . [¶] Not only is there no unanimity requirement as to the theory of guilt, the individual jurors themselves ne ed not choose among the theories, so long as each is convinced of guilt.” ( People v. Santamaria (1994) 8 Cal.4th 903, 918- 919.) It therefore follows that the trial co urt was not required to instruct the jury that in order to find defendant guilty of e ither assault or attempted murder, it must agree upon the act constit uting each crime.
But even if we were to assume that the trial court erred in rejecting defense counsel’s request for the unanimity instru ction, the error would not have been prejudicial.25 The courts of appeal are divided as to the proper standard for determining prejudice if the trial court erred in not submitting a unanimity instruction. ( People
v. Matute (2002) 103 Cal.App.4th 1437, 1448-1449.) The major ity of courts have applied the standard from Chapman v. California (1967) 386 U.S. 18, 24. They
found that the error is of constitutional dimension and thus requires reversal unless
the error is harmless be yond a reasonable doubt. ( People v. Hernandez (2013) 217 Cal.App.4th 559, 570.) Other cases apply the test from People v. Watson (1956) 46 Cal.2d 818, 836, finding reversible error only if “‘it is reasonably probable that
a result more favorable to th e [defendant] would have been reached in the absence of the error.’” ( People v. Vargas (2001) 91 Cal.App.4th 506, 562.) We apply Chapman and conclude that any error that may have occu rred was harmless beyond a reasonable doubt.
“Under Chapman , ‘where the record provides no rational basis, by way of argument or evidence, for the jury to dist inguish between the various acts, and the jury must have believed beyond a reasona ble doubt that [the] defendant committed all acts if he committed any, the failure to give a unanimity instruction is harmless.’ [Citation.] For example, wher e the defendant offered the same defense to all criminal acts and ‘the jury’s verd ict implies that it did not believe the only defense offered,’ failure to give a unani mity instruction is harmless error. [Citation.] . . . The error is also harm less ‘[w]here the record indicates the jury resolved the basic credibility dispute against the defendant and therefore would have convicted him of any of the various offenses shown by the evidence. . . .’ [Citation.]” ( People v. Hernandez, supra, 217 Cal.App.4th at p. 577.) Based upon those principles, we find that any error in not giving the unanimity instruction was harmless be yond a reasonable doubt. The defense was that defendant lacked any criminal inte nt. Although defendant conceded he had joined the fight, he testified that he had done so solely to end it. Defendant denied26 kicking Johnson in the face, denied threatening Johnson with a knife, denied uttering any racial epithets, and denied doing anything except trying to stop the fight. The jury’s verdicts indicated that it re jected defendant’s theory of the case. Or stated another way, it decided the cred ibility issue against him. “Given this record, it is reasonable to conclude th at the jury believed beyond a reasonable doubt that [defendant] committed all acts if he committed a ny. Thus, the failure to give the unanimity instruction wa s harmless beyond a reasonable doubt. [Citations.]” ( People v. Curry (2007) 158 Cal.App.4th 766, 784.)

D. SECTION 654
Defendant next contends that the trial court’s sentence violated section 654. We disagree, finding substantial evidence supports the trial court’s sentencing
decision.

1. Factual Background During the sentencing hearing, defens e counsel stated: “I know that we discussed this issue during trial when we had a discussion with regards to jury instructions, I would like to reiterate the pos ition that I had then that the offenses of which [defendant] is convicted of in the present case did make up a single course of continuous conduct, therefore, alteri ng the sentencing on these three counts for
which he was convicted.”27 The prosecutor did not respond to this point. However, her sentencing memorandum, filed before the hearing, ha d urged a contrary conclusion and sought imposition of three consecutive sentences. 12 Before imposing sentence, the trial court ruled: “The court finds that each crime was separate and distinct and that the defendant had time to reflect upon his actions before continuing hi s course of conduct.”
The court sentenced defendant to th ree consecutive terms resulting in an aggregate term of 125 years plus three cons ecutive life sentences. The specifics of the court’s sentence are: (1) a sentence of 42 years to life on the attempted murder conviction calculated as follows: the four-y ear high term plus a three-year term for the great bodily injury finding plus a ten- year term for the section 667, subdivision (a)(1) prior convictions plus 25 years to life under the Three Strikes law; (2) a sentence of 43 years to life on the fel onious assault conviction calculated as follows: the four-year high term plus a thr ee-year term for the great bodily injuryfinding plus a one-year term for the personal use of a weapon finding plus a tenyear term for the section 667, subdivision (a)(1) prior convictions plus 25 years to
life under the Three Strikes la w; and a sentence of 40 years to life on the criminal
threats conviction calculated as follows: the four-year high term plus a one-year term for the personal use of a weapon findi ng plus a ten-year term for the section 667, subdivision (a)(1) prior convictions plus 25 years to life under the Three
Strikes law.

12 The memorandum reads, in relevant part: “Although the crimes were all committed against the same victim in a short sp an of time, each coun t of which he stands convicted is a separate and distinct crime. Each crime was distinct and complete before the commission of any other crime. Also, ea ch crime had distinct intent and distinct elements. Although the events in this case occurred ra pidly, the defenda nt had time to reflect upon his actions between the co mmission of the acts. [Citation.]”28 2. Discussion

“ ‘ Under section 654, “a c ourse of conduct divisi ble in time, although directed to one objective, may give rise to multiple violations and punishment. [Citations.]’ [Citations.] This is particularly so wher e the offenses are temporally separated in such a way as to afford th e defendant opportunity to reflect and to
renew his or her intent before committi ng the next one, thereby aggravating the violation of public security or policy alre ady undertaken. [Citation.]’ [Citation.] “The defendant’s intent and objective present factual questions for the trial court, and its findings will be upheld if supported by substantial evidence. [Citation.] ‘We review the court’s dete rmination of [the defendant’s] “separate
intents” for sufficient evidence in a li ght most favorable to the judgment, and presume in support of the court’s conclusion the existence of every fact the trier of fact could reasonably deduce from the evid ence. [Citation.]’ [Citation.]” ( People
v. Andra (2007) 156 Cal.App.4th 638, 640-641.) Defendant argues: “[T]he re is no substantial evidentiary basis for a finding that [he] possessed separate criminal objectiv es for an assault or criminal threats. Looking at the facts in the light most favor able to the verdicts, the purpose of the assault and criminal threats was only to facilitate the attempted murder.” Defendant’s argument is not pe rsuasive. We find, instead, that substantial evidence supports the trial court’s implie d finding that, over a short time span, defendant, having the opportunity to re flect, entertained multiple criminal objectives when he committed three separate offenses. ( People v. Jones (2002) 103 Cal.App.4th 1139, 1143 [“If the defendant harbored ‘multiple or simultaneous objectives, independent of and not merely in cidental to each other, the defendant may be punished for each violation co mmitted in pursuit of each objective even though the violations share common acts or were parts of an otherwise indivisible course of conduct.”].)29 First, defendant used racial epithets to provoke Stine into leaving the car and attacking Johnson. In self-defense, Johns on fought Stine. De fendant, armed with a knife, joined the struggle when he kick ed Johnson “pretty hard” in the face.
Defendant’s actions evinced an intent to apply physical force on Johnson and inflict great bodily injury, thereby committi ng a felonious assault. (§ 245, subd. (a)(1).)
Johnson continued to defend himself fro m defendant and S tine. Defendant did not leave the fight but, instead, placed his arm around Johnson, pointed a knife
at Johnson and told him that if he did not “get off” of Stine, he (defendant) was “going to cut [his] fucking throat.” Fearing for his life, Johnson pushed defendant’s hand away. These actions demonstrate that defendant intended, through his verbal threat and use of the knife, to place Johnson in reasonable fear that he would be killed. At that poi nt, defendant committed the crime of making criminal threats. (§ 422; ( People v. Thornton (1992) 3 Cal.App.4th 419, 422.) But once again, defendant chose not to terminate his involvement in the attack even though he had succeeded in inflicting mental terror upon Johnson.
Defendant and Stine continued to attack Johnson as Gurfinki el joined the assault. Defendant, Stine and Gurfinkiel formed a circle around Johnson, and operating as a team, continued to hit him. Johnson tried to escape but defendant restrained him. During this portion of the struggle, Johnson was stabbed. By this point, defendant’s actions, taken in concert with Stine and Gurfinkiel, evinced the specific intent to kill Johnson, resulting in the commission of an attempted murder. (§§ 664/187, subd. (a).) In sum, substantial evidence supports the trial court’s implied finding that defendant “entertained multiple criminal objectives which were independent of and not merely incidental to each other.” ( People v. Beamon (1973) 8 Cal.3d 625, 639.) Therefore, the trial court’s se ntence does not violate section 654.30 E. INEFFECTIVE ASSIST ANCE OF TRIAL COUNSEL
Defendant’s contention of ineffective a ssistance of trial counsel begins with
the claim that the trial court erred in ad mitting his interview with the detectives. According to defendant, the interview “w as involuntary because it was the product of a custodial interrogation conducted without proper Miranda advisements” since
the detectives failed to advise him that an ything he said could and would be used against him. In addition, defendant clai ms the interview was coerced because the detectives ignored his repeated assertions of the right to counsel. The Attorney General correctly notes that trial counsel’s failure to object to the admission of the
evidence constitutes forfeitu re of the claim. ( People v. Rundle (2008) 43 Cal.4th 76, 122-123.) “Because the question of coercion turns on the intensely factual inquiry into the totality of the circumst ances [citation], it is an especially poor
candidate for first-time c onsideration on appeal.” ( People v. Quiroz (2013) 215 Cal.App.4th 65, 78.) Anticipating that forfeiture analysis, defendant advances the contention that we do address in this appeal: his trial attorney’s failure to object “was objectively unreasonable” and therefore constituted pr ejudicial ineffective assistance of counsel. We are not persuade d. We conclude that defe ndant cannot establish that trial counsel’s omission was either objectively unreasonable or prejudicial.

1. Factual Background The interview, conducted in the poli ce station after defendant had been arrested, lasted approximately 53 minutes. At the beginning of the interview, Detective Fajardo advised defendant, who was then 28 years old and handcuffed, of his right to remain silent, his right to an attorney “before and during questioning,” and his right to have the court appoint an attorney for him.31 Defendant indicated he understood those ri ghts. The detective, however, did not advise defendant that anythi ng he said could and would be used against him. Detective Fajardo explained: “I’m goi ng to tell you what we know . . . [a]nd then after that I’m going to ask you whether you want to talk to us or not.” After Detective Fajardo recited how Stine left the car and a ttacked Johnson, he asked defendant: “Do you want to talk to us about it? It’s a simple yes or no.” Defendant responded: “You tell me what ’s been said and I’ll tell you --” Detective Fajardo replied th at defendant needed to an swer his question “yes” or “no.” Defendant replied: “Yeah, I’ll ta lk about it. Why all of a sudden now though [nine months after the events]?” The detectives answered: “Cause we didn’t know who you were” and “Your na me didn’t come up til recently.”
Defendant asked what was said. Detectiv e Fajardo replied that “five different people” had told him that defendant had been there and “bragged about stabbing the African American guy.” Defendant rep lied he was not “stupid” and would not “run around and brag” that he had stabbed someone.
After the interview had been conducte d for approximately seven minutes, defendant stated, for the first time: “ I need a lawyer. ” (Italics added.) Detective Fajardo replied “Okay. There’s --” but before he could finish his sentence, defendant asked to telephone his girl frien d. The detectives responded that he
could do so after he was booked. Detective Fajardo explaine d that because he had not witnessed the crime, he was trying to determine what had happened. Defendant asked: “Is this shit going to end up getting put on me, honest ? [¶] . . . I’v e been in and out of the system for 15 years.” Defendant asked: “[Y]ou know more than -- from how you see it, is it on me?” Detective Fajardo replied “Yeah” and Detectiv e Doerbecker said “Not completely.” Defendant said: “I didn’t stab that dude. All I did was try to stop it

.32 I swear to God.” Defendant continued to maintain th at he would never stab

anyone. Approximately 10 minutes into the in terview, the issue of counsel again
arose. Defendant asked: “ When am I going to be able to talk to a lawyer? ” (Italics added.) Detectiv e Fajardo replied “Probabl y when you get arraigned
tomorrow.” Detectiv e Doerbecker said: “Unless you want to call one once you’re booked.” In response to a question from defendant about a free telephone call, Detective Doerbecker replie d: “I think you still get your free ones when you first get booked. You get a couple free ones th en --” The interview continued. Several minutes later, de fendant asked: “What do I got to do to get out of this because there’s a gang of people I can he lp you get, whatever. Rocky, Trish.” Detective Fajardo asked: “What are they wanted for?” Defendant replied: “I don’t know. What aren’t they wanted? It’s not like, necessarily wanted, but they’re doing shit. Come on, you guys know who they are. I can’t go to jail for the rest of my life for some shit some fuck en kids did.” Detective Fajardo stated that because “we were not there[,] . . . we [need to] hear your side of the story.” Defendant replied: “I’m on parole. I got arrested, everything, you know what I mean? I’m going to get the worse . . . end of this sh it. [¶] . . . It’s not going to matter what really happened or nothing.” Defendant again denied
involvement in the crimes. De tective Doerbecker said: “ If you want to talk to us, have your attorney contact us, we’ll be glad [to] sit down and ta lk to you. You can layout everything that happene d.” Defendant replied: “You know just as well as I do that I’m going to get fucked on this so it doe sn’t matter. [¶] . . . I already have three strikes. [¶] . . . I don’t have no money, no nothing. What, some public defender is going to sit there fucken ac tually honestly defend me for fucken,33 what?” 13 Defendant offered: “Is there any way I can just talk to my girlfriend real quick and then I’ll talk to you. I’ll fuck en tell you whatever the fuck you want to know about what happened then.” Th e detectives offered a speaker phone
conversation. Defendant said: “That’s fine.” The detectives telephoned defendant’s girl friend and defendant sp oke with her on the speaker phone her for
several minutes.
After the conversation ha d ended, defendant said: “What do you want to know?” Detective Doerbecker explained: “ We have to revisit the attorney thing. You want to talk to us without your attorney? ” (Italics added.) After defendant replied “I guess so[,]” Detective Doerbecker stated: “Don’t guess. You either want to or you don’t. We don’t want to force you. You can wait until you’re arraigned, if you want.” (Italics added.) De fendant responded: “ That’s fine. I’ll talk to you. . . . I didn’t do nothing. I got to prove it.” (Italics added.) At this point, approximately 20 minutes had passe d since the interview had begun. For the next 30 minutes, defendant spoke freely about the attack, often responding to questions from the detectives . In this portion of the interview, defendant repeated key parts of his defens e multiple times: (1) he had entered the struggle to stop it (nine times); (2) he had not stabbed Johnson (eight times); and (3) Stine had stabbed Johnson (six times). Further, defendant made several statements essentia lly offering to help build a case against Stine as the stabber. Defendant volunteered that he knew where Stine had disposed of the knife. He offere d to show the detectives a text message from Stine’s girlfriend stating that Stin e had admitted he had stabbed Johnson.

13 Towards the end of the interview, defendan t said: “I’m going to walk into court tomorrow and they’re going to tell me, this is a three st rikes case, 25 to life.”34 And at one point he said: “What the fuck do I got to do is sit on the stand and say that Gunnar [Stine] stabbed him, you know what I mean?” Lastly, defendant indicated his unders tanding that what he said to the detectives could be used against him. When Detective Fajardo asked him whether he had kicked Johnson “a couple times, ” defendant responded: “And admitting that to you right now is going to give me life in prison.”

2. Ineffective Assistance of Trial Counsel
To establish ineffective assistance of counsel, a defendant must show “‘“that counsel’s representation fell below an obj ective standard of reasonableness under prevailing professional norms, and that counsel’s deficient performance was prejudicial, i.e., that a reas onable probability exists that, but for counsel’s failings,
the result would have been more fa vorable to the defendant.”’” ( In re Crew (2011) 52 Cal.4th 126, 150.) “‘The burden of su staining a charge of inadequate or ineffective representation is upon the defendant. The proof . . . must be a demonstrable reality and not a speculative matter.’” ( People v. Karis (1988) 46 Cal.3d 612, 656.)

a. Defendant Cannot Establish Trial Couns el Failed to Act as a Reasonable Advocate
When, as here, the record fails to di sclose why counsel failed to act in the manner challenged, we will af firm the judgment unless “there simply could be no satisfactory explanation” for counsel’s omission. ( People v. Hart (1999) 2035 Cal.4th 546, 623-624.) Here there are two satisfactory e xplanations for counsel’s failure to challenge the admission of the interview into evidence. 14 The first satisfactory explanation is that defense counsel decided that, on balance, allowing the jury to hear defendant’s interview with the detectives would support, rather than hinder, the defense. By the time the prosecutor moved to introduce the interview, defendant already had testified on direct examination that
he had not attacked or sta bbed Johnson but, instead, had en tered the fight to stop it. By not objecting to the introduction of th e interview, defense counsel allowed the jury to learn that when defendant was fi rst questioned by the police, he made many
statements consistent with his trial testimo ny. This tactic permitted the jury to hear
and consider defendant’s statements to the police for the truth of the matter
asserted. But if these statements had been offered by the defens e, they would have been subject to a valid hearsay objection fr om the People. What is more, defense counsel used those (hearsay) statements in his closing argument to argue that defendant was not guilty of the charged o ffenses. This “is a classic tactical decision. It defeats any contention that counsel was asleep at the switch or otherwise ineffective. [Citation.]” ( People. v. Quiroz, supra, 215 Cal.App.4th at p. 78.) The second satisfactory explanation for trial counsel’s omission is that he recognized that the trial court would have overruled an objection that defendant’s
statements in the interview were involuntar y. If an objection lacks merit, counsel is not ineffective in failing to make it. ( People v. Carter (2003) 30 Cal.4th 1166, 1210.) In that regard, the following princi ples are relevant to the claim that

14 Defendant also claims that trial couns el was ineffective because he failed to request the redaction of some of defendant’s statements from the interview. We address that claim when we explain why defendant has failed to establish prejudice as a result of counsel’s omission(s).36 defense counsel should have objected. Statements obtained in violation of
Miranda are inadmissible in the prosecution’s case-in-chief but can be used to impeach the defendant when, as here, he chooses to testify at trial. ( People v. May (1988) 44 Cal.3d 309, 316.) However, to be admissible for impeachment, the statements must be voluntary. An invol untary statement cannot be used for any purpose. ( People v. Neal (2003) 31 Cal.4th 63, 78.) Hence, the issue is whether defendant’s statements to the detectives were voluntary or involuntary. A statement is involuntary “when, among other circumstances, it ‘was “‘extracted by any sort of threats . . . , [or] obtained by an direct or implied promises, however slight. . . .’”’ [Citati ons.] Voluntariness does not turn on any one fact, no matter how apparently significan t, but rather on the ‘totality of [the] circumstances.’ [Citations.]” ( People v. Neal, supra, 31 Cal.4th at p. 79.) This mandates, among other things, an “‘evalua tion of [defendant’s] age, experience, education, background, and intellig ence. . . .’ [Citation.]” ( Id . at p. 84.) That the statement was obtained despite the defendant’s invocati on of the counsel is one circumstance to consider but it is not dispositive. ( People v. Bradford (1997) 14 Cal.4th 1005, 1041.) The ultimate inquiry is “‘“whether a defendant’s will was overborne”’” by the circumstances. ( People v. Dykes (2009) 46 Cal.4th 731, 752.) To begin, defendant’s statements to the detectives indicate that he was wellversed in the ways of the criminal justi ce system. He conceded that by age 28, he had “been in an[d] out of the system for 15 years.” 15 He recognized that the charges would constitute a Three Strikes case. He acknowledged that an admission
that he had kicked Johnson would be used against him. He was familiar with and denigrated the value of the Public Defender’s Office.

15 Defendant’s probation report reflects that he has a lengthy criminal history going back to 1994.37 Further, defendant’s interactions with the detectives exhibited his savvy. At the beginning of the interv iew, he made several attemp ts to learn the specific evidence against him before he would answ er any questions. La ter, he attempted to trade information on others (“Rocky, Tr ish”) “to get out of this” and offered to help build a case against S tine as the stabber. Taken together, these facts suggest that defendant’s “operative ability to calcula te his self-interest in choosing whether
to disclose or withhold information” wa s functioning and that his “will [had not been] overborne by offi cial coercion.” ( People v. Coffman and Marlow (2004) 34 Cal.4th 1, 58.) To reach a contrary conclusion, defendant primarily argues that his statements were involuntary because he invoke d the right to counsel several times. We disagree.
Defendant’s first statement “I need a lawyer” was not, as now claimed by defendant, a “clear[] request [for] an attorney.” When viewed in context, the statement can be seen simply as an ac knowledgement by defendant that he would need counsel to defend against any char ges. Thus, it was not an unequivocal assertion of counsel that would require th e detectives to terminate the interview. (See People v. Suff (2014) 58 Cal.4th 1013, 1068 and People v. Williams (2010) 49 Cal.4th 405, 429.) In any event, when Det ective Fajardo began to respond to that statement, defendant interrupted him and as ked to telephone his girl friend (not his attorney). Approximately 10 minutes later, defenda nt asked: “When am I going to be able to talk to a lawyer?” Defendant ur ges that this statement equates with a “clear[] invo[cation] [of] hi s right to counsel.” We di sagree. This was not an unequivocal assertion that defendant did not wish to continue the interview without an attorney. The question could reasonably be seen as a mere inquiry as to when38 counsel would be available, an inquiry to which the detectives posed several
answers. The interview continued.
When Detective Doerbecker said: “If you want to talk to us, have your attorney contact us, we’ll be glad [to] sit down and talk [a nd] [y]ou can layout everything that happened,” defendant e ssentially declined the offer, responding
that he saw no value in the assistance of a public defender. De fendant agreed to speak about the events if he could speak fi rst with his girl friend. The detectives complied with that request. After defendant spoke with his girl friend, Detective Doerbecker explicitly asked defendant if he wished to speak to them without his attorney and told him that he had to give an unequivocal answ er. Defendant agreed to speak without counsel. Defendant now suggests that th is consent was coerced for two reasons. First, he claims that the detective’s “quest ion of whether [he] wanted to talk with them was clearly disingenuous” because he had already “twice invoked [his] right
to counsel.” The claim fails because, as explai ned above, defendant had not clearly and unequivocally invoked the right to counsel in the earlier portion of the interview. Second, defendant claims that his consent was coer ced because he “still had not been informed that anything he said can be used against him.” The argument misses the mark because th e failure to give the complete Miranda admonition does not, in and of itself, constitute coercion. ( People v. Jablonski (2006) 37 Cal.4th 774, 814.) Significantly, the detectives never made any threats or promises to defendant
either before or while he told them his ve rsion of the events. They never promised him leniency in exchange for his admissions . Instead, they advised him that five people had told them about his involvement in the attack, including the fact that he had kicked Johnson in the head, and aske d him to tell them wh at had happened.39 This investigative approach supports the conclusion that defendant’s statements were a product of his free will. For all of the foregoing reasons, a reas onable attorney could conclude that a
claim that defendant’s interview with th e detectives was involuntary lacked merit and therefore decide not to object to the introduction of the interview into
evidence. Because su ch a decision constitutes “‘an in formed tactical choice within the range of reasonable competence,’” defendant’s claim of ineffective representation must be rejected. ( People v. Bolin (1998) 18 Cal.4th 297, 317.)

b. Defendant Cannot Establish Prejudice As a Result of Trial Counsel’s Failure to Object
Assuming arguendo that the failure to object to the introduction of the
interview constituted ineffective assistan ce of counsel, defendant cannot establish prejudice. “It is not sufficient to show the alleged errors may have had some
conceivable effect on the trial’s outco me; the defendant must demonstrate a ‘reasonable probability’ that absent the erro rs the result would have been different. [Citations.]” ( People v. Mesa (2006) 144 Cal.App.4th 1000, 1008.) “‘“‘A reasonable probability is a probability su fficient to undermine confidence in the outcome.”’” [Citations.]” ( People v. Anderson (2001) 25 Cal.4th 543, 569.) Defendant urges prejudice has been established because the prosecutor’s
cross-examination of him as well as he r closing argument noted some of the
inconsistencies between his trial testimo ny and his statements to the police. Further, he claims that this prejudice wa s exacerbated because the jury asked to hear the tape recording of the interv iew during deliberations. (See fn. 8, ante .) Defendant gives far too much weight to these factors. For one thing, the bulk of the prosecutor’s argument relied upon th e testimony of Johnson, Marlow and Parker to argue that defendant’s guilt had been established beyond a reasonable40 doubt. And, as previously noted, defense counsel also made use of the interview. He relied upon defendant’s self-serving ex culpatory statements to argue that defendant was not guilty. Since the inte rview contained statements that both parties relied upon to argue thei r case, the fact th at the jury asked to listen to it during deliberations does not establish pr ejudice. Lastly, the People presented abundant and compelling evidence of defenda nt’s guilt. In sum, defendant has
failed to demonstrate that there is a reasonable probability that absent the admission into evidence of the interview, the result would have been different—a
result defendant defines as a failure to convict him on the attempted murder charge. Lastly, defendant argues that he was prejudiced because trial counsel failed
to move to redact from the interview defe ndant’s statements regarding the right to counsel, his parole status, his belief that this prosecution would be a Three Strikes case, and his venereal diseases. 16 (See fn. 14, ante .) The argument fails. The prosecutor did not mention any of those stat ements in either her cross-examination of defendant or her closing argument. In fact, some of this information was already before the jury. On direct examin ation, defendant had volunteered that he had suffered four convictions (three fe lony and one misdemeanor). Because abundant evidence of defendant’s guilt was pr esented, we can c onfidently conclude
that defense counsel’s failure to move to redact those statements from the interview did not adversely affect the outcome of his trial. ( People v. Waidla (2000) 22 Cal.4th 690, 719.)

16 Ten minutes into the interview, Detec tive Fajardo asked defendant if he was taking any medication. Defe ndant replied: “Yeah, I take medication for Herpes and Gonorrhea.”41 F. PRE-SENTENCE CUSTODY CREDIT The Attorney General correctly point s out an error in the award of presentence custody credit. The trial c ourt awarded defendant 1,480 days of presentence custody credit and 222 days of conduct credit but incorrectly computed the total as 1,708 days. The correct amount is 1,702 days. We direct preparation of an amended abstract of j udgment to correct that error.

G. SENTENCING
1. Factual Background In the bench trial, the court f ound defendant had su ffered two robbery convictions, a 1997 juvenile adjudication and a 1999 conviction as an adult. Immediately prior to sentencing defe ndant, the trial court explained: “The court had the opportunity to [preside] over the jury trial throughout the proceedings. Other than the fact that the victim [Johnson] was not murdered . . . , I can honestly say I have not seen worse conduct. [Johnson] suffered a punctured lung [and] a nicked colon, requiring surgery. And the jury found to be true the allegation that this was a hate crime.
“In looking at rule 4.421 circ umstances in aggravation, the court finds the crime involved great violence, great bodily harm, and the threat of great bodily injury and great bodily harm. It also showed a high degree of cruelty and callousne ss in the fact that this was done because the [victim] was of African American descent.
“In addition, the defendant used a weapon [a knife] at the time of the crime. Also, the defendant used others to participate in the crime, . . . two codefendants [who] we re not part of the jury trial but also took part in the conduct.
“As to the factors relating to the defendant, when he was 14 years of age, he was arrested for a violation of Penal Code section 243. Thereafter, as indicated, he was convicted [in 1997] of the robbery, he went to camp. In add ition to that, he has continued to42 engage in violent conduct. His prior convictions and petitions are numerous and increased in seriousness. He served prior prison terms. And his prior performance on pr obation and parole were both unsatisfactory.”

The court proceeded to se ntence defendant as follows: “[H]aving stated [its] reasons under California Rules of Court 4.421(a) and (b), the court will sel ect the high term consecutive as to all counts and allegations.
“The defendant, therefore, w ill be ordered imprisoned for the aggregate term of 125 years determinate followed by three consecutive life sentences.
“[He] was convicted [of] three counts all of which were serious or violent felonies within the mean ing of Penal Code section 1192.7. The court finds that each crime was separate and distinct and that the defendant had time to reflect upon his actions before continuing his course of conduct.
“Therefore, he shall be senten ced to the full term consecutive on each count as follows: as to count 2, violati on of Penal Code section 245(a)(1), the court select s the high term of four years.
“In addition, the jury found to be true that he violated Penal Code section 12022.7, the great bodi ly injury allegation, for an additional three years.
“And that he personally used a weapon within the meaning of Penal Code section 12022(b)(1), for an additional term of one year[.] [U]nder the Three Strikes legislati on, . . . the additional term of 25 years to life is added [to the eight- year term] for a total term of 33 years to life.
“In addition, he has two [section] 667(a)(1) . . . five-year priors, for an additional 10 years for a total term of 43 years to life as to count 2.43 “Consecutive to that term [is] count 1, the attempted murder. . . . The court selects the high term of four years . . . , an additional three years because of the great bodi ly injury, plus the 25 to life under the [Three Strikes] legislation as pr eviously indicated for a term of 32 years to life.
“Again, the two [section] 667(a)(1) priors can be added for an additional 10 years, for a term of 42 years to life.
“Consecutive to counts 1 and 2, the defendant will be sentenced [on count 3] to the high term of four years, the personal use [of a deadly weapon], for an additional one year as to that charge. The 25 years to life under the [Three Strike s] legislation for a term of 30 years to life. Again, the two [section] 667(a)(1) priors are added for a term of 40 years to life.”

2. Discussion As we explain below, the trial c ourt committed two sentencing errors. However, there is no need to remand the case for resentencing. The trial court’s remarks clearly indicate that based upon defe ndant’s prior criminal record and the nature of the current offenses, it in tended to impose th e maximum sentence allowed by law. In other words, there is “no reasonable probability that a different sentence would be imposed if the matt er were remanded for resentencing.” ( People v. Woods (1986) 177 Cal.App.3d 327, 334.) Therefore, we correct the errors by directing the trial court to pr epare an amended abstract of judgment. The sentencing provision cited in the Supreme Court’s transfer order— section 667, subdivision (e)(2)(A)—explai ns how the minimum term of the
indeterminate life sentence for a Three Strike s defendant is to be calculated. The defendant is to be sentenced to “the great est of three time periods. The first period (option one) is ‘[t]hree times the term otherwise provided as punishment’ for the felony offense, not including enhancemen ts. [Citations.] The second period44 (option two) is 25 years. [Citations.] Th e third period (option three) is ‘[t]he term determined by the court pursuant to S ection 1170 for the underlying conviction, including any enhancement applicable under Chapter 4.5 (commencing with Section 1170 . . . .’ [Citations.]” ( People v. Williams (2004) 34 Cal.4th 397, 403.) Here, the trial court selected option two (25 years) for each of the three counts. The Attorney General urges, a nd defendant concedes, that decision was error as to count 1, the attempted murder conviction. In that regard, option one provides for the greatest minimum term . The sentencing range for attempted murder is five, seven or nine years. (§ 664, subd. (a).) The trial court’s remarks indicate that it would have selected the uppe r term had it considered that option. Three times nine years is 27 years. Thus the base term is 27 years to life. Four years for the hate crime enhancement (§ 422.75, subd. (b)) and three years for the great bodily injury enhancement (§ 12022.7, subd. (a)) are added to the base term, bringing the term to 34 years to life. The remaining issue is the enhancement of defendant’s sentence for his robbery convictions pursuant to section 667, subdivision (a)(1). The trial court added two five-year terms for those r obbery convictions, one of which was a juvenile adjudication. That portion of the sentence was error because a prior juvenile adjudication is not a convictio n within the meaning of section 667, subdivision (a)(1). 17 ( People v. West (1984) 154 Cal.App.3d 100, 109-110, cited with approval in People v. Weidert (1985) 39 Cal.3d 836, 847-848, fn. 10, People v. Smith, supra, 110 Cal.App.4th at p. 1080, fn. 10, and People v. O’Neal (2000) 78 Cal.App.4th 1065, 1068 [the Attorney General concedes the error].) Consequently, only one fi ve-year enhancement for a section 667, subdivision

17 In contrast, the Legislature (and the elect orate) decided to treat certain juvenile adjudications as prior felonies for pur poses of the Three Strikes law. ( People v. Smith (2003) 110 Cal.App.4th 1072, 1080, fn. 10; sections 667, subd. (d )(3) and 1170.12, subd. (b)(3).)45 (a)(1) prior conviction can be added to th e sentence. As a result, defendant’s sentence on count 1 is 39 years to life.
The trial court’s sentences on counts 2 and 3 are correct except for the fiveyear term added to each for the juvenile robbery adjudication. Consequently, the correct sentence on count 2 is 38 years to life and the correct sentence on count 3 is 35 years to life. In sum, defendant is sentenced to an aggr egate sentence of 112 years to life.

DISPOSITION The trial court is directed to prep are and forward to the Department of
Corrections and Rehabilitation a certified amended abstract of judgment reflecting the following sentence: (1) on count 1 (the principal term) defendant is sentenced to 39 years to life calculated as follo ws: utilizing option one under section 667, subdivision (e)(2)(A)(i), the base term is 27 years to life to which is added four years for the hate crime enhancement (§ 422.75, subd. (b)), three years for the great bodily injury enhancement (§ 12022. 7, subd. (a)) and five years for the 1999 robbery conviction (§ 667, subd. (a)(1)); (2) on count 2, defendant is sentenced to a term of 38 years to life calculated as follows: utilizing option two one under section 667, subdivision (e)(2)(A)(ii), the base term is 25 years to life to which is added four years for the ha te crime enhancement (§ 422. 75, subd. (b)), three years for the great bodily injury enhancement (§ 12022.7, subd. (a)), one year of the use of a deadly weapon enhancement (§ 12022, subd. (b)(1)) and five years for the 1999 robbery conviction (§ 667, subd. (a )(1)); (3) on count 3 defendant is sentenced to a term of 35 years to life calculated as follows: utilizing option two one under section 667, subdivisi on (e)(2)(A)(ii), the base te rm is 25 years to life to which is added four years for the hate crime enhancement (§ 422.75, subd. (b)), one year of the use of a deadly wea pon enhancement (§ 1202 2, subd. (b)(1)) and46 five years for the 1999 robbery conviction (§ 667, subd. (a)(1)) ; and (4) defendant is entitled to 1,702 days of pre-sentence cu stody credit. In all other respects, the judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

WILLHITE, J.

We concur:

EPSTEIN, P. J.

COLLINS, J.