Filed 7/17/14
                             CERTIFIED FOR PUBLICATION

                IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                               SIXTH APPELLATE DISTRICT

THE PEOPLE,                                          H037404
                                                     (Santa Clara County
        Plaintiff and Respondent,                     Super. Ct. Nos. EE907147,
                                                      CC501296, and CC754220)
        v.

BRITTANY KIM DOWDELL et al.,

        Defendants and Appellants.



        Defendants Terrance Ray Lincoln and Brittany Kim Dowdell were tried before
dual juries for offenses arising out of a robbery/carjacking/kidnapping incident in
Sunnyvale. The jury trying Lincoln (the Lincoln jury) found him guilty on five counts as
charged: Count One—kidnapping for ransom or extortion; Count Two—kidnapping
during a carjacking; Count Three—carjacking; Count Four—kidnapping for robbery; and
Count Five—criminal threats. (Pen. Code, §§ 209, subd. (a), 209.5, 215, 209,
subd. (b)(1), 422.) The trial court found two prior prison term allegations true and
sentenced Lincoln to two concurrent terms of life with the possibility of parole,
consecutive to four years.1
        Dowdell was charged with the same counts as Lincoln, except she was not charged
with Count Five––criminal threats. The jury trying Dowdell (the Dowdell jury) found
her guilty on two counts: Count One—kidnapping for ransom or extortion; and Count



        1
            The court also sentenced Lincoln on two unrelated felonies not at issue in this
appeal.
Four—kidnapping for robbery. The jury hung on Counts Two and Three. The trial court
sentenced Dowdell to life in prison with the possibility of parole.
       On appeal, Lincoln claims: (1) the trial court should have excluded his allegedly
coerced confession; (2) the prosecutor committed misconduct by stating that “The
presumption of innocence is over” in closing argument; (3) the trial court erred in
denying his midtrial motion to relieve his retained trial counsel; (4) his sentence on either
Count One or Count Two should have been stayed under Penal Code section 654 (section
654); and (5) his conviction on Count Three for carjacking must be reversed because it is
a lesser included offense of kidnapping during a carjacking. As to the fourth claim, we
conclude that section 654 requires the sentence to be stayed on either Count One or
Count Two. And the Attorney General concedes the fifth claim relating to Count Three;
we accept her concession. Accordingly, we will stay the sentence on Count Two and
strike the conviction on Count Three (carjacking). We find all other claims without
merit, and we will affirm the judgment as modified.2
       Dowdell claims: (1) the trial court’s jury instructions erroneously limited the
jury’s ability to consider evidence of intimate partner battering in determining whether
she formed the specific intent necessary to commit the charged offenses; (2) the
prosecution committed misconduct by referring to the possibility of probation during
closing argument; and (3) her sentence on Count Four should have been stayed under
section 654. As to Dowdell’s first claim, we agree that the court erroneously instructed
the jury on intimate partner battering, but we find the error harmless. And we find
Dowdell’s second claim of prosecutorial misconduct to be without merit. As to her third
claim, the trial court’s oral pronouncement stayed the sentence on Count Four, but the



       2
         In a separate petition for writ of habeas corpus (In re Lincoln, H039399), Lincoln
raises an additional claim of ineffective assistance of counsel. By separate order of this
date, we deny Lincoln’s petition for habeas corpus.

                                              2
abstract fails to reflect the court’s pronouncement. We will therefore order the abstract
corrected to stay the sentence on Count Four and we will otherwise affirm the judgment.
                      I. FACTUAL AND PROCEDURAL BACKGROUND
       At the time of the offenses, Lincoln was a 36-year-old, self-employed musical
entertainer. Dowdell, his girlfriend of six months, was 20 years old and unemployed.
She was pregnant with Lincoln’s child at the time of arrest. Dowdell’s childhood friend,
Derric Shavens, also participated in the robbery/carjacking/kidnapping incident. Shavens
testified for the prosecution under a grant of immunity.
   A. Facts of the Offenses
       On the evening of April 13, 2009, Shavens, under Lincoln’s direction, picked up
both defendants in his car and drove them to Sunnyvale. Shavens saw a gun tucked into
Lincoln’s waistband under his shirt. Dowdell later testified—and Lincoln told police—
that the gun was a plastic, toy gun that Lincoln had colored black with a Sharpie pen.
       Lincoln said he needed money, and he told Dowdell and Shavens that he planned
to rob someone. At around 10:00 p.m., they approached a car wash in Sunnyvale.
Lincoln told Shavens to pull over, whereupon Shavens parked his car on the street just
beyond the car wash. Lincoln got out of the car and walked toward the car wash while
Dowdell and Shavens stayed in the car.
       Benjamin Toma, the victim, was washing his Chevrolet Avalanche truck at the car
wash. While Toma was replacing the floor mats in his truck, Lincoln approached him
from behind, put his hand on Toma’s neck, and held the gun to Toma’s head. Toma
resisted and swung his fist backward, knocking the gun out of Lincoln’s hand. Toma
grabbed the gun, but Lincoln punched him four times in the side of the head, causing
Toma to lose consciousness. When Toma regained consciousness, Lincoln had regained
control of the gun. Lincoln shoved Toma back into his truck and pushed him onto the
floor of the rear seating area. Lincoln said “Don’t move until I call my partners,” and
demanded that Toma give him $300.

                                             3
       Lincoln then waved and whistled at Dowdell and Shavens. Shavens pulled his car
into the car wash, and Dowdell got out of the car to walk to Toma’s truck. Lincoln got
into the front of the truck and told Dowdell to get into the back of the truck with Toma.
Lincoln gave the gun to Dowdell and told her to hold it on Toma. Dowdell put her feet
on top of Toma and held the gun against his back. Lincoln told Toma not to move and
instructed Dowdell to shoot Toma in the back to paralyze him if he disobeyed. Lincoln
also threatened to shoot Toma if Lincoln did not get more money. At some point during
this time, Lincoln took Toma’s phone, keys, and wallet, including $50 in cash and his
Automated Teller Machine (ATM) card.
       Lincoln drove Toma’s truck out of the car wash while Dowdell kept Toma in the
back of the truck at gunpoint. Shavens followed them in his car. After driving for about
five minutes, Lincoln stopped the truck at a Wells Fargo bank with an ATM. Lincoln
demanded the Personal Identification Number (PIN) for Toma’s ATM card and
threatened to kill him if he supplied the wrong number. Toma revealed the PIN. Lincoln
then told Dowdell to take the card to the ATM while he stayed in the truck with the gun
to guard Toma. Dowdell did as she was told, but she was unable to extract any cash from
the machine. Lincoln cursed angrily at Toma, and Toma believed he was about to be
killed. Toma begged them to go to a Bank of America, where Toma kept his bank
account.
       Lincoln then drove the truck to an ATM at a Bank of America while Dowdell
again used the gun to keep Toma in the back of the truck. Shavens continued to follow
them in his car. Lincoln again threatened to kill Toma if the PIN did not work. At the
Bank of America, Dowdell went to the ATM while Lincoln kept Toma in the truck.
Dowdell once again failed to extract money from the ATM. Lincoln also attempted to
extract money from the Bank of America ATM, but he too failed.
       Surveillance video from a camera at the ATM showed Dowdell using the machine
shortly after 11:30 p.m., and bank records showed several attempts to extract cash from

                                             4
the ATM around the same time. Surveillance video from a camera in the bank parking
lot showed Shavens’ car and Toma’s truck parked in the lot. At trial, Shavens identified
Lincoln in the video footage, but he also testified that he did not know whether Lincoln
had gotten out of the truck at that bank.
       Before leaving Toma, Lincoln threatened to send “bad cops” to visit Toma and his
family if Toma tried to contact the police. Lincoln removed Toma’s pants and shoes,
pushed him inside the truck, and told him not to move. Shavens saw Lincoln throw the
shoes and pants across the parking lot.
       Dowdell left the truck and got into Shavens’ car. Dowdell told Shavens that
Lincoln had just robbed somebody and left him in the back of the truck. She said Lincoln
had instructed her to hold Toma in the back of the truck with the gun while Lincoln drove
to the ATM locations.
       Lincoln then joined Dowdell in Shavens’ car and told Shavens to drive away,
leaving Toma in the bank parking lot. They stopped at another ATM, and they stopped at
a gas station, where Lincoln used Toma’s card to buy gasoline for Shavens’ car.
       After Toma heard Shavens’ car drive away, Toma walked to a nearby Denny’s
restaurant to get help. When police arrived, they observed swelling, abrasions, and
broken skin on Toma’s head. They found Toma’s truck in the Bank of America parking
lot, where it appeared to have been ransacked.
       The next day, April 14, 2009, Lincoln called Toma on his home telephone.
Dowdell saw Lincoln make the call. Toma recognized the voice as that of his attacker.3
Lincoln asked for Toma, but Toma claimed he was someone else and that Toma was in
the hospital. Lincoln called Toma again on April 22, 2009, and threatened to send a “bad
cop from Oakland” to visit Toma if he went to the police. Lincoln also said he had
Toma’s driver’s license, which Lincoln had taken during the robbery.

       3
       At trial, Toma testified that his home phone number was stored in his cell phone,
which Lincoln had stolen during the robbery.

                                            5
       Police traced both phone calls to a cell phone registered to Devante Ray, the name
of Lincoln’s son. The cell phone was also registered with a birth date of August 17,
1972, which is Lincoln’s date of birth. Phone records showed the cell phone had made
frequent calls to a phone number belonging to Dowdell. The cell phone had also been
used to make a call shortly after midnight on the night of the robbery. The call went
through a cell tower near a Bank of America where one of the fraudulent transactions had
been attempted. Police later recovered the phone from Lincoln’s person, and he admitted
the phone was his.
   B. Lincoln’s Statement and Testimony
       After police took Lincoln into custody, he waived his Miranda rights and police
interrogated him at length. An audio recording of the interrogation was played for the
Lincoln jury, but not the Dowdell jury. In the statement, Lincoln admitted his
involvement in the crime. He stated that the initial plan was to steal a purse or wallet, not
to kidnap the victim. He admitted that he and Dowdell took Toma’s truck while Shavens
followed them to two different banks, but he repeatedly claimed that the gun was merely
a toy. 4 He denied making any phone calls to Toma after the robbery.
       Lincoln testified at trial before both juries. He denied any involvement in the
robbery and claimed he was elsewhere at the time. He testified at length, in narrative
fashion,5 about his relationship with Dowdell. Lincoln and Dowdell were romantically
involved at the time of the crime, although Lincoln remained married to another woman.
He claimed he first learned of Dowdell’s involvement in the crime when he saw a
photograph of her on a website called “Fugitive Watch” that had published details of the
crime to the public. He testified that Dowdell was involved with another man at the time
of the robbery, and that she was pregnant. Lincoln claimed that Dowdell did not know
whether Lincoln or the other man had impregnated her.
       4
           The jury found all gun enhancements not true.
       5
           Lincoln gave most of his testimony without questions from his attorney.

                                              6
       In his testimony, Lincoln admitted that he had given a statement to police
confessing to his involvement in the robbery. But he also testified that his prior statement
was not true, and that he had given a false confession to the police “to deflect as much
information as I possibly could away from [Dowdell]” in an attempt to lessen her
liability. Lincoln claimed he had loaned his cell phone to Dowdell and Shavens after
learning of the robbery. On cross-examination, he also claimed that he had also loaned
his phone to Dowdell on the night of the robbery. Lincoln admitted having prior
convictions and he admitted he had been required to register as a sex offender.
   C. Dowdell’s Defense and Evidence of Intimate Partner Battering
       Dowdell also gave a statement to police admitting her involvement in the crime.
An audio recording of her statement was played for the Dowdell jury, but not the Lincoln
jury.6 She told police that Lincoln instructed her to remain silent throughout the offense
so as not to reveal to Toma that she was female.
       At trial, Dowdell testified that when she first met Lincoln in November 2008, she
was unemployed and her self-esteem was low. As the relationship progressed, Lincoln
became more possessive and controlling. Lincoln would call her 15 or 20 times a day,
and he insisted she be alone when they talked on the phone. He was “authoritative,” or
“strong and stern” with his voice and she reacted “kind of like a dog with his tail between
his legs.” He once told her to stand in a corner after an argument. She testified that “he
was in charge. What he said goes.” Lincoln wanted to control every aspect of Dowdell’s
life, telling her how to dress and how to wear her hair. He pressed her to surrender her
will to him. She wrote a letter in response stating, “I surrender and give all of myself to
you, do whatever you ask, when you ask without question or hesitation.” He once
convinced her to prostitute herself. She did not want to prostitute herself, but she was




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

                                               7
afraid he would leave her if she refused. On another occasion, while they were having
sex, Lincoln struck her hard and hurt her, causing her to cry.
       Dowdell testified in detail to the facts of her involvement in the crime. She
testified that she did not intend to rob, kidnap, or carjack Toma. She claimed she was
merely obeying Lincoln’s instructions. She further testified that she did not know, prior
to the offense, that Lincoln intended to kidnap anyone or carjack a vehicle, and she did
not know Lincoln intended to drive the truck away when she first got into the back of the
truck with Toma. She admitted that she had the chance to withdraw from the crime and
retreat to Shavens’ car, but she testified that she was afraid Lincoln might hurt her if she
did not follow his instructions. She admitted that she had remained silent throughout the
offense, but she denied that Lincoln had instructed her to do so.
       Shavens testified to the Dowdell jury (but not to the Lincoln jury) that he was
fearful of Lincoln because of past threats Lincoln had made. Lincoln once threatened to
harm Dowdell’s stepsister, and Lincoln said he knew people who could bring harm to
other people. Shavens also testified that Dowdell became less fun and outgoing after she
met Lincoln, and that she abandoned her family after meeting him.
       Dowdell’s mother and stepsister both testified in Dowdell’s defense. Dowdell’s
mother testified that Lincoln took advantage of Dowdell, and that he manipulated and
controlled her. Dowdell’s mother also testified that Lincoln once called their house and
said “he knew people in Oakland that would come and kill all of us.” Dowdell told her
mother that Lincoln’s threat was serious.
       Dowdell’s stepsister testified that Lincoln would call Dowdell 15 to 25 times a
day, and that Dowdell would do anything Lincoln told her to do. Dowdell’s stepsister
also testified that she once found fraudulent checks in Dowdell’s purse. After telling
Dowdell’s mother about the checks, Lincoln left the stepsister a voicemail telling her,
“You fucked up, kiss your baby goodbye.”



                                              8
       Lincoln’s wife testified that after she discovered Dowdell was dating Lincoln, she
sent an email to Dowdell stating, “I’m writing because I thought, here we go again.
[Lincoln] has found some young woman to use and destroy.”
       Family therapist Linda Skerbic testified in Dowdell’s defense as an expert on
intimate partner battering syndrome, historically called “battered woman syndrome.”
Skerbic set forth four factors that establish the syndrome, and she described the effect of
the syndrome on a woman. First, a woman accepts responsibility for the problems in the
relationship and she accepts responsibility for fixing them. Second, she takes on the fault
for any problems. Third, she has a fear of harm to herself or family members. Fourth,
she develops a mental mindset wherein she feels the abuser is all wise and omnipresent
and that she cannot escape from his constant involvement or control. Intimate partner
battering syndrome does not have to involve physical abuse; it can involve mental and
emotional abuse based on the abuser’s tone of voice or intimidating physical presence.
Over time, the battered partner learns helplessness, stops thinking for herself, and gives
control of her life to the abuser. She can be easily intimidated and becomes overly
trusting, allowing herself to be manipulated by the abuser even to the point of becoming
“robotic,” such that she acts on command.
       Mary Ann Yaeil Kim, a licensed clinical psychologist, testified for the defense as
an expert in psychological testing and assessment. She performed a diagnostic study of
Dowdell and evaluated her for about six or seven hours. She diagnosed Dowdell with
post-traumatic stress syndrome and concluded that she has aspects of a dependent
personality disorder. This meant that Dowdell was “fearful for her well-being” and
“spent a lot of time in [. . .] dissociative episodes,” making her unable to make clear
choices. She further described Dowdell as “extremely immature and naïve” and
“extremely conflict avoidant,” with a “low interpersonal I.Q.” As a result of her
background, Dowdell was “very vulnerable to the direction of others” and “extremely
compliant” with any person in a position of authority.

                                              9
   D. Procedural Background
       On February 25, 2010, the prosecution charged both Lincoln and Dowdell by
information with: Count One—kidnapping for ransom or extortion (Pen. Code, § 209,
subd. (a)); Count Two—kidnapping during a carjacking (Pen. Code, § 209.5); Count
Three—carjacking (Pen. Code, § 215); and Count Four—kidnapping for robbery (Pen.
Code, § 209, subd. (b)(1)). The information charged Lincoln only with Count Five—
criminal threats. (Pen. Code, § 422). The information further alleged that both
defendants personally used a handgun in the commission of Counts One through Four.
(Pen. Code, § 12022.53, subd. (b)). The information also alleged that Lincoln had a prior
juvenile adjudication for a forcible lewd or lascivious act on a child under 14 (Pen. Code,
§§ 288, subd. (b), 667, subd. (b)-(i), 1170.12), and that he had served two prior prison
terms. (Pen. Code, § 667.5, subd. (b).)
       On June 6, 2011, the court granted a prosecution motion to try appellant and
codefendant Dowdell before dual juries in the same trial. At the request of the
prosecution, the court ordered Shavens to testify under a grant of immunity. (Pen. Code,
§ 1324.) Jury selection began on June 7, and the evidentiary phase of the trial began on
June 20. On July 1, the jury found Lincoln guilty as charged on all five counts, and
Dowdell guilty on Counts One and Four. The jury hung on Counts Two and Three as to
Dowdell, and the jury found the gun enhancement allegations not true as to both
defendants.
       As to Lincoln, the trial court imposed an aggregate term of life in prison with the
possibility of parole, consecutive to four years, as follows. First, the court granted
Lincoln’s Romero motion to strike his prior adjudication. The trial court then found true
the two prior prison sentences and imposed one-year enhancements for each. On each of
Counts One, Two, and Four, the court sentenced Lincoln to concurrent terms of life in
prison with the possibility of parole, but the court stayed the sentence on Count Four
under section 654. On Count Three, the court sentenced Lincoln to the upper-term of

                                             10
nine years and stayed the sentence under section 654. On Count Five, the court
sentenced Lincoln to a consecutive mid-term sentence of two years. Thus, Lincoln’s
aggregate sentence consisted of life in prison with the possibility of parole consecutive to
four years.
       At Dowdell’s sentencing, the prosecution moved to dismiss Counts Two and
Three, and the trial court granted the motion in the interest of justice. The court then
sentenced Dowdell to life in prison with the possibility of parole on each of Counts One
and Four, but the court stayed the sentence on Count Four under section 654.
                                        II. DISCUSSION
   A. Admissibility of Lincoln’s Statement to Police
       At trial, Lincoln moved to exclude his statement to police on the basis that police
coerced him into involuntarily admitting his involvement in the crime. After a hearing
under Evidence Code section 402, the trial court denied the motion. Lincoln contends the
trial court erred in denying his motion. The thrust of his argument is that the police made
implicit promises of leniency for Dowdell, who was pregnant with Lincoln’s child, in
exchange for Lincoln’s admissions.
       1. Legal Standards
       “An involuntary confession is inadmissible under the due process clauses of both
the Fourteenth Amendment to the federal Constitution [citation] as well as article I,
sections 7 and 15 of the California Constitution [citation].” (People v. Weaver (2001)
26 Cal.4th 876, 920.) “Under both state and federal law, courts apply a ‘totality of
circumstances’ test to determine the voluntariness of a confession.” (People v. Massie
(1998) 19 Cal.4th 550, 576.) “[C]oercive police activity is a necessary predicate to the
finding that a confession is not ‘voluntary’ within the meaning of the Due Process Clause
of the Fourteenth Amendment.” (Colorado v. Connelly (1986) 479 U.S. 157, 167.)
“[T]he question in each case is whether the defendant’s will was overborne at the time he
confessed. [Citations.] If so, the confession cannot be deemed ‘the product of a rational

                                             11
intellect and a free will.’ ” (Lynumn v. Illinois (1963) 372 U.S. 528, 534.) The burden is
on the prosecution to show by a preponderance of the evidence that the statement was
voluntary. (People v. Vasila (1995) 38 Cal.App.4th 865, 873.) “When, as here, the
interview was tape-recorded, the facts surrounding the giving of the statement are
undisputed, and the appellate court may independently review the trial court’s
determination of voluntariness.” (Ibid.)
         “Mere advice or exhortation by the police that it would be better for the accused to
tell the truth, when unaccompanied by either a threat or a promise[] does not [. . .] make a
subsequent confession involuntary.” (People v. Boyde (1988) 46 Cal.3d 212, 238
(Boyde).) “However, where a person in authority makes an express or clearly implied
promise of leniency or advantage for the accused which is a motivating cause of the
decision to confess, the confession is involuntary and inadmissible as a matter of law.”
(Ibid.) Furthermore, “A threat by police to arrest or punish a close relative, or a promise
to free the relative in exchange for a confession, may render an admission invalid.”
(People v. Steger (1976) 16 Cal.3d 539, 550.)
         2. Lincoln Voluntarily Made His Statement to Police
         We agree with the trial court that the circumstances of the interrogation were
“upsetting” but that Lincoln’s admissions were voluntary under the totality of the
circumstances.
         At the start of the interrogation, police told Lincoln they had Dowdell in custody
and that they had just questioned her about the crime. They repeatedly emphasized the
fact that she was pregnant with Lincoln’s child:
         “[LINCOLN:] So you’ve already spoken to Brittany? What are you gonna do for
her?
         “[OFFICER:] For Brittany’s sake? I don’t need you. But you know who needs
you, is uh, your little boy. Okay. Your little girl. Brittany, she’s pregnant with your
child.

                                              12
        [¶]
        “[OFFICER:] Okay, how about the baby’s [sic] Brittany’s carrying? How you
think that’s gonna affect her when she has that baby in prison?”
        Second, police repeatedly emphasized that Dowdell was facing great liability for
her involvement in the offense, including the possibility of life in prison, and they told
Lincoln that “Brittany needs you” to “save her”—i.e., to make a statement lessening her
liability:
        “[OFFICER:] You know what, we’re in a position to burn her right?
        [¶]
        “[OFFICER:] Here’s what’s on the table. Okay. Brittany goes for armed
robbery, kidnapping with enhancement, okay, life.” (Italics added.)
        [¶]
        “[OFFICER:] Armed robbery, kidnapping, okay. It’s a serious charge, okay.
We’ve been talking to Brittany’s parents who came down here, okay. Crying their eyes
out, you know, because their kid got into this mess. Their kid’s pregnant, okay. You
want—you want to know what’s on the table? That’s what’s on the table, okay. We need
to know how involved she is.
        “[LINCOLN:] Life?
        “[OFFICER:] It’s a serious charge.
        “[LINCOLN:] Life?
        “[OFFICER:] I don’t know if it’s gonna be life or not, but yeah, kidnapping,
carjacking, armed to a murder weapon, robbery. You’re on probation. You want, you
want us to write about it that way? We don’t want to write that Brittany’s the
mastermind behind this.
        [¶]
        “[OFFICER:] What you’re dealing with also is, you’re [sic] pregnant girlfriend is
locked up for robbery for some shit that you pulled her into, ‘cause obviously, you

                                             13
influenced—into this, into this whole thing, but she has to say, she has to share some
culpability and responsibility ‘cause she’s older than 18. She had to know what’s going
on. That’s why she’s busted. Do you understand? I don’t need you. I don’t need
Brittany. Brittany needs you.
       [¶]
       “[OFFICER:] But hey, how are you gonna uh, save Brittany.” (Italics added.)
       The officers specifically emphasized the fact that Dowdell was facing an
enhancement for use of a firearm, but that she was claiming the gun was a toy. Police
insisted they needed Lincoln to corroborate her statement:
       “[OFFICER:] Okay, she’s facing armed robbery. She’s trying to make a defense
that was a fake gun, that it was a silver gun that was painted black, it was chipping away.
Believable, but now she’s the only one saying that right now. Okay? Can we go with her
statement? No, man, she’s our suspect. But she’s saying, ‘Ask him, he’ll tell you. He’ll
tell you the exact same detail.’ Okay. Armed robbery, we gotta go with that. Her first
time out she’s gonna have this baby in prison. She wants to terminate it? She’s gonna be
really sad. ‘Cause she’s not going to do that.
       [¶]
       “[OFFICER:] But once we get the truth from you, then we should just start
talking about Brittany and see whatever you’re saying about that case is true for Brittany
and then we start discussing, okay, Brittany said, it was a painted gun, you know. . . .”
       Throughout the interrogation, the police exhorted Lincoln to “do the right thing,”
to be the “voice” for Dowdell and “save her.” They also repeatedly told Lincoln that his
cooperation would “matter”—i.e., that it would result in a more positive outcome for
Dowdell. After Lincoln told the officers that “you can’t help me or hurt me” because the
District Attorney was in charge, the officers insisted otherwise:




                                             14
       “[OFFICER:] I don’t know what she- she’s uh, playing a part in your life, but you
gotta do the right thing, okay. And you’re wrong when it talks about cooperation and
recommendations.
       [¶]
       “[OFFICER:] I gotta put myself in your shoes. Even in that scenario, man, I gotta
do the right thing. I gotta do the right thing for, for a young lady. Okay, I do this job
because I protect people. I protect that victim, I’m the voice for that victim, I’m the voice
for Brittany, I’m a voice for you, I’m a voice for Derric, I gotta do the right thing. This
interview could have been done a long time ago. I gotta do the right thing. You gotta do
the right thing. And you’re wrong. When you think that your voice and your opinion
doesn’t matter.” (Italics added.)
       Lincoln contends these statements constituted implicit promises of leniency for
Dowdell. We agree. Based on our review of the recorded interrogation, we conclude that
the officers’ repeated statements of “what’s on the table” in reference to Dowdell’s
exposure implicitly suggested leniency in exchange for Lincoln’s statement. Moreover,
the officers repeatedly told Lincoln that his statements would “matter” to Dowdell—i.e.,
that there would be a positive outcome for her as a result of his statements. While the
officers’ promises were not explicit, they specifically set forth the possibility of a firearm
enhancement for Dowdell and implied that Lincoln could reduce that possibility by
confirming her statement that the gun was a toy. These statements constituted “clearly
implied” promises of leniency for Dowdell—the mother of Lincoln’s child—and hence
were improper. (Boyde, supra, 46 Cal.3d at p. 238; People v. Steger, supra, 16 Cal.3d at
p. 550.)
       To determine whether Lincoln’s confession was coerced, we must assess whether
the implicit promises of leniency caused the defendant to confess. (Boyde, supra, 46
Cal.3d at p. 238.) In this prong of the analysis, we consider Lincoln’s sophistication, his
prior experience with the criminal justice system, and his emotional state. (In re Shawn

                                              15
D. (1993) 20 Cal.App.4th 200, 209.) Here, all of these factors weigh against a finding of
coercion. First, Lincoln has a substantial criminal history, including four felony
convictions for conspiracy, three convictions for possession of a controlled substance,
and one misdemeanor conviction for driving with a suspended license. In his
interrogation, Lincoln demonstrated familiarity with his legal rights and the interrogation
process. He expressly volunteered to waive his Miranda rights before the police
admonished him. Audio of the interview shows he was calm and rational throughout the
interrogation. He made numerous statements demonstrating careful calculations about
the details of his admissions in a deliberate effort not to incriminate Shavens.
       We conclude that Lincoln’s confession was not coerced by the officers’ implicit
promises of leniency. Because of his sophistication and experience with the criminal
justice system, Lincoln knew the officers’ implicit promises were hollow. In fact, he
explicitly stated that he was aware the police lacked the authority to make charging
decisions regarding Dowdell in exchange for his statements:
       “[LINCOLN:] Well, gentlemen, ultimately, this is—right now, where I’m
leaning; the only person who is qualified and capable of um, making any type of deals is
the District Attorney.”
       Lincoln then reiterated this understanding, and the police responded that they
could not make guarantees:
       “[LINCOLN:] Okay. The only person that’s in any position to make any deals
and/or promises, um, regarding Brittany is the District Attorney. So as of right now,
because we all share the same concern for her, I believe um, the only way that I would be
willing to, in anyway, share anything uh, regarding this situation, is that I would, I would
need to know that, I doing so—
       “[OFFICER:] We can’t guarantee you anything man.
       “[LINCOLN:] I know, I know you can’t. I know ya’ll can’t. And that’s why I
started by—by saying just the way I said it. I believe you—you—I mean, I talked to a lot

                                             16
of police. You know I did the good cop/bad cop, I did the asshole, I did the street cop,
the motherfucker from the block, the nigga that know what’s going on; I’ve dealt with all
that. You can’t put a face on with me. I’m not gonna put no faces on with ya’ll.”
       These passages show that Lincoln gave his statement voluntarily. But even if
Lincoln could show his statement was coerced, we would find its admission harmless
beyond a reasonable doubt under Chapman v. California (1967) 386 U.S. 18 (Chapman).
As set forth above, the prosecution presented an abundance of evidence—apart from his
statement—establishing Lincoln’s guilt. First, Shavens testified consistently and
convincingly about the facts of Lincoln’s involvement. Cell phone records put Lincoln
near the scene of the crime within minutes of its commission, and they show he made the
subsequent phone calls to Toma. Lincoln presented no evidence to corroborate his claim
that Dowdell was dating another man at the time of the offense. Furthermore, Lincoln
admitted to being a convicted felon and a registered sex offender, and the prosecutor
attacked his testimony effectively on cross-examination. The jury was not likely to credit
Lincoln’s self-serving testimony.
       On this record, even without hearing Lincoln’s statement, the jury would have
convicted Lincoln as charged based on the overwhelming evidence of his guilt. Thus,
even if we were to assume the statement should have been excluded, we would find that
any error was harmless beyond a reasonable doubt.
   B. Prosecutorial Misconduct in Closing Argument Before the Lincoln Jury
       Closing arguments were given separately to the Lincoln and Dowdell juries. In
closing argument before the Lincoln jury, the prosecutor stated twice that “The
presumption of innocence is over.” Lincoln’s trial counsel lodged no objections. Lincoln
argues that the prosecution abnegated the presumption of innocence in violation of his
due process rights, and that his trial counsel provided ineffective assistance of counsel by
failing to object.



                                             17
       1. Legal Standards
       “The presumption of innocence, although not articulated in the Constitution, is a
basic component of a fair trial under our system of criminal justice.” (Estelle v. Williams
(1976) 425 U.S. 501, 503.) “To implement the presumption, courts must be alert to
factors that may undermine the fairness of the fact-finding process.” (Ibid.) “The
presumption of the innocence of an accused attends him throughout the trial, and has
relation to every fact that must be established in order to prove his guilt beyond
reasonable doubt. ‘This presumption,’ [the United States Supreme Court] has said, ‘is an
instrument of proof created by the law in favor of one accused, whereby his innocence is
established, until sufficient evidence is introduced to overcome the proof which the law
has created.’ [Citation.]” (Kirby v. United States (1899) 174 U.S. 47, 55.) Moreover,
“the presumption of innocence continues not only during the taking of the testimony, but
during the deliberations of the jury and until they reach a verdict.” (People v. Arlington
(1900) 131 Cal. 231, 235 (Arlington).)
       When prosecutorial misconduct “infects the trial with such a degree of unfairness
as to render the subsequent conviction a denial of due process, the federal Constitution is
violated.” (People v. Panah (2005) 35 Cal.4th 395, 462 (Panah).) A prosecutor’s
conduct at trial may also constitute misconduct under state law if it involves the use of
“deceptive or reprehensible methods to persuade the trial court or the jury.” (Ibid.)
“ ‘[W]hen the claim focuses upon comments made by the prosecutor before the jury, the
question is whether there is a reasonable likelihood that the jury construed or applied any
of the complained-of remarks in an objectionable fashion.’ ” (People v. Ayala (2000)
23 Cal.4th 225, 284 [quoting People v. Ochoa (1998) 19 Cal.4th 353, 427].)
       Generally, “[i]t is misconduct for the prosecutor to misstate the applicable
law. . . .” (People v. Boyette (2002) 29 Cal.4th 381, 435.) However, “To preserve a
claim of prosecutorial misconduct for appeal, a criminal defendant must make a timely
objection, make known the basis of his objection, and ask the trial court to admonish the

                                             18
jury.” (People v. Brown (2003) 31 Cal.4th 518, 553.) There are two exceptions to
forfeiture: (1) the objection or the request for an admonition would have been futile; or
(2) the admonition would have been insufficient to cure the harm occasioned by the
misconduct. (Panah, supra, 35 Cal.4th at p. 462.) A defendant claiming one of these
exceptions must find support for it in the record. (Ibid.)
         “To prevail on a claim of ineffective assistance of counsel, a defendant must show
both that counsel’s performance was deficient and that the deficient performance
prejudiced the defense. [Citations.] Counsel’s performance was deficient if the
representation fell below an objective standard of reasonableness under prevailing
professional norms. [Citation.] Prejudice exists where there is a reasonable probability
that, but for counsel’s errors, the result of the proceeding would have been different.”
(People v. Benavides (2005) 35 Cal.4th 69, 92-93, citing Strickland v. Washington (1984)
466 U.S. 668, 687-688, 693-694 (Strickland).) “ ‘Finally, prejudice must be affirmatively
proved; the record must demonstrate “a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have been different. A
reasonable probability is a probability sufficient to undermine confidence in the
outcome.” ’ ” (People v. Bolin (1998) 18 Cal.4th 297, 333.) “It is the defendant’s burden
on appeal [. . .] to show that he or she was denied effective assistance of counsel and is
entitled to relief. [Citations.] ‘[T]he burden of proof that the defendant must meet in
order to establish his [or her] entitlement to relief on an ineffective-assistance claim is
preponderance of the evidence.’ [Citation.]” (In re Hill (2011) 198 Cal.App.4th 1008,
1016.)
         2. The Prosecutor’s Misstatements of the Law
         Prior to closing arguments, the court instructed both juries, “A defendant in a
criminal case is presumed to be innocent. This presumption requires the people prove a
defendant guilty beyond a reasonable doubt.” Subsequently, in closing argument before
the Lincoln jury, the prosecutor twice argued that the presumption of innocence was

                                              19
“over.” First, he argued that “The evidence is overwhelming. My goal was to give
[Lincoln] a fair trial, he just got one. You have the evidence. The presumption of
innocence is over. I have the evidence. It wasn’t a fair fight, it wasn’t supposed to be.
Go and deliberate, be thorough and come back guilty on all counts.” (Italics added.)
Similarly, he later argued that “It’s fairly obvious that Mr. Lincoln committed all of the
crimes we are accusing him of. The presumption of innocence is over. He has gotten his
fair trial. Be thorough, deliberate, and come back with guilty verdicts on all counts.”
(Italics added.)
       The Attorney General contends the prosecutor’s comments were not improper, and
that defendant forfeited his claim by failing to object. For the former proposition, the
Attorney General relies on Panah, supra, 35 Cal.4th 395, and People v. Goldberg (1984)
161 Cal.App.3d 170 (Goldberg). In Panah, the prosecutor in closing argued that the
evidence had “stripped away” the defendant’s presumption of innocence. (Panah, supra,
35 Cal.4th at p. 463.) The California Supreme Court interpreted the prosecutor’s remark
as an argument that the strength of the prosecution’s evidence had overcome the
presumption of innocence, not as a legal statement about the presumption no longer
applying. For this reason, the court found no prosecutorial misconduct.
       In Goldberg, supra, 161 Cal.App.3d 170, the prosecutor told the jury in closing
that “once the evidence is complete, once you’ve heard this case, once the case has been
proven to you—and that’s the stage we’re at now—the case has been proved to you
beyond any reasonable doubt. I mean, it’s overwhelming. There is no more presumption
of innocence. Defendant Goldberg has been proven guilty by the evidence.” (Id. at
p. 189, original italics.) In reasoning similar to the analysis in Panah, the Court of
Appeal found the prosecutor’s argument to be a rhetorical statement about the weight of
the evidence, not an improper statement about the law. The court also noted that the jury
had been properly instructed on the presumption of innocence, and held that “Once an
otherwise properly instructed jury is told that the presumption of innocence obtains until

                                             20
guilt is proven, it is obvious that the jury cannot find the defendant guilty until and unless
they, as the fact-finding body, conclude guilt was proven beyond a reasonable doubt.”
(Goldberg, at pp. 189-190, original italics.)
       Here, we find the prosecutor’s statements distinguishable from those in Panah and
Goldberg. First, it is indisputable that the prosecutor misstated the law. It is well
established that the presumption of innocence continues into deliberations, and the
presumption was in no sense “over” when the prosecutor declared it to be so. (People v.
Arlington, supra, 131 Cal. at p. 235.) Second, the prosecutor twice made this
misstatement of the law. Arguably, the first version of the statement—prefaced by a
reference to the “overwhelming” state of the evidence—was comparable to the
prosecutors’ statements in Goldberg and Panah. But then the prosecutor repeated the
misstatement, together with the assertions that it was “fairly obvious” Lincoln was guilty,
and most critically, “He has gotten his fair trial.” (Italics added.) This last statement
implied that the “fair trial” was over, and with it, the jury’s legal obligation to respect the
presumption of innocence. Defense counsel should have objected. And if he had, the
trial court should have sustained his objection and the court should have admonished the
jury that the presumption of innocence remained in effect. The trial court properly
instructed the jury on this point before jury deliberations. But the prosecutor should not
have contradicted this instruction in his closing argument.
       Trial counsel did not object when the prosecutor made the misstatements of law
during closing argument, and Lincoln does not identify any portion of the record that
would satisfy the two exceptions to forfeiture set forth in Panah, supra, 35 Cal.4th at
page 462. The claim is therefore forfeited. As to the claim that his trial counsel is
ineffective, Lincoln has not established prejudice—that is, he has not shown a reasonable
probability of a more favorable outcome had his trial counsel objected to the remarks. As
set forth above in Section II.A.2, the prosecutor presented abundant evidence of
Lincoln’s guilt on all counts. The weight of the evidence is even greater than that

                                                21
described above given that the jury could properly consider Lincoln’s admissions in his
statement to police. Accordingly, we find no ineffective assistance of counsel based
upon a failure to object to the prosecutor’s misstatements of the law.7
   C. The Trial Court’s Denial of Lincoln’s Motion to Relieve Counsel
       Lincoln contends the trial court erred in denying his midtrial motion to relieve his
retained counsel. He argues that the trial court improperly applied the standard for relief
of appointed counsel under People v. Marsden (1970) 2 Cal.3d 118 (Marsden), instead of
the standard for relief of retained counsel under People v. Ortiz (1990) 51 Cal.3d 975
(Ortiz). Lincoln contends that under Ortiz, the trial court should have granted his motion
because he and his attorney were “embroiled in an irreconcilable conflict” resulting in
ineffective representation. He argues that this error is structural and reversal is
automatic, requiring no showing of prejudice.
       Given the untimely nature of the motion and the inevitable disruption that would
have followed from the relief of counsel midtrial, we find no abuse of discretion in the
trial court’s denial of Lincoln’s motion to relieve his retained counsel.
       1. Procedural Background
       Jury selection began on June 7, 2011, and continued for five days until June 14.
Opening arguments and presentation of evidence began on June 20. On June 22, the
eighth day of trial, Lincoln moved to replace his retained counsel, Ron Berki. The trial
court cleared the courtroom of all parties except for Lincoln and Berki, and held a hearing
on Lincoln’s motion. Lincoln stated that his rapport and communication with Berki were
“very good,” but Lincoln said he wanted to exercise greater strategic control over his
case, and he expressed his disappointment with Berki’s refusal to adhere to his desires.
The trial court told Lincoln his options were to relieve Berki and represent himself, or

       7
         Moreover, because we find no error in the admission of defendant’s statement to
police, we find no merit to Lincoln’s claim that he was prejudiced by the cumulative
harm from these asserted errors.

                                              22
continue with Berki and “hopefully meet in the middle.” Lincoln again expressed his
frustration with Berki and complained that Berki was not examining witnesses with the
questions Lincoln wanted him to ask. Lincoln asked if he would be given a law clerk or
if he would be given leeway in posing questions, and the court told him he would have
neither. The court then denied Lincoln’s motion, which the court characterized as a
“Marsden motion.”
       On June 27, 2011, after another day of trial, Lincoln again complained to the court
about Berki’s representation. Lincoln stated that Berki had given the prosecution
information that Lincoln believed was subject to the attorney-client privilege. The
prosecutor confirmed that Berki had shared the information with him, but Berki
explained that he did so for the purpose of defending Lincoln. The court then told
Lincoln that Berki was permitted to reveal privileged information for that purpose and
explained, “Sometimes he has to do what’s right for his client and I believe that was his
intention.” Berki then told the court, “I have been accused and maligned by my client
throughout this whole trial that I am not working for him. I am not doing what he wants,
that I am working in cahoots with the District Attorney. Your honor, I want to withdraw
from this case. I mean it. I can’t take this anymore. I can’t do a job effectively for him
if he is continuously doing everything he can to tie my hands.” The court stated, “What I
am going to do is let you think on this overnight and come back and we will talk about it
tomorrow morning, because tempers are a little high right now. People are a little upset,
and everybody will sleep on it, and come back, and let me know what you want.”
       The next morning, Lincoln read a prepared statement to the court outside the
presence of the juries. Lincoln reiterated his claim that Berki had provided the
prosecution with privileged information without Lincoln’s permission. Lincoln stated,
“Because of this violation, I can’t imagine taking the witness stand in my own defense
without wondering what other sacred communications have been relayed to the District
Attorney or anyone else for that matter. Regardless, to whether an attorney trusts and/or

                                            23
believes in his client’s innocence it is imperative that the client be able to trust his
attorney.” Lincoln again moved to relieve Berki and moved for a mistrial.
       The trial court denied the motion for a mistrial and found that, even assuming
there had been a violation of attorney-client privilege, there was no prejudice to Lincoln.
As to the motion to relieve counsel, the court again gave Lincoln the option of relieving
Berki and representing himself. The court also ruled that no continuance would be
granted and explained that “my fear and everybody’s fear is that we are going to run out
of jurors and it’s going to drop below 12 and we are going to have to do this all over
again and I don’t think that’s something anyone wants to do. So it’s going to be done
tomorrow one way or the other.” Lincoln again complained about Berki’s alleged
violation of the attorney-client privilege. The court responded, “The only way he would
be removed is that he was so incompetent that he fell below the level as a lawyer who
should be doing his job and representing his client and he hasn’t fallen below that
threshold, because what he’s done so far is he has represented you effectively and asked
the right kind of questions, so I can’t remove him. I don’t have the reasons to. The law
doesn’t allow me to, but at any time you can decide you don’t want him and you want to
go at it on your own, that’s your choice.” Lincoln declined to represent himself, stating
“Let’s move forward.”
       2. Legal Standards
       “The right of a criminal defendant to counsel and to present a defense are among
the most sacred and sensitive of our constitutional rights.” (Ortiz, supra, 51 Cal.3d at
p. 982.) A nonindigent criminal defendant has a due process and Sixth Amendment right
to retained counsel of his choice, and he can discharge retained counsel at any time with
or without cause. (People v. Verdugo (2010) 50 Cal.4th 263, 310-311; People v. Lara
(2001) 86 Cal.App.4th 139, 152 (Lara).) “[T]he right to counsel of choice reflects not
only a defendant’s choice of a particular attorney, but also his decision to discharge an
attorney whom he hired but no longer wishes to retain.” (Ortiz, supra, at p. 983.)

                                               24
       “The right to discharge retained counsel is not absolute, however. . . .” (Lara,
supra, 86 Cal.App.4th at p. 153.) The court must “balance the defendant’s interest in
new counsel against the disruption, if any, flowing from the substitution.” (Ibid.) A
defendant who seeks to discharge retained counsel in a timely manner ordinarily must be
permitted to do so. (Ortiz, supra, 51 Cal.3d at p. 981; Lara, supra, at p. 152.) “However,
a defendant who desires to retain his own counsel is required to act with diligence and
may not demand a continuance if he is unjustifiably dilatory or if he arbitrarily desires to
substitute counsel at the time of the trial.” (People v. Blake (1980) 105 Cal.App.3d 619,
623-624.) “A criminal defendant’s right to decide how to defend himself should be
respected unless it will result in ‘significant prejudice’ to the defendant or in a ‘disruption
of the orderly processes of justice unreasonable under the circumstances of the particular
case.’ ” (Ortiz, supra, at p. 982.) The erroneous denial of a motion to substitute counsel
constitutes structural error and mandates reversal of the defendant’s conviction without
requiring a showing of prejudice. (Id. at p. 988.) However, we apply an abuse of
discretion standard of review to a trial court’s denial of a motion to relieve retained
counsel.8 (People v. Verdugo, supra, 50 Cal.4th at p. 311; People v. Trapps (1984)
158 Cal.App.3d 265, 271; cf. Lara, supra, at pp. 153-154.)
       3. The Trial Court Did Not Err By Denying Lincoln’s Motion to Relieve Berki
       Lincoln argues that the trial court erroneously treated his motion under the
standard set forth in Marsden, supra, 2 Cal.3d 118, because Marsden applies to appointed
counsel, and Berki was retained. “The trial court’s improper reliance on Marsden,
however, does not mean that appellant is entitled to the automatic reversal of his
conviction.” (Lara, supra, 86 Cal.App.4th at p. 155.) Even under the proper standard,


       8
        The abuse of discretion standard of review is particularly appropriate here
because the trial court’s ruling was tantamount to a denial of a continuance. (See People
v. Johnson (1970) 5 Cal.App.3d 851, 858-859 [applying abuse of discretion standard of
review to denial of continuance needed to seek private counsel].)

                                              25
set forth in Ortiz, supra, 51 Cal.3d 975, a trial court does not abuse its discretion if the
defendant’s motion is untimely and would result in “ ‘disruption of the orderly processes
of justice unreasonable under the circumstances of the particular case.’ ” (Id. at p. 982
[quoting People v. Crovedi (1966) 65 Cal.2d 199, 208].)
       We conclude that Lincoln’s motion was untimely. The court spent five days
selecting two juries for a complex, two-defendant trial.9 Lincoln made his first request to
relieve Berki eight days into trial, after the prosecution had already presented the bulk of
its evidence. The court implicitly found that granting Lincoln a continuance long enough
to retain new counsel could cause an unreasonable “disruption of the orderly processes of
justice” from the loss of too many jurors.10
       Lincoln argues that the record does not support a finding that his motion was
untimely. But the record shows the trial lasted nearly a month because it dealt with
complex legal issues, numerous witnesses and exhibits, and hours of recorded audio. A
competent attorney would have required substantial time to prepare before substituting
for Berki. Had the court relieved Berki, a significant delay in the proceedings would
have been required.
       Lincoln is correct that he and Berki had expressed frustration with each other. But
their conflicts were not so irreconcilable as to warrant such a lengthy and disruptive
delay. In Lincoln’s initial motion to relieve counsel on June 22, his complaints about
Berki focused solely on strategic and tactical disagreements; Lincoln actually
characterized their working relationship positively. Lincoln’s second motion, made on
June 27, centered on an alleged violation of the attorney-client privilege, which the trial
court properly rejected. It is true that Berki expressed his own doubts about his ability to
       9
         The court granted the prosecution’s motion for dual juries in part because
Shavens, a key prosecution witness, was suffering from a serious illness, and the court
was concerned about delay that would be caused if the trials were to proceed separately.
       10
          One juror had previously asked to be excused by July 1. The court was later
required to excuse the juror and seat an alternate juror on June 30.


                                               26
continue representing Lincoln effectively, but the record shows that he represented
Lincoln effectively throughout the entire trial. Berki cross-examined the prosecution’s
witnesses aggressively, he effectively lodged objections, and he put forth a strong closing
argument. As the trial court noted, many of the defense tactics that Lincoln disputed
appeared to be based on Berki’s wisdom and experience, and the use of these tactics
likely benefited Lincoln.11
       On these facts, we find no abuse of discretion in the trial court’s denial of
Lincoln’s motion to relieve his trial counsel. We therefore reject this claim.
   D. Sentencing on Counts One and Two Under Section 654
       The trial court sentenced Lincoln to concurrent terms of life in prison with the
possibility of parole on both Count One (kidnapping for extortion) and Count Two
(kidnapping for carjacking). The court stayed the sentence of life with parole on Count
Four (kidnapping for robbery) under section 654. Lincoln contends the trial court also
should have stayed one of the two sentences for Counts One and Two under section 654
because the two offenses were committed during the same indivisible transaction with the
common objective of obtaining money. Reasonable minds can differ as to whether the
offenses occurred during a single, indivisible transaction, but we agree with Lincoln that
he committed both offenses with a single intent and objective. Under this standard, the
court should have stayed one of the two sentences. (Neal v. State of California (1960)
55 Cal.2d 11, 19 (Neal) [overruled in part on another ground as stated in People v.
Correa (2012) 54 Cal.4th 331].)
       1. Legal Standards
       Section 654, subdivision (a) provides, in relevant part: “An act or omission that is
punishable in different ways by different provisions of law shall be punished under the

       11
          At a later hearing, after Lincoln made alternating requests to represent himself,
then for appointment of counsel, and then again to represent himself, the trial court found
that Lincoln’s conduct showed a “pattern of manipulating the system.”

                                             27
provision that provides for the longest potential term of imprisonment, but in no case
shall the act or omission be punished under more than one provision.” Section 654
thereby bars the imposition of multiple sentences for a single act or omission, even
though the act or omission may violate more than one provision of the Penal Code.
(People v. Mesa (2012) 54 Cal.4th 191, 195.) This is true even where the court orders
multiple sentences to be served concurrently. “It has long been established that the
imposition of concurrent sentences is precluded by section 654 [citations] because the
defendant is deemed to be subjected to the term of both sentences although they are
served simultaneously.” (People v. Miller (1977) 18 Cal.3d 873, 887 (Miller)
[disapproved on another ground in People v. Oates (2004) 32 Cal.4th 1048, 1068, fn. 8].)
Instead, the accepted “procedure is to sentence defendant for each count and stay
execution of sentence on certain of the convictions to which section 654 is applicable.”
(Miller, supra, at p. 886.) “The purpose of the protection against multiple punishment is
to insure that the defendant’s punishment will be commensurate with his criminal
liability.” (Neal, supra, 55 Cal.2d at p. 20.)
       “[S]ection 654 applies not only where there was but one act in the ordinary sense,
but also where there was a course of conduct which violated more than one statute but
nevertheless constituted an indivisible transaction. [Citation.] Whether a course of
conduct is indivisible depends upon the intent and objective of the actor. [Citation.] If
all the offenses were incident to one objective, the defendant may be punished for any
one of such offenses but not for more than one.” (People v. Perez (1979) 23 Cal.3d 545,
551.) “On the other hand, if the evidence discloses that a defendant entertained multiple
criminal objectives which were independent of and not merely incidental to each other,
he may be punished for the independent violations committed in pursuit of each objective
even though the violations were parts of an otherwise indivisible course of conduct.”
(Ibid.) Conversely, where reasonable minds can differ on whether multiple crimes
involve a single act, we consider whether the crimes were focused on a single “intent and

                                                 28
objective.” (Neal, supra, 55 Cal.2d at p. 19; People v. Latimer (1993) 5 Cal.4th 1203,
1205-1206.) “Whether a course of criminal conduct is divisible and therefore gives rise
to more than one act within the meaning of section 654 depends on the intent and
objective of the actor. If all of the offenses were incident to one objective, the defendant
may be punished for any one of such offenses but not for more than one.” (Neal, supra,
55 Cal.2d at p. 19.) By contrast, “If [the defendant] entertained multiple criminal
objectives which were independent of and not merely incidental to each other, he [or she]
may be punished for independent violations committed in pursuit of each objective even
though the violations shared common acts or were parts of an otherwise indivisible
course of conduct.” (People v. Beamon (1973) 8 Cal.3d 625, 639.)
       “Whether the facts and circumstances reveal a single intent and objective within
the meaning of Penal Code section 654 is generally a factual matter; the dimension and
meaning of section 654 is a legal question.” (People v. Guzman (1996)
45 Cal.App.4th 1023, 1028.) We apply the substantial evidence standard of review to the
trial court’s implied finding that a defendant harbored a separate intent and objective for
each offense. (People v. Braz (1997) 57 Cal.App.4th 1, 10; People v. Blake (1998)
68 Cal.App.4th 509, 512.)
       2. Section 654 Requires a Stay of the Sentence on Count One or Count Two
       Lincoln contends that his offenses occurred during one continuous, indivisible
course of action with the sole objective to obtain money. Lincoln’s argument focuses
exclusively on his initial abduction of Toma and the movement of Toma’s truck. First,
Lincoln notes that the offense of kidnapping during a carjacking was not complete until
the carjacking was complete, which in turn required the vehicle to be moved. (People v.
Contreras (1997) 55 Cal.App.4th 760, 765 [kidnapping during commission of carjacking
requires completed offense of carjacking]; People v. Medina (2007) 41 Cal.4th 685, 693;
People v. Lopez (2003) 31 Cal.4th 1051, 1061-1063 [carjacking requires movement of
the vehicle].) Similarly, Lincoln notes that the offense of kidnapping for extortion was

                                             29
also completed when the vehicle was first moved. He argues that whatever slight
movement of Toma might have occurred when Lincoln initially forced Toma into the
back of the truck was merely “incidental to the commission of the [extortion].” (People
v. Daniels (1969) 71 Cal.2d 1119, 1139 [kidnapping for robbery requires more than mere
movement of the victim incidental to the commission of the robbery].) Thus, Lincoln
argues, both offenses were complete at the moment Lincoln moved the truck, and both
offenses occurred during the same act of kidnapping.
       Lincoln’s characterization of these facts ignores subsequent events. After
stopping at the first ATM, Lincoln and Dowdell were unable to extract money from it.
Lincoln threatened Toma again, whereupon Toma begged them to go to a Bank of
America ATM. Lincoln and Dowdell then drove the truck and the victim to a second
ATM location. Thus, the crime arguably consisted of multiple acts, as compared to a
single indivisible act. But where reasonable minds can differ as to whether the
defendant’s conduct entailed more than one act, we must consider whether he acted with
a single intent and objective. (Neal, supra, 55 Cal.2d at p. 19; People v. Latimer, supra,
5 Cal.4th at pp. 1205-1206.) In that respect, the evidence shows Lincoln’s intent was
singular. Throughout the course of the kidnapping, Lincoln’s sole objective was to
obtain money. When the police, in their interrogation, questioned Lincoln as to his
motive, he told them it was money, and that his plan prior to the robbery was to “try and
get a purse or wallet.” Lincoln made this abundantly clear to the victim as well, with
constant, repeated demands for money throughout the course of the crime.
       The Attorney General argues that Lincoln took the victim’s truck because Lincoln
was “motivated by a desire to avoid detection” after Toma resisted the initial abduction.
Even if Lincoln sought to avoid detection, that tactic was merely incidental to his primary
goal of getting Toma’s money. We find no substantial evidence for the proposition that
Lincoln harbored any other intent or objective “independent of and not merely incidental
to” the acquisition of money. (People v. Beamon, supra, 8 Cal.3d at p. 639.) Under

                                            30
Neal, then, section 654 requires a stay of one of the two sentences. Accordingly, we will
order that the sentence on Count Two be stayed.
   E. Carjacking as a Lesser Included Offense of Kidnapping During a Carjacking
       The jury also found Lincoln guilty of both carjacking (Pen. Code, § 215) and
kidnapping during a carjacking (Pen. Code, § 209.5). Lincoln contends the trial court
should have dismissed the conviction for carjacking because it is a lesser included
offense of carjacking during a kidnapping. The Attorney General concedes this claim
and agrees that we should reverse the conviction for carjacking.
       We accept the Attorney General’s concession. It is well settled that carjacking is a
necessarily included offense of kidnapping during a carjacking. (People v. Jones (1999)
75 Cal.App.4th 616, 624-625; People v. Contreras, supra, 55 Cal.App.4th at p. 765.)
When a defendant is convicted of a greater and a lesser included offense, reversal of the
conviction for the lesser included offense is required. (People v. Pearson (1986)
42 Cal.3d 351, 355.) Therefore, we will strike Lincoln’s conviction for carjacking
(Count Three).
   F. Jury Instructions Regarding Evidence of Intimate Partner Battering
       Dowdell, who presented evidence of intimate partner battering at trial, contends
that the trial court erroneously and prejudicially instructed the jury on the permissible
uses of the evidence. Dowdell requested a special instruction that would have allowed
the jury to consider evidence of intimate partner battering in deciding whether she formed
the specific intent required for the charged offenses. But the trial court limited the jury’s
use of such evidence to deciding whether Dowdell committed the crime to defend herself
from an immediate threat of great bodily injury or death, not whether she formed the
specific intent to commit the crimes. Dowdell argues that by limiting the jury’s ability to
consider the evidence in this fashion, the trial court violated her federal due process right
to present a defense, requiring harmless error analysis under the federal standard set forth
in Chapman, supra, 386 U.S. 18. We agree that the court erred, but we conclude that the

                                             31
appropriate harmless error analysis is the state law standard set forth in People v. Watson
(1956) 46 Cal.2d 818 (Watson). We conclude that the error was harmless under the
Watson standard.
       1. Procedural Background
       In pretrial motions and again at trial, Dowdell requested special instructions
regarding intimate partner battering. As relevant here, she requested the following
instruction: “You have heard testimony from (Linda Skerbec/Dr. Mary Ann Kim)
regarding the effect of battered women’s syndrome and/or intimate partner battering,
including the nature and effect of physical, emotional, or mental abuse on the beliefs,
perceptions, or behavior of victims of domestic violence. You may consider this
evidence in deciding whether the defendant’s conduct was consistent with the conduct of
someone who has been abused, in evaluating the believability of defendant’s testimony,
and in determining whether the defendant possessed the specific intent necessary to
commit the crimes charged.” (Italics added.)
       The trial court rejected Dowdell’s proposed instructions and instructed the
Dowdell jury with a combination of CALCRIM No. 851 and CALJIC 9.35.1. As
relevant here, the court instructed the jury, “You are [sic] heard evidence regarding
battered woman’s syndrome, also known as intimate partner battering. You should
consider this evidence for a certain limited purpose only, namely, you may consider this
evidence only in deciding whether the battered woman’s syndrome applied in this case;
and whether the defendant actually believed that she needed to commit the charged
crimes in order to defend herself against an immediate threat of great bodily injury or
death; and if so, whether the defendant’s belief was reasonable or unreasonable.” (Italics
added.) The court then defined “immediate” and instructed the jury on reasonableness in
the context of intimate partner battering.
       Prior to sentencing, Dowdell moved for a new trial on the ground that the court
erred by limiting the jury’s consideration of intimate partner battering to the issue of

                                             32
whether she acted under duress, and not whether she otherwise formed the specific intent
to commit the charged offenses. The trial court set forth its reasoning for instructing the
jury as above and denied Dowdell’s motion.
       2. Legal Standards
       “Under appropriate circumstances, ‘a trial court may be required to give a
requested jury instruction that pinpoints a defense theory of the case by, among other
things, relating the reasonable doubt standard of proof to particular elements of the crime
charged. [Citations.] But a trial court need not give a pinpoint instruction if it is
argumentative [citation], merely duplicates other instructions [citation], or is not
supported by substantial evidence [citation].’ ” (People v. Coffman and Marlow (2004)
34 Cal.4th 1, 99 (Coffman) [quoting People v. Bolden (2002) 29 Cal.4th 515, 558].) In
determining whether the evidence is sufficient to warrant a jury instruction, the court
does not determine the credibility of the defense evidence, but only whether there was
evidence, if believed by the jury, sufficient to raise a reasonable doubt. (People v. Salas
(2006) 37 Cal.4th 967, 982.)
       We apply a de novo standard of review in assessing whether jury instructions
correctly state the law or whether they effectively direct a finding adverse to a defendant
by removing an issue from the jury’s consideration. (People v. Posey (2004)
32 Cal.4th 193, 218.) “[T]he proper test for judging the adequacy of instructions is to
decide whether the jury was fully and fairly instructed on the applicable law.” (People v.
Partlow (1978) 84 Cal.App.3d 540, 558.)
       3. The Trial Court Erroneously Instructed the Jury on Intimate Partner Battering
       Dowdell relies on Coffman, supra, 34 Cal.4th 1, for the proposition that the trial
court should have instructed the Dowdell jury that it could consider evidence of intimate
partner battering in determining whether she formed the requisite specific intent. In
Coffman, the prosecution charged Coffman and her codefendant with murder,
kidnapping, kidnapping for robbery, robbery, residential burglary, and forcible sodomy.

                                              33
(Id. at p. 16.) The trial court instructed the jury that it could consider evidence of
intimate partner battering solely for the purpose of determining whether Coffman had
actually formed the mental state required for these offenses as well as the special
circumstance allegations. (Id. at p. 98) The trial court further instructed that a person is
not guilty when the person is acting under threats or menaces that would cause a
reasonable person to fear that his or her life would be in immediate danger if he or she
did not engage in the conduct charged. (Ibid.) The California Supreme Court held that
these instructions were correct: “We conclude the instructions given here correctly and
(with one exception) [12] adequately informed the jury that it could consider the evidence
of battered woman syndrome in determining whether Coffman had formed the mental
state or specific intent required for the charged offenses. . . .” (Id. at p. 99, italics added.)
Neither the trial court’s instructions in Coffman nor the Supreme Court’s holding in that
case limited the applicability of intimate partner abuse evidence to a determination of
duress.
       The wording of Dowdell’s proposed instruction closely tracked the applicable
language in Coffman. Although the instruction ultimately given to the jury relied on the
language set forth in the pattern jury instructions, the trial court did not apply the Judicial
Council Bench Notes to CALCRIM 851, which cite to the above holding from Coffman,
as follows: “The court may need to modify this instruction if the defense offers testimony
on intimate partner battering and its effects on an issue other than whether the defendant
actually and reasonably believed in the need for self-defense. (See Coffman, [supra,]
34 Cal.4th [at pp.] 98-101 [citation] [evidence offered to show defendant did not act with
intent to kill but acted out of fear of codefendant].)” (Judicial Council of Cal., Crim. Jury
Instns., (2013) Bench Notes to CALCRIM No. 851 (1st ed. 2013).) The Attorney
General argues that the supplied instructions did allow the jury to consider whether

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

                                               34
Dowdell form specific intent because the court instructed on duress, and duress negates
intent. Coffman, however, allows the jury to consider intimate partner abuse as it pertains
to specific intent even absent a finding of duress. For this reason, we conclude that
Dowdell’s proposed instruction properly stated the law under Coffman.
       Furthermore, Dowdell presented substantial evidence sufficient to warrant such an
instruction. First, there was substantial evidence to establish that Dowdell suffered from
intimate partner abuse. She testified that Lincoln controlled many aspects of her life
through emotional manipulation, dominating behavior, and threats to her family. She
testified—and Lincoln confirmed—that he once struck her during sex. She presented
several witnesses who corroborated the abusive and controlling nature of her relationship
with Lincoln, and she presented testimony from two experts who offered opinions
supporting this characterization.
       Second, Dowdell testified that she did not intend to rob, kidnap, or carjack Toma.
She testified that she was merely following Lincoln’s commands, and that she was afraid
he would hurt her if she did not comply. She further testified that when she initially
entered Toma’s truck, she did not know that Lincoln intended to drive the truck or kidnap
Toma. Although Dowdell’s testimony was self-serving and aspects of it were
contradicted by other evidence, we do not consider the credibility of a witness’s
testimony in determining whether the record holds substantial evidence to warrant a
particular jury instruction. (People v. Salas, supra, 37 Cal.4th at p. 982.) If the jury had
believed Dowdell’s testimony, in conjunction with the evidence of intimate partner
abuse, this evidence would have been sufficient to support a reasonable doubt about
whether she had formed the specific intent required to commit the charged offenses.
Hence, it was the jury’s role, not the court’s role, to make that determination. We
therefore conclude that the trial court erred in not allowing the jury to consider evidence
of intimate partner abuse for the purpose of assessing whether Dowdell formed the
specific intent required to commit the charged crimes.

                                             35
       4. Harmless Error Analysis
       Dowdell contends we must reverse her convictions unless the error is shown to be
harmless beyond a reasonable doubt under Chapman, supra, 386 U.S. at page 24. She
argues that the proper standard for prejudice is set forth under Chapman rather than
Watson, supra, 46 Cal.2d 818, because the erroneous instruction violated her federal due
process right to present a defense. But the California Supreme Court has specifically
rejected this argument in the context of an instructional error concerning intimate partner
abuse. (People v. Humphrey (1996) 13 Cal.4th 1073, 1089 (Humphrey).)
       In Humphrey, the defendant offered evidence of intimate partner abuse to support
a claim of self-defense. The trial court instructed the jury that it could consider the
evidence in deciding whether the defendant believed it was necessary to kill in self-
defense, but not in deciding whether that belief was reasonable. (Humphrey, supra,
13 Cal.4th at p. 1076.) The Supreme Court held that the latter portion of this instruction
was erroneous. (Id. at p. 1089.) But the court rejected the defendant’s argument that the
erroneous instruction deprived her of the right to present a defense. The court reasoned,
“The erroneous instruction may have adversely affected the defense, but it did not deprive
her of the right to present one or deny her equal protection. In effect, the [trial] court
excluded some evidence as to one element of the defense. When the reviewing court
applying state law finds an erroneous exclusion of defense evidence, the usual standard of
review for state law error applies: the court must reverse only if it also finds a reasonable
probability the error affected the verdict adversely to defendant.” (Ibid., original italics.)
       Like the trial court in Humphrey, the trial court here did not prevent Dowdell from
presenting a defense; indeed, she introduced substantial evidence demonstrating intimate
partner abuse. Rather, the court effectively excluded the evidence as to the element of
specific intent in the absence of duress. Accordingly, we will apply the Watson standard
for prejudice.



                                              36
       Under the Watson standard, we conclude Dowdell has not met her burden of
showing a reasonable probability of a more favorable outcome had the jury been properly
instructed. Dowdell presented abundant evidence demonstrating the emotionally and
psychologically abusive nature of her relationship with Lincoln in the months preceding
the crime. But the issue for the jury concerned her intent during the charged offense.
Furthermore, the evidence specific to her conduct during the crime shows she was not so
tightly controlled by Lincoln that she acted without the requisite specific intent—e.g.,
that she acted as an automaton without intending to engage in the kidnapping and
robbery. Most significantly, her own testimony on this point was self-serving and
contradicted by other facts; therefore, the jury was not likely to be persuaded by it. The
record shows that it is not reasonably likely the jury would have found in Dowdell’s
favor had it been allowed to consider whether intimate partner battering negated the
specific intent necessary for the charged offenses. Accordingly, we conclude the error
was harmless.
       Harmless error aside, the outcome here—imposition of a life sentence
notwithstanding Dowdell’s comparatively lesser culpability—is a cause for concern.
This sentiment was apparently shared by the trial court. In pretrial discussions, the trial
court suggested that an appropriate disposition would result in a total sentence of seven
years, less time served—a proposal agreed to by defense counsel, but rejected by the
prosecution. At sentencing, the trial court, as required by law, imposed life in prison with
the possibility of parole, but the court advised Dowdell she should be released in five
years with good behavior. It is difficult to square such a statement with the imposition of
a life sentence, but like the trial court, we are bound by the law, and so we will affirm this
sentence.
   G. Prosecutorial Misconduct in Closing Argument Before the Dowdell Jury
       In his closing argument to the Dowdell jury, the prosecutor stated, “You are not to
consider punishment. The judge is to consider punishment whether she goes to jail or

                                             37
whether she gets probation, that’s not—” Defense counsel immediately objected, and the
trial court instructed the jury, “Ladies and gentlemen, you are not to consider anything
regarding penalty or punishment, that’s my job, not the jurors’ job.” The prosecutor then
stated, “That’s what I said. You are not to consider that, that’s outside your purview.”
       Dowdell contends the prosecutor’s reference to probation constituted prosecutorial
misconduct requiring reversal. Dowdell argues that the prosecutor’s mere mention of
probation introduced the possibility of leniency into jurors’ minds and suggested that they
need not be concerned about the harshness of the charges. Dowdell contends this was
part of an intentional strategy by the prosecutor designed to encourage jurors to ignore
the evidence of Lincoln’s psychological control over Dowdell.
       Even assuming the prosecutor’s statement constituted misconduct, we conclude
the misconduct was harmless. First, it was not the case that the misconduct “infect[ed]
the trial with such a degree of unfairness as to render the subsequent conviction a denial
of due process. . . .” (Panah, supra, 35 Cal.4th at p. 462.) “[T]he question is whether
there is a reasonable likelihood that the jury construed or applied any of the complained-
of remarks in an objectionable fashion.’ ” (People v. Ayala, supra, 23 Cal.4th at p. 284.)
In answering this question, we note that the trial court properly admonished the jury not
to consider punishment. (People v. Thomas (2011) 51 Cal.4th 449, 487 [no harm from
prosecutor’s comment regarding penalty where the court promptly admonished the jury].)
We presume the jury heeded the court’s instructions. (Ibid.)
       Furthermore, as set forth above, the evidence of Dowdell’s guilt was strong. She
admitted participating in the offenses, and surveillance video from the ATM placed her at
the scene of the crime. Her sole defense—that she did not intend to rob or kidnap Toma
but was merely following Lincoln’s orders—was not credible. Therefore, it is not
reasonably likely the jury applied the prosecutor’s remark in an objectionable fashion.
The jury likely rejected Dowdell’s defense based solely on the weight of the evidence
against her. Accordingly, we find this claim without merit.

                                            38
   H. Correction of the Abstract to Reflect the Trial Court’s Oral Pronouncement
       Dowdell contends her sentence on Count Four must be stayed under section 654.
At sentencing, the trial court pronounced the sentence on Count Four stayed under
section 654, but the abstract of judgment incorrectly indicates the sentence is to be served
concurrently with the sentence on Count One. The Attorney General concedes the error.
       We accept the Attorney General’s concession. “An abstract of judgment is not the
judgment of conviction; it does not control if different from the trial court’s oral
judgment and may not add to or modify the judgment it purports to digest or summarize.”
(People v. Mitchell (2001) 26 Cal.4th 181, 185.) Accordingly, we will order the abstract
corrected.
                                      III.    DISPOSITION
       As to Lincoln, the sentence of life in prison with the possibility of parole for Count
Two is stayed, and the conviction for carjacking on Count Three is stricken. As to
Dowdell, the trial court shall correct the abstract of judgment to reflect that the trial court
stayed the sentence on Count Four. The corrected abstract shall be forwarded to the
Department of Corrections and Rehabilitation. As modified, both judgments are
affirmed.

                                                   _________________________
                                                   MÁRQUEZ, J.

We concur:


_________________________
RUSHING, P.J.


_________________________
PREMO, J.




                                              39
Trial Court:                             Santa Clara County
                                         Superior Court Nos.: EE907147,
                                         CC501296 and CC754220

Trial Judge:                             The Honorable Paul R. Bernal



Attorney for Defendant and Appellant     Eric Weaver
Brittany Kim Dowdell:                    under appointment by the Court of
                                         Appeal for Appellant

Attorney for Defendant and Appellant     Jonathan E. Berger
Terrance Ray Lincoln:                    under appointment by the Court of
                                         Appeal for Appellant




Attorneys for Plaintiff and Respondent   Kamala D. Harris,
The People:                              Attorney General

                                         Dane R. Gillette,
                                         Chief Assistant Attorney General

                                         Gerald A. Engler,
                                         Senior Assistant Attorney General

                                         Jeffrey M. Laurence,
                                         Supervising Deputy Attorney General

                                         Alisha M. Carlile,
                                         Deputy Attorney General



People v. Dowdell, et al.
H037404
