Filed 4/28/15 P. v. Armstrong CA3
                                           NOT TO BE PUBLISHED
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 This opinion has not been certified for publication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
                                      THIRD APPELLATE DISTRICT
                                                     (Sacramento)
                                                            ----




THE PEOPLE,                                                                                  C068330

                   Plaintiff and Respondent,                                     (Super. Ct. No. 09F05757)

         v.

MICHAEL LEE ARMSTRONG et al.,

                   Defendants and Appellants.




         After his cousin told him she had been raped, defendant Phillip Gonzales, with
defendant Michael Armstrong and others, went to confront the alleged rapist. Gonzales
started a fight and then Armstrong fired a handgun several times, killing Everett Taylor
and Deshawn Holloway. Separate juries found Gonzales and Armstrong each guilty of
two counts of second degree murder. (Pen. Code, §§ 187, 189.)1 The respective juries




1   Further undesignated statutory references are to the Penal Code.

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found firearm enhancements true as to Gonzales (§ 12022, subd. (a)(1)) and Armstrong
(§ 12022.53, subd. (d)). The trial court sentenced Gonzales to 31 years to life in prison
and Armstrong to 55 years to life. Both timely appealed.
         On appeal, Gonzales raises several challenges relating to the natural and probable
consequences doctrine and sentencing, and contends the trial court erred in denying his
petition for access to juror information. Armstrong contends his confession was
involuntary and his sentence was unlawful. We agree with only Armstrong’s second
contention. The trial court erred in running one of the firearm enhancements concurrent;
under section 12022.53, the enhancement must be run consecutive if the sentences on the
underlying murders are run consecutive (as they were in this case.) We remand for
resentencing as to Armstrong. Otherwise, we affirm.
                                           FACTS
         The Parties
         Defendant Gonzales lived on Milford Avenue with his girlfriend Ashley
Armstrong. Defendant Armstrong, Ashley’s brother, also lived there with his girlfriend.
Gonzales had two younger brothers, Jason and Anthony. Priscilla Ramirez, who was 19
years old, was Gonzales’s cousin. She had three sisters--Angelica, Theresa, and Jessica.
Jessica lived at the Seavey Circle housing complex, which was known as the projects.
         Ramirez was in an intimate relationship with Everett Taylor, who lived at the
complex on Seavey Circle. Taylor’s friend Holloway also lived there. Taylor also was in
a relationship with Veronica Clewis; some called her his “project wife.” Ramirez and
Clewis were jealous of each other over Taylor. After the shooting, Ryan Walters, a
childhood friend who was staying with Taylor, told the police Taylor had been “really
dealing” with Ramirez lately. Walters described Taylor’s love life as “ ‘a hundred
bitches.’ ” At one point, Ramirez and Clewis got in a fight over Taylor. Taylor came
out to the fight; he took the side of Clewis and told Ramirez to “get lost.” Ramirez was
angry.

                                              2
          The Shooting
          On July 21, 2009, there was a birthday party for Ramirez’s sister Theresa.
Ramirez was there; she had a black eye from a fight with another girl. Taylor attended
the party and talked with Ramirez. Taylor left the party with Ramirez’s sister Jessica.
That night Ramirez sent Taylor the following text messages.
          “8:26 p.m.: ‘Thats what I fuckin thought everett. Obviously u fuckin wit her its
SO GOOD. BYE. *PRI$CILLA.’
          “8:27 p.m.: ‘Bye dude thats it BYE. 4REALS. *PRI$CILLA.’
          “8:41 p.m.: ‘You didnt even cum back that says it all Evette [sic]. Huh?
*PRI$CILLA.’
          “8: 44 p.m.: ‘N i thought u was cumn home with me. So u was lyn to me?
*PRI$CILLA.’ ”
          Taylor did not respond to any of these messages.
          That day was also Gonzales’s birthday and he had a party. Ramirez called him
and said she had been raped.2 Gonzales called his brothers; Anthony answered and
Gonzales asked for Jason. Gonzales asked Jason to meet him at their grandfather’s.3
Gonzales said something about not talking on the phone. Jason left, taking Anthony’s
car. On his way there, Jason saw Gonzales at a Shell gas station and stopped.
Surveillance video from the gas station showed Gonzales approaching Jason’s car,
leaning in towards the driver, and then putting something in his pocket. Jason claimed
the meeting was coincidental and he gave Gonzales a bag of marijuana for his birthday.
Neither Gonzales nor Jason mentioned this stop at the gas station in their statements to
police.



2   There was no evidence that Ramirez had been raped. The parties agreed it was a lie.
3   Jason testified under a grant of use immunity.

                                               3
       At their grandfather’s, Jason got in Gonzales’s SUV. Armstrong was in the front
passenger seat, and Ramirez was in the back. She was crying, smelled like alcohol, and
had a black eye. They drove to Seavey Circle. According to Jason, Armstrong asked
what they were going to do, but Gonzales did not answer. Jason told the police, however,
that Gonzales responded they were going to knock on the door “and see.” As they pulled
into the parking lot, Ramirez pointed to Taylor and said, “ ‘That’s him.’ ”
       Walters was out front with Taylor and Holloway. Gonzales and Armstrong
approached them and asked, “ ‘Who’s E [Everett]?’ ” Gonzales grabbed Taylor and
Walters hit Gonzales. Armstrong pulled out a gun. Walters, Taylor, and Holloway began
running and heard shots. After the third shot, Holloway said he was hit. Gonzales’s
SUV sped off.
       Holloway died at the scene. He had been shot twice in the back. The fatal shot hit
his left lung and subclavian vein. Taylor was taken to the hospital. He had been shot
three times. He died from a gunshot wound to the back of his head. Immediately after
the shooting, as they fled the scene, Armstrong blurted out (referencing Holloway):
“ ‘[O]ooh, did you see that guy’s back?’ ”
       After the shooting, Ramirez said, “ ‘Nobody say shit. That’s how people get
caught.’ ” She broke her cell phone and had Jason throw it out the window. Both Jason
and the police saw several pictures of Taylor at Ramirez’s. To Jason it looked like a
memorial to Taylor--the man who Ramirez claimed had raped her. At that point, Jason
thought Ramirez had taken advantage of him.
       Defendants’ Statements
       About a week after the shooting, the police saw Gonzales and stopped him; they
asked him to come to the office. Detective Keller interviewed Gonzales and a tape of the
interview was played to Gonzales’s jury.
       The interview began with Keller asking about Gonzales’s distinctive “candy
purple” SUV and what had happened to it. Gonzales claimed he had sold it to “Juan.”

                                             4
Defendant was read his Miranda4 rights and Keller said he wanted to talk about the
murder. At first, Gonzales said he did not know anything. Later, Gonzales said he did
not pull the trigger; he just drove. Armstrong did the shooting.
        Gonzales said Ramirez called, crying. She said she needed help; it was an
emergency. He and Armstrong went to her. She said she had been raped. Gonzales was
going to fight the victims. Gonzales asked who was “E” and then Gonzales pushed
Taylor and they began fighting. After two punches, Armstrong began shooting.
        When they picked up Ramirez, she was very emotional. She said Taylor had
raped her twice and beaten her. She asked them to take her to Seavey Circle where her
sister lived. When they pulled up, Ramirez identified Taylor, saying “ ‘that’s him.’ ”
        Gonzales admitted he planned on fighting Taylor when he confronted the group of
men at Seavey Circle. He claimed he did not know the shooting would happen and it
“wasn’t supposed to happen.” He had seen Armstrong with a gun before; he always
carried a gun. Gonzales claimed he did not know Armstrong had a gun that night, but
Armstrong had a gun most of the time because he had a lot of problems. When Keller
asked if Armstrong would shoot at the police, Gonzales responded, “He’s unpredictable
and I don’t know him anymore.”
        Gonzales’s mother and stepfather testified before his jury. They confirmed that he
had told them about Ramirez’s call and her claim that she had been raped. Ramirez
wanted someone beat up. Gonzales and Armstrong took Ramirez with them to point out
“E.” They planned to beat him up. The shooting began as soon as Gonzales threw a
punch. Gonzales denied he knew Armstrong had a gun. Gonzales was crying when he
talked about the shooting.




4   Miranda v. Arizona (1966) 384 U.S. 436 [16 L.Ed.2d 694].

                                             5
       Detective Keller also interviewed Armstrong. A tape of this interview was played
to Armstrong’s jury.
       Armstrong described three different versions of the events surrounding the
shooting. In the first, he stayed in the car while Gonzales and Jason got out. In the
second version, Armstrong said he got out of the car only to break up the fight after it had
started; he then got punched. Gonzales was the gunman and Armstrong went to back him
up. In the final version, Armstrong said he had a gun that Gonzales had given him. The
man he was fighting tried to reach in Armstrong’s pocket, so Armstrong pulled out the
gun and it went off. Armstrong shot at the ground, trying to scare him. Armstrong
claimed the shots were all accidental; he was afraid for his life and the other guy was
grabbing for the gun. Armstrong claimed Gonzales had several guns, but he could not
afford a gun. He explained the guns in pictures on his MySpace page were not his, but
belonged to Gonzales.5
       Armstrong said that Ramirez said she had been raped twice and wanted them to
“ ‘get that mother fucker’ ” and “ ‘fuck him up.’ ” She told Gonzales that if his father
were there, her attacker would be dead. Armstrong quoted Ramirez as saying, “ ‘I want
you to shoot him in the dick. Blow his dick off so he don’t use it no more.’ ” Armstrong
reported that Gonzales called his brother Jason and asked him to bring the “thing” in the
garage. Jason handed Gonzales something at the gas station and Gonzales put it in his
shirt. Armstrong said it was a gun wrapped in a shirt. Later, he said the gun was in a gun
case. He also said he thought the thing exchanged might be marijuana because the car




5 Gonzales’s brother Anthony assisted the police in accessing Armstrong’s MySpace
page, which contained a picture of a rifle and a handgun; no one was holding them.
Anthony, who did not like Armstrong, had once seen Armstrong with a gun and told the
police that Armstrong did not like to leave the house without a gun.

                                             6
smelled like it. After this interview, the police obtained the surveillance video from the
gas station.
                                      DISCUSSION
                                             I
                                  Gonzales’s Contentions
       A. Sufficiency of the Evidence
       As to Gonzales, the case was tried on the theory that the shooting was the natural
and probable consequence of the assault on Taylor, and Gonzales either conspired with
Armstrong to commit that assault or aided and abetted that assault. Gonzales contends
there is insufficient evidence that the shooting was a natural and probable consequence of
the planned assault. He asserts there is no evidence that he intended that Armstrong use a
firearm or encouraged him to do so, so his intended crime was only simple assault. He
distinguishes cases that have found a killing the natural and probable consequence of a
simple assault because those were gang cases. Unlike the gang context, with its inherent
violence and animosity between rival gang members, Gonzales contends here it was not
reasonably foreseeable that Armstrong would pull out a gun and shoot two unarmed,
fleeing men.
               1. The Law
       “ ‘ “A person who knowingly aids and abets criminal conduct is guilty of not only
the intended crime [target offense] but also of any other crime the perpetrator actually
commits [nontarget offense] that is a natural and probable consequence of the intended
crime.” ’ [Citations.] ‘Thus, for example, if a person aids and abets only an intended
assault, but a murder results, that person may be guilty of that murder, even if
unintended, if it is a natural and probable consequence of the intended assault.’
[Citation.]
       “A nontarget offense is a ‘natural and probable consequence’ of the target offense
if, judged objectively, the additional offense was reasonably foreseeable. [Citation.] The

                                             7
inquiry does not depend on whether the aider and abettor actually foresaw the nontarget
offense. [Citation.] Rather, liability ‘ “is measured by whether a reasonable person in the
defendant’s position would have or should have known that the charged offense was a
reasonably foreseeable consequence of the act aided and abetted.” ’ [Citation.]
Reasonable foreseeability ‘is a factual issue to be resolved by the jury.’ [Citation.]”
(People v. Chiu (2014) 59 Cal.4th 155, 161-162.)
       The natural and probable consequences doctrine is also applied in cases involving
the liability of conspirators for substantive crimes committed in the course of a
conspiracy. (People v. Prieto (2003) 30 Cal.4th 226, 249-250; People v. Hardy (1992)
2 Cal.4th 86, 188.)
       The specific acts need not be foreseeable, only the resulting harm. “ ‘The
consequence need not have been a strong probability; a possible consequence that might
reasonably have been contemplated is enough. . . . The precise consequence need not
have been foreseen; it is enough that the defendant should have foreseen the possibility of
some harm of the kind that might result from his act. [Citations.]’ [Citation.]”
(People v. Fiu (2008) 165 Cal.App.4th 360, 373-374.)
       “Murder . . . is not the ‘natural and probable consequence’ of ‘trivial’ activities.
To trigger application of the ‘natural and probable consequences’ doctrine, there must be
a close connection between the target crime aided and abetted and the offense actually
committed.” (People v. Prettyman (1996) 14 Cal.4th 248, 269.) Murder can be the
natural and probable consequence of simple assault. (People v. Gonzales and Soliz
(2011) 52 Cal.4th 254, 300 [rejecting contention that simple assault cannot, as a matter of
law, serve as the target offense for murder liability under the natural and probable
consequences doctrine]; People v. Caesar (2008) 167 Cal.App.4th 1050, 1056 [assault
and battery following traffic accident, non-gang context], disapproved on other grounds
in People v. Superior Court (Sparks) (2010) 48 Cal.4th 1, 18; People v. Montes (1999)



                                              8
74 Cal.App.4th 1050, 1054-1055 [simple assault and breach of peace not trivial in gang
context].)
         The standard of review for determining the sufficiency of the evidence is well
settled. “[T]he court must review the whole record in the light most favorable to the
judgment to determine whether it discloses substantial evidence--that is, evidence that is
reasonable, credible, and of solid value--such that a reasonable trier of fact could find the
defendant guilty beyond a reasonable doubt.” (People v. Johnson (1980) 26 Cal.3d 557,
578; see also Jackson v. Virginia (1979) 443 U.S. 307, 317-320 [61 L.Ed.2d 560, 572-
574].)
               2. Analysis
         There was evidence from which the jury could conclude that when Gonzales
brought Armstrong to the confrontation with Taylor, it was reasonably foreseeable
Armstrong would use a gun. The situation was emotionally charged. Ramirez, who was
crying and had a black eye, claimed she had been raped and beaten. She wanted revenge;
she wanted her assailant beaten. Gonzales intended to do her bidding and beat up Taylor.
He took both Armstrong and Jason with him. Armstrong was eager to participate, asking
what to do when someone answered the door. Gonzales intended violence and harm to
Taylor.
         Gonzales had good reason to know that Armstrong had a gun with him. Gonzales
told Detective Keller that he had seen Armstrong with a gun. Indeed, Gonzales said
Armstrong “always has a gun.” Armstrong carried a gun most of the time because “he
has a lot of problems.” Gonzales’s brother Anthony told the police Armstrong did not
like to leave the house without a gun. Anthony had seen Armstrong with a gun. Jason
had also seen Armstrong with a gun, showing it to a friend. Armstrong’s MySpace page
had a picture of guns.
         That Armstrong might use the gun was reasonably foreseeable. The purpose of
the trip to Taylor’s was vengeance. Gonzales described Armstrong as “unpredictable.”

                                              9
He knew Armstrong had been to jail. Armstrong was eager to be involved in the plan for
revenge and his character was shown by his gloating after the shooting; “ ‘Oooh, did you
see his back?’ ”
       Substantial evidence supports Gonzales’s murder conviction.
       B. Instructional Error
       Gonzales contends the trial court erred in instructing on the natural and probable
consequences doctrine. He asserts the court’s instruction told the jury that Gonzales
could be guilty only of the same crime as Armstrong. Relying on People v. Woods
(1992) 8 Cal.App.4th 1570, Gonzales contends the jury should have been instructed that
he could be guilty of a lesser crime than the actual perpetrator. “[I]n determining aider
and abettor liability for crimes of the perpetrator beyond the act originally contemplated,
the jury must be permitted to consider uncharged, necessarily included offenses where
the facts would support a determination that the greater crime was not a reasonably
foreseeable consequence but the lesser offense was such a consequence.” (Id. at p. 1588.)
Gonzales contends the effect of the instructional error was to render the lesser offense of
voluntary manslaughter unavailable to him.
              1. The Instructions
       The People requested a change to the CALCRIM pattern instructions on the
natural and probable consequences doctrine. The People’s concern was that a layman
would interpret “probable” to mean a 51 percent or greater chance of happening. The
People requested to change the instruction to substitute “reasonable foreseeability” for
“probable.” The trial court denied the request. During closing argument, counsel for
Gonzales argued that “[a] lot of people think natural and probable means greater and
lesser. A lot of people think 51 percent, or something like that. Probable means it’s
going to happen. It’s more likely to happen.” The People objected, arguing that defense
counsel had incorrectly “equate[d] the term natural and probable consequence to [] proof
by 51 percent” as had originally been the prosecutor’s concern, and his reason for asking

                                             10
for the substitution in the instruction of the word probable. The trial court found the
point “well taken” and later agreed to add additional language to the pattern instructions,
italicized below.
       The trial court instructed Gonzales’s jury as to the natural and probable
consequences doctrine as it applies to aiding and abetting, by modifying the language of
CALCRIM No. 403 as follows:
       “Before you may decide whether the defendant is guilty of murder or
manslaughter, you must decide whether he is guilty of assault with a firearm or simple
assault.
       “To prove that the defendant is guilty of murder or manslaughter, the People must
prove that:
              “1. The defendant is guilty of assault with a firearm or simple assault;
              “2. During the commission of assault with a firearm or simple assault a co-
participant in that assault with a firearm or simple assault committed the crime of murder
or manslaughter;
              “AND
              “3. Under all of the circumstances, a reasonable person in the defendant’s
position would have known that the commission of the murder or manslaughter was a
natural and probable consequence of the commission of the assault with a firearm or
simple assault.
       “A co-participant in a crime is the perpetrator or anyone who aided and abetted
the perpetrator. It does not include a victim or innocent bystander.
       “A natural and probable consequence is one that a reasonable person would know
is likely to happen if nothing unusual intervenes. The law does not fix a percentage of
certainty to the term ‘natural and probable consequences.’ The question is not whether
the aider and abettor or co-conspirator actually foresaw the additional crime, but
whether, judged objectively, it was reasonably foreseeable. In deciding whether a

                                             11
consequence is natural and probable, consider all of the circumstances established by the
evidence. If the murder or manslaughter was committed for a reason independent of the
common plan to commit the assault with a firearm or simple assault, then the commission
of murder or manslaughter was not a natural and probable consequence of assault with a
firearm or simple assault.
       “To decide whether the crime of murder or manslaughter was committed, please
refer to the separate instructions that I will give you on those crimes.
       “The People are alleging that the defendant originally intended to aid and abet
assault with a firearm or simple assault.
       “If you decide that the defendant aided and abetted one of these crimes and that
murder or manslaughter was a natural and probable consequence of that crime, the
defendant is guilty of murder or manslaughter. You do not need to agree about which of
these crimes the defendant aided and abetted.” (First italics in original, last italics
added.)
       The trial court instructed Gonzales’s jury as to the natural and probable
consequences doctrine as it applies to conspiracy, by modifying the language of
CALCRIM No. 417 as follows:
       “A member of a conspiracy is criminally responsible for the crimes that he
conspires to commit, no matter which member of the conspiracy commits the crime.
       “A member of a conspiracy is also criminally responsible for any act of any
member of the conspiracy if that act is done to further the conspiracy and that act is a
natural and probable consequence of the common plan or design of the conspiracy. This
rule applies even if the act was not intended as part of the original plan. Under this rule,
a defendant who is a member of the conspiracy does not need to be present at the time of
the act.
       “A natural and probable consequence is one that a reasonable person would know
is likely to happen if nothing unusual intervenes. The law does not fix a percentage of

                                              12
certainty to the term ‘natural and probable consequences.’ The question is not whether
the aider and abettor or co-conspirator actually foresaw the additional crime, but
whether, judged objectively, it was reasonably foreseeable. In deciding whether a
consequence is natural and probable, consider all of the circumstances established by the
evidence.
       “A member of a conspiracy is not criminally responsible for the act of another
member if that act does not further the common plan or is not a natural and probable
consequence of the common plan.
       “To prove that the defendant is guilty of the crime murder charged in Counts 1 and
2, or of the lesser crime of manslaughter, the People must prove that:
               “1. The defendant conspired to commit one of the following crimes:
assault with a firearm or simple assault;
               “2. A member of the conspiracy committed murder or manslaughter to
further the conspiracy;
               “AND
               “3. Murder or manslaughter were natural and probable consequences of the
common plan or design of the crime that the defendant conspired to commit.” (First
italics in original, last italics added.)
               2. Analysis
       First, we reject Gonzales’s argument that the jury was told it had to convict him of
the same crime as Armstrong, rather than a lesser crime. The instructions consistently
provided the alternative--“murder or manslaughter”--both as to the crime committed and
the crime that was reasonably foreseeable. The instructions focused on determining
which crime was the natural and probable consequence or reasonably foreseeable.
Nothing in the instructions expressly told the jury the crimes Gonzales and Armstrong
committed had to be the same. The Gonzales jury was instructed on both crimes. This is
not a case like Woods, where the jury questioned whether it could convict the defendant

                                            13
of a lesser crime and was expressly told it could not convict the aider and abettor of
second degree murder if the perpetrator was guilty of first degree murder. (People v.
Woods, supra, 8 Cal.App.4th at p. 1579.) Here, the jury did not ask about the natural and
probable consequences doctrine and nothing indicates the jury considered manslaughter
for Gonzales, but believed it could not convict him of that crime if they believed
Armstrong committed murder.
       “A defendant challenging an instruction as being subject to erroneous
interpretation by the jury must demonstrate a reasonable likelihood that the jury
understood the instruction in the way asserted by the defendant. [Citations.]” (People v.
Cross (2008) 45 Cal.4th 58, 67-68.) Gonzales has failed to carry that burden.
       Second, the evidence does not support a finding of manslaughter, so any error in
failing to specifically instruct the jury that it could convict Gonzales of a lesser crime
than Armstrong was harmless. Gonzales contends manslaughter was reasonably
foreseeable due to the heat of passion caused by Ramirez’s inflammatory charge of rape.
We disagree, based on the particular facts of this case, because the evidence does not
show either Gonzales or Armstrong acted under the heat of passion.
       “Heat of passion arises if, ‘ “at the time of the killing, the reason of the accused
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 deliberation and
reflection, and from such passion rather than from judgment.” ’ [Citation.] Heat of
passion, then, is a state of mind caused by legally sufficient provocation that causes a
person to act, not out of rational thought but out of unconsidered reaction to the
provocation.” (People v. Beltran (2013) 56 Cal.4th 935, 942.) No specific type of
provocation is required, but it cannot be revenge. (People v. Breverman (1998)
19 Cal.4th 142, 163.) “[T]he killing must be ‘upon a sudden quarrel or heat of passion’
[citation]; that is, ‘suddenly as a response to the provocation, and not belatedly as revenge
or punishment. Hence, the rule is that, if sufficient time has elapsed for the passions of

                                              14
an ordinarily reasonable person to cool, the killing is murder, not manslaughter.’ ”
(People v. Daniels (1991) 52 Cal.3d 815, 868.)
       There certainly may be circumstances where a claim of rape is sufficient
provocation to make a heat of passion killing foreseeable. Here, however, the evidence
of events before the shooting does not support a finding that a killing due to heat of
passion was foreseeable. There was no evidence that either Gonzales or Armstrong was
acting under a heat of passion. While Ramirez was Gonzales’s cousin, there was no
evidence they were close. Ramirez was seven years younger and Gonzales did not spend
significant time with her. Ramirez did not often attend family events with Gonzales and
his family. Ramirez made a potentially highly inflammatory accusation of rape, but there
is no evidence that Gonzales and Armstrong acted rashly in immediate response. It was
Ramirez who demanded that her alleged assailant be beaten; Gonzales and Armstrong
merely complied. The impetus for action came from Ramirez, not from the aroused
passion of Gonzales and Armstrong.
       Rather than a sudden response to the claim of rape, Gonzales engaged in planning
activity; he took time to assemble backup, both Armstrong (who was with him) and his
brother Jason (who had to be awoken). Then, Gonzales stopped at a gas station--whether
simply to get gas which coincided with a chance meeting with Jason, as the defense
claimed, or as a prearranged rendezvous to collect something (a gun) from Jason, as the
prosecution claimed. Nothing on the surveillance video--where Gonzales goes to the
cashier, pumps gas, and meets with his brother--suggests his reason was obscured by
passion. Jason did not describe either Gonzales or Armstrong as inflamed. Indeed,
according to Jason’s version of events, the situation was calm enough that he gave
Gonzales a birthday present at the gas station. The actions of Gonzales and Armstrong
indicated they sought revenge for the alleged rape of Ramirez, not that they acted rashly
in response to hearing of the alleged rape. Since the evidence does not support a finding



                                             15
that manslaughter was the natural and probable consequence of the assault, any error in
the instruction on this point is harmless.
       C. Prosecutorial Misconduct
       Gonzales contends the prosecutor committed misconduct in closing argument and
his counsel was ineffective in failing to object. He contends the prosecutor argued to the
jury that any consequence that was not “freakish,” such as lightening striking the victim,
or “bizarre,” such as Armstrong shooting a stranger to the confrontation based on
personal animus, was a natural and probable consequence. Gonzales contends this
argument was misconduct because it “erroneously conveyed that there was no middle
ground between a natural and probable consequence and a freakish or bizarre
consequence.”
              1. Background
       A major issue in Gonzales’s case was the application of the natural and probable
consequences doctrine, whether the killings were the natural and probable consequence
of the assault. As discussed, there was discussion and disagreement as to how likely the
consequence had to be to qualify as a natural and probable consequence.
       In discussing the natural and probable consequences doctrine in closing argument,
the People began by quoting from the jury instruction. “A natural and probable
consequence is one that a reasonable person would know is likely to happen if nothing
unusual intervenes.” The prosecutor then gave hypotheticals to show what would not be
a natural and probable consequence. The first was that Gonzales pushed Taylor and
Taylor was struck by lightning and died. “That is not a natural and probable consequence
of this beatdown. That is just a freakish occurrence.” The second hypothetical was that
Gonzales and Armstrong go to assault Taylor, and when they arrive, Armstrong sees
someone he has hated since high school and takes the opportunity to shoot him. “That is
not a natural and probable consequence. No reasonable person in the shoes of Phillip
Gonzales could have anticipated that something as bizarre as that could have happened.”

                                             16
       The prosecutor then discussed the facts of the case, concluding that Gonzales and
Armstrong approached three men on their turf in the projects with “an equalizer,” a gun.
“So the question before you then, ladies and gentlemen, is, is it a natural and probable
consequence of a beatdown that somebody will get shot when you know the person
you’re with has got a gun. That’s not a freakish occurrence. That is something that any
reasonable person would know is a likely occurrence. Any reasonable person would
know that could happen. [¶] And think about this: What in fact happened. Phillip
Gonzales begins using physical force, Everett Taylor’s friend tried to help. Is that
reasonably foreseeable under the circumstances? Of course it is. Natural and probable
consequence. Anybody would understand that friends would come to friends who were
being attacked. And under those circumstances Michael Armstrong would whip out that
gun and start to use it, that’s not a freakish occurrence. That is not freakish at all. It’s a
natural and probable consequence of that behavior.”
       There was no objection to this argument.
              2. The Law and Analysis
        “For a criminal act to be a ‘reasonably foreseeable’ or a ‘natural and probable’
consequence of another criminal design it is not necessary that the collateral act be
specifically planned or agreed upon, nor even that it be substantially certain to result from
the commission of the planned act. For example, murder is generally found to be a
reasonably foreseeable result of a plan to commit robbery and/or burglary despite its
contingent and less than certain potential. [Citations.]” (People v. Nguyen (1993)
21 Cal.App.4th 518, 530-531.) The question has been phrased as “whether the collateral
criminal act was the ordinary and probable effect of the common design or was a fresh
and independent product of the mind of one of the participants, outside of, or foreign to,
the common design.” (Id. at p. 531; see People v. Luparello (1986) 187 Cal.App.3d 410,
444.) There is no set degree of certainty necessary for finding a natural and probable
consequence. (See United States v. Powell (D.C. Cir. 1991) 929 F.2d 724, 726

                                              17
[describing a “natural and probable consequence” as covering a broad range from
substantial probability of occurrence (e.g., 20 percent chance) to practical certainty,
dependent on the circumstances].)
       It is misconduct for the prosecutor to misstate the applicable law. (People v.
Boyette (2002) 29 Cal.4th 381, 435) When the issue of alleged prosecutorial misconduct
“ ‘focuses on 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.’ [Citations.]” (People v. Cole (2004) 33 Cal.4th
1158, 1202-1203.)
       It is unlikely the jury understood the People’s argument to set forth a different
standard for a natural and probable consequence than “one that a reasonable person
would know is likely to happen if nothing unusual intervenes.” While the prosecutor
used the terms “freakish” and “bizarre” in discussing what was not a natural and probable
consequence, he told the jury the judge would instruct on the law and quoted from the
jury instruction. In rebuttal, the prosecutor argued this case was not the usual fistfight;
instead, there was a car full of young men and an angry woman seeking vengeance for a
rape, and Gonzales knew one man was armed. In that circumstance, the shooting was
reasonably foreseeable.
       Further, the court instructed the jury: “You must follow the law as I explain it to
you, even if you disagree with it. If you believe that the attorneys’ comments on the law
conflict with my instructions, you must follow my instructions.” As discussed ante, the
jury was correctly instructed on the natural and probable consequences doctrine. We
presume the jury followed the trial court’s instructions and nothing in the record shows
otherwise; therefore, we conclude the jury followed the trial court’s instructions and
applied the correct standard for the natural and probable consequences doctrine.
(People v. Mickey (1991) 54 Cal.3d 612, 689, fn. 17.) Any error in the prosecution’s
closing argument was thus harmless and Gonzales has failed to establish his counsel’s

                                             18
representation fell below an objective standard of reasonableness by failing to object, or
to demonstrate prejudice. (See People v. Davis (1995) 10 Cal.4th 463, 516.)
       D. Denial of Request for Juror Information
       Gonzales contends the trial court erred in denying his petition pursuant to Code of
Civil Procedure section 237 for juror identifying information. He contends he made an
adequate showing of good cause because he presented evidence that a juror in his case
had learned Armstrong had told the police Ramirez told Gonzales and Armstrong to
shoot Taylor. Gonzales argues denial of the petition prevented him from developing a
motion for a new trial based on juror misconduct.
              1. Background
       After the jury reached its verdicts, Gonzales, represented by new counsel,
petitioned the court for access to personal juror identification information. Gonzales
asserted the information was needed to determine whether there were grounds for a new
trial due to (1) the verdict being decided “ ‘by any means other than a fair expression of
opinion on the part of all the jurors,’ ” or (2) juror misconduct. Gonzales claimed his jury
knew of information that was presented only to Armstrong’s jury and that undermined his
defense.
       The petition’s main claim of juror misconduct was based on the declaration of
Gonzales’s aunt Dolores Gutierrez about an overheard conversation among jurors. The
day the case went to the jury, the Sacramento Bee published an article about the case.6
The article stated the prosecutor said Ramirez sent Gonzales and Armstrong off with
specific instructions to shoot Taylor in the penis “ ‘so he don’t use it no more.’ ”
Gutierrez stated that when she left the courtroom after the verdict, she overheard several



6 Gonzales’s counsel expressed concern to the court about this article. Counsel decided
the appropriate step was to re-admonish the jurors to avoid media coverage. The trial
court did so.

                                             19
jurors talking in the parking lot where she was parked. “They also talked about there
being no testimony in the trial about shooting one of the victims in the genitals as was
said in the Bee.” Gonzales claimed his jury used this information in deliberations and it
came from either reading the Bee article or talking to the Armstrong jury.
       Gonzales contended there was other evidence that the two juries spoke with each
other, despite the court’s admonition not to. The day after the verdicts, the Bee published
another article about the case. In a comment to the Internet version of the article, the
commenter identified himself as a juror in the Armstrong case and stated the non-shooter
(Gonzales) was charged with only second degree murder, a fact the Armstrong jury had
not been told. Gonzales contended the comment suggests communication between the
two juries.
       The court denied the petition, finding no good cause. There was only speculation
based on an overheard conversation in a parking lot.
              2. The Law
       After a jury verdict in a criminal case, the court's record of personal juror
identification information (names, addresses, and telephone numbers) is sealed. (Code
Civ. Proc., § 237, subd. (a)(2).) “Any person may petition the court for access to these
records. The petition shall be supported by a declaration that includes facts sufficient to
establish good cause for the release of the juror’s personal identifying information.” (Id.,
subd. (b).) On a petition filed by a defendant or his or her counsel, a trial court may in its
discretion grant access to such information when necessary to the development of a
motion for new trial or “any other lawful purpose.” (Code Civ. Proc., § 206, subd. (g).)




                                             20
       This court set forth the applicable test for good cause in People v. Rhodes (1989)
212 Cal.App.3d 541.7 The party seeking disclosure must make “a sufficient showing to
support a reasonable belief that jury misconduct occurred, that diligent efforts were made
to contact the juror[] through other means, and that further investigation is necessary to
provide the court with adequate information to rule on a motion for new trial.” (Id. at p.
552.) There is no good cause where allegations of jury misconduct are speculative,
vague, or conclusory. (People v. Wilson (1996) 43 Cal.App.4th 839, 852.)
       Trial courts have broad discretion to allow, limit, or deny access to jurors’
personal contact information (Townsel v. Superior Court (1999) 20 Cal.4th 1084, 1091),
and we review the denial of a petition filed pursuant to Code of Civil Procedure section
237 for an abuse of discretion (People v. Jones (1998) 17 Cal.4th 279, 317).
              3. Analysis
       The trial court did not abuse its discretion in denying the petition. Accusations of
misconduct coming from defendant’s relatives are viewed with suspicion as the source is
biased.8 (See People v. Granish (1996) 41 Cal.App.4th 1117, 1131.) Although Gutierrez
declared she was walking with a friend when she overheard the jurors, no declaration
from the friend was provided to corroborate Gutierrez. Further, as the People noted, it is
unlikely the jurors, who have access to a juror parking lot near the courthouse, were
walking through the parking lot where Gutierrez parked.9




7 Although Rhodes was decided before the revision of section 206 and the enactment of
section 237 of the Code of Civil Procedure, the Rhodes test remains applicable. (See
People v. Carrasco (2008) 163 Cal.App.4th 978, 990.)
8 During trial, Armstrong’s aunt was admonished to remain silent in the courtroom after
she was accused of remarking that a witness was lying.
9The People requested the court take judicial notice of the jury parking lot and that on
any given Friday, which is the day of the week this event allegedly occurred, the jury lot

                                             21
       Even giving full credit to Gutierrez’s declaration, the single line about the
conversation overheard in the parking lot provided only speculation that one or more of
the Gonzales jurors read the Sacramento Bee article describing Ramirez’s directive or
heard of it from an Armstrong juror before rendering a verdict. The statement was made
after the verdict was rendered. Gutierrez described a group of seven or eight jurors
talking, but it is unclear if all of them were jurors on Gonzales’s case; some may have
been jurors on Armstrong’s case. Or the jurors may have learned of the Bee article after
they left the courtroom. That the Armstrong juror who commented on the subsequent
Bee article knew Gonzales was charged with only second degree murder does not show
there was communication between the juries. That juror could have learned the fact of
Gonzales’s charge after the trial.
       E. Consecutive Sentences
       Gonzales contends the trial court abused its discretion in sentencing him to
consecutive sentences because the court relied on unreliable evidence in making its
decision.
              1. Background
       At sentencing, Gonzales argued for concurrent sentences, arguing the crimes and
their objectives were not independent, as the objective was to confront only one man.
The People argued for consecutive sentences, arguing that defendants confronted
multiple people and Gonzales knew Armstrong was armed. The People claimed the
“bottom line” was that Gonzales knew Armstrong was armed either because Armstrong
always was or because Gonzales gave him a gun that night. The trial court indicated it
had no question that Gonzales knew Armstrong was armed. A significant factor was that
Gonzales facilitated the arming. The court found Armstrong’s statement to that effect



is able to hold all the jurors’ cars as there are fewer jurors at the courthouse that day. The
record does not contain a ruling on the motion.

                                             22
credible. It found consecutive sentences appropriate. Gonzales objected to using facts
not admitted in his trial and the court responded sentencing factors were not limited to the
record of trial.
       About a month later, the trial court recalled sentence pursuant to section 1170,
subdivision (d). The order stated in part: “On July 7, 2011, this court imposed sentence
on two counts of second degree murder to run consecutively with each other. At the
time, this court concluded that defendant Gonzales had participated in providing the gun
to the shooter, which was a significant consideration in choosing to impose consecutive
sentencing. However, because the evidence on that issue was disputed and the question a
close one, the court desires to recall the sentence and set the matter for a resentencing
hearing, at which time the court will reconsider the specific question of whether
defendant Gonzales did in fact figure into putting the gun into the shooter’s possession.”
       At the hearing, the People relied on Armstrong’s statement and the video from the
Shell station. Defense counsel, who had substituted in after the trial, had nothing to offer
as he had not gone through the file. The trial court imposed the same sentence.
               2. The Law and Analysis
       “It is well established that a trial court has discretion to determine whether several
sentences are to run concurrently or consecutively. [Citations.] In the absence of a clear
showing of abuse, the trial court’s discretion in this respect is not to be disturbed on
appeal. [Citation.]” (People v. Bradford (1976) 17 Cal.3d 8, 20.)
       “Although not all the procedural safeguards required at trial also apply in a
sentencing or probation hearing, such a hearing violates due process if it is fundamentally
unfair. [Citation.] ‘Reliability of the information considered by the court is the key issue
in determining fundamental fairness’ in this context. [Citation.] A court’s reliance, in its
sentencing and probation decisions, on factually erroneous sentencing reports or other
incorrect or unreliable information can constitute a denial of due process.” (People v.
Eckley (2004) 123 Cal.App.4th 1072, 1080.) A sentencing court may consider a broad

                                             23
range of information, but fundamental fairness “requires that there be a substantial basis
for believing the information is reliable. [Citation.]” (People v. Lamb (1999)
76 Cal.App.4th 664, 683.)
         In finding that Gonzales participated in providing the gun, the trial court relied on
Armstrong’s statement to the police that Gonzales called Jason and told him to bring the
“thing” in the garage. Jason handed Gonzales something at the gas station and Gonzales
put it in his shirt. Armstrong later unwrapped the gun. While Armstrong’s credibility
was suspect as he gave varying versions of events, this story was corroborated by the
video from the gas station, video the police did not obtain until after Armstrong gave his
statement. Further, it is significant that neither Gonzales nor Jason mentioned the stop at
the gas station to the police. Finally, the story that Jason, after having been awoken and
asked to participate as backup, brought Gonzales a birthday present of marijuana and just
happened to see him at the gas station and stopped there to give it to him strains
credibility. The corroboration of Armstrong’s story provides a substantial basis for
believing it is true.
         The trial court did not abuse its discretion in sentencing Gonzales to consecutive
terms.
         F. Cruel and Unusual Punishment
         At sentencing, the trial court indicated regret that it had no option between 15 to
life and 30 to life plus the armed enhancement. Gonzales contends his counsel was
ineffective for failing to offer such an option by arguing Gonzales’s sentence was cruel or
unusual and should be reduced. He relies upon People v. Dillon (1983) 34 Cal.3d 44,
which provides that a statutory punishment violates the California prohibition against
cruel or unusual punishment if “it is grossly disproportionate to the offense for which it is
imposed.” (Id. at p. 478 & fn. 25.) He claims that a consideration of “ ‘the nature of the
offense and/or the offender, with particular regard to the degree of danger both present to



                                               24
society’ ” compels the conclusion that his sentence constitutes cruel or unusual
punishment. (Id. at p. 479.)
        “Article I, section 17 of the California Constitution prohibits infliction of ‘[c]ruel
or unusual punishment.’ A sentence may violate this prohibition if ‘ “it is so
disproportionate to the crime for which it is inflicted that it shocks the conscience and
offends fundamental notions of human dignity.” ’ [Citation.] [¶] . . . Defendant must
overcome a ‘considerable burden’ to show the sentence is disproportionate to his level of
culpability. [Citation.] Therefore, ‘[f]indings of disproportionality have occurred with
exquisite rarity in the case law.’ [Citation.]” (People v. Em (2009) 171 Cal.App.4th 964,
972.)
        “The judicial inquiry commences with great deference to the Legislature. Fixing
the penalty for crimes is the province of the Legislature, which is in the best position to
evaluate the gravity of different crimes and to make judgments among different
penological approaches. [Citations.] Only in the rarest of cases could a court declare that
the length of a sentence mandated by the Legislature is unconstitutionally excessive.
[Citations.]” (People v. Martinez (1999) 76 Cal.App.4th 489, 494.)
        “The main technique of analysis under California law is to consider the nature
both of the offense and of the offender. [Citation.] The nature of the offense is viewed
both in the abstract and in the totality of circumstances surrounding its actual
commission; the nature of the offender focuses on the particular person before the court,
the inquiry being whether the punishment is grossly disproportionate to the defendant's
individual culpability, as shown by such factors as age, prior criminality, personal
characteristics, and state of mind. [Citations.]” (People v. Martinez, supra,
76 Cal.App.4th at p. 494.)
        Gonzales argues the nature of his offense was less serious than the usual second
degree murder because he acted in the heat of passion and his guilt was “highly
attenuated” under the natural and probable consequences doctrine. Gonzales understates

                                              25
his culpability. As discussed ante, the evidence did not show that Gonzales acted under
the heat of passion. Rather, he instituted a violent, vigilante response to a false claim of
rape. The jury found Gonzales did not merely participate in an assault, but that he
engaged in criminal conduct that foreseeably resulted in the shooting death of two people.
Further, he knew the “unpredictable” Armstrong was armed, and may have provided the
weapon himself.
       As to the nature of the offender, Gonzales had, as the trial court noted, a number
of redeeming qualities. He was employed, having both a full-time and a part-time job,
and had bought a house. He had only a single conviction, for which he received
probation. While on probation, he reported regularly, suffered no violations, and had no
documented incidents while in jail. While these facts weigh in favor of Gonzales, they
are outweighed by the circumstances of his participation that establish his individual
culpability. Unlike the defendant in Dillon, Gonzales was not an immature minor, but an
adult and a father.
       We find no constitutional violation in the sentence of 31 years to life.
Accordingly, we reject Gonzales’s contention that counsel was ineffective in failing to
request a reduced sentence. “Counsel’s failure to make a futile or unmeritorious motion
or request is not ineffective assistance. [Citation.]” (People v. Szadziewicz (2008)
161 Cal.App.4th 823, 836.)
                                              II
                                 Armstrong’s Contentions
       A. Voluntariness of Armstrong’s Confession
       Armstrong contends his confession was involuntary and its admission violated the
Fifth and Fourteenth Amendments. He contends his confession was inadmissible for two
reasons. First, it was involuntary because it was obtained by an implied promise of
leniency--that if he talked to the police, he could avoid a multiple murder charge.



                                             26
Second, he contends the interrogation did not stop when he requested counsel. Instead,
Armstrong asserts he was tricked or cajoled into waiving his right to counsel.
              1. Background
       Armstrong went to the police voluntarily. There, he was interviewed by Detective
Keller. The interview was taped and a redacted version was played to Armstrong’s jury.
       At the beginning of the interview Keller read Armstrong his Miranda rights.
Armstrong said he was scared of Gonzales and just wanted to “tell my story.” Armstrong
then told a version of events in which he stayed in the car. Keller told him, “You did the
right thing by coming in, okay? ‘cuz otherwise, it was just gonna be no good for
anybody down the road. But to come in and not be 100% truthful, okay, is gonna put you
in a bad, bad spot.” Keller admonished Armstrong, “Don’t . . . play with me.” He told
him that witnesses had identified him as being out of the car. “So, if you’re gonna sit
here with this B.S., I’m just gonna book you into the county jail for murder. Two counts
of murder.” Armstrong then claimed he engaged in the fight only to break it up.
       Keller told Armstrong he had been identified as the shooter and Armstrong
replied, “I didn’t shoot nobody.” Keller explained that Armstrong had been identified as
the one who shot and killed two men and was going to be charged with double homicide.
He asked Armstrong to explain why he did it rather than “just sitting here saying I didn’t
do it, okay?” Armstrong said, “if you’re gonna accuse me of something, . . . I want to
talk to an attorney or a lawyer.” Keller said that was Armstrong’s choice. He would like
to talk to Armstrong some more, but if Armstrong wanted a lawyer, he could not.
Armstrong then said, “I want an attorney.” Keller responded, “Okay. We’ll book you
into county jail for double homicide.” Armstrong asked if he would go out right then.
Keller told Armstrong he would take him when he was ready and left the room.
       The videotape shows Armstrong pacing about the interview room. He said, “It’s
fucked, you know. Where’s this guy again? I want to talk to him. Yo, Detective?”
Armstrong knocked and called for Keller. Keller returned and told Armstrong to sit

                                            27
down. Armstrong began to tell him what happened that night, but Keller interrupted,
“Okay, you said you wanted an attorney earlier, so--” Armstrong said, “No, I don’t want
no attorney, you [] know what I’m saying?” Keller asked if Armstrong wanted to talk to
him; Armstrong responded “Yeah” and began to tell Keller what happened. Armstrong
admitted he was the only one that fired a gun.
        Armstrong moved to exclude his statement to Keller. He claimed his statements
were the product of the detective saying if Armstrong did not talk, he would be booked
for two homicides. He argued the clear message was that if Armstrong refused to talk, he
would be booked for murder, and the equal message was that if he did talk, there might
be no charge. Armstrong claimed he changed his story to conform to the detective’s
version only to avoid being charged. The motivation for the changed story came from the
detective’s implied promise, not from Armstrong.
        The trial court denied the motion, finding that Armstrong’s statements were the
product of his own volition, not coercion or police misconduct.
              2. The Law
        “The Fourteenth Amendment to the federal Constitution and article I, section 15,
of the state Constitution bar the prosecution from using a defendant’s involuntary
confession. [Citation.] [These provisions require] the prosecution to establish, by a
preponderance of the evidence, that a defendant’s confession was voluntary. . . . [¶]
Under both state and federal law, courts apply a ‘totality of circumstances’ test to
determine the voluntariness of a confession. . . . On appeal, the trial court’s findings as to
the circumstances surrounding the confession are upheld if supported by substantial
evidence, but the trial court’s finding as to the voluntariness of the confession is subject
to independent review. [Citations.] In determining whether a confession was voluntary,
‘[t]he question is whether defendant's choice to confess was not “essentially free”
because his will was overborne.’ [Citation.]” (People v. Massie (1998) 19 Cal.4th 550,
576.)

                                             28
       “It is well settled that a confession is involuntary and therefore inadmissible if it
was elicited by any promise of benefit or leniency whether express or implied.
[Citations.] However, 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
render a subsequent confession involuntary. . . . Thus, ‘[w]hen the benefit pointed out by
the police to a suspect is merely that which flows naturally from a truthful and honest
course of conduct,’ the subsequent statement will not be considered involuntarily made.
[Citation.] On the other hand, ‘if . . . the defendant is given to understand that he might
reasonably expect benefits in the nature of more lenient treatment at the hands of the
police, prosecution or court in consideration of making a statement, even a truthful one,
such motivation is deemed to render the statement involuntary and inadmissible. . . .’
[Citations.]” (People v. Jimenez (1978) 21 Cal.3d 595, 611-612, overruled on other
grounds in People v. Cahill (1993) 5 Cal.4th 478, 510, fn. 17.)
       “ ‘Once a suspect has been properly advised of his rights, he may be questioned
freely so long as the questioner does not threaten harm or falsely promise benefits.
Questioning may include exchanges of information, summaries of evidence, outline of
theories of events, confrontation with contradictory facts, even debate between police and
suspect. . . . Yet in carrying out their interrogations the police must avoid threats of
punishment for the suspect’s failure to admit or confess particular facts and must avoid
false promises of leniency as a reward for admission or confession. . . . [The police] are
authorized to interview suspects who have been advised of their rights, but they must
conduct the interview without the undue pressure that amounts to coercion and without
the dishonesty and trickery that amounts to false promise.’ [Citation.]” (People v.
Holloway (2004) 33 Cal.4th 96, 115.) The test is whether the police “cross[ed] the line
from proper exhortations to tell the truth into impermissible threats of punishment or
promises of leniency.” (Ibid.)



                                              29
       “[W]hen an accused has invoked his right to have counsel present during custodial
interrogation, a valid waiver of that right cannot be established by showing only that he
responded to further police-initiated custodial interrogation even if he has been advised of
his rights.” (Edwards v. Arizona (1981) 451 U.S. 477, 484 [68 L.Ed.2d 378, 386].)
When an accused has “expressed his desire to deal with the police only through counsel,”
he “is not subject to further interrogation by the authorities until counsel has been made
available to him, unless the accused himself initiates further communication, exchanges,
or conversations with the police.” (Id. at pp. 484-485.) The request for counsel must be
unequivocal. “[A]fter a knowing and voluntary waiver of the Miranda rights, law
enforcement officers may continue questioning until and unless the suspect clearly
requests an attorney.” (Davis v. United States. (1994) 512 U.S. 452, 461 [129 L.Ed.2d
362, 373].)
              3. Analysis
       Armstrong contends the interview contained implied promises of benefit or
leniency. He contends the interview contained the threat that if he did not talk he would
be charged with a double homicide. The implied promise was that if he did speak, he
could avoid those charges.
       Armstrong relies on People v. Cahill (1994) 22 Cal.App.4th 296. In Cahill, the
police officers urged the defendant to admit to a killing in order to show it was not
premeditated and thus not first degree murder. The interrogating officer told defendant,
“ ‘If I don’t hear from you why this happened, I’m going back to Sacramento and I'm
going to assume that this was a cold-blooded premeditated murder of this little lady.’ ”
He also told defendant “ ‘there’s all the difference in the world in planning to kill
somebody,’ ” versus “ ‘getting caught in the middle of a burglary and maybe getting into
a struggle or maybe even having some--the person that lives there attack you or
something and just one thing leads to another. It’s like night and day, you know.’ ” (Id.
at pp. 305-306.) The officers also misled the defendant as to the state of the law by

                                             30
telling him he would not face the death penalty if the killing was not premeditated and
providing a detailed but materially deceptive account of the law of murder by omitting
any reference to felony murder. The crime was committed during a burglary, so that an
admission to involvement in the crime amounted to a confession to felony murder. (Id. at
p. 315.) We found “the interrogation tactics amounted to a false promise,” but the error
in admitting defendant’s confession was harmless due to the strength of the evidence
against defendant. (Id. at p. 315; see also id. at pp. 318-319.)
       There was no such false promise or deception here. Keller consistently told
Armstrong he faced two counts of homicide or murder. He never promised or even
suggested that a lesser crime or penalty--or no charge at all--was available if only
defendant admitted some involvement in the crime. Rather, in seeking Armstrong’s
explanation of the shooting, Keller did no more than permissibly tell Armstrong it would
be better if he told the truth. (People v. Jimenez, supra, 21 Cal.3d at p. 611.) Unlike in
Cahill, Keller did not misrepresent the law of murder to get an admission from
Armstrong. Throughout the interview, Keller made it clear that Armstrong would be
booked on two counts of homicide based on the statements of witnesses identifying him
as the shooter. How quickly that happened depended on whether he wanted to tell Keller
what happened. (See United States v. Harris (S.D.Ala. 2009) 613 F.Supp.2d 1290, 1302
[exhortation to tell the truth because defendant was going to jail anyway not improper
coercion].)
       Armstrong next contends Keller did not immediately cease questioning when
Armstrong requested counsel. He argues Keller’s questions and statements were
“intrinsically duplicitous and designed to trick or cajole Mr. Armstrong into waiver of
counsel.”
       Armstrong has not preserved this contention for appeal because he did not raise an
invalid waiver of the right to counsel below. “A verdict or finding shall not be set aside,
nor shall the judgment or decision based thereon be reversed, by reason of the erroneous

                                             31
admission of evidence unless: [¶] (a) There appears of record an objection to or a
motion to exclude or to strike the evidence that was timely made and so stated as to make
clear the specific ground of the objection or motion . . . .” (Evid. Code, § 353.) The rule
requiring specificity applies to Miranda-based objections and motions to exclude.
(People v. Milner (1988) 45 Cal.3d 227, 236.)
       In any event, the contention fails. Armstrong first stated that if he were going to
be accused of something, he wanted a lawyer. A conditional request for a lawyer if
defendant is going to be charged is not a clear invocation of the right to counsel. (People
v. Gonzales (2005) 34 Cal.4th 1111, 1126; People v. Suff (2014) 58 Cal.4th 1013, 1068
[“ ‘if I’m being charged with this I think I need a lawyer’ ”].) When Armstrong clearly
stated: “I want an attorney,” the questioning stopped. It only resumed when Armstrong
initiated contact and told Keller he no longer wanted an attorney.
       The trial court did not err in admitting Armstrong’s statement.
       B. Unlawful Sentence
       The trial court sentenced Armstrong to 55 years to life in prison, consisting of
consecutive terms of 15 years to life on the two murder counts and a consecutive term of
25 years to life on one gun use enhancement, but the court ran the second gun use
enhancement concurrent. Armstrong contends this is an unlawful sentence because the
enhancement, section 12022.53, subdivision (d), requires “an additional and consecutive
term of imprisonment in the state prison for 25 years to life.” The court cannot strike the
enhancement or suspend imposition or execution of the sentence. (§ 12022.53, subds. (g)
& (h).) Armstrong contends the court had two choices: to run the two murder counts
with their gun use enhancements concurrently for a sentence of 40 years to life or to run
them consecutively for a sentence of 80 years to life.
       Armstrong contends his case must be remanded for resentencing on count two, the
second murder charge. He recognizes that resentencing may result in a longer sentence if
the trial court runs both counts and their attendant enhancements consecutively. He

                                            32
reasons that the current sentence of 55 years to life is effectively a sentence of life
without parole; there is the chance the court may run the sentence on the two enhanced
murder counts concurrently; and the error could be identified at any time. We agree with
appellate counsel that this “problem should be confronted directly” and commend him for
his candor.
       The People properly concede the case must be remanded for resentencing, and we
agree with the parties that the current sentence is unauthorized.
                                       DISPOSITION
       As to Gonzales, the judgment is affirmed.
       As to Armstrong, we remand for resentencing on count two. In all other respects,
the judgment is affirmed.




                                                          DUARTE                , J.



We concur:



      HULL                   , Acting P. J.



      MAURO                  , J.




                                              33
