Filed 10/15/13 P. v. Sanchez CA2/2
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.


              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                  DIVISION TWO


THE PEOPLE,                                                          B239022

         Plaintiff and Respondent,                                   (Los Angeles County
                                                                     Super. Ct. No. BA372623)
         v.

ISRAEL JAMMIR SANCHEZ,

         Defendant and Appellant.




         APPEAL from a judgment of the Superior Court of Los Angeles County.
Craig Richman, Judge. Affirmed and remanded.

         Sylvia Whatley Beckham, under appointment by the Court of Appeal, for
Defendant and Appellant.

         Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Lance E. Winters, Assistant Attorney General, Paul M. Roadarmel, Jr., and
Tasha G. Timbadia, Deputy Attorneys General, for Plaintiff and Respondent.


                                              __________________
       In an information filed by the Los Angeles County District Attorney’s Office,
appellant Israel Jammir Sanchez was charged with attempted willful, deliberate, and
premeditated murder. (Pen. Code, §§ 664/187, subd. (a).)1 It was further alleged that
appellant personally and intentionally used a firearm (a handgun) in the commission of
the aforementioned crime (§ 12022.53, subd. (d)) and that the offense was committed at
the direction of, in association with, or for the benefit of a criminal street gang (§ 186.22,
subd. (b)). Appellant pled not guilty and denied the special allegations.
       Trial was by jury. Appellant was found guilty of attempted murder. The
intentional discharge of a firearm causing great bodily injury and gang allegations were
also found true. The premeditation allegation was found not true.
       Probation was denied, and appellant was sentenced to a term of seven years plus
25 years to life, consisting of the middle term of seven years for attempted murder and an
additional 25 years to life for the use of a firearm resulting in great bodily injury. The
gang enhancement was stayed.
       Appellant timely appealed.2 On appeal, he argues: (1) The trial court committed
reversible error by admitting into evidence appellant’s confession; the confession was
improperly obtained by police coercion. (2) The trial court’s instructions on accomplice
witness evidence needed amplification; defense counsel’s performance was deficient in
failing to seek complete and necessary accomplice instructions. (3) Appellant was
deprived of effective assistance of counsel at sentencing; therefore, the case must be
remanded to the trial court to either strike or impose the gang enhancement.
       We agree that the trial court erred by failing to either strike or impose the gang
enhancement; the matter is remanded for the limited purpose of allowing the trial court to




1      All further statutory references are to the Penal Code unless otherwise indicated.

2     On December 3, 2012, appellant filed a petition for writ of habeas corpus, case
No. B245387. On December 17, 2012, this court ordered that the petition be considered
concurrently with this appeal. A separate order will be filed in that matter.

                                              2
impose or strike the additional term specified in section 186.22, subdivision (b). In all
other respects, the judgment is affirmed.
                  FACTUAL AND PROCEDURAL BACKGOUND
I. Prosecution Evidence
       On October 21, 2008, appellant and the victim, William Thomas (Thomas), were
detained in Juvenile Hall. Thomas was a member of the “Drifters” criminal street gang;
appellant belonged to rival street gang, “Barrio Gods” or “Gods of Destruction.” The
Barrio Gods gang’s primary activities include obtaining firearms, possession and sale of
narcotics, and committing vandalism, robberies, and murder.
       At approximately 11:55 a.m., appellant and Thomas were being escorted back to
school from their dormitory when appellant approached Thomas and attacked him,
striking him three times with a closed fist. Thomas suffered a dislocated nose. After the
incident, Thomas told an officer that he and appellant had a “‘personal beef.’”
       On June 16, 2010, 16-year-old Jessica3 Lucero (Lucero) was appellant’s girlfriend
and pregnant with his child. Lucero lived with her mother on 6th Avenue. At
approximately 2:48 p.m., appellant and his friend Margarita Lopez (Lopez) went to
Lucero’s house. Appellant and Lucero got into an argument and she left to walk to the
library. As Lucero was walking, she saw Thomas. Lucero knew that appellant and
Thomas were enemies because of their rival gang affiliations.
       Lucero called appellant and told him about Thomas.4 Appellant replied, “‘Ooh.
Say no more.’” He was “laughing.” He went into the other room, got Lopez, and told
her that they were going to pick up Lucero and get something to eat; they left in Lucero’s
mother’s black Volvo, with Lopez driving and appellant riding as a passenger. Lopez




3      In the appellate record, her name is sometimes spelled “Yessica.”

4      During the police interview with Lucero, Lucero told the interviewing officer that
at some point appellant told her that he was “‘gonna do one last thing for the hood’” and
then stop “‘gangbang[ing].’”

                                             3
and appellant picked up Lucero, who got into the car. When they stopped and picked up
Lucero, appellant told Lopez that his “enemy was walking on the street.’”
       They drove until appellant told Lopez to stop. He told Lopez that he was going to
Winchell’s and asked her if she wanted a donut. Appellant then exited the vehicle and
ran in the opposite direction of the Winchell’s.
       Lopez continued driving and Lucero pointed out where Thomas was walking.
Appellant then said, “‘Ooh. Say no more.’” Lopez stopped the vehicle and appellant got
out and snuck up behind Thomas. Appellant then took out a handgun and fired three
shots at him. One bullet hit Thomas in the back; the other two bullets struck residences
nearby. Appellant ran back to the vehicle, got in, and told Lopez to drive away. Then, he
told Lopez and Lucero that he had shot someone.
       Appellant was arrested later that night. During his interview at the police station,
he admitted to shooting Thomas and declaring “‘Barrio Gods’” before he pulled the
trigger. Appellant said that he “‘had to do what [he] had to do.’” Appellant knew that
Thomas had been hit by a bullet and he thought that Thomas was “[g]onna die.”
II. Defense Evidence
       Appellant did not present any evidence on his behalf.
                                      DISCUSSION
I. Admission of Appellant’s Confession
       Appellant contends that his conviction must be reversed because the admission of
his confession into evidence was erroneous. Specifically, he argues that the confession
was involuntary because it was “the result of psychological pressure and coercion,”
including promises of leniency and the threat to prosecute Lucero.




                                             4
       A. Interview and confession
       On June 16, 2010, at approximately 1:21 a.m., Detective Timothy Stack and
Detective Talbot interviewed appellant after his arrest. Appellant indicated that he was
“tired” and Detective Talbot removed appellant’s handcuffs to make him more
“comfortable.” Appellant was allowed to stretch and was offered water. He was read his
rights pursuant to Miranda v. Arizona (1966) 384 U.S. 436 (Miranda), and he indicated
that he understood them.
       Appellant then proceeded to talk about an altercation that had occurred earlier in
the day at a Winchell’s donut shop. After that incident, appellant indicated that he had
“chill[ed],” “hopped [into a] van,” and went to “this side of town.” According to
appellant, “[t]hat’s when everything happened.”
       Detective Stack then told appellant, “it’s not looking good bro.” He advised
appellant that it was his “job” to find out the truth. Detective Stack stated: “‘[Y]ou know
that I already know that something happened. And, you know, I can—I’m not gonna sit
here and try to prove to you that I know what happened. But [I will] tell you right now,
it’s pretty overwhelming. You know what I’m saying? At 18 years old there’s a
difference between going to jail for life, okay?—or getting paroled after X amount of
years, okay? You know people who’ve gone to jail for shootings. You know people
who’ve gone to jail for, you know, for other things, stabbings, or whatever—whatever
they went to jail for, okay? And they either took a deal or they said, ‘You know what,
okay this is what happened’ and they tell the truth and they don’t go to jail for the rest of
their lives, okay? You’re only 18 years old. You don’t need to be in jail the rest of your
life. I will tell you right now. All bullshit aside, I know what you did, okay? [F]or many
different reasons I know what you did. And whether you believe me or not, again, we
wouldn’t have been chasing you down Broadway. I wouldn’t have a certain vehicle
already impounded for evidence. I wouldn’t have two girls going to jail tonight. I
wouldn’t have all these things unless I had a lot of information.”
       Detective Stack then told appellant that he wanted to hear “in [his] words” what
happened, why he “had a beef with this guy” and “thought [he] needed to do what [he]

                                              5
needed to do.” Detective Stack also advised appellant that he had talked to a “homicide
detective with the suit,” and asked what he thought appellant was “gonna get [sentenced
to].” Detective Stack was told that with the gang allegation, appellant was “‘guaranteed,
25 to life.’” Detective Stack said that he had also asked the detective if it would make a
difference if appellant cooperated; he told appellant that he was told that the district
attorney would consider appellant’s cooperation. He added: “[T]hey’re not going to give
you 25 to life or it’s definitely not going to be, you know, ‘hey, we’re not—there’s no
deals on the table. We’re done.’ [O]kay?”
       Detective Stack again asked about the “beef” between appellant and Thomas. The
following exchange occurred:
       “[APPELLANT]: Well, what’s going to happen to my baby’s mama?
       “[DETECTIVE STACK]: Well, it depends on what you tell me. Because I’ll tell
you what, when you go to court if you want to nut-up and say nothing happened—
       “[APPELLANT]: Yeah. I know.
       “[DETECTIVE STACK]: [T]hen your . . . baby’s mama is going to go down for
just exactly the same thing you go down for.
       “[APPELLANT]: Yeah. I know.
       “[DETECTIVE STACK]: Okay. So what was the beef? Why’d you do what you
do?
       “[APPELLANT]: Because he’s a rival gang member.
       “[DETECTIVE STACK]: He is? What a—have you seen him before?
       “[APPELLANT]: Yeah.
       “[DETECTIVE STACK]: How many times?
       “[APPELLANT]: Plenty.
       “[DETECTIVE STACK]: Have you gotten in fights before?
       “[APPELLANT]: Yeah.
       “[DETECTIVE STACK]: Yeah? Has he ever pulled a gun on you or anything?
       “[APPELLANT]: Like I said—that don’t matter, but I had to do what I had to do
sir.

                                              6
       “[DETECTIVE STACK]: Yeah? How many times you shoot at him?
       “[APPELLANT]: Three times.
       “[DETECTIVE STACK]: Three times, that’s it? How many times you think you
hit him?
       “[APPELLANT]: I don’t know sir.”
       Appellant proceeded to provide additional details about the shooting, including
how he arrived at the scene and that Lopez and Lucero were in the car with him.
Appellant stated that he was “just angry” and thought that Thomas was going to die when
he shot him. Appellant knew that he had hit Thomas because Thomas “screamed.”
       Detective Stack then asked appellant what he had done with the weapon he used;
appellant told the detective that he threw it into the ocean. Detective Stack told appellant
that he was lying and offered to show him the weapon. Appellant replied, “You know
I’m going to get 25 to life sir.” Detective Stack responded: “Dude, I told you already
bro. I told you already. You know what I’m saying? I wouldn’t sit you across from me
and try to get you to—all I need honestly from you right now is for you to tell me [that
you] did it. I can walk out the door. You’ve just gave me a confession I walked out the
door. I’m done. You see what I’m saying? There’s a difference between you telling me
what you’re telling me and being cooperative with me than you just saying, ‘I did it. I’m
not gonna say anything else.’ There’s a big difference. Okay?”
       Appellant then inquired, “If I cooperate with you, everything is going to go good
for . . . .” Detective Stack interjected: “Well, I could tell you what. If you cooperate
with me everything is going to be—I would say—I’m not going to say it’s gonna be any
easier on you. I’m not gonna say I’m gonna promise anything special. But I’m gonna
say, ‘Who’s going to go file this case? Who’s gonna walk this case to the DA
tomorrow?[’] I am and my partner over there is. Okay? And this is my boss. So we’re
the ones that are gonna talk to the DA’s office. We’re the ones that are gonna say, ‘Hey,
this is what we want.’ And they’re either gonna listen to us or not gonna listen to us.
Okay? [¶]



                                             7
       “On the other side of that, I also have a lot of say when I go [to] the DA’s office
and I say, ‘Hey, I don’t think these girls are as involved as we thought they were,’ or
‘Hey, I think we should slam dunk—girls.’ Okay? And as far as I’m concerned, you’re
being a man. Okay? You made a mistake. You did something you . . . probably
shouldn’t have done. And you know that right now. Okay? And you got caught doing
it. Okay?”
       Detective Stack then encouraged appellant to tell the truth about what had
happened to the weapon he had used and for additional details about his motive for the
shooting. Appellant recalled that he had “sneaked up” on Thomas, yelled out “‘Barrio
Gods,’” and then shot him. Appellant wanted Thomas to know “what[ was] up.”
       Detectives Stack and Talbot then talked to appellant about the importance of
taking responsibility for his life and making a change for his baby on the way. When
asked if appellant had any questions, he responded: “Yeah. My baby mama. So what
you think could happen to her?” Detective Stack said that he would have to talk to his
partner about it. Appellant then offered to tell them the “whole story” again to make sure
that they got “everything straight.” He stated, “I just don’t want to let—let her do time
for stupid shit that I did. I don’t even care about no time. Just not—not her. She didn’t
do shit. Not my baby neither.”
       Detectives Stack and Talbot asked appellant additional questions about his gang’s
territory. He interrupted their conversation, stating, “Dang but—so my girl, like dang.
She ain’t have nothing to do—like I don’t care if I do time, but I just don’t want her to do
time.” Detective Stack indicated that he understood, reiterating, “[W]hat’s important
here though is, like you said—I know you’re worried about baby mama and stuff—it’s—
it’s important you stay with the truth.” Appellant concurred, saying, “You guys are
gonna be honest with me and tell me that you gonna go—I come at you straight up and
you gonna come back at me straight up.” The detectives agreed and appellant discussed
the events that led up to the shooting. After providing these additional details, appellant
asked: “By telling you all the truth, that means like, that probably—the [district attorney]



                                             8
will probably cut me a little bit of slack?” Detective Talbot responded, “That’s up to the
[district attorney].”
       Detective Slack confirmed, saying: “Yeah. That’s completely up to the [district
attorney]. Like I said man, don’t want to—I don’t want to let you—I don’t want to say,
‘Oh. [Y]eah dude. You tell the truth [¶] . . . [¶] [Y]ou’re just gonna’—You know? I
don’t wanna say that. You know? What if they do throw the book at you? You know
what I mean? [¶] . . . You’d think I’m a straight asshole for telling you that . . . . But,
I’m telling you right now. You know, there is always that, [‘]well how was he?’ ‘Well he
was cooperative?’ ‘What’d he tell—‘Yeah he told us everything’ You know? Okay. 18
years old. You know? [V]ery limited criminal background. All this—all these things
they take into—you know—consideration.”
       Appellant responded that he understood. After giving additional details about the
shooting, appellant again asked whether the detectives were able to get him a “deal with
the [district attorney], just at least try to get the two girls out of this.” Detective Stack
replied that he would “do what [he could].” Appellant then inquired whether he should
obtain an attorney to “cut down some years.” The detectives responded that they could
not give him any legal advice.
       Appellant was offered more water, and he asked what time it was. Detective Stack
told him that it was “a little after three.” Appellant responded, “Dang. Time went by that
quick?” Detective Stack replied: “Yeah. It’s crazy. Time goes fast when you’re
thinking about everything else in the world, huh?”
       B. Motion to exclude appellant’s confession
       Defense counsel moved to exclude evidence of appellant’s confession. The
People opposed the motion.
       At the hearing on appellant’s motion, Detective Stack testified that when he told
appellant that another detective had said that he would probably get “25 to life” and that
there were “no deals on the table,” he was trying to get appellant to “be truthful.” When
asked whether Detective Stack used appellant’s girlfriend (Lucero) as “pressure” to get
appellant to confess, the trial court interjected and, citing People v. Barker (1986) 182

                                                9
Cal.App.3d 921, ruled that it was going to “sustain its own objection to the form of the
question. It was [appellant] who brought up [his girlfriend].”
       Detective Stack reiterated that his comments to appellant were an attempt to get
more of a very detailed description of the facts of the case and he was concerned about
determining “how involved [Lucero and Lopez] were in the case.” Finally, Detective
Stack stated that he did not advise appellant that his influence could be used with the
district attorney to “fil[e] [the] case in a certain way.”
       The prosecutor argued that despite appellant’s age, he was a “sophisticated” gang
member, having joined the gang when he was 12 years old. In addition, he had had
multiple contacts with the police and knew about concepts like “25 to life” and “how it
works.” The prosecutor pointed out that Lopez and Lucero, who were in the car with
appellant when the shooting occurred, had already indicated that appellant was the
shooter. Thus, the only determination left was whether Lucero and Lopez were also
involved as accomplices. Next, the prosecutor argued that appellant had initiated the
inquiry into what would happen to his girlfriend and, accordingly, it did not play a role in
getting him to confess. Then, the prosecutor noted that the interview was conducted
while the officers were in “plain clothes” and that there was a “very calm, serene
conversational tone” during the interview. Finally, the prosecutor argued that appellant
was not made any promises and that, under the totality of the circumstances, the
interview was not coercive.
       Defense counsel argued that appellant was coerced into making inculpatory
statements when an implied promise was made about his “baby mama.” Further, defense
counsel stated that Detective Stack implied that if appellant cooperated and told them
how “he did it,” then he would be given a deal.
       After entertaining oral argument, the trial court stated that it had watched the
videotape of the interview and found: “[T]he cold transcript does not reflect correctly the
tone or color of this interview. And to Detective Stack’s credit, I find absolutely nothing
in this interview that would even remotely approach improper police conduct that would
be coercive; that would have caused, as a motivating factor, [appellant] to give a

                                               10
statement. [¶] . . . [B]oth Detective Stack and Detective Talbot were wearing plain
clothes. Detective Talbot’s badge was hanging from his chest and prominently displayed,
but each [was] almost nocturnal in their conversations with [appellant] discussing if he
gets out of prison that he needs to take responsibility and become a good family man,
which—and that portion of the conversation was long after the statements were made.
       “The statement begins with basically a total denial of involvement. Detective
Stack leans back in his chair and says, ‘Hey, look. Basically’—And I’m paraphrasing—
‘I know that you are lying to me. I can just write the report right now and end it. But if
you cooperate, everyone will know.’ And there’s nothing wrong with pointing out
benefits that flow naturally from cooperation. . . .
       “And—and that point that Detective Stack was trying to make at that point was,
‘Look. We—we know what happened here. It’s—it’s up to you at this point in time.’
And from that moment on, [appellant’s] obvious thought process was to minimize the
involvement of Ms. Lucero and Ms. Lopez.
       “The discussion regarding 25 to life, the Williams[5] case I cited to counsel
originally at 49 Cal.4th 405, it talks about the death penalty. We are way below that.
Again, no promises were made by the detectives. They merely said that his cooperation
may be considered by the court and the jury—and, again, the cases cited in Williams
reflect that there is nothing wrong with that.
       “I do believe that the statement was voluntary. I already ruled that [out] there was
no violation of Miranda. The statement is admissible.”
       C. Relevant 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.]” (People v. Massie (1998) 19 Cal.4th 550, 576.) A confession is
involuntary if it is “obtained by force, fear, promise of immunity or reward . . . .”
(People v. Esqueda (1993) 17 Cal.App.4th 1450, 1483 (Esqueda).) Thus, in order to use

5      People v. Williams (2010) 49 Cal.4th 405.

                                              11
a confession, the prosecution has the burden of proving by a preponderance of the
evidence that the defendant gave it voluntarily, and not as the result of any form of
compulsion or promise of reward. (People v. Williams (1997) 16 Cal.4th 635, 659–661.)
        Conversely, “[a] confession or admission is involuntary, and thus subject to
exclusion at trial, only if it is the product of coercive police activity. [Citations.]”
(People v. Williams, supra, 16 Cal.4th at p. 659.) Coercive activity must be “the
‘proximate cause’ of the statement in question . . . . [Citation.]” (People v. Mickey
(1991) 54 Cal.3d 612, 647.)
        In determining whether a confession was voluntary, “courts apply a ‘totality of
circumstances’ test . . . .” (People v. Massie, supra, 19 Cal.4th at p. 576.) Among the
factors to be considered are “‘the crucial element of police coercion [citation]; the length
of the interrogation [citation]; its location [citation]; [and] its continuity’ as well as ‘the
defendant’s maturity [citation]; education [citation]; physical condition [citation]; and
mental health.’” (People v. Williams, supra, 16 Cal.4th at p. 660.) Other characteristics
of the defendant to be considered are his age, sophistication, prior experience with the
criminal justice system, and emotional state. (In re Shawn D. (1993) 20 Cal.App.4th 200,
209.)
        Moreover, “‘“[t]he question is whether defendant’s choice to confess was not
‘essentially free’ because his will was overborne.” [Citation.]’ [Citation.]” (People v.
Boyette (2002) 29 Cal.4th 381, 411.)
        A reviewing court upholds the trial court’s findings as to the circumstances
surrounding the confession if they are supported by substantial evidence, but exercises
independent review in determining whether the confession was voluntary, given the
totality of the circumstances, including those that are undisputed and those properly
found by the trial court. (Esqueda, supra, 17 Cal.App.4th at p. 1465; see also People v.
Williams, supra, 16 Cal.4th at pp. 659–661; see also Arizona v. Fulminante (1991) 499
U.S. 279, 285–286.) Thus, in the present case, we must analyze whether the influences
brought to bear on appellant were such as to overbear his will to resist, thus bringing
about a statement that he did not freely choose to make. (See People v. Hogan (1982) 31

                                               12
Cal.3d 815, 841, disapproved on other grounds in People v. Cooper (1991) 53 Cal.3d
771, 836.) In making this determination, we evaluate whether the police conducting the
interview acted in an oppressive or coercive manner. (See Colorado v. Connelly (1986)
479 U.S. 157, 163–164.)
       Also, here, the interview was tape-recorded so the facts surrounding the giving of
the statement are undisputed. (People v. Maury (2003) 30 Cal.4th 342, 404.)
       D. Appellant’s confession was properly admitted
       Applying the foregoing legal principles, we conclude that the trial court did not err
when it admitted appellant’s confession into evidence.
              1. Particular circumstances of the interview
       Appellant contends that his particular circumstances (18 years old, limited prior
contact with the criminal justice system, the fact that he had been smoking marijuana
before his arrest, and the fact that he was tired and thirsty) resulted in him being in
“relatively poor physical and mental condition” when he gave his confession. To the
contrary, appellant was no neophyte with regard to the criminal justice system. He had
been a gang member since he was 12 years old. He had numerous juvenile petitions
starting in 2007, when he was only 15 years old, for drug offenses, possession of a loaded
firearm, and vandalism. In addition, during his interview, he acknowledged his
familiarity with several officers in the gang unit that patrolled his gang’s “territory” and
his understanding of terms like “25 to life” and “how the system works.”
       Moreover, appellant’s handcuffs were removed at the start of the interview and he
was offered water. Towards the end of the interview, he was again offered water. And,
at that time, when appellant asked and was told what time it was, he commented on how
quickly the time had passed by.
       Furthermore, the interview was conducted in a relaxed and informal environment.
Both officers were in plain clothes and spent a good portion of the interview time
counseling appellant on the benefits of changing his “gang banging” lifestyle.
       In addition, although the interview lasted about an hour and a half, appellant’s
confession came much earlier in the interview.

                                              13
       Finally, the trial court, having watched and listened to the videotape of the
interview and heard Detective Stack’s live testimony, was in the best situation to make a
determination that appellant’s confession was voluntary. This determination is well-
supported by the evidence. (People v. McWhorter (2009) 47 Cal.4th 318, 358.)
              2. Promises of leniency or threats
       Appellant contends that his confession was involuntary because it was coerced and
induced by threats and promises of leniency for himself and Lucero, his pregnant
girlfriend. He further argues that the trial court improperly found that People v. Barker,
supra, 182 Cal.App.3d at page 933, made Detective Stack’s alleged threats to prosecute
Lucero irrelevant.
       “In general, ‘“any promise made by an officer or person in authority, express or
implied, of leniency or advantage to the accused, if it is a motivating cause of the
confession, is sufficient to invalidate the confession and to make it involuntary and
inadmissible as a matter of law.”’ [Citations.] In identifying the circumstances under
which this rule applies, we have made clear that investigating officers are not precluded
from discussing any ‘advantage’ or other consequence that will ‘naturally accrue’ in the
event the accused speaks truthfully about the crime. [Citation.] The courts have
prohibited only those psychological ploys which, under all the circumstances, are so
coercive that they tend to produce a statement that is both involuntary and unreliable.”
(People v. Ray (1996) 13 Cal.4th 313, 339–340; see also People v. Seaton (1983) 146
Cal.App.3d 67, 74 (Seaton).)
       Exhortations to tell the truth are not impermissible. (People v. Holloway (2004)
33 Cal.4th 96, 115.) Nor is it improper for the police to emphasize the realities of a
defendant’s plight. (See Seaton, supra, 146 Cal.App.3d at p. 74 [mention of parole hold
simply a comment “on the realities of defendant’s position”]; People v. Flores (1983) 144
Cal.App.3d 459, 469 [“truthful and ‘commonplace’ statements of possible legal
consequences, if unaccompanied by threat or promise, are permissible police practices”].)
In this case, the various exhortations to appellant to confess were not inherently coercive,
and there were no bargains. (See Seaton, supra, 146 Cal.App.3d at p. 74 [no implied

                                             14
promise of lenity where officer “told defendant the district attorney would make no deals
unless all of the information defendant claimed to have was first on the table”]; People v.
Ramos (2004) 121 Cal.App.4th 1194, 1203–1204; People v. Spears (1991) 228
Cal.App.3d 1, 27–28.)
       Detective Stack’s comments did not constitute improper promises of leniency.
Instead, the advisements were exhortations to tell the truth. Detective Stack repeatedly
told appellant that it was the district attorney’s decision as to what he would be charged
with. Even in response to appellant’s query (“By telling you all the truth . . . the [district
attorney] will probably cut me a little bit of slack?”), both Detective Stack and Detective
Talbot told him that it was “up to the [district attorney].” Their statements made it clear
that the only effect the detectives could make on the charges filed was to bring
appellant’s statements to the district attorney, who could consider appellant’s honesty in
coming forward. (People v. Groody (1983) 140 Cal.App.3d 355, 359.) In other words,
the interview with appellant was a “‘dialogue or debate between suspect and police in
which the police commented on the realities of [his] position and the courses of conduct
open to [him].’” (People v. Holloway, supra, 33 Cal.4th at p. 116.)
       Detective Stack did not improperly promise appellant any benefit or other lenient
treatment; he merely highlighted the benefits that could ensue from a truthful statement.
As set forth above, appellant was cognizant of his rights when he decided to talk to the
detectives. Before appellant confessed, Detective Stack informed him that he could deny
any knowledge of why he had been arrested in the face of already overwhelming
evidence or tell them in his own words what had happened. It was at that point that
appellant chose to continue to talk to the detectives and admitted that he had “snuck up”
on Thomas and shot him because of their rival gang affiliation.
       Just as Detective Stack’s comments were not promises, they were also not threats.
At the onset of the interview, Detective Stack informed appellant that he “had a lot of
information.” He told appellant that he already knew what he had done and that the
situation was “pretty overwhelming.” He explained that he would not have chased
appellant down, have impounded the Volvo, and had “two girls going to jail tonight” if

                                              15
he did not have a lot of information. In context, Detective Stack was only enumerating
the evidence the police already had against appellant. (People v. Andersen (1980) 101
Cal.App.3d 563, 579 [urgings by the police to tell the truth do not amount to threats or
promises of leniency].)
       People v. Barker, supra, 182 Cal.App.3d 921 does not compel reversal. In that
case, the interviewing detective told the defendant that he would not charge his girlfriend
if he told the truth. (Id. at p. 929.) Even in those circumstances, the Court of Appeal
found that the defendant’s subsequent confession was “not necessarily” inadmissible.
(Id. at p. 933.) In contrast, here no promises not to charge Lucero were made.
       We are likewise not convinced by appellant’s claim that Detective Stack
“exploit[ed] appellant’s concern for his girlfriend and their unborn child.” Again,
Detective Stack only maintained that appellant “stay with the truth.” It was appellant
who repeatedly inquired as to the outcome for his girlfriend and offered, without
prompting, to reiterate the details of the shooting to demonstrate Lucero’s
noninvolvement. By telling appellant to “stay with the truth,” Detective Stack was able
to point out the benefits that might naturally flow from a truthful and honest course of
conduct, including Lucero avoiding being charged as an accomplice and the district
attorney being informed of appellant’s cooperation. (People v. Ramos, supra, 121
Cal.App.4th at pp. 1202, 1204.)
       E. Any assumed error was harmless
       Even if appellant’s confession should not have been admitted because it was
involuntary, any error was harmless. (People v. Cahill (1993) 5 Cal.4th 478, 487.)
       Apart from appellant’s confession, ample evidence supports the jury’s conclusion
that appellant was guilty of attempted murder. Lucero’s statements to law enforcement
shortly after the shooting, coupled with Lopez’s trial testimony, strongly implicated
appellant as the shooter. It follows that any alleged error was harmless beyond a
reasonable doubt.




                                            16
II. Instructions on Accomplice Testimony
       Appellant contends that the trial court’s instructions on accomplice testimony were
deficient and defense counsel’s failure to request amplification of the accomplice
instruction (and raise this theory during closing argument) constitute ineffective
assistance of counsel. Appellant’s argument notwithstanding, a request for natural and
probable consequences doctrine for aider and abettor liability would not have been
meritorious under these circumstances. And, even assuming counsel’s performance was
deficient, there is no reasonable probability that but for counsel’s deficiency, appellant
would have received a more favorable result.
       A. Proceedings below
       On July 11, 2011, the parties conferred to discuss jury instructions. At that time,
the trial court indicated that it had added an accomplice instruction to “evaluate whether
[L]ucero and/or [L]opez were accomplices to the crime, and then [an instruction was
needed] on how to . . . evaluate their testimony if [the jury finds] that they are
accomplices or find that they are not accomplices.” While the trial court did not believe
that Lucero and Lopez were accomplices as a matter of law, the jury could have found
that they were, and therefore an instruction would be given to help the jury determine
how to evaluate their testimony.
       The trial court subsequently instructed the jury with CALCRIM No. 334
(accomplice liability).
       B. Relevant law
       To prevail on a claim of ineffective assistance of counsel, appellant must establish
that his counsel’s representation fell below an objective standard of reasonableness and
that there is a reasonable probability that, but for counsel’s deficient performance, the
results of the trial would have been different. (Strickland v. Washington (1984) 466 U.S.
668, 686–687; People v. Cunningham (2001) 25 Cal.4th 926, 1003.) A conviction will
be reversed for ineffective assistance of counsel only when the record demonstrates that
there could have been no rational tactical purpose for counsel’s challenged act or
omission. (People v. Lucas (1995) 12 Cal.4th 415, 436–437.) Appellant must

                                              17
affirmatively show counsel’s deficiency involved a crucial issue and cannot be explained
on the basis of any knowledgeable choice of tactics. (People v. Ashmus (1991) 54 Cal.3d
932, 1011, fn. 29.)
       In considering a claim of ineffective assistance of counsel, it is not necessary to
determine “‘whether counsel’s performance was deficient before examining the prejudice
suffered by the defendant as a result of the alleged deficiencies. . . . If it is easier to
dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, which
we expect will often be so, that course should be followed.’” (In re Fields (1990) 51
Cal.3d 1063, 1079.)
       C. No ineffective assistance of counsel
       The natural and probable consequences doctrine provides that one who knowingly
aids and abets criminal conduct can be found guilty not only of the criminal conduct but
also of any other crime the perpetrator commits that is a natural and probable
consequence of the intended crime. (People v. Ayala (2010) 181 Cal.App.4th 1440,
1449.) A request for instruction on the doctrine should be granted “when (1) the record
contains substantial evidence that [one] intended to encourage or assist a confederate in
committing a target offense, and (2) the jury could reasonably find that the crime actually
committed by the defendant’s [c]onfederate was a ‘natural and probable consequence’ of
the specifically contemplated target offense.” (People v. Prettyman (1996) 14 Cal.4th
248, 269.) There is no sua sponte duty to instruct on the doctrine where the prosecution
is not relying on the testimony of potential accomplices to prove appellant’s guilt.
(People v. Gonzalez (2002) 99 Cal.App.4th 475, 485.)
       Here, as acknowledged by appellant, there was no sua sponte duty to instruct on
the natural and probable consequences doctrine because the prosecution did not rely on
that doctrine to prove appellant’s guilt. In fact, as appellant concedes, the prosecutor
urged the jury to find that Lopez and Lucero were not accomplices. But, appellant argues
that defense counsel was required to request an additional or clarifying instruction to
explain that Lucero and Lopez could be considered accomplices if they aided and abetted



                                               18
an assault and if attempted murder was a natural and probable consequence of that
assault.
       We disagree. The purpose of the accomplice testimony instruction (CALCRIM
No. 334) was to advise the jury on how to evaluate Lucero and Lopez’s testimony—if the
jury found that they were accomplices, then their testimony required corroboration; if the
jury found that they were not accomplices, then no supporting evidence was required.
The instruction given met that purpose. No further amplification or clarification was
required.
       For similar reasons, defense counsel’s failure to argue accomplice liability to the
jury does not amount to ineffective assistance of counsel. Defense counsel may have had
tactical reasons for arguing the case to the jury as she did; there is no indication that
appellant has demonstrated that “there simply could be no satisfactory explanation” for
her conduct. (People v. Hart (1999) 20 Cal.4th 546, 623–624 [“‘“Tactical errors are
generally not deemed reversible; and counsel’s decisionmaking must be evaluated in the
context of the available facts. [Citation.] To the extent the record on appeal fails to
disclose why counsel acted or failed to act in the manner challenged, we will affirm the
judgment “unless counsel was asked for an explanation and failed to provide one, or
unless there simply could be no satisfactory explanation . . . .” [Citation.]’”].)
       D. Any assumed error was harmless
       As set forth above, there was strong evidence corroborating Lucero’s statements
and Lopez’s trial testimony, including appellant’s admissions and ultimate confession to
the detectives. Thus, even if defense counsel had requested the instruction and argued the
possible implications of Lucero and Lopez’s accomplice liability to the jury, it is not
reasonably probable that he would have received a more favorable result. Thus, any
alleged error was harmless.
III. Sentencing
       Appellant contends that he was deprived of effective assistance of counsel at
sentencing because defense counsel advocated for a “stay” of the gang enhancement
when the enhancement should have been imposed or stricken. The People agree that the

                                              19
matter should be remanded for this limited purpose, rendering the ineffective assistance
of counsel claim moot.
       A. Proceedings below
       On January 31, 2012, probation was denied and appellant was sentenced to an
aggregate term of seven years plus 25 years to life for attempted murder. The trial court
selected the middle term of seven years for attempted murder; the 25 years to life term
was imposed for the personal use of a firearm in the commission of an offense that
resulted in great bodily injury. Although the trial court acknowledged that the jury also
found the gang allegation to be true, it stated that, because of the firearm allegation, the
gang allegation had “no [e]ffect” on sentencing. “[W]ith that understanding,” the trial
court sentenced appellant to the midterm of seven years, plus a consecutive term of 25
years to life for the firearm enhancement. In so doing, the trial court reiterated that the
gang allegation was “stayed, having no [e]ffect as a result of the jury finding, the
12022.53[, subd. (d)] allegation true.”
       B. Relevant law
       In general, when a sentence is in excess of the court’s jurisdiction or in violation
of the law, it is considered unauthorized. (People v. Scott (1994) 9 Cal.4th 331, 354 &
fn. 17.) “‘The failure to impose or strike an enhancement is a legally unauthorized
sentence subject to correction’ [citation], even if the correction results in a harsher
punishment. [Citations.]” (In re Renfrow (2008) 164 Cal.App.4th 1251, 1254; see also
People v. Bradley (1998) 64 Cal.App.4th 386, 390–391.)
       C. Analysis
       Here, the jury determined that appellant personally used or discharged a firearm in
the commission of the attempted murder. Thus, the 10-year gang enhancement should
have been imposed or stricken. (§ 12022.53, subd. (e)(2).) By failing to do either, the
trial court pronounced a legally unauthorized sentence. (People v. Serrato (1973) 9
Cal.3d 753, 763, overruled on other grounds in People v. Fosselman (1983) 33 Cal.3d
572, 583, fn. 1.) Accordingly, the matter is remanded to the trial court for the limited
purpose of allowing the trial court to impose or strike the additional term specified in

                                              20
section 186.22, subdivision (b). In addition, because the trial court appears to have based
its midterm sentencing decision, at least in part, on the fact that it believed that the gang
enhancement had no effect on appellant’s sentence, it is allowed to reconsider the
sentence for attempted murder. Such “restructuring” does not amount to double
jeopardy. (People v. Seel (2004) 34 Cal.4th 535, 542.)
                                      DISPOSITION
       The judgment is affirmed. The matter is remanded to the trial court for the limited
purpose of allowing the trial court to impose or strike the additional term specified in
section 186.22, subdivision (b). In so doing, the trial court may reconsider the sentence
for attempted murder.
       NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.




                                                   _____________________________, J.
                                                         ASHMANN-GERST

We concur:




______________________________, P. J.
      BOREN




______________________________, J.
      CHAVEZ




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