Filed 5/8/15 P. v. Branch CA4/1
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                    COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                                  DIVISION ONE

                                           STATE OF CALIFORNIA



THE PEOPLE,                                                         D067450

         Plaintiff and Respondent,

         v.                                                         (Super. Ct. No. RIF1201399)

DAQUAN RASHAD BRANCH et al.,

         Defendants and Appellants.


         APPEALS from judgments of the Superior Court of Riverside County, Bernard J.

Schwartz, Judge. Judgments against Daquan Rashad Branch and Caleb Marquan

Henderson affirmed. Judgment against Jeremy Walker reversed.



         Richard de la Sota, under appointment by the Court of Appeal, for Defendant and

Appellant Daquan Rashad Branch.

         Marcia R. Clark, under appointment by the Court of Appeal, for Defendant and

Appellant Caleb Marquan Henderson.
       Catherine White, under appointment by the Court of Appeal, for Defendant and

Appellant Jeremy Walker.

       Kamala D. Harris, Attorney General, Julie L. Garland, Assistant Attorney General,

Barry Carlton and Adrianne S. Denault, Deputy Attorneys General, for Plaintiff and

Respondent.

       In a joint trial by two jury panels, one jury (the "blue" jury) convicted Daquan

Rashad Branch and Caleb Marquan Henderson of two counts each of attempted murder

(Pen. Code, §§ 187, subd. (a), 664)1 and one count each of active participation in a

criminal street gang (§ 186.22, subd. (a)). The jury also found true two gang and

firearms-related sentencing enhancements as to each attempted murder count.

(§§ 186.22, subd. (b), 12022.53, subd. (e)(1).) The court sentenced Branch to an

indeterminate term of 50 years to life imprisonment and a determinate term of nine years

four months. Following Henderson's admission of a prior serious and violent felony

conviction under section 667, subdivisions (c) and (e)(1), the court sentenced him to an

indeterminate term of 50 years to life imprisonment and a determinate term of 27 years 8

months.

       A separate jury (the "red" jury) convicted Jeremy Walker of two counts of

attempted murder (§§ 187, subd. (a), 664) and one count of active participation in a

criminal street gang (§ 186.22, subd. (a)). The jury found that the attempted murders

were willful, deliberate, and premeditated. The jury also found true three gang and



1      Further statutory references are to the Penal Code unless otherwise specified.
                                             2
firearms-related sentencing enhancements, including that Walker personally and

intentionally discharged a firearm causing great bodily injury, as to each attempted

murder count. (§§ 186.22, subd. (b), 12022.53, subds. (d) and (e)(1).) The court

sentenced Walker to an indeterminate term of 80 years to life imprisonment.

       Branch, Henderson, and Walker appeal. Branch contends the court erred by not

requiring the prosecution to stipulate to certain gang-related facts. Henderson contends

(1) his trial counsel was ineffective because he did not object to the admission of

statements a former codefendant, Lareka Davis, gave to police on the grounds that she

was coerced; (2) the court erred by not giving an instruction sua sponte that the jury

should determine the voluntariness of Davis's statements before considering them for any

purpose (or, in the alternative, his counsel was ineffective for failing to request such an

instruction); (3) the court erred by not striking Henderson's prior serious and violent

felony conviction under People v. Superior Court (Romero) (1996) 13 Cal.4th 497

(Romero); (4) Henderson's aggregate prison sentence violates the prohibitions on cruel

and unusual punishment in the federal and California Constitutions; and (5) the gang

enhancement found by the jury violates the constitutional guarantee of equal protection.

Walker contends the court erred by admitting evidence of his confession during an

interrogation by sheriff's deputies because it was obtained in violation of Miranda v.

Arizona (1966) 384 U.S. 436 (Miranda) and because it was involuntary.

       We conclude none of the contentions urged by Branch and Henderson have merit

and accordingly affirm the judgments against them. As to Walker's contentions, we

disagree that Walker's confession was obtained in violation of Miranda. However, we

                                              3
agree it was involuntary. The trial court therefore erred by denying Walker's motion to

exclude it. We further agree this error was prejudicial and accordingly reverse the

judgment against Walker.

                                          FACTS

       For purposes of this section, we state the evidence in the light most favorable to

the judgments. (See People v. Osband (1996) 13 Cal.4th 622, 690; People v. Dawkins

(2014) 230 Cal.App.4th 991, 994.) Additional facts will be discussed where relevant in

the following section.

       On February 9, 2012, Jason G. walked with friends through the El Dorado

apartment complex in Moreno Valley, California. They were confronted by Henderson

and two other individuals. Henderson asked for Jason's gang affiliation. Jason replied

that he was a member of the Rolling 90's, a gang in Los Angeles. Henderson said they

were in Sex Cash territory, Web Block, referencing a prominent Moreno Valley gang and

one of its cliques. After this exchange, Jason and his friends went on their way.2

       Later that day, Jason met his friend Kendrick P. Kendrick was associated with the

Harlem 30's, another Los Angeles gang. Kendrick was familiar with Branch, Henderson,

and Walker. Kendrick had played video games with them that afternoon in an apartment

in the El Dorado complex. Lareka Davis was a tenant in that apartment. Henderson

stayed there as well, and Branch and Walker came by sometimes.




2     At trial, Jason testified that he had previously been mistaken for a member of the
Wild Flax gang. Wild Flax is a rival gang to Sex Cash.
                                             4
       Jason and Kendrick were walking through the El Dorado complex when they saw

Davis talking on her cell phone near her apartment. Davis made a gesture towards them

as they passed. Soon afterwards, Jason noticed they were being followed by three

individuals, later identified as Branch, Henderson, and Walker. They closed the gap

between themselves and Jason and Kendrick. Henderson yelled out "Web" or "Web

Block" at least once, and Walker fired shots at Jason and Kendrick. Jason was struck

once in the back, fracturing two ribs and puncturing a lung. Jason ran to a nearby

apartment, where the occupant called police. Kendrick fled to a different apartment

complex and told a security guard about the shooting.

       The Riverside County Sheriff's Department responded to the scene of the shooting.

Sheriff's deputies found five spent .380-caliber shell casings, as well as a live .380-caliber

bullet. After further investigation, including interviews with the victims, sheriff's

deputies obtained and executed a search warrant at Davis's apartment. Davis, Branch,

and Henderson were inside. A deputy observed Branch attempting to escape over the

balcony of the apartment and ordered him to stop. The search of the apartment revealed

papers referencing the Web Block clique and a loaded .380-caliber handgun hidden in a

bucket. Forensic examination of the handgun revealed insufficient DNA to conduct an

analysis.

       After her arrest, Davis told investigators she was at her apartment on the night of

the shooting. She heard five loud booming sounds. A few minutes later, Branch and

Henderson came back to the apartment sweating profusely. Davis was aware that



                                              5
Branch, Henderson, and Walker were members of Sex Cash and had overheard them say

"Web Block" in the past.3

       Walker also gave a statement to investigators, which was admitted only into the

evidence heard by his jury. Walker admitted he was part of the group that confronted

Jason earlier in the day. Walker also admitted he, Branch, and Henderson followed Jason

and Kendrick the night of the shooting, but he said one of the others was the shooter.

Walker explained that they thought Jason or Kendrick was from Sex Cash's rival gang

Wild Flax.

       At trial, Jason described his encounter with Henderson and his friends earlier in

the day. Jason also identified Henderson and Walker as two of the individuals who

followed him and Kendrick later that night, and he testified that Walker was the shooter.

Likewise, Kendrick identified Branch, Henderson, and Walker as the individuals who

followed them on the night of the shooting. Kendrick also identified Walker as the

shooter and testified that Henderson was the person who yelled "Web" or "Web Block"

before the shooting.

       Davis denied that she was present at the apartment during the shooting. She stated

that she could not remember what she told investigators because she was drunk,

emotional, and felt threatened. An investigator testified to her prior statements. Another

investigator, a gang expert, provided evidence that Sex Cash was a criminal street gang;



3     After being charged with attempted murder as a codefendant of Branch,
Henderson, and Walker, Davis pleaded guilty to being an accessory after the fact and
admitted the crime was committed to benefit the Sex Cash gang.
                                             6
that Branch, Henderson, and Walker were active members of that gang; and that the

shooting was committed to benefit the gang.

       Branch, Henderson, and Walker did not call any witnesses in their defense. At

trial, their counsel highlighted potential inconsistencies and shortcomings in Jason's and

Kendrick's identifications of the defendants. They also relied on Jason's and Kendrick's

gang affiliations to argue their statements were unreliable.

                                       DISCUSSION

                                              I

       Branch contends the trial court erred by not requiring the prosecution to accept

Branch's proposed stipulation that Sex Cash was a criminal street gang under section

186.22, subdivision (f), and that Branch was a member of that gang.4 Henderson and

Walker joined in Branch's proposal in the trial court. Branch argues that the stipulation

would have prevented the prosecution from introducing facts such as prior criminal acts

by members of Sex Cash (including Henderson) to prove that Sex Cash was a criminal

street gang.

       "The general rule is that the prosecution in a criminal case cannot be compelled to

accept a stipulation if the effect would be to deprive the state's case of its persuasiveness



4      Section 186.22, subdivision (f) provides as follows: "As used in this chapter,
'criminal street gang' means any ongoing organization, association, or group of three or
more persons, whether formal or informal, having as one of its primary activities the
commission of one or more of the criminal acts enumerated in paragraphs (1) to (25),
inclusive, or (31) to (33), inclusive, of subdivision (e), having a common name or
common identifying sign or symbol, and whose members individually or collectively
engage in or have engaged in a pattern of criminal gang activity."
                                              7
and forcefulness." (People v. Edelbacher (1989) 47 Cal.3d 983, 1007 (Edelbacher); see

People v. Waidla (2000) 22 Cal.4th 690, 723, fn. 5 (Waidla).) "The prosecution [is] not

obligated to present its case in the sanitized fashion suggested by the defense." (People v.

Garceau (1993) 6 Cal.4th 140, 182 (Garceau).) "There is a strong policy against

depriving the People's case of its persuasiveness and strength by forcing the prosecutor to

accept stipulations that soften the impact of the evidence in its entirety. [Citation.] Thus,

prosecutors are not required to stipulate to the existence of any elements of the crime they

are trying to prove where the stipulation will impair the effectiveness of their case . . . ."

(People v. Cajina (2005) 127 Cal.App.4th 929, 933 (Cajina).) The prosecution also may

not be forced to accept a stipulation preventing the introduction of evidence where the

probative value of the evidence goes beyond the scope of the stipulation. (See Garceau,

at p. 182; People v. Hall (1980) 28 Cal.3d 143, 152-153 (Hall).)

       "The exception -- which we count on the trial courts to recognize and enforce -- is

the instance in which the probative value of the evidence is substantially outweighed by

its prejudicial effect. (Evid. Code, § 352.) These are among the most difficult and

important decisions a trial court makes. Even approached -- as they must be -- with great

care, they tax every judge's reservoirs of common sense, fairness and circumspection.

Given the broad discretion reposed in them, their sense of justice will often be the last

word on these issues, and -- obviously -- much rides on their decision." (People v.

Thornton (2000) 85 Cal.App.4th 44, 49.)

       For example, the prosecution may be required to stipulate to the fact of a prior

offense to prevent the details of that offense—which are otherwise irrelevant—from

                                               8
being introduced into evidence. (See, e.g., Hall, supra, 28 Cal.3d at pp. 152-153

[stipulation regarding prior felony conviction in prosecution for possession of a firearm

by a felon]; Cajina, supra, 127 Cal.App.4th at p. 934 [stipulation regarding prior sex

offense conviction in prosecution for failure to comply with sex offender registration

requirements].)5 The prosecution may also be required to stipulate to certain basic facts

regarding victims that, if presented through testimony, might inflame the passions of

jurors. (See People v. Bonin (1989) 47 Cal.3d 808, 849 [holding that admission of

evidence from the victims' parents that "the victim was a human being and was alive

before the alleged criminal act was committed and was dead afterwards" in light of

defendants' offer to stipulate was error, albeit harmless].) We review the trial court's

decision not to require the prosecution to accept a stipulation (and thus allowing evidence

covered by the stipulation to be admitted) for abuse of discretion. (Waidla, supra, 22

Cal.4th at p. 723, fn. 5.)

       Branch's proposed stipulation that Sex Cash was a criminal street gang and that

Branch was a member of that gang covered several of the elements of the offense of

active participation in a criminal street gang under section 186.22, subdivision (a).

Branch, however, pleaded not guilty to that offense and proceeded to trial by jury.


5      The Supreme Court in Hall also held that it was prejudicial for the jury to be
informed of the fact of the prior felony conviction if the defendant stipulates to its
existence. (Hall, supra, 28 Cal.3d 143.) Hall expressly limited its holding to a
prosecution for possession of a firearm by a felon, however, and expressed no opinion
regarding "any other section of the Penal Code." (Hall, at p. 156; cf. Cajina, supra, 127
Cal.App.4th at p. 934 [holding that the fact of a prior sex offense conviction may not be
withheld from the jury because the jury would otherwise be unable to understand the
reason for the registration requirements the defendant is accused of violating].)
                                              9
Branch's plea of not guilty required the prosecution to prove the elements of that offense

beyond a reasonable doubt. (See People v. Ewoldt (1994) 7 Cal.4th 380, 400, fn. 4.)

Branch's proposed stipulation, which would have the effect of limiting the prosecution's

evidence on several elements of that offense solely to the stipulation, would have

"deprive[d] the state's case of its persuasiveness and forcefulness" and was therefore

properly refused by the trial court. (See Edelbacher, supra, 47 Cal.3d at p. 1007; see also

People v. Scheid (1997) 16 Cal.4th 1, 16.)

       Branch's proposed stipulation also would have prevented the introduction of

evidence that had probative value beyond the offense of active participation in a criminal

street gang. (See Garceau, supra, 6 Cal.4th at p. 182; Hall, supra, 28 Cal.3d at pp. 152-

153.) "The rule that the state cannot be restricted by stipulations in presenting its case is

particularly compelling when the likely effect of a stipulation that removes certain

matters from the trial is to hamper a coherent presentation of the remaining issues."

(Cajina, supra, 127 Cal.App.4th at p. 933.) As to each attempted murder charge, the

prosecution alleged that Branch committed the offense in association with, or for the

benefit of, a criminal street gang under section 186.22, subdivision (b). The history,

membership, symbols, and activities of Sex Cash were relevant to the jury's assessment

of this enhancement. They gave meaning to the facts surrounding the shooting and

provided a basis on which to assess the relationship of the shooting to Sex Cash's own

activities. Branch's proposed stipulation would have significantly impacted the

prosecution's ability to present evidence regarding this relationship.



                                              10
         Branch's contention that the "real issue" in the case was the identity of the

perpetrators of the attempted murders, rather than their gang affiliation, is unpersuasive.

By pleading not guilty to all of the charges, Branch put at issue not only the attempted

murders but the gang participation offense and the gang enhancements. While the

identity of the perpetrators was a critical issue, the other issues in the case were likewise

"real issue[s]" that the prosecution was required to prove to the jury beyond a reasonable

doubt.

         The trial court here explicitly weighed the probative value of the challenged

evidence against its prejudicial effect under Evidence Code, section 352, in light of

Branch's proposed stipulation. The court found the evidence to be more probative than

prejudicial: "[C]learly, there's probative value to it, again, to educate the jury as to how

gang members may operate, why they may act the way that they do, what motivates

them, all of those things are certainly relevant. . . . [I]t is evidence to be a foundation or a

building block as to motivation of these individuals, if they did commit the crime, as to

why they would. And it's different than it would be just in a normal sense where you

have three people who may have shot at two others." The court did not abuse its

discretion by refusing the stipulation and allowing the challenged evidence to be

admitted. (See Waidla, supra, 22 Cal.4th at p. 723, fn. 5.)

                                               II

                                               A

         Henderson contends his counsel was ineffective at trial by failing to object to the

admission of Davis's statements to police while in custody. Henderson claims his

                                               11
counsel should have objected because Davis was coerced during her police interrogation

and his constitutional rights were violated by admission of her statements. (See, e.g.,

People v. Williams (2010) 49 Cal.4th 405, 452-453 (Williams).)

       At trial, Davis testified that she was drunk and impaired by psychoactive

medication during the interrogation. She was also emotionally affected by the fact that

she was being interrogated in the same room where she had been questioned by police

about her infant son, who had died exactly a year earlier. Davis testified that

investigators told her she was facing attempted murder charges and a long time in

prison.6 Davis also testified that the investigators threatened to take her five-year-old

daughter away from her. Davis said the investigators told her that her codefendants

would try to blame her for the shooting.

       Duke Viveros, one of the investigators, testified at trial and disputed Davis's

account of the interrogation. Viveros testified that Davis was lucid and did not appear

drunk or impaired. (She did, however, throw up once after the interview.) Viveros

testified that he did not threaten Davis or tell her the government would take Davis's

daughter away. Viveros told Davis only that the crimes she was facing were serious and

that she could face significant prison time. Viveros said he told Davis to be honest with

him.




6       In discussions outside the presence of the juries, the prosecution and defense
counsel appear to agree that an investigator told Davis she was facing life imprisonment.
The court ruled that Davis could not mention the specific term in her testimony in front of
the juries.
                                             12
       "The standards for ineffective assistance of counsel claims are well established.

'We presume that counsel rendered adequate assistance and exercised reasonable

professional judgment in making significant trial decisions.' [Citation.] To establish a

meritorious claim of ineffective assistance, defendant 'must establish either: (1) As a

result of counsel's performance, the prosecution's case was not subjected to meaningful

adversarial testing, in which case there is a presumption that the result is unreliable and

prejudice need not be affirmatively shown [citations] or (2) counsel's performance fell

below an objective standard of reasonableness under prevailing professional norms, and

there is a reasonable probability that, but for counsel's unprofessional errors . . . or

omissions, the trial would have resulted in a more favorable outcome.' " (People v.

Prieto (2003) 30 Cal.4th 226, 261 (Prieto).)

       Henderson contends that the latter standard applies here. He bears the "difficult"

burden of establishing ineffectiveness. (People v. Lucas (1995) 12 Cal.4th 415, 437.)

"Judicial scrutiny of counsel's performance must be highly deferential." (Strickland v.

Washington (1984) 466 U.S. 668, 689.) "Reviewing courts defer to counsel's reasonable

tactical decisions in examining a claim of ineffective assistance of counsel [citation], and

there is a 'strong presumption that counsel's conduct falls within the wide range of

reasonable professional assistance.' " (Lucas, at pp. 436-437.)

       " 'A reviewing court will not second-guess trial counsel's reasonable tactical

decisions.' " (People v. Freeman (1994) 8 Cal.4th 450, 484.) The decision at issue here,

whether to object to the admission of Davis's statements to investigators, falls into this

category. "Because the decision whether to object is inherently tactical, the failure to

                                              13
object to evidence will seldom establish incompetence." (Id. at pp. 490-491.) " '[A]n

attorney may choose not to object for many reasons, and the failure to object rarely

establishes ineffectiveness of counsel.' " (People v. Avena (1996) 13 Cal.4th 394, 421.)

       "When a defendant makes an ineffectiveness claim on appeal, the appellate court

must look to see if the record contains any explanation for the challenged aspects of

representation. If the record sheds no light on why counsel acted or failed to act in the

manner challenged, 'unless counsel was asked for an explanation and failed to provide

one, or unless there simply could be no satisfactory explanation' [citation], the contention

must be rejected." (People v. Jackson (1989) 49 Cal.3d 1170, 1188 (Jackson).)

       Here, as we will explain, the record demonstrates that reasonable counsel would

have understood that an objection to Davis's statements on the ground she was coerced

was unlikely to be successful. The decision not to pursue such an objection was therefore

not unreasonable and did not constitute deficient performance. "It is well settled that

counsel is not ineffective in failing to make an objection when the objection would have

likely been overruled by the trial court." (People v. Mendoza (2000) 78 Cal.App.4th 918,

924; see People v. Mitcham (1992) 1 Cal.4th 1027, 1080 ["[T]he rebuttal evidence was

properly admitted, and counsel's failure to object might well have been based upon the

reasonable assumption that an objection would be overruled. Counsel's failure to make a

meritless objection does not constitute deficient performance."]; Prieto, supra, 30 Cal.4th

at p. 261 ["[C]ounsel's decision to forgo implausible arguments or objections does not

constitute deficient performance."].)



                                             14
       Henderson bore the burden at trial to demonstrate that Davis's statements were

obtained as a result of improper coercion. "[W]hen a defendant seeks to exclude the

allegedly involuntary testimony of a witness or codefendant, the defendant bears the

burden of proving that the admitted statements were involuntar[ily] obtained [citation]."

(People v. Douglas (1990) 50 Cal.3d 468, 500.) "The statement of a suspect or witness is

coerced if it is the product of police conduct which overcomes the person's free will.

'[T]he primary purpose of excluding coerced testimony of third parties is to assure the

reliability of the trial proceedings. . . .' " (People v. Lee (2002) 95 Cal.App.4th 772, 782

(Lee), fns. omitted.)

       After reviewing the record, we conclude that a reasonable attorney could find that

Henderson was unlikely to carry his burden of establishing coercion. Any objection to

Davis's testimony based on coercion would have been meritless. Davis's description of

the interrogation does not include any deception, false statements, or other psychological

manipulation by investigators. The investigators' descriptions of the charges Davis was

facing and her potential punishment were accurate and factual. Davis was facing

attempted murder charges, with gang enhancements, and life imprisonment. An

investigator's factual description of the charges and potential punishment a suspect is

facing falls well within the bounds of proper interrogation techniques. (See People v.

Boyer (2006) 38 Cal.4th 412, 445.)

       Davis testified she was intoxicated and impaired by psychoactive drugs. Viveros

contradicted her on this point, testifying that she was lucid and did not appear drunk or

impaired. Similarly, Viveros denied Davis's testimony that the investigators threatened to

                                             15
take Davis's daughter away from her. Even though it was undisputed that Davis threw up

after the interrogation, and child protective services visited Davis after the interrogation,

these facts alone do not show coercion during the interrogation. Given the lack of

credibility apparent from Davis's testimony, a reasonable attorney could determine that a

claim of coercion under these circumstances would be meritless. Although Henderson

claims on appeal that Viveros "admitted that he told Davis she had better incriminate the

defendants before they placed the blame on her[,]" Viveros's testimony does not support

such a claim. Viveros testified that he told Davis only to tell the truth and not to protect

the defendants (because they would not protect her).

       The cases finding coercion on which Henderson relies are inapposite. There is no

evidence here that Viveros implicitly or explicitly conditioned any threats or promises on

Davis giving statements that would incriminate Henderson or his codefendants. (Cf. Lee,

supra, 95 Cal.App.4th at pp. 785-786 [finding unconstitutional coercion where police

relied on deception to implicate a witness and threatened to charge the witness with first

degree murder unless the witness named defendant as the killer].) Nor is there evidence

Davis was subjected to gratuitous threats and descriptions of the death penalty. (Cf.

People v. Underwood (1964) 61 Cal.2d 113, 124 (Underwood).)

       "We may assume that counsel had knowledge of the legal principles involved and

we cannot fault him for failing to make what would have been a fruitless objection."

(Jackson, supra, 49 Cal.3d at p. 1189; see People v. Price (1991) 1 Cal.4th 324, 387

(Price).) Henderson's claim that his trial counsel was ineffective is therefore

unpersuasive, as we have discussed. "Because there was no sound legal basis for

                                              16
objection, counsel's failure to object to the admission of the evidence cannot establish

ineffective assistance." (People v. Cudjo (1993) 6 Cal.4th 585, 616; see People v. Linton

(2013) 56 Cal.4th 1146, 1168; People v. Anderson (2001) 25 Cal.4th 543, 587.)

                                              B

       In a related argument, Henderson contends the court had a sua sponte duty to

instruct the jury that they must determine whether Davis's statements were the result of

coercion before relying upon them for any purpose. Henderson's contention presents a

question of law, which we review de novo. (See People v. Canizalez (2011) 197

Cal.App.4th 832, 850; see also People v. Guiuan (1998) 18 Cal.4th 558, 569.) The jury

here received pattern instructions allowing them to use Davis's pretrial statements during

her interrogation as substantive evidence (see CALCRIM No. 318), subject to limitations

based on her status as a potential accomplice (see CALCRIM No. 334). The jury also

received a pattern instruction regarding the credibility of witnesses, which identified

factors such as "bias or prejudice" and "a personal interest in how the case is decided" as

relevant considerations. (See CALCRIM No. 226.) The jury did not receive any

instructions specifically discussing coercion.

       Henderson relies on Underwood, supra, 61 Cal.2d at page 125, which criticized

jury instructions that did not account for a witness's coercion. As Underwood explained,

"the jury was instructed without qualification that it was permissible to consider prior

inconsistent statements of a witness for purposes of testing his credibility. Although this

instruction is, of course, correct in the usual case [citation], it should not have been given



                                              17
here without qualification in view of the evidence that [the witness's] prior statements

were involuntary." (Ibid.)

       While Underwood represented the law at the time of its decision, the subsequent

enactment of the Evidence Code invests the trial court with the responsibility for

determining the voluntariness of confessions and other statements. (See Evid. Code,

§§ 400, 402, subd. (b), 405; see also People v. Culver (1973) 10 Cal.3d 542, 547, fn. 8

["With the adoption of the Evidence Code, effective January 1, 1967, California now

gives the trial judge the final responsibility for determining the admissibility of

confessions . . . ."].) Our Supreme Court has therefore expressly rejected the claim that a

trial court errs by not instructing the jury to determine the voluntariness of a defendant's

confession. (People v. Haydel (1974) 12 Cal.3d 190, 203, fn. 7 (Haydel).)

       While the statement at issue here was made by a third-party witness, rather than a

confession by a defendant, the same analysis applies. The trial court, not the jury, must

determine the admissibility of such a statement, including determining the preliminary

fact of whether the statement was made as a result of coercion. (See Evid. Code, § 405,

subd. (a).) The court was therefore under no duty to instruct the jury to determine the

issue of voluntariness.

       For the same reasons, Henderson's counsel was not ineffective by not requesting

such an instruction. A reasonable attorney would have recognized that the court, not the

jury, must decide the issue of voluntariness. (See Haydel, supra, 12 Cal.3d at p. 203,

fn. 7; Jackson, supra, 49 Cal.3d at p. 1189 ["We may assume that counsel had knowledge

of the legal principles involved . . . ."].) Henderson's counsel was not ineffective for not

                                             18
making a futile request, contrary to law, that the jury make such a determination. (See

Price, supra, 1 Cal.4th at p. 387 ["Counsel does not render ineffective assistance by

failing to make motions or objections that counsel reasonably determines would be

futile."]; see also People v. Solomon (2010) 49 Cal.4th 792, 843, fn. 24.)

                                              C

       Henderson next contends the court erred by declining to strike his prior serious

and violent felony conviction under Romero, supra, 13 Cal.4th 497. " 'In Romero, [the

Supreme Court] held that a trial court may strike or vacate an allegation or finding under

the Three Strikes law that a defendant has previously been convicted of a serious and/or

violent felony, on its own motion, "in furtherance of justice" pursuant to . . . section

1385[, subdivision] (a).' " (People v. Carmony (2004) 33 Cal.4th 367, 373 (Carmony).)

"[I]n ruling whether to strike or vacate a prior serious and/or violent felony conviction

allegation or finding under the Three Strikes law . . . or in reviewing such a ruling, the

court in question must consider whether, in light of the nature and circumstances of his

present felonies and prior serious and/or violent felony convictions, and the particulars of

his background, character, and prospects, the defendant may be deemed outside the

scheme's spirit, in whole or in part, and hence should be treated as though he had not

previously been convicted of one or more serious and/or violent felonies." (People v.

Williams (1998) 17 Cal.4th 148, 161.) "Thus, the [T]hree [S]trikes law not only

establishes a sentencing norm, it carefully circumscribes the trial court's power to depart

from this norm and requires the court to explicitly justify its decision to do so. In doing



                                              19
so, the law creates a strong presumption that any sentence that conforms to these

sentencing norms is both rational and proper." (Carmony, at p. 378.)

       "[A] trial court's refusal or failure to dismiss or strike a prior conviction allegation

under section 1385 is subject to review for abuse of discretion." (Carmony, supra, 33

Cal.4th at p. 375.) " 'This standard is deferential. [Citations.] But it is not empty.' "

(People v. Garcia (1999) 20 Cal.4th 490, 503 (Garcia).) "In reviewing for abuse of

discretion, we are guided by two fundamental precepts. First, ' "[t]he burden is on the

party attacking the sentence to clearly show that the sentencing decision was irrational or

arbitrary. [Citation.] In the absence of such a showing, the trial court is presumed to

have acted to achieve the legitimate sentencing objectives, and its discretionary

determination to impose a particular sentence will not be set aside on review." '

[Citation.] Second, a ' "decision will not be reversed merely because reasonable people

might disagree. 'An appellate tribunal is neither authorized nor warranted in substituting

its judgment for the judgment of the trial judge.' " ' [Citation.] Taken together, these

precepts establish that a trial court does not abuse its discretion unless its decision is so

irrational or arbitrary that no reasonable person could agree with it." (Carmony, at

pp. 376-377.)

       Here, Henderson admitted suffering a prior conviction for robbery under section

211, which is a serious and violent felony for purposes of section 667, subdivisions (c)

and (e)(1). Henderson also has a long criminal history, which the trial court characterized

as "abhorrent," including burglaries, thefts, and various criminal offenses while housed in

juvenile detention facilities. The circumstances of the current offenses are even more

                                              20
serious. While Henderson was not the shooter, he nonetheless aided and abetted the

attempted murder of two teenagers as they walked past an apartment complex.

Henderson did so for the benefit of his criminal street gang, Sex Cash, the largest gang in

Moreno Valley. While Henderson appears to have suffered from a difficult childhood,

nothing about his experiences mitigates his conduct under the circumstances here. The

trial court was within its discretion to deny Henderson's request to strike his prior

conviction. (See Carmony, supra, 33 Cal.4th at p. 378.)

       Henderson claims the trial court "gave undue emphasis to his criminal history and

insufficient weight to his youth, his life circumstances, and the unduly harsh punishment

for a crime which did not result in a killing and in which [Henderson] was not the

shooter." However, "[t]he court is presumed to have considered all of the relevant factors

in the absence of an affirmative record to the contrary. [Citation.] Thus, the fact that the

court focused its explanatory comments on the violence and potential violence of

appellant's crimes does not mean that it considered only that factor." (People v. Myers

(1999) 69 Cal.App.4th 305, 310.) Henderson's argument reflects at most a disagreement

with the manner in which the trial court weighed the relevant factors, which is

insufficient to show abuse of discretion. (See Carmony, supra, 33 Cal.4th at pp. 376-

377.) We note Henderson has not shown that the trial court refused to consider a relevant

factor or, alternatively, considered an impermissible factor in declining to dismiss. (See

Carmony, at p. 378.)

       Henderson's reliance on Garcia is unpersuasive. In that case, the Supreme Court

affirmed a trial court's decision to strike five prior convictions as to one current felony.

                                              21
(Garcia, supra, 20 Cal.4th at p. 503.) The trial court did not strike the prior convictions

as to a more serious current felony. (Ibid.) The Supreme Court concluded that the trial

court acted within its discretion in partially striking the prior convictions because, among

other reasons, the resulting sentence remained lengthy (31 years 4 months to life

imprisonment). (Ibid.) Because it affirmed a trial court's decision to strike a prior

conviction, Garcia has little bearing on the issue presented here, i.e., whether the trial

court abused its discretion in declining to strike a prior conviction allegation. Garcia

does not stand for the proposition that a trial court abuses its discretion when it declines

to dismiss a prior conviction allegation if the resulting sentence (considering the

dismissal) would be lengthy, as Henderson implies. We therefore conclude the trial court

did not err in denying Henderson's request to strike his prior conviction under Romero.

                                               D

       Henderson claims his sentence violates the prohibitions on cruel or unusual

punishment in the federal and California Constitutions. (See U.S. Const. 8th Amend.;

Cal. Const. art. 1, § 17.) "The Eighth Amendment to the United States Constitution

applies to the states. [Citation.] It prohibits the infliction of 'cruel and unusual'

punishment. (U.S. Const., 8th Amend., italics added.) Article I, section 17 of the

California Constitution prohibits infliction of '[c]ruel or unusual' punishment. (Italics

added.)" (People v. Palafox (2014) 231 Cal.App.4th 68, 82 (Palafox).) Although

Henderson "has technically forfeited the issue on appeal because he did not raise the

objection below [citation], we 'shall reach the merits under the relevant constitutional



                                              22
standards, in the interest of judicial economy and to prevent the inevitable

ineffectiveness-of-counsel claim.' " (People v. Russell (2010) 187 Cal.App.4th 981, 993.)

       The Eighth Amendment "contains a 'narrow proportionality principle' that 'applies

to noncapital sentences.' " (Ewing v. California (2003) 538 U.S. 11, 20 (Ewing).) The

Eighth Amendment " 'does not require strict proportionality between crime and sentence.

Rather, it forbids only extreme sentences that are "grossly disproportionate" to the

crime.' " (Ewing, at p. 23.) Similarly, "a punishment may violate the California

constitutional prohibition 'if, although not cruel or unusual in its method, it is so

disproportionate to the crime for which it is inflicted that it shocks the conscience and

offends fundamental notions of human dignity.' " (People v. Dillon (1983) 34 Cal.3d

441, 478 (Dillon).) To make this determination under California law, courts assess " 'the

nature of the offense and/or the offender,' " the "punishments prescribed by California

law for more serious offenses," and the "punishments prescribed by other jurisdictions for

the same offense." (People v. Em (2009) 171 Cal.App.4th 964, 972 (Em).)

       "Whether a punishment is cruel and/or unusual is a question of law subject to our

independent review, but underlying disputed facts must be viewed in the light most

favorable to the judgment." (Palafox, supra, 231 Cal.App.4th at p. 82.) "We add that the

determination of whether a legislatively prescribed punishment is constitutionally

excessive is not a duty which the courts eagerly assume or lightly discharge. Here, as in

other contexts, ' "mere doubt does not afford sufficient reason for a judicial declaration of

invalidity. Statutes must be upheld unless their unconstitutionality clearly, positively and

unmistakably appears." ' " (In re Lynch (1972) 8 Cal.3d 410, 414-415.) Findings of

                                              23
disproportionality are exceedingly rare, and they occur only in extraordinary cases.

(Lockyer v. Andrade (2003) 538 U.S. 63, 73; Em, supra, 171 Cal.App.4th at p. 972.)

       Henderson contends his punishment, an indeterminate term of 50 years to life

imprisonment and a determinate term of 27 years 8 months, is grossly disproportionate.

He focuses first on his relative youth (19 years) at the time of the offense. Youth is a

consideration in the disproportionality analysis. (See Dillon, supra, 34 Cal.3d at p. 479

[identifying factors such as a defendant's "age, prior criminality, personal characteristics,

and state of mind"].) Although recent case law has established categorical rules to be

applied in the sentencing of juvenile offenders (see Miller v. Alabama (2012) __ U.S. __

[132 S.Ct. 2455]; People v. Caballero (2012) 55 Cal.4th 262), youth is not a

determinative factor for nonjuvenile offenders like Henderson under either federal or

California law. Instead, it must be considered in conjunction with other factors.

       Reviewing these other factors, Henderson notes that he was an aider and abettor to

the two attempted murders, rather than the actual shooter. Henderson also points out that

his prior criminal offenses, though numerous, were mostly nonviolent. He argues that his

sentence was grossly disproportionate in relationship to the sentences prescribed for other

serious offenses, such as second degree murder under section 190 (15 years to life

imprisonment), voluntary manslaughter under section 193 (up to 11 years), rape under

section 264 (up to 8 years), and lewd acts on a minor under section 288 (up to 8 years).

He claims "even a first degree murder conviction committed by the actual killer does not

bring a sentence as severe as that imposed here."



                                             24
        Henderson has not shown his sentence violates the federal or California

Constitutions. The fact that Henderson was an aider and abettor rather than the actual

shooter is relevant but, again, it is not dispositive. The facts of the instant offense

confirm Henderson's dangerousness and disregard for lives of others. Had Walker been a

more accurate shot, Jason and Kendrick would have been killed. Henderson did nothing

to prevent that result; instead, he actively encouraged it. Similarly, the fact that

Henderson has a long criminal history—with one serious and violent felony conviction—

makes a severe sentence all the more reasonable. (See Ewing, supra, 538 U.S. at pp. 25,

29; see also Rummel v. Estelle (1980) 445 U.S. 263, 284-285; People v. Sullivan (2007)

151 Cal.App.4th 524, 570.) The fact that many of Henderson's offenses were nonviolent

does not erase the effect of this history. Even the absence of a significant criminal

record—which is not the case here—is not determinative in assessing the

constitutionality of a given punishment. (People v. Martinez (1999) 76 Cal.App.4th 489,

497.)

        The various hypothetical punishments under the Penal Code that Henderson

references also do not demonstrate gross disproportionality. As an initial matter,

Henderson is incorrect that his sentence is more severe than that which would result from

a first degree murder conviction. "[T]he maximum punishment for the hypothecated first

degree murder includes the death penalty, which is more severe than defendant's

sentence." (People v. Haller (2009) 174 Cal.App.4th 1080, 1093 (Haller); see § 190,

subd. (a).) The remaining punishments are for single counts and do not incorporate any

gang- or firearms-related sentencing enhancements, as the jury found in Henderson's

                                              25
case. They also do not account for enhanced sentencing for a prior serious and violent

felony conviction, as Henderson admitted here.

       Henderson's sentence is not one of the extraordinary and extremely rare cases

where the sentence is grossly disproportionate to the offense. (See Haller, supra, 174

Cal.App.4th at pp. 1086, 1083 [upholding a sentence of 78 years to life imprisonment for

convictions for assault with a deadly weapon, criminal threats, and stalking]; see also

Ewing, supra, 538 U.S. at pp. 19-20, 28 [upholding sentence of 25 years to life for a

conviction for felony grand theft with prior thefts and burglary]; Harmelin v. Michigan

(1991) 501 U.S. 957, 1001, 1005 [upholding life sentence without parole for drug

possession].) Henderson's sentence does not violate the federal or California

Constitutions.

                                             E

       Henderson argues that the gang enhancements found by the jury under section

12022.53, subdivision (e), violate the constitutional guarantee of equal protection because

that subdivision unjustifiably treats aiders and abettors in gang-related shootings more

harshly than aiders and abettors in nongang-related shootings. He claims this distinction

should be analyzed under strict scrutiny and, under that test, cannot be sustained.

       "Under this sentencing regime an aider and abettor who is found guilty of murder

is subject to the 25[-]year[-]to[-]life enhancement even though he or she did not

personally and intentionally discharge a firearm causing death if the murder was

committed for the benefit of a criminal street gang and 'any principal' in the offense

personally and intentionally discharged a firearm causing death. In all other killings

                                             26
subject to section 12022.53, subdivision (d)—that is, killings not for the benefit of a

criminal street gang—a principal, including an aider and abettor, is only subject to the 25-

year enhancement if he or she personally and intentionally discharged a firearm causing

death." (People v. Hernandez (2005) 134 Cal.App.4th 474, 480 (Hernandez).)

       Henderson's argument was considered and rejected by the court in Hernandez. In

that case, the Court of Appeal for the Second Appellate District determined that the

appropriate test for the challenged classification was rational basis review. (Hernandez,

supra, 134 Cal.App.4th at p. 483.) Under this standard, Hernandez concluded that "the

Legislature had a rational basis for imposing a 25-year[]-to-life enhancement on one who

aids and abets a gang-related murder in which the perpetrator uses a gun, regardless of

the relationship between the aider and abettor and the perpetrator. . . . [T]he purpose of

this enhancement is to reduce through punishment and deterrence 'the serious threats

posed to the citizens of California by gang members using firearms.' One way to

accomplish this purpose is to punish equally with the perpetrator a person who, acting

with knowledge of the perpetrator's criminal purpose, promotes, encourages or assists the

perpetrator to commit the murder." (Ibid., fn. omitted.)

       Henderson argues that Hernandez was wrongly decided. "We, of course, are not

bound by the decision of a sister Court of Appeal. [Citation.] But '[w]e respect stare

decisis . . . which serves the important goals of stability in the law and predictability of

decision. Thus, we ordinarily follow the decisions of other districts without good reason

to disagree.' " (The MEGA Life & Health Ins. Co. v. Superior Court (2009) 172

Cal.App.4th 1522, 1529 (MEGA Life).)

                                              27
       Henderson claims Hernandez erred by applying the rational basis standard.

Relying on People v. Olivas (1976) 17 Cal.3d 236 (Olivas), Henderson contends the strict

scrutiny standard applies here. In Olivas, the Supreme Court considered a defendant's

claim that his sentence as a juvenile offender violated equal protection principles because

it was more severe than his sentence would be as an adult offender. (Id. at pp. 242-243.)

The Supreme Court defined the interest at issue "to include not only his interest in being

free from incarceration in an institution of the Youth Authority, but also to encompass his

interest in freedom from the restraints that accompany parole or any other control by the

authority." (Id. at p. 245.) The Supreme Court determined that this interest was

"fundamental," such that strict scrutiny applied to the challenged classification. (Id. at

pp. 251, 250.)

       Olivas has not been interpreted as broadly as Henderson urges. As the Supreme

Court explained in a later opinion, "The language in Olivas could be interpreted to

require application of the strict scrutiny standard whenever one challenges upon equal

protection grounds a penal statute or statutes that authorize different sentences for

comparable crimes, because such statutes always implicate the right to 'personal liberty'

of the affected individuals. Nevertheless, Olivas properly has not been read so broadly."

(People v. Wilkinson (2004) 33 Cal.4th 821, 837 (Wilkinson).) In Wilkinson, the Supreme

Court approvingly quoted a Court of Appeal opinion limiting Olivas to its particular

facts: " 'This language [in Olivas] requires only that the boundaries between the adult

and juvenile criminal justice systems be rigorously maintained. We do not read Olivas as

requiring the courts to subject all criminal classifications to strict scrutiny requiring the

                                              28
showing of a compelling state interest therefor.' " (Wilkinson, at pp. 837-838, quoting

People v. Davis (1979) 92 Cal.App.3d 250, 258.)

       Wilkinson held that the rational basis test applies to equal protection claims

challenging different sentences for allegedly comparable crimes. (Wilkinson, supra, 33

Cal.4th at p. 838; see People v. Turnage (2012) 55 Cal.4th 62, 74.) "A

defendant . . . 'does not have a fundamental interest in a specific term of imprisonment or

in the designation a particular crime receives.' " (Wilkinson, at p. 838.) "Application of

the strict scrutiny standard in this context would be incompatible with the broad

discretion the Legislature traditionally has been understood to exercise in defining crimes

and specifying punishment." (Ibid.)

       Because the Supreme Court has held that the rational basis test applies to the equal

protection claim at issue here and in Hernandez, Henderson's claim that Hernandez was

wrongly decided is meritless.7 We therefore follow Hernandez both as a matter of stare

decisis (see MEGA Life, supra, 172 Cal.App.4th at p. 1529) and because we agree with

its reasoning upholding the challenged classification under the rational basis test (see

Hernandez, supra, 134 Cal.App.4th at p. 483). Application of section 12022.53,

subdivision (e) does not violate the constitutional guarantee of equal protection under the

circumstances here.



7      Henderson also relies on People v. Wutzke (2002) 28 Cal.4th 923, 943, for the
proposition that strict scrutiny applies here. Our review of that opinion does not reveal
any discussion of the level of scrutiny to be applied in this context. People v. Nguyen
(1997) 54 Cal.App.4th 705, which Henderson also cites, was decided before the Supreme
Court clarified its Olivas opinion in Wilkinson. It is therefore unpersuasive.
                                             29
                                             III

                                             A

       Walker contends the trial court prejudicially erred by admitting evidence of his

confession during an interrogation by sheriff's deputies. Walker argues evidence of his

confession should not have been admitted because (1) he invoked his Fifth Amendment

right to an attorney during the interrogation, prior to his confession, and that invocation

was not respected, in violation of Miranda, supra, 384 U.S. 436; and (2) his confession

was not voluntary.

       After his arrest, Walker was questioned by Robert Navarrette, a sheriff's deputy,

while in custody at a sheriff's station. The interrogation was audiotaped. After some

preliminary conversation, Navarrette read Walker his Miranda rights.8 Walker did not

ask for an attorney at that time and proceeded to answer Navarrette's questions. Walker

denied any involvement in the shooting. After Navarrette implied he had evidence of

Walker's involvement, and encouraged Walker to try "to help [himself] out here," Walker

made the following statement: "Well (unintelligible). I will keep real as soon as you all

(unintelligible) attempted murder charges. Take me to the hole. I'll go to court. And talk

my lawyer or whatever. And then to get this over with. 'Cause I didn- I didn't - I wasn't

there - like I told you. So, and you all ain't find no burner with me or nothing. All you

all got is witnesses saying I probably did something and I didn't do shit. So what. So,

that's what it is." Navarrette responded, "Okay. So when we talk to Old Boy over here


8     The prosecution did not offer the pre-Miranda preliminary conversation into
evidence.
                                             30
and - and he says you were with him, what he - what's he gonna say? What's his reason

to lie?" Walker then said "Who?" and the conversation continued unabated.9

       Walker continued to deny involvement in the shooting. Navarrette encouraged

Walker to cooperate. He said, "And we can go to them and say, 'Look, this is what

Jeremy told us. And he's being cooperative. And, you know, Jeremy made some

mistakes. You know, a bad - a bad place at the wrong time.' Or whatever you wanna call

it. All right? Wrong place at the wrong time. And whatever somebody else did and got

you caught up." An unknown voice interrupted, and Navarrette continued: "Rather than

them saying, 'Yeah, Jeremy fucking shot that boy. Jeremy shot that guy (unintelligible)."

Walker continued to deny involvement. Walker said, "You should just leave me. I didn't

do shit." Navarrette responded, "Well, and I would if you cooperate." Walker again

denied involvement, and Navarrette told Walker he did not believe him.

       After further questioning, Navarrette noticed Walker was getting upset: "I know

you're getting upset. And it - and it's because, yeah, you're lives [sic] on the line. You're

right." After Walker responds "Yeah," Navarrette continues: "You know, and I can

understand your frustration. But you have an opportunity here - whatev- I don't care if

you change your life or you just wanna go back to gangbanging or whatever. And - it's

fine. You know what I mean? You (unintelligible) a small case and do but a few years

but - no, I - I would not wanna see you do it now." After briefly discussing another case,



9      The text of the interrogation is drawn from a transcript prepared by the
prosecution. Diction, spelling, and punctuation are as in the original. A " 'burner' " is
slang for a gun. (See People v. Botello (2010) 183 Cal.App.4th 1014, 1020.)
                                             31
Navarrette said, "Like I said, with you, you have an opportunity right now. Yeah, you -

you - to help yourself and then walk away from this. Somewhat. You know?"

       Walker asked, "Walk away from gangbanging and stuff?" Navarrette responded,

"Yeah. And I know you're not going to do that. And one day you'll find it - okay, you're

gonna see . . . ." Walker and Navarrette discussed the possibility of Walker being labeled

a snitch. Navarrette then said, "And you - you might avoid getting locked up or going

prison or doing a lot of time but if you cooperate - but it - and I don't know what

you . . . ." Walker then responded, "Okay. All right, bro, what you wanna know? What

you wanna know?"

       After that, Walker discussed the confrontation between Jason and Sex Cash

members early on the day of the shooting. He admitted playing video games with Branch

and Henderson later that day, when they heard Jason was walking through the apartment

complex again. Walker and the others rushed to confront him, but Walker said someone

else grabbed a gun and did the shooting. Walker and Navarrette discussed the

circumstances of the shooting extensively, though Walker denied knowing who the

shooter was. After further discussion, and after taking photographs of Walker's tattoos,

Navarrette ended the interrogation.

       The trial court rejected Walker's argument that his statement, "And talk [to] my

lawyer or whatever," was an invocation of his right to counsel. The court determined the

reference to a lawyer was "fleeting" and "certainly no request for a lawyer." The court

also recognized that Walker did not stop talking after his reference to a lawyer and



                                             32
continued to discuss the case. At most, the court determined, Walker's statement

regarding a lawyer was ambiguous.

       The court also rejected Walker's argument that he was coerced into confessing by

an express or implied promise of leniency, e.g., Navarrette's statement that Walker

"might avoid getting locked up or going [to] prison or doing a lot of time. . . ."

Emphasizing that Navarrette phrased his statement conditionally (using the word

"might"), the court found that there was not "a sufficient basis for any sort of cooperation

having been promised and enticement . . . to speak; and, therefore, avoiding any

voluntar[y] statement on his part." Walker's confession was therefore received into the

evidence considered by his jury. It was not part of the evidence considered by Branch

and Henderson's jury.

                                              B

       We first consider Walker's contention that he invoked his Fifth Amendment right

to counsel during the interrogation by remarking "And talk [to] my lawyer or whatever"

in the midst of a longer statement about the criminal justice process. "Under Miranda

and its progeny, 'a suspect [may] not be subjected to custodial interrogation unless he or

she knowingly and intelligently has waived the right to remain silent, to the presence of

an attorney, and, if indigent, to appointed counsel.' [Citation.] If at any point in the

interview the suspect invokes the right to remain silent or the right to counsel, 'the

interrogation must cease.' " (People v. Bacon (2010) 50 Cal.4th 1082, 1104-1105

(Bacon).)



                                             33
       "Once the defendant has waived his or her right to counsel, . . . if the defendant

has a change of heart, he or she must invoke the right to counsel unambiguously before

the authorities are required to cease the questioning. [Citation.] The suspect must

articulate sufficiently clearly his or her desire to have counsel present so that a reasonable

officer in the circumstances would understand the statement to be a request for an

attorney. [Citation.] '[I]f a suspect makes a reference to an attorney that is ambiguous or

equivocal in that a reasonable officer in light of the circumstances would have understood

only that the suspect might be invoking the right to counsel, our precedents do not require

the cessation of questioning.' " (Williams, supra, 49 Cal.4th at p. 432.)

       For example, courts have determined that an invocation is insufficiently

unambiguous where it is accompanied by qualifying words (Davis v. United States

(1994) 512 U.S. 452, 462 (Davis) [" 'Maybe I should talk to a lawyer' "]; Bacon, supra,

50 Cal.4th at p. 1104 [" 'I think it'd probably be a good idea for me to get an attorney' "]);

where the statement is conditional (People v. Gonzalez (2005) 34 Cal.4th 1111, 1126); or

where the statement "constituted an expression of frustration and . . . game playing"

(Williams, supra, 49 Cal.4th at p. 432).

       "In reviewing a trial court's Miranda ruling, we accept the court's resolution of

disputed facts and inferences and its evaluations of credibility, if supported by substantial

evidence, and we independently determine, from the undisputed facts and facts properly

found by the trial court, whether the challenged statement was illegally obtained.

[Citation.] Because what defendant here said during his police interview is undisputed,



                                              34
we engage in a de novo review of the legal question of whether the statement at issue was

ambiguous or equivocal." (Bacon, supra, 50 Cal.4th at p. 1105.)

       In light of these precedents, we conclude Walker did not unambiguously and

unequivocally invoke his Fifth Amendment right to counsel and, therefore, law

enforcement was not required to cease questioning him. The context surrounding

Walker's statement shows that Walker was describing how he would beat any charges

that he would face. He challenges the deputies to file attempted murder charges against

him and "take [him] to the hole." He then says, "I'll go to court. And talk [to] my lawyer

or whatever. And then to get this over with."

       Considered as a whole, Walker's statement does not unambiguously request an

attorney during the interview. Instead, Walker describes how he will talk to his lawyer

once charges are filed and he appears in court. This interpretation is confirmed by the

remainder of Walker's statement, in which he continues to talk about the case, deny

involvement, and denigrate the potential evidence against him.

       We therefore disagree with Walker's contention that his statement expressed his

desire to end the interrogation and speak to an attorney. Walker's statement, taken as a

whole, is an expression of bravado and a challenge to law enforcement. (See Williams,

supra, 49 Cal.4th at p. 432.) Under these circumstances, a reasonable officer would not

understand Walker's reference to a lawyer as an unambiguous request for counsel. The

deputies were not required to cease interrogation, and Walker's Miranda claim is

unavailing. (Ibid.)



                                            35
       Walker points out that a defendant is not required to use any particular words to

invoke the right to counsel. (See People v. Crittenden (1994) 9 Cal.4th 83, 129.) This

principle concerns the form of a defendant's invocation, however, not its substance.

"Although a suspect need not 'speak with the discrimination of an Oxford

don,' . . . [citation], he must articulate his desire to have counsel present sufficiently

clearly that a reasonable police officer in the circumstances would understand the

statement to be a request for an attorney. If the statement fails to meet the requisite level

of clarity, Edwards [v. Arizona (1981) 451 U.S. 477] does not require that the officers

stop questioning the suspect." (Davis, supra, 512 U.S. at p. 459.) The substance of

Walker's statement here was at most ambiguous, as we have explained.

                                                C

       Next we consider Walker's contention that he was coerced during his interrogation

by express or implied promises of leniency and that his confession was therefore

involuntary. " '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.] . . . Under both state and federal law, courts apply a

"totality of circumstances" test to determine the voluntariness of a confession.

[Citations.] Among the factors to be considered are " 'the crucial element of police

coercion [citation]; the length of the interrogation [citation]; its location [citation]; its

continuity' as well as 'the defendant's maturity [citation]; education [citation]; physical

condition [citation]; and mental health.' " [Citation.] On appeal, the trial court's findings

as to the circumstances surrounding the confession are upheld if supported by substantial

                                               36
evidence, but the trial court's finding as to the voluntariness of the confession is subject to

independent review.' " (People v. Boyette (2002) 29 Cal.4th 381, 411 (Boyette).)

       " 'In order to introduce a defendant's statement into evidence, the People must

prove by a preponderance of the evidence that the statement was voluntary. [Citation.]

. . . When, as here, the interview was tape-recorded, the facts surrounding the giving of

the statement are undisputed, and the appellate court may independently review the trial

court's determination of voluntariness.' " (People v. Maury (2003) 30 Cal.4th 342, 404.)

       "In general, ' "any promise made by an officer or other 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." ' [Citation.] In identifying the circumstances under

which this rule applies, [the Supreme Court has] 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 (Ray).)

       "[T]he distinction between permissible and impermissible police conduct 'does not

depend upon the bare language of inducement but rather upon the nature of the benefit to

be derived by the defendant if he speaks the truth as represented by the police.' " (People

v. Belmontes (1988) 45 Cal.3d 744, 773.) "When the benefit pointed out by the police to

a suspect is merely that which flows naturally from a truthful and honest course of

                                              37
conduct, we can perceive nothing improper in such police activity. On the other hand, if

in addition to the forgoing benefit, or in the place thereof, 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. The offer or promise of such benefit need not be

expressed, but may be implied from equivocal language not otherwise made clear."

(People v. Hill (1967) 66 Cal.2d 536, 549; see People v. Holloway (2004) 33 Cal.4th 96,

115.)

        For example, in People v. Jimenez (1978) 21 Cal.3d 595 (Jimenez), the Supreme

Court concluded a confession was involuntary, and therefore inadmissible, under the

following circumstances: "The defendant testified and this testimony was corroborated

by [the investigating officer] that the defendant was told he could get the death penalty,

but that his codefendant probably would not. . . . By telling defendant that his

codefendant probably would not get death, but that he might, [the investigating officer's]

remarks carried with them the clear implication that by cooperating and telling what had

actually happened, the defendant could possibly avoid getting a worse punishment than

his codefendant because either the jury or court might treat him with leniency and not

sentence him to death. As the uncontradicted evidence thus clearly indicates that

defendant's confession was motivated by the benefits implied in [the investigating

officer's] remarks, his confession must be deemed involuntary." (Id. at p. 613.) More

recently, in People v. Williams (1997) 16 Cal.4th 635, the Supreme Court found a

                                             38
promise of leniency under similar circumstances. In that case, the investigating officer

"suggested, somewhat equivocally, that if defendant cooperated in the investigation the

district attorney might not seek the death penalty." (Id. at p. 661.) The Supreme Court

found this suggestion to be a promise of leniency, but it concluded the suggestion was not

the motivating cause of the defendant's admissions. (Ibid.) Although these examples

involve the death penalty, an express or implied promise of leniency need not involve

that punishment in order to be found coercive. (See, e.g., People v. Vasila (1995) 38

Cal.App.4th 865, 875 (Vasila) [finding improper promises of leniency where

investigators promised, in exchange for cooperation, not to institute federal prosecution

for drug and weapons charges and to release defendant from custody until trial].)

       Turning to Walker's confession, we are mindful of the circumstances of his

interrogation, which are relevant to our consideration of voluntariness under the totality

of the circumstances. (Boyette, supra, 29 Cal.4th at p. 411.) Walker's age at the time of

the interrogation, 17 years, is among these circumstances. (Ibid.) From the transcript of

the interrogation, Walker seems familiar with the criminal justice system. His maturity

appears average for his age. Navarrette was an experienced interrogator, and the

interrogation took place while Walker was in custody.

       The crucial element here is Walker's claim of police coercion based on an express

or implied promise of leniency. (See Boyette, supra, 29 Cal.4th at p. 411.) Throughout

the interrogation, Navarrette explained the benefits of cooperating with police.

Navarrette began by citing the general benefits that might naturally accrue if Walker were

truthful, which is allowable under the law. (See Ray, supra, 13 Cal.4th at p. 340.) For

                                            39
example, Navarrette explained he could tell "them" (presumably the district attorney)

what Walker said during the interrogation and that Walker was being cooperative.

       After Walker continued to deny involvement, however, Navarrette explained that

Walker was facing attempted murder charges. Walker again denied involvement and

began to get upset. Navarrette said, "I know you're getting upset. And it - and it's

because, yeah, you're lives [sic] on the line. You're right." Soon afterwards, Navarrette

offered Walker an opening: "And you - you might avoid getting locked up or going [to]

prison or doing a lot of time but if you cooperate . . . ." Although the use of the word

"but" in the transcript is unclear, the only reasonable interpretation of Navarrette's

statement is that Walker might avoid going to prison or doing "a lot of time" if he

cooperates with law enforcement. Already upset, Walker immediately assents: "Okay.

All right, bro, what you wanna know? What you wanna know?"

       Navarrette therefore offered Walker a choice: either face prosecution for

attempted murder with his life "on the line" or cooperate with law enforcement and

potentially avoid prison entirely. Because Navarrette offered Walker a benefit or

advantage in exchange for his cooperation, rather than simply pointing out the natural

advantages that might accrue, Navarrette's statement was an improper promise of

leniency. Moreover, Walker's immediate assent after Navarrette's promise shows it was

the motivating factor or cause for Walker's confession. (See Vasila, supra, 38

Cal.App.4th at pp. 876-877; People v. Cahill (1994) 22 Cal.App.4th 296, 316-317

(Cahill).) Prior to that assent, Walker denied all involvement. Afterwards, Walker

admitted involvement in the shooting and explained its circumstances in detail. We

                                             40
therefore conclude, on de novo review, that the prosecution did not meet its burden of

showing that Walker's confession was voluntary.

       Navarrette's use of the word "might" does not alter this analysis. Law enforcement

need not promise that a particular outcome will certainly result if the defendant

cooperates in order for the promise to be improper. (See People v. Williams, supra, 16

Cal.4th at p. 661 [finding promise where defendant was told "if defendant cooperated in

the investigation the district attorney might not seek the death penalty"]; Jimenez, supra,

21 Cal.3d at p. 613 [finding promise where defendant was told he "could possibly avoid

getting a worse punishment" if he cooperated]; Cahill, supra, 22 Cal.App.4th at pp. 314,

317; People v. Flores (1983) 144 Cal.App.3d 459, 471-472.) A chance at a better

outcome, even if conditional, may still confer a sufficient benefit on the defendant to

make his cooperation (and subsequent confession) involuntary. Here, for example, after

being told his life was "on the line," Walker was given the chance to avoid prison

entirely—but only if he cooperated. The coercive effect of Navarrette's promise is

apparent, especially given Walker's age and the circumstances of his interrogation.

       Because Walker's confession was involuntary, its admission violated Walker's

rights under the federal and California Constitutions. His conviction must therefore be

reversed unless the People can show that the error in admitting the confession was

harmless beyond a reasonable doubt. (Arizona v. Fulminante (1991) 499 U.S. 279, 295;

People v. Neal (2003) 31 Cal.4th 63, 86 (Neal).) This standard requires the People to

prove " 'beyond a reasonable doubt that the error complained of did not contribute to the

verdict obtained.' [Citation.] 'To say that an error did not contribute to the ensuing

                                             41
verdict is . . . to find that error unimportant in relation to everything else the jury

considered on the issue in question, as revealed in the record.' [Citation.] Thus, the focus

is what the jury actually decided and whether the error might have tainted its decision.

That is to say, the issue is 'whether the . . . verdict actually rendered in this trial was

surely unattributable to the error.' " (Neal, at p. 86.)

       "[C]onfessions, 'as a class,' '[a]lmost invariably' will provide persuasive evidence

of a defendant's guilt [citation], and . . . such confessions often operate 'as a kind of

evidentiary bombshell which shatters the defense[.]' " (People v. Cahill (1993) 5 Cal.4th

478, 503.) "[T]he improper admission of a confession is much more likely to affect the

outcome of a trial than are other categories of evidence, and thus is much more likely to

be prejudicial . . . ." (Ibid.) "[A]lthough the erroneous admission of a confession might

be harmless in a particular case, it nevertheless is 'likely to be prejudicial in many

cases.' " (Neal, supra, 31 Cal.4th at p. 86.)

       The People have not shown the admission of Walker's confession was harmless

beyond a reasonable doubt. Aside from his confession, the only evidence tying Walker to

the crime were (1) the eyewitness accounts of Jason and Kendrick, (2) blue clothing

recovered from his residence that was consistent with certain accounts by Jason and

Kendrick, and (3) the gun recovered from Davis's apartment that Walker sometimes

visited. While the testimony of "numerous, disinterested reliable eyewitnesses to the

crime" may in some cases be sufficient to overcome the erroneous admission of a

confession, when combined with "a wealth of uncontroverted physical evidence," the

evidence in this case fell far short of that standard. (See Neal, supra, 31 Cal.4th at p. 86.)

                                                42
The record shows that Jason and Kendrick were not completely reliable eyewitnesses.

Although Jason identified Walker as the shooter, his testimony was inconsistent

regarding the appearance of the shooter and the clothing he wore. At the preliminary

hearing and at trial, Jason denied at times that Walker was the shooter or said he was not

sure. At one point during trial, Jason testified that he was 85 percent sure that Walker

was the shooter, but then he testified that he was 75 percent sure someone else (not

Walker, Branch, or Henderson) was the shooter. Similarly, although Kendrick was more

confident that Walker was the shooter, Kendrick was initially unable to identify Walker

at all during the preliminary hearing. Jason's and Kendrick's credibility was also

impaired by their gang affiliations and their criminal records; Kendrick testified under a

grant of immunity. The physical evidence, clothes recovered from Walker's residence

and the gun recovered from Davis's apartment, also does not strongly point to Walker's

guilt. Based on Jason's conflicting descriptions, the clothes recovered from Walker's

residence were not necessarily consistent with the crime, and there was no evidence to tie

Walker specifically to the gun.

       The prosecution told the jury they could simply "toss[] the rest of the evidence"

because "it's not even a close call," in the prosecution's view, that Walker was at least

guilty of aiding and abetting the shooting in light of his confession. The prosecution's

reliance on Walker's erroneously admitted confession increases the potential for prejudice

here. (People v. Powell (1967) 67 Cal.2d 32, 55-57; People v. Diaz (2014) 227

Cal.App.4th 362, 384.) "There is no reason why we should treat this evidence as any less



                                             43
'crucial' than the prosecutor -- and so presumably the jury -- treated it." (People v. Cruz

(1964) 61 Cal.2d 861, 868.)

       Indeed, the jury's deliberations show that the case against Walker was not

overwhelming even with his confession. The jury deliberated for approximately nine

hours over two days. (See People v. Rucker (1980) 26 Cal.3d 368, 391 [jury deliberation

for nine hours demonstrates a close case; prejudicial error found].) Significantly, the jury

requested a recorder so that they could listen to Walker's confession again during

deliberations. The importance the jury placed on it is evident.10

       The Attorney General points out that Walker confessed only to taking part in the

shooting, not being the shooter himself. While the jury's verdict therefore went beyond

the admitted acts in Walker's confession, the verdict does not show that Walker's

confession was inconsequential. As we have discussed, it contributed greatly to the

weight of the evidence against Walker and likely resolved doubts that might have arisen

from inconsistencies in the other evidence.

       Similarly, the fact that Branch and Henderson were convicted of similar charges

related to the shooting does not show that admission of Walker's confession was harmless

beyond a reasonable doubt. In assessing harmless error, our focus is on the trial Walker

received, the state of the evidence against him, and the deliberations of his jury. Branch

and Henderson's convictions show only that a jury could convict a defendant based on the

evidence against them; not that a jury will always do so beyond a reasonable doubt.



10     The jury also requested that Jason's testimony be read back during deliberations.
                                              44
Moreover, Branch and Henderson were tied to the shooting by additional evidence that

did not implicate Walker: (1) Davis's statement that they returned to the apartment soon

after the shooting sweating profusely, and (2) the gun found in the apartment where they

both stayed and where they were detained at the time the gun was found. Walker was

also convicted of more serious charges than Branch or Henderson, including a finding

that the attempted murders were willful, deliberate, and premeditated and a finding that

Walker personally discharged a firearm. Any comparisons are therefore inapt.

       Under the circumstances of this case, we cannot say that the People have proved

that the erroneous admission of Walker's confession was harmless beyond a reasonable

doubt. Walker's convictions must therefore be reversed. Because Walker's confession

was admitted only against him, and was not heard by the jury of Branch and Henderson,

their convictions are unaffected by the error.

                                      DISPOSITION

       The judgments against Daquan Rashad Branch and Caleb Marquan Henderson are

affirmed. The judgment against Jeremy Walker is reversed.


                                                                           HUFFMAN, J.

WE CONCUR:



MCCONNELL, P. J.



O'ROURKE, J.


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