Metropolitan News-Enterprise


Tuesday, October 30, 2018


Page 4


Court of Appeal:

Admission to Jury of Client’s Guilt on a Count Requires Reversal

Opinion Says Strategy, Not Assented to by Defendant on the Record, Amounted to a Guilty Plea on the Count, Denying Right to Trial


By a MetNews Staff Writer


A defense attorney’s admission to the jury that his client was guilty of a felony hit and run, while insisting that his conduct did not amount to second degree murder, also charged, was tantamount to a guilty plea to the lesser offense and, absent a showing of the defendant’s assent, on the record, to the strategy, requires reversal on the lesser count, the Court of Appeal for this district has held.

The opinion by Div. Four Justice Audrey B. Collins was filed Friday and certified for partial publication. It affirms in part and reverses in part a judgment by Los Angeles Superior Court Judge Kathleen Kennedy-Powell.

A jury found the defendant, Lauro Lopez, guilty on both counts and Kennedy-Powell sentenced him to 15 years-to-life for the murder and three years on the hit and run charge, with the terms to run consecutively.

Lopez’s convictions stem from an incident in 2015. The defendant made a left turn in his pickup truck and collided with a motorcyclist, who was thrown off his vehicle, and Lopez drove off without checking on him, and the victim soon after died.

When the police tracked down Lopez a short time later, based on the front license plate which had fallen off at the scene of the crash, they determined that his blood alcohol content was .14 percent.

Defense Counsel’s Admission

Lopez’s attorney, in his opening statement, admitted that his client “caused the accident,” adding:

“No dispute. And then he drove away.”

Moments later, he said:

“As to the hit and run, he’s guilty of it; I’ll say that again at the end. There are no games being played here....But he’s not guilty of murder.”

In closing argument, the lawyer said, with respect to the hit and run:

“I’ve never disputed it. He’s guilty of it; he should be punished for it.”

Lopez challenged those statements on appeal, contending he had been denied his constitutional right to a trial on the felony hit and run charge. Collins agreed.

Recent Precedent Applied

In the published portion of her opinion, Collins focused on two recent cases. McCoy v. Louisiana, was issued by the U.S. Supreme Court in January; the other, People v. Farwell, was decided in June by the state high court.

Both cases concern the effects of an attorney’s admission that his or her client committed a charged crime.

In McCoy, the defendant objected to the admission of any of the three murders he was charged with, contending that he was factually innocent. His counsel, in the hopes of avoiding the death penalty, nevertheless told the jury his client had committed the murders.

Justice Ruth B. Ginsburg wrote the majority’s opinion reversing the conviction. She explained that “counsel may not admit her client’s guilt of a charged crime over the client’s intransigent objection to that admission.”

Farwell Holding

In Farwell, the parties stipulated during trial to the factual elements of a misdemeanor charge brought alongside a gross vehicular manslaughter charge. Justice Carol A. Corrigan wrote:

People v. Howard (1992)…held that a plea is valid notwithstanding the lack of express advisements and waivers ‘if the record affirmatively shows that it is voluntary and intelligent under the totality of the circumstances.’…We hold that the totality of the circumstances test applies in silent record cases as well.”

She added:

“A stipulation that admits all of the elements of a charged crime necessary for a conviction is tantamount to a guilty plea.”

Because the record did not demonstrate the defendant’s understanding of his stipulation as a guilty plea, the high court reversed the resulting conviction.

‘Somewhere Between’

Collins described Lopez’s case as being “somewhere between the circumstances of McCoy and Farwell.”

She went on o say:

“Unlike the facts of McCoy, there is no evidence in the record that appellant objected to defense counsel’s strategy. But there is also no evidence in the record that appellant was informed of counsel’s decision to concede guilt on the hit and run count or, crucially, what rights he would be giving up as a result. As such, to avoid error, the record must affirmatively show that appellant’s waiver was voluntary and intelligent under the totality of the circumstances….Further, ‘[t]he absence of express advisements is particularly troublesome’ in the context of a stipulation or concession that is tantamount to a guilty plea….

“As in Farwell, we find that the record fails to affirmatively show that appellant understood his counsel’s concession ‘effectively extinguished his trial rights’ as to the hit and run charge.”

Murder Conviction Unaffected

The jurist rejected the contention by Lopez that the admission relieved the prosecution of its burden to prove his state of mind for the murder charge; she noted that his attorney had explicitly argued that he lacked malice, and that the elements of the hit and run charge do not include the defendant being at fault for the underlying accident.

The unpublished portions of the opinion reject Lopez’s arguments regarding jury instructions and the admission of an advisement from a previous DUI case in which Lopez admitted that driving drunk is a danger to human life.

The case is People v. Lopez, 2018 S.O.S. 5191.


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