Friday, January 11, 2019
Court of Appeal:
No Reversal Based on Lawyer Telling Jury His Client Was Guilty on Count
This District’s Div. Four, on Rehearing, Reaches Opposite Conclusion From That Expressed In Earlier Opinion, Saying It Is Bound by 1995 California Supreme Court Opinion
By a MetNews Staff Writer
The Court of Appeal for this district, in a turnabout from its Oct. 26 view in the case, has declared in an opinion on rehearing that a man is not entitled to a reversal of his conviction on a count based on his lawyer telling the jury he was guilty.
Div. Four’s opinion by Justice Audrey Collins was filed Wednesday and, as before, partially published. It now affirms, in its entirety, the judgment of conviction of Lauro Lopez who, in a drunken state, ran his car into a motorcyclist, causing his death.
Collins’s earlier opinion affirmed Lopez’s conviction of second degree murder but said, with respect to a count based on felony hit and run driving resulting in death:
“During his opening statement and closing argument, defense counsel conceded appellant’s guilt as to the second count of felony hit and run, focusing instead on the murder count. Appellant argues that his counsel’s concession was tantamount to a guilty plea on that count. Further, because the record is silent as to whether appellant knowingly waived his right to trial on the hit and run, he contends the absence of a valid waiver requires reversal….We agree with appellant as to the hit and run conviction, and reverse his conviction on that count.”
She added that there was no doubt that, as the Office of Attorney General contended, “defense counsel likely made the concession as a strategic decision, given the largely undisputed evidence as to the hit and run charge and the seriousness of the murder charge.” Nonetheless, the jurist observed, such a “tactical decision cannot override appellant’s constitutional rights and the protections in place to ensure a knowing and voluntary waiver of those rights.”
In explaining the change-of-mind, Collins relied chiefly on the California Supreme Court’s 1995 decision in People v. Cain, a case cited by the Office of Attorney General in seeking a rehearing. That case was not discussed in the appeals court’s initial opinion.
In Cain, then-Justice Kathryn Werdegar, now retired, said:
“We have held trial counsel’s decision not to contest, and even expressly to concede, guilt on one or more charges at the guilt phase of a capital trial is not tantamount to a guilty plea….It is not the trial court’s duty to inquire whether the defendant agrees with his counsel’s decision to make a concession, at least where, as here, there is no explicit indication the defendant disagrees with his attorney’s tactical approach to presenting the defense.”
That decision, Collins said on Wednesday, is in point and is thus binding on her court.
In his briefing following the Court of Appeal’s Nov. 13 request for a response to the petition for rehearing, Lopez urged adherence to the U.S. Supreme Court’s May 14 decision last year in McCoy v. Louisiana which held that a lawyer’s concession of a client’s guilt on a count contravenes the right to a trial on that count absent the defendant’s knowing and informed waiver of the right.
In her Oct. 26 opinion, Collins distinguished that case, but applied it. She wrote:
“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.”
She relied also on the California Supreme Court’s June 21, 2018 declaration in People v. Farwell that where a defendant stipulates to guilt on a charge, “the record must demonstrate that the defendant voluntarily and intelligently waived his constitutional trial rights.”
In the decision filed Wednesday, Collins expressed this view:
“Here, unlike in McCoy, there is no evidence that appellant raised any objection to his counsel’s decision to concede guilt on the hit and run charge. Nevertheless, appellant urges us to apply McCoy’s analysis of a defendant’s constitutional right to control the objectives of his or her own defense to cases, such as this one, where the defendant has not expressly raised an objection. We conclude such an extension is not supported by the controlling authority.”
She also said:
“Appellant cites no authority extending the rationale of Farwell to a case such as this one, concerning a concession made during closing argument. Indeed, courts have repeatedly distinguished between such circumstances and a guilty plea or its equivalent.”
The case—People v. Lopez, 2019 S.O.S. 181—was tried in the courtroom of Los Angeles Superior Court Judge Kathleen Kennedy-Powell.
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