Filed 11/28/23 In re Tilei on Habeas Corpus CA4/2 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
In re PUNAOFO TSUGITO TILEI, E080208
on Habeas Corpus, (Super. Ct. No. RIF080733)
OPINION
ORIGINAL PROCEEDINGS from the Superior Court of Riverside County.
Bernard Schwartz and Dennis A. McConaghy*, Judges. Petition Denied.
Martin Kassman, under appointment by the Court of Appeal, for Petitioner.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney
General, Charles C. Ragland, Assistant Attorney General, Daniel Rogers, and Matthew
C. Mulford, Deputy Attorneys General, for Respondent.
*(Retired judge of the Riverside Super. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.)
1 I.
INTRODUCTION
In 2000, a jury found defendant and petitioner Punaofo Tilei guilty of attempted
murder for repeatedly firing a handgun at the vehicle of a sheriff’s deputy, nearly
shooting off his finger. This court affirmed defendant’s conviction. In 2020, defendant
filed a petition for writ of habeas corpus in this court, which we denied. Defendant then
filed the instant petition for writ of habeas corpus in the California Supreme Court,
arguing his defense counsel violated his Sixth Amendment rights by conceding during
closing argument, without defendant’s consent, that he shot the deputy. The Supreme
Court ordered the Secretary of the Department of Corrections and Rehabilitation (the
State) to show cause in this court why defendant “is not entitled to relief under McCoy v.
Louisiana (2018) 584 U.S. __ [138 S.Ct. 1500] (McCoy), and why McCoy should not
apply retroactively on habeas corpus to final judgments of conviction.”
Defendant contends McCoy applies retroactively, he is entitled to relief under
McCoy because he maintained his innocence, and he never consented to conceding
factual guilt. We conclude that, even assuming without deciding McCoy applies
retroactively, defendant is not entitled to relief under McCoy. Defendant’s habeas writ
petition is therefore denied.
2 II. 1 FACTUAL AND PROCEDURAL BACKGROUND
A. Facts
After attending a birthday party in 1998, defendant and other party attendees went
to a nearby alley and took turns firing defendant’s handgun. A sheriff’s deputy was
dispatched to the alley to investigate. As the deputy drove down the alley, he heard and
saw a man firing a gun at him. A bullet nearly severed one of the deputy’s fingers.
During defendant’s trial, one of the witnesses, M.B., testified that after several
people fired defendant’s gun, someone handed the gun back to defendant. When
someone said, “‘Cops coming,’” M.B. and another person fled. When M.B. turned
around, she saw defendant standing alone, with his back to her and his shoulders
“‘scrunched up.’” He was holding something out in front of him. M.B. heard gunshots
from where defendant was standing. On cross-examination, M.B. conceded she initially
lied to the police that she was inside another person’s home when the deputy was shot
and assumed someone other than defendant shot the deputy, because she last saw that
person with the gun.
Defendant’s sister, E.T., testified she went outside when she heard the initial
gunshots and saw defendant and several people standing around. She then saw a patrol
car approaching and everyone left. Defendant and several others ran between some
1 The facts and some of the procedural history are drawn from this court’s 2000 opinion. (People v. Tilei (July 19, 2000, E023430) [nonpub. opn.].)
3 buildings. E.T. heard more gunshots coming from between the buildings and saw a white
flash.
A police detective testified that during an interview of E.T. on the day of the
shooting, E.T. told her that after the police car approached, defendant told everyone to
leave. E.T. told defendant, “‘Don’t do nothing stupid.’” Defendant had a gun in his
hand. E.T. saw defendant run toward the area where she heard and saw gunfire.
Two other witnesses testified that the day after the shooting, they went to a motel
to pick up defendant. They took him to the apartment of one of the two witnesses. The
two witnesses testified they did not recall defendant boast of shooting at a police car the
previous night. However, a police detective testified they both told her they had heard
defendant boast of shooting at a police car the previous night.
B. Procedural Background
Defendant was convicted in 1998 of attempted murder of an officer (§§ 187, 664;
count 1), assault with a firearm on a peace officer (§ 245, subd. (d)(1); count 2), and
being a felon in possession of a firearm (§ 12021, subd. (a)(1); count 3). The jury also
found true allegations defendant discharged a firearm and inflicted great bodily injury
(GBI). Defendant admitted he served two prior prison terms. The trial court sentenced
defendant to 27 years to life in prison plus a consecutive term of life with the possibility
of parole.
4 1. Appeal of Defendant’s Conviction
Defendant appealed his convictions (case no. E023430). Defendant argued, in
part, that his trial attorney provided ineffective assistance of counsel (IAC) by conceding
during closing argument, without defendant’s consent, that defendant shot the deputy.
This court affirmed the conviction in 2000. We concluded there was no IAC
because counsel’s concession to the jury was a reasonable strategy intended to maintain
credibility with the jury and was not tantamount to a guilty plea. Also, counsel did not
need to obtain a personal waiver from defendant.
We explained in our decision that “[t]he evidence presented by the prosecution
overwhelmingly indicated that defendant fired the gun at the police car. Defense counsel
evidently hoped to convince the jury not to convict his client of attempted murder by
acknowledging the assault charged in count II and focusing on defendant’s lack of
expressed intent to kill. This concession at closing argument was not tantamount to a
guilty plea, and thus trial counsel did not violate defendant’s constitutional rights by not
obtaining his personal waiver. (People v. Ratliff (1986) 41 Cal.3d 675, 697 [(Ratliff)].)
For these reasons, trial counsel’s concession that defendant pulled the trigger did not
constitute ineffective assistance.”
5 2 2. 1999 Petition for Habeas Corpus
In 1999, defendant filed a habeas petition in this court, along with filing his appeal
of his conviction. He raised several IAC issues (Exhs. F, G). In June 2000, this court
denied the habeas petition as to the IAC issues, as duplicative of the same issues raised in
defendant’s pending appeal (E025307). This court further ordered the respondent to
show cause before the superior court as to the remaining IAC issues raised in the habeas
petition and directed the trial court to conduct an evidentiary hearing on them (Exh. G).
The reporter’s transcript of the evidentiary hearing in which defendant’s trial attorney
testified regarding his representation of defendant is attached to defendant’s habeas
petition as Exhibit D. Also attached to defendant’s habeas petition filed in the Supreme
Court is defendant’s declaration dated July 1, 1999 (Exh. A) and defense counsel’s letter
dated July 2, 1999, explaining the reasons for his actions (Exh. C).
As directed by this court, in April and May 2001, the trial court held an
evidentiary hearing on defendant’s habeas petition, during which defendant’s trial
attorney testified regarding IAC issues. The record before this court does not include a
copy of the court’s decision revealing how defendant’s 1999 habeas petition was decided.
However, it is apparent that the 1999 habeas petition was unsuccessful because defendant
subsequently filed the instant habeas petition in the superior court.
2 Unless stated otherwise, all cited exhibits are to those attached to defendant’s habeas petition filed in the Supreme Court on November 2, 2020 (S265323), and received in this court from the Supreme Court on November 17, 2022 (E080208).
6 3. 2019 Habeas Petition Filed in the Trial Court and Court of Appeal
In March and May 2019, defendant filed in the trial court a habeas petition and
amended habeas petition (the instant case). Defendant argued he was entitled to relief
based on McCoy, supra, 584 U.S. __ [138 S.Ct. 1500]. The trial court requested the State
to file an informal response and appointed counsel for defendant. On March 16, 2020,
the trial court denied defendant’s habeas petition on the ground McCoy does not apply
retroactively on collateral review (Exhs. I, K). The trial court therefore did not address
whether defendant explicitly instructed his trial attorney not to admit guilt at trial, a
requirement under McCoy for finding a Sixth Amendment violation. Upon review, this
court also denied defendant’s habeas petition on August 28, 2020.
4. 2020 Habeas Petition Filed in the Supreme Court
In November 2020, defendant filed the instant habeas petition in the California
Supreme Court (no. S265323), with attached exhibits A through L. On February 22,
2021, the State filed in the Supreme Court an informal response and defendant filed an
informal reply in March 2021. On November 9, 2022, the Supreme Court ordered the
State to show cause before this court of appeal why defendant is not entitled to relief
under McCoy, and why McCoy should not apply retroactively on habeas corpus to final
judgments of conviction.
In January 2023, the State filed a return to defendant’s habeas petition, along with
an attached copy of the reporter’s transcript of the 2001 habeas petition evidentiary
hearing held in the trial court. In April 2023, defendant filed his traverse to the State’s
7 return. Exhibits A, C, D, and F, filed in support of defendant’s Supreme Court habeas
petition are summarized below as to information and facts relevant to this court’s
determination of whether defendant is entitled to relief under McCoy, supra, 584 U.S. __
[138 S.Ct. 1500].
(a) Exhibit A
In Exhibit A, defendant stated in his supporting declaration that, from the time he
was arrested until his criminal trial began, his attorney, Frank Scott, spoke to him only
twice. Scott told him he believed defendant was guilty. Defendant did not agree and
insisted on a trial because he was not guilty. Scott never explained or discussed the
defense strategy with him. Defendant further stated in his declaration that before closing
argument, “I was never aware that Mr. Scott intended to inform the jury that I was guilty
of shooting a gun at the police officer. I never told Mr. Scott that I shot a gun at the
officer. On the contrary, I always insisted that I was innocent of the charges and I never
agreed that Mr. Scott should adopt any other defense position during trial.”
(b) Exhibit D
In Exhibit D, the transcript of the 2001 habeas petition evidentiary hearing states
that Scott testified he made court appearances in the trial court with defendant and,
during that time, Scott discussed with defendant the defense strategy and tactics. Scott
also met with defendant three times at the county jail, as confirmed by the jail visitation
records. During those visits, Scott discussed with defendant trial strategy and tactics, and
the strength of both sides’ evidence.
8 Scott further testified during the 2001 evidentiary hearing that defendant told him
he was not the person who fired the gun at the deputy. However, during the course of
defendant’s trial, Scott determined that the best strategy was to concede defendant
committed the shooting. At the onset of the trial and during closing argument, Scott
informed the jury that defendant shot the deputy. Scott’s strategy was to focus on the
specific intent element of attempted murder. Before the onset of the trial and during the
trial, Scott did not obtain defendant’s consent to adopt that strategy. Scott considered and
rejected the defense strategies of attacking the credibility of the prosecution’s witnesses,
and of arguing their lack of credibility and reasonable doubt. After the trial, Scott told
defendant’s appellate attorney that, based on what he knew before and during the trial, he
concluded the alibi defense was hopeless.
In addition, Scott testified during the 2001 evidentiary hearing that he explained to
defendant the trial procedures and what he was doing, and indicated that he was going to
try to avoid defendant going to prison for the rest of his life. This was Scott’s primary
objective. Scott stated he was not claiming that defendant understood that Scott was
going to challenge the intent element by saying defendant had no intent to kill the officer
when he shot the gun. Scott explained: “Over the last two or three months up to and
during trial, Mr. Tilei did not have a lot to say. When we would have meetings, the
meeting might last for 15 or 20 minutes, and he might only offer eight or ten words. So I
can’t say that I have an assessment of his specific understanding.” Scott felt there was
9 not a breakdown in his relationship with defendant, although it was approaching that.
Defendant listened to everything Scott had to say.
Scott added that he did not normally “lay out specifically what the strategies were
to choose between. It would be my belief that I am required to make those strategic
decisions, and so I made them.” Scott testified that he never told defendant he thought
defendant was guilty, never cut him off or prevented him from telling Scott about the
case, and tried to get defendant to talk about the case factually and procedurally. Scott
also testified that defendant might have never been aware that Scott intended to inform
the jury he shot the gun. Scott believed there was overwhelming evidence that defendant
had a gun prior to the shooting and he shot the deputy.
Scott thought it would be “ludicrous” to maintain that someone other than
defendant was the shooter because there were a number of witnesses who would have
identified him as one of the shooters. Scott said it had been his tactic all along to attack
the attempted murder intent element. He believed the best defense he could provide was
to attack the count 1 (attempted murder) intent element because count 1 carried the most
severe penalty and was “the most attackable.” Scott therefore concluded the assault
count (count 2) was easily provable, whereas there was no direct evidence of the count 1
intent element. There was only circumstantial evidence of it.
10 After hearing the testimony and argument, the trial court stated it found that
“based upon the evidence that I have heard in this case, there was a rather closed-mouth
relationship on the part of the defendant with his lawyer.” The court’s other factual
findings ordered by this court concerned the issue of IAC, which is not before this court
in the instant matter.
(c) Exhibit F
Attached to Exhibit F is a declaration dated July 8, 1999, by defendant’s appellate
attorney, Sharon Jones, regarding her investigation of defendant’s IAC claims. Jones’s
declaration states that when retained to represent defendant in his habeas petition appeal,
she investigated whether defendant received ineffective representation by Scott. Scott
told her that he never considered presenting a defense that defendant was not the shooter.
Jones sent Scott two letters in May and June 1999, inviting him to submit a declaration
explaining his tactical reasons for failing to conduct an investigation in defendant’s case
and for the other errors raised in defendant’s habeas petition.
(d) Exhibit C
In response to Jones’s letters, Scott sent Jones a letter dated July 2, 1999 (Exh. C),
stating in his letter: “Mr. Tilei was looking at a life sentence if convicted as charged.
The evidence overwhelmingly indicated that Mr. Tilei had the gun, shot the gun, removed
himself to San Bernardino and confessed to two individuals that he did just that. There
was no credible evidence to the contrary. Maintaining that someone else was the shooter,
in my judgment would have been ludicrous. My evaluation of the case is that it was
11 weak and attackable on an element, that, had we prevailed, would have avoided a life
sentence for Mr. Tilei. This was, in my judgment, the only hope, the only credible
defense, that Mr. Tilei possessed. Therefore, I pursued that strategy.”
III.
McCOY RELIEF
Defendant contends he is entitled to relief under McCoy and McCoy applies
retroactively. Regardless of whether McCoy applies retroactively, we conclude defendant
is not entitled to relief under McCoy.
Defendant argues that under McCoy, his trial counsel violated his Sixth
Amendment right to control his defense by conceding defendant shot the deputy. This
concession by Scott, defendant argues, amounted to an unauthorized guilty plea, when
Scott stated during closing argument the following: “‘Well, there is only one issue. And,
that is, what was in the mind, that is to say, what was the intent of Mr. Tilei when he
pulled the trigger? [¶] Now, there really isn’t any question, is there, about who pulled
the trigger, who fired the shots, who left Moreno Valley and went to San Bernardino?
We all know, not just you, not just the prosecutor. I know as well. And I think that we’re
all uncomfortable with it, to put it mildly. [¶] He fired at the police officer. That’s
assault. That’s what we call a general intent crime. He intended to fire the gun. He
intend [sic] to fire am [sic] gun at the direction of or at the police car, or the police
officer.’”
12 A. Applicable Law
“‘Under both the Sixth Amendment to the United States Constitution and article I,
section 15, of the California Constitution, a criminal defendant has the right to the
assistance of counsel.’” (People v. Palmer (2020) 49 Cal.App.5th 268, 279-280, quoting
People v. Ledesma (1987) 43 Cal.3d 171, 215.) However, “[t]o gain assistance, a
defendant need not surrender control entirely to counsel,” as “‘an assistant, however
expert, is still an assistant.’” (McCoy, supra, 584 U.S. _ [138 S.Ct. at p. 1508].) Thus,
“[t]rial management is the lawyer’s province: Counsel provides his or her assistance by
making decisions such as ‘what arguments to pursue, what evidentiary objections to raise,
and what agreements to conclude regarding the admission of evidence.’” (Ibid.) In
contrast, “[s]ome decisions . . . are reserved for the client—notably, whether to plead
guilty, waive the right to a jury trial, testify in one’s own behalf, and forgo an appeal.”
(Ibid.) We review de novo the legal question of whether defendant’s constitutional rights
were violated. (People v. Palmer, supra, at p. 280.) “‘A violation of the client’s right to
maintain his or her defense of innocence implicates the client’s autonomy (not counsel’s
effectiveness).’” (Ibid.) Thus, any such error is structural and not subject to harmless
error review. (Ibid.)
In McCoy, supra, 584 U.S. _ [138 S.Ct. 1500], the United States Supreme Court
held a defendant “has the right to insist that counsel refrain from admitting guilt, even
when counsel’s experienced-based view is that confessing guilt offers the defendant the
best chance to avoid the death penalty.” (Id. at p. 1505.) In that case, the defendant was
13 charged with three counts of murder, and he “vociferously insisted that he did not engage
in the charged acts and adamantly objected to any omission of guilt.” (Ibid.) However,
after reviewing the evidence, defense counsel concluded the best strategy to avoid a death
sentence was to concede guilt. (Id. at p. 1506.) Counsel discussed the strategy with
McCoy, who opposed it “at every opportunity, before and during trial, both in conference
with his lawyer and in open court.” (Id. at p. 1509.) Additionally, McCoy sought to
terminate his counsel’s representation before trial, in light of his planned strategy, but the
trial court denied the motion. (Id. at p. 1506.) Thereafter, in both his opening and
closing statements, and in contrast to McCoy’s trial testimony and against McCoy’s
wishes, counsel conceded guilt “but urged mercy.” The jury returned three death
verdicts. (Id. at p. 1507.)
The Supreme Court in McCoy held that counsel may not admit a client’s guilt of
charged crimes “over the client’s intransigent objection to that admission.” (McCoy,
supra, 584 U.S. _ [138 S.Ct. at p. 1510]; see also Id. at p. 1505 [“it is the defendant’s
prerogative, not counsel’s, to decide on the objective of his defense.”].) In so holding,
the court distinguished Florida v. Nixon (2004) 543 U.S. 175 (Nixon), in which the
defendant was charged with murder. (McCoy, supra, 584 U.S. _ [138 S.Ct. at p. 1509].)
Defense counsel in Nixon, concluded the best strategy to obtain leniency was to concede
guilt. (Nixon, supra, at pp. 180-181.) Defense counsel explained the proposed strategy
to Nixon several times, but Nixon was “generally unresponsive” and “never verbally
approved or protested” the strategy. (Id. at p. 181.) Defense counsel then conceded guilt
14 in his opening and closing statements. (Id. at pp. 182-184.) The jury found the defendant
guilty and recommended the death penalty. (Id. at p. 184.)
The McCoy court observed that counsel in Nixon “did not negate Nixon’s
autonomy by overriding Nixon’s desired defense objective, for Nixon never asserted any
such objective. . . . Nixon complained about the admission of his guilt only after trial,” in
contrast to McCoy, who repeatedly voiced his objection to admitting guilt during the
entirety of the proceedings. (McCoy, supra, 584 U.S. _ [138 S.Ct. at p. 1509].) McCoy
thus reasoned that, “[i]f a client declines to participate in his defense, then an attorney
may permissibly guide the defense pursuant to the strategy she believes to be in the
defendant’s best interest. Presented with express statements of the client’s will to
maintain innocence, however, counsel may not steer the ship the other way.” (McCoy,
supra, 584 U.S. _ [138 S.Ct. at p. 1509].) A McCoy violation thus requires the record
shows “(1) that defendant’s plain objective is to maintain his innocence and pursue an
acquittal, and (2) that trial counsel disregards that objective and overrides his client by
conceding guilt.” (People v. Eddy (2019) 33 Cal.App.5th 472, 482.)
“California courts following McCoy repeatedly have held that [the] case applies
only where defendant actively opposes counsel’s concession.” (People v. Villa (2020) 55
Cal.App.5th 1042, 1056 (Villa); see People v. Bernal (2019) 42 Cal.App.5th 1160, 1166
(Bernal) [“McCoy does not assist defendant because the record here does not reflect a
directive to counsel that defendant’s objective at trial was to maintain innocence on all
charges.”]; People v. Burns (2019) 38 Cal.App.5th 776, 784 [“McCoy is . . . predicated
15 on a client’s express objection to defense counsel’s concession strategy,” italics added];
People v. Franks (2019) 35 Cal.App.5th 883, 891 [“for a Sixth Amendment violation to
lie, a defendant must make his intention to maintain innocence clear to his counsel, and
counsel must override that objective by conceding guilt”]; People v. Lopez (2019) 31
Cal.App.5th 55, 66.)
B. Discussion
Defendant argues McCoy, supra, 584 U.S. _ [138 S.Ct. 1500], requires reversal
here. We disagree. McCoy is distinguishable because the defendant there “vociferously
insisted on his innocence and adamantly objected to any admission of guilt,” yet the trial
court allowed his counsel to concede that the defendant committed three murders.
(McCoy, supra, 584 U.S. _ [138 S.Ct. at p. 1503].) Here, defense counsel concluded that
the best strategy to avoid defendant being convicted of attempted murder was to concede
that defendant fired his gun at the deputy but without intent to kill him. During and
before the trial, defendant did not expressly object to this strategy.
Defendant argues he did not have an opportunity to object to the strategy because
his attorney did not tell him the strategy before conceding during closing argument that
defendant shot the deputy. But defense counsel was not required to do so. (Ratliff,
supra, 41 Cal.3d at p. 697.) Defendant’s attorney’s concession during closing argument
that defendant shot the deputy was not tantamount to a guilty plea requiring a waiver.
(Ibid.)
16 In Ratliff, supra, 41 Cal.3d 675, during closing argument, defense counsel
conceded that the defendant committed burglary. Defense counsel argued that although
the defendant may have committed a burglary of construction site homes and may have
stolen three lamps, he did not rob or shoot anyone. On appeal, the defendant argued that
such a concession was reversible error because it was tantamount to a guilty plea
requiring his personal waiver of his constitutional rights. The Ratliff court disagreed,
explaining: “Counsel’s tactical decision to argue a particular personal view of the
evidence, indicating that his client may have committed only a lesser offense, is not akin
to pleading guilty to that offense. Once a defendant has elected to proceed with a
contested trial, rather than plead guilty or accept sentencing based upon a preliminary
examination transcript, the manner of presenting evidence to the jury becomes one of trial
tactics properly vested in counsel, at least in the absence of a conflict between counsel
and his client.” (Id. at p. 697.) Here, the record does not show defense counsel was
aware there was any conflict between Scott and defendant when Scott conceded
defendant shot the deputy.
The Ratcliff court further stated that it was understandable that defense counsel,
“‘given the weight of incriminating evidence, made no sweeping declarations of his
client’s innocence but instead adopted a more realistic approach, namely, that although
defendant and others may have committed both burglaries, and may have aided and
abetted the acts of violence which caused the victims’ deaths, nonetheless any such acts
were unpremeditated and lacked the requisite deliberation and intent to kill . . . . “[G]ood
17 trial tactics demanded complete candor” with the jury. [Citation.]’” (Ratliff, supra, 41
Cal.3d at p. 697.) The Ratcliff court concluded that, not only did such candor not
constitute IAC, but in addition, “imposition of a duty to obtain personal waivers of
constitutional rights whenever such tactics are anticipated could substantially interfere
with counsel’s tactical conduct of the trial. Accordingly, we decline to require such
personal waivers in these circumstances.” (Id. at p. 697.)
Here, defense counsel’s trial strategy of conceding defendant shot the deputy but
arguing he did not intend to kill him constituted reasonable “trial tactics properly vested
in counsel,” and there was no need to obtain a waiver or consent to proceed with the
defense strategy, where defense counsel was not conceding guilt. There was also no
evidence in the record that defendant expressed any objection or disagreement with such
a strategy. (Ratliff, supra, 41 Cal.3d at p. 697; see also People v. Lopez, supra, 31
Cal.App.5th at p. 63 [finding McCoy distinguishable because the defendant did not object
to attorney’s concession of guilt].)
Although defendant asserted he was innocent, as most defendants requesting a
criminal trial do, defendant’s attorney did not concede defendant was guilty of attempted
murder. Defense counsel only conceded defendant fired a gun at the deputy, and there
was overwhelming evidence in support. Defense counsel did not concede the additional
requisite element of intent. “[S]hooting at a person or persons and thereby endangering
their lives does not itself establish the requisite intent for the crime of attempted murder.
‘Attempted murder requires the specific intent to kill and the commission of a direct but
18 ineffectual act toward accomplishing the intended killing.’” (People v. Perez (2010) 50
Cal.4th 222, 224, italics added, quoting People v. Lee (2003) 31 Cal.4th 613, 623.)
Defense counsel therefore argued there was insufficient evidence to support an attempted
murder conviction.
McCoy thus does not apply here because defense counsel did not admit defendant
was guilty of attempted murder, and defendant did not object beforehand to this trial
strategy. (McCoy, supra, 584 U.S. _ [138 S.Ct. at p. 1510]; see also Id. at p. 1505.)
Defendant urges this court to extend McCoy’s analysis to cases, “such as this one, where
the defendant has not expressly raised an objection.” (People v. Lopez, supra, 31
Cal.App.5th at p. 66.) “[W]e have found no authority, nor has [the defendant] cited any,
allowing extension of McCoy’s holding to a situation where the defendant does not
expressly disagree with a decision relating to his right to control the objective of his
defense.” (Ibid.)
Even assuming without deciding that McCoy can be applied retroactively here, we
conclude McCoy does not apply because it is distinguishable, as we similarly concluded
in In re Smith (2020) 49 Cal.App.5th 377 (Smith). In Smith, we held McCoy did not
apply where the defendant confessed to the police that he killed the victim, then pleaded
not guilty, and testified at trial that he was innocent and had lied in his confession. The
prosecutor asserted in closing argument that the defendant was guilty of first degree
murder. Defense counsel responded during closing argument that the defendant
committed second degree murder, not first degree murder. The defendant interrupted and
19 said he did not do it. The court conducted a hearing, during which defense counsel stated
he had advised the defendant that the jury would not believe his trial testimony, and the
best strategy therefore was to argue he was only guilty of the lesser offenses. (Smith,
supra, at pp. 389-390.)
This court in Smith concluded McCoy did not apply because the “petitioner did not
object or seek to substitute counsel prior to the defense counsel’s closing argument.”
(Smith, supra, 49 Cal.App.5th at p. 390.) Although in Smith the defendant testified on his
own behalf, maintaining his innocence, and objected at closing when his counsel
conceded guilt, we held that the record failed to show he expressly and unambiguously
stated an intent to maintain his factual innocence before counsel conceded it. (Id. at pp.
386-390.) “He did not ‘vociferously insist’ that he did not engage in the charged acts
prior to counsel’s argument.” (Id. at p. 390.) While the defendant objected during
closing argument, “it was after the concession had been made, so it cannot be said that at
the time counsel made the concession, it was over [the defendant’s] intransigent and
unambiguous objection.” (Ibid.)
Defendant argues Smith is distinguishable because in Smith, defense counsel told
the defendant that he was going to make the concession to the jury before defense
counsel did so during closing argument, and the Smith defendant did not object until after
the concession was made. This distinction is not dispositive here. Regardless of whether
defense counsel explained his strategy to defendant before conceding defendant fired his
gun at the deputy, there was no violation of defendant’s Sixth Amendment right to an
20 autonomous defense under McCoy because there is no evidence (1) defendant told his
attorney not to concede he shot the deputy or (2) that he objected to his counsel’s strategy
of conceding this but arguing defendant was not guilty of attempted murder because there
was no evidence of the intent element. (See Villa, supra, 55 Cal.App.5th at p. 1056 [no
McCoy violation where there was no evidence the defendant opposed his attorney’s trial
strategy, and the defendant’s not guilty plea and failure to admit guilt was not enough to
establish a violation].)
As we explained in Villa, supra, 55 Cal.App.5th 1042, “Villa has not shown his
defense counsel violated his right to exclusive control of his defense. Even assuming
counsel’s remark that Villa had driven while drunk and ‘made mistakes’ and her
omission of comments defending him against three of the charges in closing argument
constituted concessions of guilt, he hasn’t shown he opposed the concessions. California
courts following McCoy repeatedly have held that case applies only where defendant
actively opposes counsel’s concession. (People v. Franks, supra, 35 Cal.App.5th at p.
891 [‘for a Sixth Amendment violation to lie, a defendant must make his intention to
maintain innocence clear to his counsel, and counsel must override that objective by
conceding guilt’].)” (Villa, supra, 55 Cal.App.5th at p. 1056.)
Defendant states in his supporting declaration that, when he spoke to his attorney
before the trial, defendant told him he would not plead guilty and insisted on a trial
because he was not guilty of the charges. Defendant further states that his attorney never
explained or discussed the defense strategy. Before closing argument, he was therefore
21 unaware his attorney intended to tell the jury that defendant shot the officer. Yet, there is
no showing defendant attempted to dictate his defense, or that his attorney disregarded
such efforts. Instead, the record shows that defendant said very little to his attorney
regarding his defense, other than possibly insisting he was innocent of the charges.
Although defense counsel may not have clearly explained to defendant that the
defense strategy would include conceding defendant shot the deputy, defendant is not
asserting IAC. His claim is only that his attorney violated his Sixth Amendment right to
defense autonomy by conceding he shot the deputy. That issue is distinct from an IAC
objection. (See McCoy, supra, 584 U.S. _ [138 S.Ct. at pp. 1510-1511] [“Because a
client’s autonomy, not counsel’s competence, is in issue, we do not apply our ineffective-
assistance-of-counsel jurisprudence”].)
The record here does not show that defendant’s attorney disregarded defendant’s
objective of an acquittal on the attempted murder charge by conceding defendant shot the
deputy. The record instead shows his attorney pursued a reasonable defense strategy of
proving defendant’s innocence by focusing on the lack of evidence of the requisite
element of intent and bolstering the defense credibility by conceding defendant shot the
deputy, which the jury was likely to find true based on strong, persuasive evidence.
Relying on Eddy, supra, 33 Cal.App.5th 472, defendant argues he is entitled to
relief under McCoy because his attorney not only conceded the actus reus of attempted
murder but also conceded guilt of the charged crime of assault with a firearm (count 2).
But “McCoy does not assist defendant because the record here does not reflect a directive
22 to counsel that defendant’s objective at trial was to maintain innocence on all charges.”
In Bernal, because the defendant was faced with incriminating evidence presented at trial,
defense counsel did not contest every charge when addressing the jury in closing
argument. (Bernal, supra, 42 Cal.App.5th at p. 1165.) The Bernal court concluded that
McCoy did not apply under such circumstances because there was no indication that the
“defendant instructed counsel not to concede guilt on the relevant charges in closing
argument, nor did he ask to replace appointed counsel because of disagreement over trial
strategy.” (Id. at p. 1166.)
The court in Bernal distinguished Eddy, supra, 33 Cal.App.5th at page 481, cited
by the defendant on appeal: “[T]here the defendant moved to replace his appointed
counsel postverdict, and testimony during a hearing on that motion established that trial
counsel was aware before closing argument that the defendant disagreed with the strategy
of conceding guilt.” (Bernal, supra, 42 Cal.App.5th at p. 1166.) The Bernal court
concluded that the record in Bernal was more like Nixon, supra, 543 U.S. at pages 189
565, “which found no constitutional violation with a silent record on whether the
defendant disagreed with his attorney’s concession of guilt, and with the first complaint
about the concession coming only after trial.” Bernal reiterated that caselaw has
“interpreted McCoy to require express disagreement with counsel for a claimed
constitutional violation to have merit in this context.” (Bernal, supra, at p. 1166, citing
People v. Franks, supra, 35 Cal.App.5th at p. 891; People v. Burns, supra, 38
Cal.App.5th at p. 784.)
23 Concluding there was no Sixth Amendment violation under McCoy or
incompetent representation, the Bernal court reasoned: “Absent a contrary directive or
timely objection from the client, conceding guilt on the charges for which there was
overwhelming evidence would be a reasonable strategy to garner credibility and cultivate
a more favorable environment for the jury’s consideration of defense arguments
regarding the charges that were reasonably in dispute. This was not a ‘fail[ure] to
function in any meaningful sense as the Government’s adversary.’ [Citation.] To the
contrary: it was a considered effort to achieve the best result possible for the client under
difficult circumstances.” (Bernal, supra, 42 Cal.App.5th at p. 1167.)
Here, Scott focused on a defense strategy to garner credibility and cultivate a more
favorable environment for the jury’s consideration of defense arguments regarding the
attempted murder charge that was reasonably in dispute. Scott explained during his
testimony that he did not normally “lay out specifically what the strategies were to
choose between. It would be my belief that I am required to make those strategic
decisions, and so I made them.” When explaining his defense strategy, Scott stated that
he thought it would be ludicrous to maintain that someone other than defendant was the
shooter because there were a number of witnesses who would have identified him as one
of the shooters. Scott said he believed the best defense he could provide was to attack the
count 1 (attempted murder) intent element because count 1 carried the most severe
penalty and was “the most attackable.” Scott concluded the assault count was easily
24 provable (count 2), whereas there was no direct evidence of the count 1 intent element.
There was only circumstantial evidence of intent.
Although defendant may not have been aware before closing argument that his
attorney was going to concede that he shot the deputy, there is no evidence in the record
that defendant objected to this strategy beforehand. In addition, unlike in Eddy,
defendant did not object to the concession in the trial court right after it was made or
during sentencing. Defendant also did not make a Marsden motion or make any attempt
to replace his attorney after the concession was made. We therefore conclude that, even
assuming without deciding that McCoy applies retroactively, McCoy is inapplicable on
the merits.
We also reject defendant’s request to order an evidentiary hearing on the factual
issue of whether Scott reasonably believed he had defendant’s consent to tell the jury that
defendant shot the deputy. There was an evidentiary hearing in 2001, in the trial court,
ordered by this court on defendant’s habeas petition filed in this court. The evidentiary
hearing fully addressed the factual issues regarding Scott’s representation of defendant
and concession that defendant shot the deputy. An additional evidentiary hearing is
therefore unnecessary and not appropriate here. This court finds there is not a reasonable
likelihood that defendant may be entitled to relief, or that such relief depends on the
resolution of any issue of fact which has not been addressed in the previous evidentiary
hearing. (People v. Duvall (1995) 9 Cal.4th 464, 480, 483; Cal. Rules of Court, rule
8.386(f)(1).)
25 IV.
DISPOSITION
Defendant’s petition for writ of habeas corpus is denied on the ground defendant is
not entitled to relief under McCoy.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
CODRINGTON J.
We concur:
RAMIREZ P. J.
McKINSTER J.