49 Cal.App.5th 377
Cal. Ct. App.2020Background
- Petitioner (Tom Smith), an inpatient at Patton State Hospital, repeatedly confessed to and described ligature strangulation of fellow patient Robert Lucas; autopsy ruled homicide by ligature strangulation. Petitioner later testified he was not the killer and that his station-house statements were lies.
- At trial defense counsel gave no opening, petitioner testified denying guilt, but in closing counsel conceded petitioner’s involvement and asked the jury to convict of second‑degree murder rather than first degree. Petitioner interrupted and protested during and after closing, but did not substitute counsel before the concession.
- The jury convicted petitioner of first degree murder and related offenses; the conviction and sentence were affirmed on direct appeal and multiple collateral petitions were denied.
- After the U.S. Supreme Court decided McCoy v. Louisiana (2018), petitioner sought habeas relief claiming counsel violated his Sixth Amendment right by conceding guilt over his objection.
- The Court of Appeal (transferred case) addressed whether McCoy applied to petitioner’s facts and whether McCoy is retroactive; it concluded McCoy did not entitle petitioner to relief because petitioner did not make an unambiguous, intransigent instruction to maintain innocence before counsel’s concession.
- The court further held McCoy was an extension of Nixon and therefore not a wholly new rule for purposes of California retroactivity doctrine, but that conclusion was academic because McCoy did not apply on the facts.
Issues
| Issue | Smith's Argument | People’s Argument | Held |
|---|---|---|---|
| Whether counsel violated the Sixth Amendment under McCoy by conceding guilt over client’s objection | Counsel conceded guilt despite Smith’s clear desire to assert innocence; McCoy requires reversal | Smith never made an unambiguous, intransigent instruction to maintain innocence prior to counsel’s concession | Denied — McCoy inapplicable because Smith did not clearly direct counsel to pursue factual innocence before the concession |
| Whether McCoy applies retroactively to final convictions | McCoy should apply retroactively under Teague/Guerra because it was foreshadowed by prior precedent | Even if retroactive, McCoy doesn’t help Smith because it doesn’t apply on these facts | McCoy was an extension of Nixon (not a wholly new rule) and may be retroactive under California law, but it does not grant relief to Smith |
| Procedural bar to habeas claim | Smith argued merits; the petition should be considered on McCoy grounds | People raised procedural default | Supreme Court transfer indicated claim not procedurally barred; court addressed merits |
Key Cases Cited
- McCoy v. Louisiana, 138 S. Ct. 1500 (2018) (holding counsel may not concede guilt over defendant’s unambiguous and intransigent objection to maintaining innocence)
- Florida v. Nixon, 543 U.S. 175 (2004) (permitting counsel to concede guilt when defendant, informed, neither consents nor objects)
- Teague v. Lane, 489 U.S. 288 (1989) (framework for retroactivity of new rules to collateral review)
- Schriro v. Summerlin, 542 U.S. 348 (2004) (new constitutional rules generally not retroactive to cases on collateral review)
- Chaidez v. United States, 568 U.S. 342 (2013) (discussing when a decision announces a new rule for retroactivity)
- People v. Gamache, 48 Cal.4th 347 (2010) (recognizing tactical concessions can be reasonable trial strategy)
- People v. Guerra, 37 Cal.3d 385 (1984) (California test for retroactive application of new rules)
- People v. Franks, 35 Cal.App.5th 883 (2019) (applying McCoy; no reversal where defendant did not make defense objective clear)
- People v. Bernal, 42 Cal.App.5th 1160 (2019) (McCoy inapplicable where record lacked unambiguous instruction to maintain innocence)
- People v. Eddy, 33 Cal.App.5th 472 (2019) (McCoy applicable where record established defendant had instructed counsel not to concede guilt)
- People v. Flores, 34 Cal.App.5th 270 (2019) (McCoy requires client autonomy to choose innocence objective)
- In re Gomez, 45 Cal.4th 650 (2009) (state courts may give greater retroactivity than federal courts)