42 Cal.App.5th 1160
Cal. Ct. App.2019Background
- Ramon Bernal, Jr. burglarized homes and cars in Monterey County in 2016; some acts were captured on security video and witnesses observed him in the act.
- Arrests in June and October recovered property from victims; police later executed a warrant at Bernal’s apartment and found stolen items and two methamphetamine pipes.
- Charged with residential burglary, identity theft, assault with a deadly weapon, three counts of auto burglary, tampering with a vehicle, two counts of receiving stolen property, and child endangerment; special allegations of prior serious felonies and other enhancements were found true.
- Trial counsel conceded guilt on several counts during closing argument and asked the jury to acquit on assault with a deadly weapon and child endangerment; defendant was convicted on all counts.
- Because of two prior strikes, the trial court imposed an aggregate sentence of 85 years to life; the court denied defendant’s Romero motions to strike prior strikes.
- On appeal defendant argued counsel’s concession violated McCoy, insufficient evidence supported two convictions, counsel was ineffective for not objecting to drug evidence and for disparaging the client, and the sentence was unlawful/cruel; the Court of Appeal affirmed convictions but remanded for resentencing to permit discretionary striking of Penal Code §667(a) enhancements under SB 1393.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether defense counsel’s partial concession in closing violated the Sixth Amendment (McCoy) | Concession was a permissible tactic given overwhelming evidence and no record defendant expressly directed counsel to assert complete innocence | Counsel’s admission of guilt and labeling him a "bad guy" usurped defendant’s right to insist on innocence under McCoy | No McCoy violation: no record defendant expressly instructed counsel to maintain innocence; concession was reasonable trial strategy absent an express directive |
| Sufficiency of the evidence for assault with a deadly weapon and child endangerment | Prosecution: eyewitness and victim testimony and conduct supported assault; presence/use of meth pipes supported child endangerment | Bernal: knife was folded/not displayed; apartment clutter alone insufficient for child endangerment | Evidence was substantial for both counts: jury could find knife was brandished and that meth use in home endangered children |
| Ineffective assistance for failing to object to drug-possession evidence and for counsel’s disparaging closing comments | Evidence of drug use was relevant and counsel’s tactical decisions were reasonable; overall case strength unaffected | Counsel’s failure to object and calling client a criminal constituted deficient performance that prejudiced verdict | No ineffective assistance: tactical decisions are entitled to deference and omissions did not prejudice outcome |
| Sentencing challenges: Romero denial; section 654 stay for assault; Eighth Amendment disproportionality | People: court properly exercised discretion, found separate objectives for burglary vs. assault, and sentence falls within legislative scheme for recidivists | Bernal: court abused discretion by denying strikes; assault punishment should be stayed under §654; 85-to-life is cruel and unusual | Romero denial and consecutive sentence for assault affirmed; Eighth Amendment challenge rejected; remand only for court to exercise discretion under SB 1393 re: §667(a) enhancements |
Key Cases Cited
- McCoy v. Louisiana, 138 S. Ct. 1500 (2018) (defendant’s right to insist on innocence may limit counsel’s authority to concede guilt)
- Florida v. Nixon, 543 U.S. 175 (2004) (no constitutional violation where record is silent about defendant’s disagreement with counsel’s concession)
- People v. Farwell, 5 Cal.5th 295 (2018) (a factual stipulation to all elements of an offense is tantamount to a guilty plea requiring waiver of certain rights)
- United States v. Cronic, 466 U.S. 648 (1984) (certain failures of counsel may be so complete as to constitute denial of counsel without specific error showing)
- Strickland v. Washington, 466 U.S. 668 (1984) (two-part ineffective assistance standard)
- People v. Superior Court (Romero), 13 Cal.4th 497 (1996) (court may strike prior strike in furtherance of justice under Penal Code §1385)
- People v. Carmony, 33 Cal.4th 367 (2004) (deferential review of Romero decisions and sentencing norms under Three Strikes)
- People v. Corpening, 2 Cal.5th 307 (2016) (section 654 prohibits multiple punishment for a single act or indivisible course of conduct)
- People v. Beamon, 8 Cal.3d 625 (1973) (multiple objectives permit separate punishments even for overlapping acts)
- Rummel v. Estelle, 445 U.S. 263 (1980) (life sentence for repeat noncapital felonies not per se cruel and unusual)
- Ewing v. California, 538 U.S. 11 (2003) (upholding lengthy recidivist sentence for repeated felony theft)
- Lockyer v. Andrade, 538 U.S. 63 (2003) (gross disproportionality principle applied narrowly)
- People v. Garcia, 28 Cal.App.5th 961 (2018) (statutory changes reducing punishment may apply retroactively to nonfinal judgments)