People v. Lopez
31 Cal. App. 5th 55
Cal. Ct. App. 5th2019Background
- In October 2015 Lauro Lopez (appellant) turned left and struck a motorcycle, killing the rider; he left the scene and was later arrested with a .14 BAC.
- Lopez had a prior 2013 DUI no-contest plea with a written and oral Watson advisement warning that driving drunk can lead to a murder charge; he completed required programs and was on probation.
- At the scene witnesses and police tied a missing front plate to Lopez's truck; Lopez admitted driving, drinking, and leaving because he was scared.
- The jury convicted Lopez of second-degree murder (Pen. Code §187(a)) and felony hit-and-run causing death/serious injury (Veh. Code §20001(b)(2)).
- At trial defense counsel expressly conceded guilt on the hit-and-run count and focused defense on the murder count; Lopez did not testify or call witnesses.
- On appeal Lopez argued (inter alia) that counsel’s concession amounted to a guilty plea requiring an on-the-record waiver, that McCoy requires personal assent, and that concession tainted the murder conviction; the court affirmed.
Issues
| Issue | Plaintiff's Argument (Lopez) | Defendant's Argument (People) | Held |
|---|---|---|---|
| Whether counsel's concession on hit-and-run was tantamount to a guilty plea requiring a personal plea waiver | Concession admitted all elements and relieved prosecution burden; record lacks an affirmative trial-right waiver, so conviction must be reversed | Concession in argument is not a plea; no stipulation admitted elements, jury still required to find guilt beyond a reasonable doubt | Concession during argument is not tantamount to a guilty plea; no personal waiver required; hit-and-run conviction affirmed |
| Whether McCoy forbids counsel from conceding guilt absent the defendant's express assent even when no objection appears | McCoy protects defendant’s right to control objectives of defense and requires assent for concessions | McCoy is distinguishable where defendant did not object or expressly disagree; Nixon and Cain permit tactical concessions absent express conflict | McCoy does not extend to silent or non-objecting defendants; concession permissible here |
| Whether Farwell requires waiver when an element-admitting stipulation is absent | Concedes Farwell shows stipulations admitting all elements are tantamount to pleas, so counsel concession without waiver would be problematic | Farwell is distinguishable: there was a stipulation there that relieved the prosecution of proof; here no stipulation and jury instructed that counsel statements aren’t evidence | Farwell is limited to cases where parties/stipulation admit every element; not applicable to a counsel concession in closing argument |
| Whether counsel’s concession constituted ineffective assistance or infected murder conviction | Concession was inherently coercive/unreasonable and thus ineffective, warranting reversal of both convictions | Concession was tactical, reasonable given undisputed evidence on hit-and-run; no express disagreement by defendant; Cain and related cases uphold such tactics | Court rejects ineffective-assistance claim; concession was within tactical range and did not require reversal of murder conviction |
Key Cases Cited
- People v. Cain, 10 Cal.4th 1 (1995) (trial counsel may concede guilt on some charges at guilt phase without it being treated as a guilty plea)
- People v. Farwell, 5 Cal.5th 295 (2018) (stipulation admitting all elements of a charged crime is tantamount to a guilty plea requiring personal waiver)
- McCoy v. Louisiana, 138 S. Ct. 1500 (2018) (counsel may not concede client’s guilt over client’s express and intransigent objection; defendant controls objective of defense)
- Florida v. Nixon, 543 U.S. 175 (2004) (counsel’s concession not tantamount to guilty plea when defendant does not expressly approve or protest and defendant retains trial rights)
- People v. Hendricks, 43 Cal.3d 584 (1987) (waiver requirement for pleas applies only to pleas or submissions tantamount to pleas, not ordinary jury trials)
- People v. Watson, 30 Cal.3d 290 (1981) (Watson advisement language regarding drunk driving and potential murder charge)