86 Cal.App.5th 1346
Cal. Ct. App.2022Background
- Defendant Anthony Ross, a level-four inmate, was charged with battery on a non-confined person by a prisoner (Pen. Code § 4501.5) after attacking a correctional counselor in the counselor’s office; he was also charged with two prior "strike" convictions.
- Counsel change: original counsel Mavris moved to withdraw (Marsden hearing); James Fallman was appointed. During trial defendant was removed from the courtroom for disruptive behavior.
- At trial the prosecution presented testimony and documentary evidence (including an intercepted outgoing letter and an RVR guilty plea) showing Ross attacked and repeatedly struck the counselor; defense presented no evidence.
- During closing, defense counsel Fallman conceded Ross had struck the counselor but argued for the lesser included offense (misdemeanor battery) given provocation/self-defense-type circumstances.
- Jury convicted Ross of § 4501.5 and found two strike priors true; court selected the upper term (4 years), doubled to 8 years under Three Strikes.
- On appeal Ross raised (1) a McCoy Sixth Amendment claim that counsel impermissibly conceded guilt, and (2) that resentencing is required under Senate Bill No. 567’s amendment to Cal. Penal Code § 1170(b).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether counsel violated the Sixth Amendment by conceding guilt (McCoy) | Fallman did not override any clear directive from Ross; Ross never expressly asserted he wanted to maintain innocence to Fallman, so no McCoy violation | Fallman conceded Ross’s guilt over Ross’s desire to maintain innocence/self-defense, violating McCoy | No McCoy violation: record lacks an express, contemporaneous assertion by Ross that his objective was to maintain innocence to the exclusion of counsel’s strategy |
| Whether resentencing is required under SB 567 (amending § 1170(b)) | SB 567 is retroactive; People concede some crime-based aggravators were not jury-found but argue priors justified upper term and the court would have found the crime-based aggravators true | SB 567 requires remand if upper-term relied on aggravators not stipulated or jury-found beyond a reasonable doubt; here court relied on crime-based aggravators not so found | Remand for resentencing: court relied on rule 4.421(a) crime-based aggravators that were not stipulated or jury-found; appellate court cannot conclude beyond a reasonable doubt a jury would have found them or that the court would still have chosen the upper term under Watson analysis |
Key Cases Cited
- McCoy v. Louisiana, 138 S. Ct. 1500 (U.S. 2018) (defendant’s right to insist on innocence limits counsel’s ability to concede guilt)
- Florida v. Nixon, 543 U.S. 175 (U.S. 2004) (counsel may proceed with a strategy when defendant is unresponsive or does not expressly object)
- People v. Sandoval, 41 Cal.4th 825 (Cal. 2007) (standards for assessing when judicial factfinding affects Sixth Amendment rights)
- People v. Flores, 75 Cal.App.5th 495 (Cal. Ct. App. 2022) (harmless-error standard for sentencing factfinding under amended § 1170(b))
- People v. Lopez, 78 Cal.App.5th 459 (Cal. Ct. App. 2022) (two-step harmless-error/Watson framework for SB 567 sentencing errors)
- People v. Zabelle, 80 Cal.App.5th 1098 (Cal. Ct. App. 2022) (SB 567 applies retroactively to nonfinal judgments)
- People v. Wandrey, 80 Cal.App.5th 962 (Cal. Ct. App. 2022) (discusses harmless-error and remand principles post–SB 567)
- People v. Dunn, 81 Cal.App.5th 394 (Cal. Ct. App. 2022) (analyzes prejudice and remand standards under SB 567)