People v. FloresPeople v. Flores
On appeal, Flores asks that we reverse his two convictions, asserting that under McCoy it was structural error for counsel to take a factual position at odds with Flores‘s insistence that he did not commit the criminal acts alleged by the prosecution. Among other arguments, the People contend that the disagreement between Flores and his lawyer amounted to a strategic dispute about how to best achieve an acquittal—traditionally the province of counsel—rather than an intractable conflict about Flores‘s goal of
Based on our reading of McCoy, however, we are unable to characterize Flores‘s statements as presenting a mere dispute over trial strategy where counsel‘s judgment trumps that of the client. In McCoy, counsel for the defendant did not admit guilt of the charged first degree murder; he conceded the killing (actus reus) and argued that McCoy was not guilty because he lacked the necessary intent (mens rea) for the offense in light of his serious mental and emotional issues. (McCoy, supra, ___ U.S. at p. ___, [138 S.Ct. at p. 1507].) According to the Supreme Court, cases in which a defendant insists on maintaining his innocence of the alleged acts—despite counsel‘s advice to admit the acts but deny the necessary mental state—amount to intractable disagreements about the fundamental objective of the defendant‘s representation. (Id. at p. 1510.) Under McCoy, criminal defense lawyers must allow their clients to dictate the fundamental objective at trial, and thus must not concede the actus reus of a charged crime over their client‘s objection.
The record before us demonstrates that counsel overrode Flores‘s stated goal of maintaining his innocence of the alleged acts. Instead, in pursuit of the understandable objective of achieving an acquittal, he conceded the actus reus of thе charged crimes at both trials. Although any reasonable lawyer might agree with counsel‘s judgment, McCoy instructs that this is a decision for the client to make. Accordingly, we reverse.
A. Arrest for Weapons Possession
In March 2017, Hilary,1 the sister of Flores‘s girlfriend Elizabeth, alerted law enforcement to a cache of weapons behind a bookshelf in an old bedroom at her and Elizabeth‘s family home, where Flores and Elizabeth were living at the time. The collection included guns and gun parts, a hacksaw, toolbox, body armor, Kevlar helmet, and cell phones. One gun was a semiautomatic pistol modified to have many characteristics of аn automatic rifle weapons system. It was a 26.5-inch-long center fire weapon, modified to accept a detachable magazine outside of the pistol grip and to release the magazine without a bullet button. Hilary recognized the gun as one Flores had been building in the backyard a few months earlier. Elizabeth‘s and Hilary‘s father had also seen the gun and asked Flores to get rid of it.
Shortly thereafter, on the same day his and Elizabeth‘s newborn son was brought home from the hospital, Flores was arrested on weapons possession charges. He called Elizabeth several times from jail and expressed anger towards the law enforcement officers that arrested him, swearing that when he was released he would go after the people who were responsible. He said the officers harassed and mocked him and discriminated against him. He also asked Elizabeth to claim ownership of the guns and
B. Arrest for Attempted Murder
While out on bail, Flores drove a Dodge Neon automobile into a police officer while the officer was conducting a traffic stop on another vehicle for an expired registration sticker. A few minutes earlier, after initiating the stop, the officer got off his motorcycle and approached the driver‘s side window of an Acura vehicle in full uniform, including his helmet. According to the driver of the Acura, the Dodge Neon struck the officer, causing him to fly through the air as the Dodge accelerated through the collision and sped away. Other witnesses saw the motorcycle officer slam onto the windshield and tumble up and over the car while, in a single burst of accelеration, the Dodge drove away. The Dodge had plenty of room to drive past without hitting the officer or the Acura, which was scraped in the collision. The officer‘s injuries were grave and life threatening, but fortunately he survived.
Flores quickly abandoned the car and ran towards a nearby light rail Sprinter Station, discarding a hat and beer can along the way. He was stopped by police officers in the station‘s parking lot, but he continued to resist. After he was arrested, officers observed Flores‘s “droopy” appearance with eyes “rolling in the back of his head,” as well as glass on his hands and clothing. Analysis of a blood sample taken at 3:00 p.m. showed methamphetamine in his system. The Dodge Neon had a shattered windshield, with the motorcycle officer‘s radio embedded in it and significant damage to the passenger side and roof. Several empty cans and bottles of beer and propane were found inside the car.
C. Trials and Sentencing
From the outset, Flores expressed considerable discontent with his representation, which was provided by the public dеfender‘s office. At the first Marsden hearing, Flores said he wanted a new attorney because “they are trying to make me admit to something that I don‘t want to admit.” (See People v. Marsden (1970) 2 Cal.3d 118.) He acknowledged counsel told him that the evidence against him included a video of him in the car that hit the motorcycle officer, but Flores still disagreed with their approach: “They are trying to make me admit to guilt.” The court denied Flores‘s request for a new attorney. Flores repeated these claims the following day when he again asked for a Marsden hearing and complained about the “kangaroo court.”2
At the trial on attempted murder charges, Flores‘s counsel pursued a lack-of-premeditation defense, arguing that while the evidence showed Flores was driving the car
At the separatе trial on the weapons charges, Flores‘s lawyer similarly decided to concede possession given the weight of the evidence. But with respect to the charge for manufacturing an assault weapon, counsel contested whether the specific modifications rendered it an assault weapon and argued that Flores did not “reasonably believe[ ] . . . this was [an] illegal weapon as defined as an assault weapon.” During this trial, too, Flores expressed his firm disagreement with counsel‘s decision-making, arguing that counsel was “incriminating me, saying that [the weapon at issue] is mine.”
In October 2017, in case No. SCN374425, a jury found Flores guilty of willful, premeditated and deliberate attempted murder of a peace officer (
The court sentenced Flores to a total term of 29 years to life in prison for the convictions from both trials. It imposed a term of eight years for manufacturing an assault weapon, a stayed two-year term for possession of a firearm by a felon, and stayed sentence on the prison prior. It also imposed a consecutive term of 15 years to life for attempted murder, three years for the great bodily injury enhancement, two years for the on-bail enhancement, and one year for the prison prior. The sentence on count 2 (assault with a deadly weapon) and its enhancements were stayed.
DISCUSSION
The
The People suggest that after the pleading stage, the objective of every dеfense is to seek an acquittal, and that as a result, when counsel reasonably decides that the most effective way to achieve an acquittal is to concede the actus reus, they may properly do so. But counsel‘s role is to assist, not to control. Under McCoy, defense lawyers must allow their clients to dictate the fundamental objective at trial, and must not concede the acts alleged as the actus reus of a charged crime over a client‘s objection.
A. The Supreme Court‘s McCoy Decision
In 2008, law enforcement officers arrested Robert Leroy McCoy in Idaho, just a few days after thrеe of his estranged wife‘s family members—her mother, stepfather, and son—were shot and killed in Louisiana. (McCoy, supra, ___ U.S. at p. ___, [138 S.Ct. at pp. 1505–1506].) After he was extradited to Louisiana, McCoy was appointed counsel from the public defender‘s office. (Id. at p. 1506.) A grand jury indicted him on three counts of first degree murder, and the prosecutor sought the death penalty. (Ibid.) McCoy pleaded not guilty. He insisted throughout the proceedings that he was not in
Before trial, McCoy asked the court for leave to represent himself until he could engage new counsel, citing an irreconcilable conflict in the relationship with his assigned attorney. (McCoy, supra, ___ U.S. at p. ___, [138 S.Ct. at p. 1506].) The court agreed and granted the motion. Shortly thereafter, McCoy retained Larry English as his new lawyer. (Ibid.)
The evidence against McCoy was overwhelming.4 About two weeks before trial, English decided that given the strength of the evidence, the only way to avoid the death penalty was to concede the killings in the guilt phase of the proceedings. (McCoy, supra, ___ U.S. at p. ___, [138 S.Ct. at p. 1506].) English‘s approach also included arguing that McCoy should be convicted only of second degree murder because of his mеntal incapacity, although this argument was complicated by Louisiana‘s prohibition on evidence of diminished capacity absent entry of a plea of not guilty by reason of insanity. (Id. at p. 1506 & fn. 1.)
At the beginning of his opening argument, English told the jurors there was “no way reasonably possible” for them to hear the prosecution‘s evidence and reach “any other conclusion than Robert McCoy was the cause of these individuals’ death.” (McCoy, supra, ___ U.S. at p. ___, [138 S.Ct. at p. 1506]; see id. at pp. 1512–1513 [dis. opn. of Alito, J.].) McCoy again protested his counsel‘s concession. Out of earshot of the jury, McCoy told the court that English was ” ‘selling [him] out’ ” by conceding that McCoy ” ‘murdered [his] family.’ ” (Id. at p. 1506.) The court warned him against ” ‘any other outbursts.’ ” (Id. at p. 1507.) English continued down this same path, asserting multiple times in his opening and closing arguments that McCoy committed the killings. (Ibid.)
The Louisiana Supreme Court affirmed the judgment, concluding that Louisiana Rule of Professional Conduct 1.2(a) (2016) required English to refuse McCoy‘s request to maintain his innocence of the killings. (McCoy, supra, ___ U.S. at p. ___, [138 S.Ct. at pp. 1509–1510].) According to the court, presenting McCoy‘s alibi defense would have implicated English in pеrjury.6 In light of a split among state courts of last resort as to the constitutionality of allowing defense counsel to concede guilt over the client‘s objection, the Supreme Court granted certiorari. (Ibid., citing Cooke v. State (Del. 2009) 977 A.2d 803, 842–846 (Cooke) [counsel‘s pursuit of a “guilty but mentally ill” verdict over defendant‘s “vociferous and repeated protestations” of innocence violated defendant‘s “constitutional right to make the fundamental decisions regarding his case“]; State v. Carter (2000) 270 Kan. 426, 440 (Carter) [counsel‘s admission of client‘s involvement in murder when client adamantly maintained his innocence contravened
In an opinion by Justice Ginsburg, the Supremе Court reversed McCoy‘s conviction, holding that the
As the Court explained, ” [t]he right to defend is personal,’ and a defendant‘s choice in exercising that right ‘must be honored out of “that respect for the individual which is the lifeblood of the law.’ ’ ” (McCoy, supra, ___ U.S. at p. ___, [138 S.Ct. at p. 1507].) According to the Court, the same respect for the individual thаt affords each person the autonomy to decide whether to plead guilty in the face of overwhelming evidence, or even reject the assistance of legal counsel altogether, also allows criminal
The Court specifically referenced opinions from state courts of last resort discussing circumstances where, as in McCoy, “the defendant repeatedly and adamantly insisted on maintaining his factual innocence despite counsel‘s preferred course: concessiоn of the defendant‘s commission of criminal acts and pursuit of diminished capacity, mental illness, or lack of premeditation defenses.” (McCoy, supra, ___ U.S. at p. ___, [138 S.Ct. at p. 1510], citing People v. Bergerud (Colo. 2010) 223 P.3d 686, 691 [“Although defense counsel is free to develop defense theories based on reasonable assessments of the evidence, as guided by her professional judgment, she cannot usurp those fundamental choices given directly to criminal defendants by the United States and the Colorado Constitutions.“]; Cooke, supra, 977 A.2d 803; Carter, supra, 270 Kan. 426.) According to Justice Ginsburg‘s opinion, these clashes “were not strategic disputes about whether to concede an element of а charged offense, . . . they were intractable disagreements about the fundamental objective of the defendant‘s representation.” (McCoy, at p. 1510.)
B. Because Flores Repeatedly Objected to Counsel‘s Concessions and Expressed His Desire to Maintain His Innocence, McCoy Controls and Compels Reversal.
Flores‘s objective at both trials was express and unambiguous: to maintain his innocence of the acts alleged as the actus reus of the charged crimes—i.e. driving the car
Flores also expressed his desire to maintain his innocence at his weapons-charges trial, telling the court, “I told him not to incriminate me.” Flores‘s attorney then interjected that “this might be, again, more of a Marsden hearing type issue. Mr. Flores‘s issue is with [defense counsel‘s] strategy to say whether or not I‘m—” Flores interrupted: “He is incriminating me. I told him I had nothing to do with the property.” “He is incriminating me saying that [the weapon] is mine.” While Flores did not specifically reference the manufacturing or assembling element of the manufacturing-an-assault-
At the trial for weapons possession, Flores‘s counsel nearly followed McCoy and maintained Flores‘s innocence. In closing, the lawyer asserted that the jury would not hear him discuss count 2 (possession of a firearm by a felon;
The People propose several arguments here for why McCoy should not apply. First, they suggest that McCoy broke little, if any, new ground and merely confirmed a defendant‘s right to plead nоt guilty: ”McCoy confirmed that ‘a defendant has the right to insist that counsel refrain from admitting guilt.’ ” (Italics added.) Consistent with this reasoning, the People suggest that Flores merely “viewed counsel‘s suggested strategy to concede that he was driving the vehicle as admitting his guilt.” But in making this argument, the People repeat the same error addressed by McCoy. They fail to
Second, the People “presume[ ]” that Flores‘s objective was an acquittal, not maintaining innocence of the alleged acts. They argue that Flores “may have disagreed on certain factual concessions his counsel wanted to strategically make, but he never suggested an alternative defense or demonstrated the concessions were in direct conflict with his objective.” To make such an argument, however, one must ignore all of Flores‘s repeated, specific objections. The argument also disregards McCoy‘s discussion of plausible objectives that a defendant might have at trial, among others the avoidance of the “opprobrium that comes with admitting [one] killed family members.” (McCoy, supra, ___ U.S. at p. ___, [138 S.Ct. at pp. 1508–1509], citing Hashimoto, Resurrecting Autonomy: The Criminal Defendant‘s Right to Control the Case, 90 B.U. L. Rev. 1147, 1178 (2010) [for some defendants, “the possibility of an acquittal, even if remote, may be more valuable than the difference between a life and a death sentence“]); cf. Jae Lee v. United States (2017) 582 U.S. ___ [137 S.Ct. 1958] [recognizing that a defendant might reject a plea and prefer ” ‘taking a chance at trial’ ” despite ” ‘[a]lmost certai[n]’ ” conviction].)
Third, the People suggest that McCoy may not apply outside of trials for capital offenses. But while the Supreme Court discussed the capital nature of the case before it, it did not limit its holding to trials for capital offenses, and several aspects of the majority opinion confirm that the same right to dictate one‘s trial objective applies outside of trials
In light of our conclusion, based on McCoy, that the violation of Flores‘s
DISPOSITION
The judgments are reversed.
DATO, J.
WE CONCUR:
McCONNELL, P. J.
IRION, J.