People v. LozanoPeople v. Lozano
- Reporters:
- Before:
- Grover, Greenwood, Lie
On appeal, defendant asserts the jury was given a misleading instruction on the concept of subjective provocation necessary to reduce the murder from first degree to second degree. He challenges his witness dissuasion convictions, contending that there is insufficient evidence that he tried to discourage the witnesses from reporting a crime and that the jury was incorrectly instructed on specific intent. He also challenges the sufficiency of the evidence that he attempted to dissuade one witness with the use of a weapon. Finally, he asserts that defense counsel rendered ineffective assistance by conceding guilt on the witness dissuasion counts and associated weapons allegations. For the reasons explained here, we will affirm.
A. TRIAL EVIDENCE
At around 400 p.m. on December 3, 2004, defendant chased Isaac Guzman into the middle of a four-lane road and stabbed him to death with a knife. Guzman was killed a few feet in front of stopped traffic on the roadway.
As defendant jogged away from the scene, the nearest driver followed in her car while calling 911. When interviewed by police, she described the stabbing and stated that when defendant was next to her car and still holding the knife, he lifted his shirt and “puffed his chest” as though “he was going to jump at the car.” When defendant raised his shirt, she saw that he was wearing a red belt, which she thought could be gang related. She became scared and stopped following defendant.
A man and his teenage son also witnessed the killing from their truck. They called 911 as they watched defendant jog away. Before disappearing from view, defendant turned around to look at them and raised his knife as if he was going to stab them.
Defendant and Guzman were members of feuding subsets of the Norteño criminal street gang. Defendant had been dating Guzman‘s cousin for several months before the murder and Guzman disapproved of that relationship. After defendant started dating Guzman‘s cousin, he and Guzman fought three times. About two months before the murder, Guzman shot defendant in the arm.
Defendant fled to Mexico after killing Guzman. He was arrested and extradited to California in 2018. A video recording of defendant‘s police interview was played for the jury. In the interview, defendant initially claimed that he was going to see a friend near Guzman‘s high school when he unexpectedly encountered Guzman and confronted him about the shooting. The two men started fighting, and Guzman pulled out a knife but then dropped it. Defendant picked up the knife and when Guzman tried to run away, defendant chased him and stabbed him after Guzman tripped on a garbage can.
Later in the interview, defendant admitted “[i]t was my knife,” but still denied specifically looking for Guzman. He said they started fighting and Guzman ran away when he saw the handle of the knife in defendant‘s pocket. Defendant explained that he
Defendant ultimately admitted in the interview that on the morning of Guzman‘s murder he stole the biggest knife he could find at a store. He then went to Guzman‘s high school looking for him in order to get revenge for the shooting. After a brief fistfight, defendant pulled out the knife. Guzman tried to run away, but defendant chased him into the street, stabbed him in the back and continued stabbing after Guzman tripped and fell onto his stomach.
The defense called no trial witnesses and defendant did not testify.
B. VERDICT AND SENTENCE
As relevant here, defendant was charged with the premeditated murder of Guzman (
The jury found defendant guilty as charged on all counts in the information. The trial court sentenced defendant to two consecutive life sentences without the possibility of parole, consecutive to determinate sentences on counts 2 and 3 plus deadly weapon enhancements for a total of three years.
A. JURY INSTRUCTIONS ON PROVOCATION
Although defendant did not object to the pattern instruction on provocation (CALCRIM No. 522) or request an additional clarifying instruction, he contends the trial court had an independent duty to instruct the jury that in order to reduce first degree murder to second degree, only subjective provocation must be shown. Defendant argues that because the jury was only explicitly instructed regarding the concept of objective provocation for purposes of reducing murder to voluntary manslaughter (CALCRIM No. 570), it is reasonably likely that the jury incorrectly applied an objective provocation standard in determining whether there was sufficient provocation to reduce a murder from first degree to second degree. The Attorney General counters that defendant forfeited this claim by not objecting to the instruction at trial, and that the instructions were substantively correct and even if incorrect, any error was harmless.
Defendant acknowledges that he did not object to CALCRIM No. 522 or request a separate instruction on the subjective standard of provocation, but he argues the issue is not forfeited because the error affects his substantial rights. (See
1. Standard Of Review
We review claims of instructional error de novo. (People v. Posey (2004) 32 Cal.4th 193, 218.) When reviewing a potentially ambiguous or misleading instruction, we view it in the context of the trial record and instructions as a whole to determine whether there is a reasonable likelihood the jury applied the instruction improperly. (People v. Mitchell (2019) 7 Cal.5th 561, 579; People v. Ayala (2000) 24 Cal.4th 243, 289 (Ayala).) We assume jurors are intelligent people and are capable of understanding and correlating the instructions given. (People v. Ramos (2008) 163 Cal.App.4th 1082, 1088–1089 (Ramos).)
A trial court has an independent duty to instruct the jury on the general principles of law relevant to the issues raised by the evidence. (Hernandez, supra, 183 Cal.App.4th at p. 1331.) Even if the court has no independent duty to instruct on a particular legal point, when it does choose to instruct, it must do so correctly. (People v. Castillo (1997) 16 Cal.4th 1009, 1015.) Once the trial court adequately instructs the jury on the law, it has no further duty to give clarifying instructions absent a request. (Hernandez, at p. 1331.)
2. Murder, Manslaughter and Provocation
First degree murder is an unlawful killing with malice aforethought,2 premeditation, and deliberation. (People v. Chun (2009) 45 Cal.4th 1172, 1181;
Manslaughter is killing without malice. (
A heat of passion theory of voluntary manslaughter has both objective and subjective components. (People v. Moye (2009) 47 Cal.4th 537, 549.) Under both elements, provocation may be anything that arouses intense fear, anger, or jealousy. (People v. Fenenbock (1996) 46 Cal.App.4th 1688, 1704.) But a mere “desire for revenge cannot objectively satisfy the provocation requirement.” (People v. Souza (2012) 54 Cal.4th 90, 117 (Souza).) To prove the objective element of voluntary manslaughter based on provocation, the provocation must be so great that it would have caused a person of average disposition to act rashly and without due deliberation, that is, from passion rather than judgment. (People v. Enraca (2012) 53 Cal.4th 735, 759.) To prove the subjective element, the defendant “must be shown to have killed while under ‘the actual influence of a strong passion’ induced by such provocation.” (Moye, at p. 550.) Thus, “[i]f sufficient time has elapsed between the provocation and the fatal blow for passion to subside and reason to return, the killing is not voluntary manslaughter—‘the assailant must act under the smart of that sudden quarrel or heat of
3. The jury was properly instructed
The jury received standard instructions on homicide (CALCRIM No. 500), malice aforethought (CALCRIM No. 520), degrees of murder (CALCRIM No. 521), provocation (CALCRIM No. 522), and voluntary manslaughter due to sudden quarrel or in the heat of passion (CALCRIM No. 570). The court informed the jury that murder is a killing with malice aforethought, and that if it decided the defendant committed murder, it must decide whether it was murder of the first or second degree. (CALCRIM Nos. 520 & 521.) The court further instructed that first degree murder requires a willful, deliberate and premeditated killing; that deliberation exists where the defendant decides to kill after a careful weighing of the considerations for and against his choice; that premeditation exists where the defendant decides to kill before committing the act that caused death; and that “[a] decision to kill made rashly, impulsively, or without careful consideration is not deliberate and premeditated.” (CALCRIM No. 521.)
The court instructed the jury regarding provocation using CALCRIM No. 522 as follows: “Provocation may reduce a murder from first degree to second degree and may reduce a murder to manslaughter. The weight and significance of the provocation, if any, are for you to decide. [¶] If you conclude that the defendant committed murder but was provoked, consider the provocation in deciding whether the crime was first or second degree murder. Also, consider the provocation in deciding whether the defendant committed murder or manslaughter.” The court then instructed the jury using CALCRIM No. 570 regarding the objective standard applicable to provocation which reduces murder to voluntary manslaughter: “It is not enough that the defendant simply was provoked,” and in “deciding whether the provocation was sufficient, [you must] consider whether a
Read as a whole and in context, the instructions were neither incomplete nor misleading. We therefore see no reasonable likelihood that under the instructions given the jury would have applied an incorrect objective standard in finding that the purported provocation was insufficient to reduce first degree murder to second degree. (See Ayala, supra, 24 Cal.4th at p. 289.)
The courts in Hernandez, Jones, and People v. Ocegueda (2023) 92 Cal.App.5th 548, 558–559 (Ocegueda), rejected similar challenges to CALCRIM No. 522. Ocegueda and Jones considered the distinction between an objective standard of provocation for voluntary manslaughter and the subjective standard for second degree murder. Neither court found instructional error where only CALCRIM No. 522 was given to inform the jury specifically that the objective provocation test did not apply to the question of the degree of murder. (Jones, supra, 223 Cal.App.4th at p. 1001; accord, Ocegueda, at pp. 558–559 [“The instructions were therefore clear that the existence of deliberation and premeditation, including the theory that they were not present due to provocation, were based on Ocegueda‘s subjective mental state alone” and not based on an “objective test.“].) Indeed the Hernandez court reasoned that CALCRIM No. 522 “plainly states the jury should consider provocation for both second degree murder and manslaughter. There is nothing in the instruction that suggests the jury might have failed to fully consider the provocation evidence for second degree murder based on a rejection of the evidence for manslaughter.” (Hernandez, supra, 183 Cal.App.4th at p. 1335.)3
We also conclude that under those instructions, a reasonable jury would not have found subjective provocation at the time of the stabbing yet still convicted defendant of first degree murder. Rather, if the jury had found that defendant had in fact been provoked, the only remaining question would have been whether the killing was second degree murder or voluntary manslaughter. As the court found in Hernandez, “[a]lthough CALCRIM No. 522 does not expressly state provocation is relevant to the issues of premeditation and deliberation, when the instructions are read as a whole there is no reasonable likelihood the jury did not understand this concept.” (Hernandez, supra, 183 Cal.App.4th at p. 1334.) We are not persuaded otherwise by defendant‘s argument that when CALCRIM Nos. 522 and 570 are given together, the jury might misunderstand that the objective provocation prong of the voluntary manslaughter determination also applies to the reduction from first degree to second degree murder.
Defendant speculates the jury here might have understood that the term provocation had a single (i.e., “objective“) meaning as defined in CALCRIM 570. We acknowledge the argument but are unpersuaded, as jurors are presumed to be aware of
The common understanding of provocation is something that arouses a person‘s emotions and causes them to act out in anger. (People v. Ward (2005) 36 Cal.4th 186, 215 [“The evidentiary premise of a provocation defense is the defendant‘s emotional reaction to the conduct of another, which emotion may negate a requisite mental state.“]; see also Hernandez, supra, 183 Cal.App.4th at p. 1334 [provocation means something than provokes, arouses, or stimulates; provoke means to arouse to a feeling or action; to incite to anger.].) The subjective usage of provocation calls for its commonsense meaning. It is only the objective usage that carries a specialized meaning, which CALCRIM No. 570 accurately conveys by starting with the ordinary, dictionary definition of provocation and then qualifying it in the necessary ways.
4. The instructions were not prejudicial
We also conclude on this record that any instructional error regarding the concept of provocation would have been harmless. (People v. Watson (1956) 46 Cal.2d 818, 836.) Under that standard, we review incorrect, ambiguous, conflicting, or omitted instructions not rising to federal constitutional error to determine whether it is reasonably probable a result more favorable to the defendant would have been obtained absent the error. (Beltran, supra, 56 Cal.4th at p. 955.)4
The jury‘s first degree murder finding was also supported by very strong evidence, including defendant‘s explicit statements to investigators that he planned to kill Guzman as revenge for Guzman shooting him months earlier, as well as defendant‘s former girlfriend‘s testimony about defendant telling her after he was shot that Guzman “had something coming to him.” Given that evidence, it is debatable whether defendant was entitled to a voluntary manslaughter instruction.5 (See Breverman, supra, 19 Cal.4th at p. 163 [passion for revenge cannot reduce murder to voluntary manslaughter]; Souza, supra, 54 Cal.4th at p 117 [defendant not entitled to heat of passion voluntary manslaughter instruction where defendant‘s actions were consistent with planned revenge].) By finding defendant guilty of first degree murder, the jury clearly rejected defendant‘s provocation defense.
B. SUFFICIENCY OF THE EVIDENCE
Defendant contends the evidence was insufficient to show he tried to discourage either of the witnessing drivers from reporting a crime (as charged in the information) or causing his arrest (as stated in the jury instruction). He argues that the motions and
Penal Code section 136.1 prohibits dissuading a victim or witness. (People v. Hallock (1989) 208 Cal.App.3d 595, 606.) The statute provides in relevant part: “Except as provided in subdivision (c) [addressing more serious attempts to prevent or dissuade punishable as felonies], a person who attempts to prevent or dissuade another person who has been the victim of a crime or who is witness to a crime from doing any of the following is guilty of a public offense ... : [¶] (1) Making a report of that victimization to a peace officer, a state or local law enforcement officer, probation, parole or correctional officer, a prosecuting agency, or a judge.” (
To assess evidentiary sufficiency, we review the entire record to determine whether any rational trier of fact could have found the essential elements of the crime or special circumstances beyond a reasonable doubt. (People v. Zamudio (2008) 43 Cal.4th 327, 357 (Zamudio).) The record must disclose substantial evidence to support the verdict such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt based on evidence that is reasonable, credible, and of solid value. We review the evidence in the light most favorable to the judgment and presume the existence of every supporting fact the jury could reasonably have deduced from the evidence. A reversal for insufficient evidence is unwarranted unless it appears that upon no hypothesis whatever is there sufficient substantial evidence to support the jury‘s verdict. (Ibid.) The standard is the same under both the California Constitution and the federal Constitution. (People v. Jimenez (2019) 35 Cal.App.5th 373, 392.)
1. Witness Testimony
After a woman witnessed defendant chase and repeatedly stab Guzman in front of her car, she called 911 and followed him in her car as he left the scene on foot. At trial, she described seeing defendant chase Guzman and she also remembered that defendant lifted his shirt in her view. The prosecution introduced and the court admitted her audio recorded police interview as a past recollection recorded. The witness stated in her interview that she had already called 911 after seeing what she initially thought was defendant “beating up” Guzman. At some point, however, she saw defendant using a knife to stab and slash Guzman. As defendant walked away, she followed him in her car; she “got kind of scared because he went like this to my car. He got next to it [¶…¶]. And then he went like this to my car… . He pulled up his shirt and he showed…a red belt and a white [t]-shirt.” Without saying anything, he “puffed his chest [¶…¶] like he
The second eyewitness driver was in his truck (with his son as a passenger) when he witnessed defendant kill Guzman. He watched defendant as he jogged away from the scene. Before defendant disappeared from view, he turned and looked at the witness and gestured with his hands “as if he was going to stab” him, holding the knife in his right hand and raising it up to about shoulder level. The prosecution also played a video recording of the police interviewing the man‘s son, who also witnessed defendant kill Guzman. In the interview, the son described that defendant “stuck the knife up and he like threatened us.” He elaborated that as defendant started jogging away from the scene with the knife still in his hand, they had already called 911 and were following a few meters behind defendant in their car. As defendant was about to disappear from view, he “just looked at us and like just stuck the knife up in the air.”
2. Substantial evidence supports the verdict
The jury heard the male driver‘s testimony and his son‘s police statement each describing that defendant turned and looked at them and raised his knife threateningly as if to stab them. The jury heard similar testimony from the female driver that as she was following defendant, he got next to her car (still holding the knife he had just used to murder Guzman) and gestured as if he would jump at it. Those people had all witnessed defendant stab Guzman to death. The jury could infer from their statements that defendant was aware of several witnesses who had just seen him kill Guzman and that the two drivers were following him in order to report the crime to police and communicate defendant‘s current location so that he could be arrested. The jury could also reasonably infer that defendant made the threatening gestures specifically to intimidate and discourage the drivers from reporting the crime and preventing his escape. Indeed, there is no other apparent reason why defendant would threaten the drivers.
We reject defendant‘s argument that section 136.1, subdivision (b)(1) does not apply here because the witnesses had already reported the crime before he threatened them and therefore any gestures toward them were meant to stop them from following him, not to dissuade them from reporting a crime. According to defendant, any threats he made were intended only to prevent his arrest and therefore would violate section 136.1, subdivision (b)(3), but not subdivision (b)(1). But section 136.1, subdivision (b)(1) is violated when a defendant interferes with an attempt by a victim or witness to contact police during an ongoing crime. (People v. Sherman (2022) 86 Cal.App.5th 402, 414–415 [collecting cases].) In arguing otherwise, defendant‘s reliance on People v. Morones (2023) 95 Cal.App.5th 721 is misplaced. In Morones, the court ruled that the “defendant‘s repeated and consistent attempts to get his children to lie to law enforcement regarding their victimization [defendant‘s act of firing a gun while the children were in the house] did not constitute a violation” of section 136.1, subdivision (b)(1) (id. at p.738) because that section does not pertain “to any supplemental or follow up report in which details already reported are simply confirmed or reviewed.” (Id. at p. 736.) The circumstances in Morones are distinguishable from defendant threatening two witnesses as they talked to 911 operators.
C. INSTRUCTIONAL ERROR ON WITNESS DISSUASION WAS HARMLESS
The trial court instructed the jury on the general elements of section 136.1 with CALCRIM No. 2622: “To prove that the defendant is guilty of this crime, the People must prove that: [¶] 1. The defendant tried to discourage [the two drivers] from causing the arrest of anyone in connection with a crime; [¶] 2. [Each of the two drivers] was a witness; [¶] AND [¶] 3. The defendant knew he was trying to discourage [the two drivers] from reporting the crime and intended to do so.” (Italics added.)
Defendant contends that the jury was not properly instructed regarding the elements of section 136.1 because the instruction combined two alternative elements of the offense such that the jury was not required to find defendant had the specific intent to commit the act he was alleged to have committed. The Attorney General concedes the
A trial court‘s failure to instruct on necessary elements is subject to the Chapman standard for assessing prejudice: whether it can be found beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained. (People v. Merritt (2017) 2 Cal.5th 819, 832; Neder v. U.S. (1999) 527 U.S. 1, 15.) Overwhelming evidence, other properly given instructions, or a defendant‘s concession of elements for which an instruction was omitted may render such an error harmless. (People v. Williams (1997) 16 Cal.4th 635, 689; accord, Merritt, at p. 827 [if omitted “elements were uncontested and supported by overwhelming evidence, it would not necessarily follow that the trial was fundamentally unfair“]; People v. Flood, 18 Cal.4th 470, 504 [failing to instruct on an element of the offense is harmless “where the defendant concedes or admits that element“].)
Considering the trial record and the instructions in context, we find the error was harmless beyond a reasonable doubt. As we have noted, evidence of defendant‘s guilt of the witness dissuasion charges was strong, and defense counsel conceded as much to the jury.
D. SUFFICIENT EVIDENCE SUPPORTS THE ASSOCIATED WEAPONS FINDING
Defendant also challenges the sufficiency of the evidence supporting the jury‘s true finding under section 12022, subdivision (b)(1) that he personally used a deadly weapon in his interaction with the female driver which violated section 136.1, subdivision (b)(1). Defendant acknowledges that he was still holding the knife he had just used to kill Guzman when he gestured at the witness, but he asserts that simply holding the knife without more does not constitute “use” of a weapon under the statute. He argues that because the woman never claimed that he threatened her with the knife, he at most only passively displayed the weapon. (See People v. Hays (1983) 147 Cal.App.3d 534, 548–549 [mere passive display of a weapon not sufficient to support a finding of weapon use within the meaning of section 12022.5].) The Attorney General
Section 12022, subdivision (b)(1) provides in relevant part: “Any person who personally uses a deadly or dangerous weapon in the commission of a felony or attempted felony shall be punished by an additional and consecutive term of imprisonment in the state prison” for one year. (
We conclude that substantial evidence supports the jury‘s finding that defendant intentionally “used” the knife by displaying it while threatening the witness which facilitated his underlying effort to dissuade her from reporting his crime or causing his arrest. (See People v. Granado (1996) 49 Cal.App.4th 317, 325 (Granado) [articulating rule requiring weapon-related conduct coupled with facilitated intent to distinguish “use” from mere possession in context of section 12022.53].) Granado‘s “litmus test” makes a functional distinction between “use” of the weapon and mere “incidental conduct“: “did the defendant take some action with the gun in furtherance of the commission of the crime? If so the gun was “used.” If, on the other hand, the defendant engaged in no weapons related conduct, or such conduct was incidental and unrelated to the offense, no “use” occurred. (Granado, at p. 324, fn. 7.)
The jury could have reasonably inferred from the woman driver‘s testimony and from the circumstances of defendant having just killed a man in the street that defendant used the knife to threaten and intimidate her by openly holding it as a tacit threat, in addition to more explicitly threatening gestures toward her. The jury could also reasonably infer that defendant continued to hold and display the knife for the purpose of intimidating and threatening witnesses to the killing because there is no other apparent reason to openly carry a weapon just used in a deadly attack. (Granado, supra, 49 Cal.App.4th at p. 325.)
Defendant contends his trial counsel‘s concession of guilt on the witness dissuasion counts (and associated weapons allegations) constituted ineffective assistance of counsel. He also argues that the concession prejudiced him on the murder charge because it removed from the jury‘s consideration evidence that would have supported a finding of provocation. He further argues the concession effectively admitted he was acting rationally within moments after stabbing Guzman, which increased the chances that the jury would find him guilty of first degree murder.
“To establish ineffective assistance of counsel, a defendant must show that (1) counsel‘s representation fell below an objective standard of reasonableness under prevailing professional norms, and (2) counsel‘s deficient performance was prejudicial, i.e., there is a reasonable probability that, but for counsel‘s failings, the result would have been more favorable to the defendant. [Citation.] ‘A reasonable probability is a probability sufficient to undermine confidence in the outcome.’ ” (People v. Scott (1997) 15 Cal.4th 1188, 1211–1212; Strickland v. Washington (1984) 466 U.S. 668, 694; People v. Homick (2012) 55 Cal.4th 816, 893, fn. 44.) The claim fails if the showing on either component is insufficient. (Homick, at p. 893, fn. 44.) If the record sheds no light on why counsel acted or failed to act in the manner challenged, an appellate claim of ineffective assistance must be rejected unless counsel was asked for an explanation and failed to provide one, or there simply could be no satisfactory explanation. (People v. Carter (2003) 30 Cal.4th 1166, 1211.)
We must defer to counsel‘s reasonable tactical decisions in reviewing a claim of ineffective assistance of counsel, and there is a strong presumption that counsel‘s conduct falls within the wide range of reasonable professional assistance. (People v. Hinton (2006) 37 Cal.4th 839, 876.) “Judicial scrutiny of counsel‘s performance must be highly deferential. It is all too tempting for a defendant to second-guess counsel‘s assistance after conviction or adverse sentence, and it is all too easy for a court, examining counsel‘s defense after it has proved unsuccessful, to conclude that a particular act or omission of counsel was unreasonable. [Citation.] A fair assessment of attorney
Defense counsel‘s strategy was apparently to argue that defendant was guilty of voluntary manslaughter rather than murder because Guzman had provoked defendant by shooting him about two months before the killing. As the Attorney General observes, defense counsel apparently viewed the case as one in which the evidence of defendant‘s guilt might be tempered by an admission of the far less serious witness dissuasion charges. Defense counsel may have further hoped that a concession would lend credibility to defendant‘s claim that he acted on Guzman‘s provocation and not because he planned to kill him for revenge.
We conclude that given the strong evidence of defendant‘s guilt, his counsel reasonably could have decided that candor was his best strategy. “[S]ensible concessions are an acceptable and often necessary tactic.” (People v. Gamache (2010) 48 Cal.4th 347, 393 [frank acknowledgment of the seriousness of client‘s actions was “tactically justifiable“]; People v. Gurule (2002) 28 Cal.4th 557, 610–612 [concession that client was guilty of robbery and felony murder did not constitute ineffective assistance]; People v. Mayfield (1993) 5 Cal.4th 142, 177 [candor can be an effective tool]; People v. Freeman (1994) 8 Cal.4th 450, 498 [“Recognizing the importance of
F. NO ADMONITION OR WAIVER REQUIRED
Defendant acknowledges that under current California decisional authority, defense counsel is permitted to concede defendant‘s guilt as long as the defendant has not objected. (See McCoy v. Louisiana (2018) 584 U.S. 414; and People v. Lopez (2019) 31 Cal.App.5th 55, 66.) Nonetheless, he argues that “the better practice is for defendants to be informed of their right not to have counsel concede guilt and to personally affirm or object to the concession on the record before closing argument.”
As an initial matter, defendant does not claim that he actually objected to counsel‘s tactical concession of guilt. It also seems unlikely that defendant would have kept silent here if he disagreed with the concession. Defendant unsuccessfully sought to replace his appointed counsel before trial based on complaints (which the trial court determined were unfounded) that his attorney was inexperienced and not sufficiently committed to his case. Defendant also attempted to replace his counsel during trial, complaining about counsel‘s decision not to give an opening statement, counsel‘s failure to interview or cross-examine certain prosecution witnesses, and counsel‘s failure to object to certain evidence.
Defendant‘s argument is inconsistent with controlling authority. Because a concession made during closing argument is not tantamount to a guilty plea, and there is no evidence that defendant raised any objection to conceding guilt on the witness dissuasion charges and related allegations, it was “not the trial court‘s duty to inquire whether the defendant agrees with his counsel‘s decision to make a concession“. (People v. Cain (1995) 10 Cal.4th 1, 30, overruled on other grounds in People v. Moon (2005) 37 Cal.4th 1, 17; see also Florida v. Nixon (2004) 543 U.S. 175, 188 [when counsel confers with client who neither approves nor protests the concession strategy, no blanket rule demands explicit consent to implement the strategy].)
III. DISPOSITION
The judgment is affirmed.
Grover, J.
WE CONCUR:
Greenwood, P. J.
Lie, J.
H051789
The People v. Lozano