Opinion
D075933
02-10-2020
THE PEOPLE, Plaintiff and Respondent, v. MELVIN RAYMOND MEANS, Defendant and Appellant.
Jennifer A. Gambale, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, A. Natasha Cortina and Christine Levingston Bergman, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. SWF1500007) APPEAL from a judgment of the Superior Court of Riverside County, Chad W. Firetag, Judge. Affirmed. Jennifer A. Gambale, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, A. Natasha Cortina and Christine Levingston Bergman, Deputy Attorneys General, for Plaintiff and Respondent.
I.
INTRODUCTION
A jury found Melvin Raymond Means guilty of two counts of attempted robbery (Counts 2, 3) (Pen. Code, §§ 664, 211), and four counts of robbery (counts 1, 4, 7 & 9) (§ 211). The jury also found that Means personally used a firearm during the commission of counts 1, 3, 4, 7 and 9. (§§ 12022.53, subd. (b), 1192.7, subd. (c)(8).) The trial court sentenced Means to an aggregate term of 32 years and eight months in prison.
Unless otherwise specified, all subsequent statutory references are to the Penal Code.
After the jury was unable to reach a verdict on an additional count of robbery charged as count 8, the trial court declared a mistrial as on this count. Pursuant to the People's request, the court dismissed count 8.
With respect to count 2, the jury found that Means was not armed with a firearm within the meaning of section 12022, subdivision (a)(1).
On appeal, Means contends that his convictions on counts 1, 2, 3, and 9 should be reversed because defense counsel improperly conceded Means's guilt during closing argument. We affirm the judgment in its entirety.
II.
FACTUAL BACKGROUND
In September 2014, Means committed a series of armed robberies of restaurants, including a Pizza Hut in San Jacinto (count 4), a Pizza Hut in Hemet (count 7), and a Del Taco in Hemet (count 9).
A sheriff's deputy responding to the Del Taco robbery encountered Means near the scene of the crime. When Means reached into his pocket, the deputy shot at Means. Means escaped from the officer.
In January 2015, Means robbed a Burger Rush restaurant in Hemet (count 1) and attempted to rob the same Pizza Hut in Hemet (count 3) that he had robbed the previous September. During each of these offenses, Means displayed a gun and demanded money. Means also attempted to rob a Carl's Junior in January 2015 (count 2).
During an interview with police in August 2015, Means admitted that he had committed several robberies of restaurants in Hemet and San Jacinto, and that he had been armed during most of the robberies. When asked whether he could recall the time of year that he committed the robberies, Means responded that he could not because he had been using drugs. Means said that he "d[id]n't think" that he had robbed a Jack in the Box. Means did recall being shot at by an officer while attempting to flee from the Del Taco robbery.
Means also stated that the second time he attempted to rob a Pizza Hut, he did not obtain any money and that he also had not obtained any money when he attempted to rob a Carl's Junior.
The People charged Means with having robbed a Jack in the Box in count 8. The jury was unable to reach a verdict on this count. (See fn. 2.)
III.
DISCUSSION
Means is not entitled to reversal of his convictions on counts 1, 2, 3, and 9 on the ground
that defense counsel conceded Means's guilt to these charges "without his permission"
Means contends that he is entitled to reversal of his convictions on counts 1, 2, 3, and 9 because defense counsel purportedly conceded Means's guilt to these charges "without [Means's] permission" during closing argument. A. Governing law
The Sixth Amendment guarantees to a criminal defendant the right to the effective assistance of counsel. (U.S. Const., 6th Amend. [guaranteeing a defendant, the right "to have the Assistance of Counsel for his defence"].) In Yarborough v. Gentry (2003) 540 U.S. 1 (Yarborough), the United States Supreme Court outlined the law governing ineffective assistance claims premised on defense counsel's closing argument:
"The right to effective assistance extends to closing arguments. [Citations.] Nonetheless, counsel has wide latitude in deciding how best to represent a client, and deference to counsel's tactical decisions in his closing presentation is particularly important because of the broad range of legitimate defense strategy at that stage. Closing arguments should 'sharpen and clarify the issues for resolution by the trier of fact,' [citation], but which issues to sharpen and how best to clarify them are questions with many reasonable answers. Indeed, it might sometimes make sense to forgo closing argument altogether. [Citation.] Judicial review of a defense attorney's summation is therefore highly deferential . . . ." (Id. at pp. 5-6.)
While defense counsel enjoys "wide latitude" (Yarborough, supra, 540 U.S. at p. 5), in presenting closing argument, the United States Supreme Court held in McCoy v. Louisiana (2018) ___ U.S.___ (McCoy) that "a defendant has the right to insist that counsel refrain from admitting guilt, even when counsel's experienced-based view is that confessing guilt offers the defendant the best chance to avoid the death penalty." (Id. at p. 1505.) In reaching this conclusion, the McCoy court emphasized that, in that case, "the defendant vociferously insisted that he did not engage in the charged acts and adamantly objected to any admission of guilt." (Ibid.)
The McCoy court explained that "[p]reserving for the defendant the ability to decide whether to maintain his innocence should not displace counsel's, or the court's, respective trial management roles. See [Gonzalez v. United States (2008) 553 U.S. 242,] 249 ('[n]umerous choices affecting conduct of the trial' do not require client consent, including 'the objections to make, the witnesses to call, and the arguments to advance') . . . ." (McCoy, supra, 138 S.Ct. at p. 1509, italics added; accord People v. Freeman (1994) 8 Cal.4th 450, 498 ["The decision of how to argue to the jury after the presentation of evidence is inherently tactical"].)
The McCoy court also explained that the unequivocal evidence of McCoy's adamant objection to defense counsel's decision to concede McCoy's guilt distinguished the circumstances in that case from those at issue in Florida v. Nixon (2004) 543 U.S. 175 (Nixon). In Nixon, the McCoy court explained, the United States Supreme Court "held that when counsel confers with the defendant and the defendant remains silent, neither approving nor protesting counsel's proposed concession strategy, [citation], '[no] blanket rule demand[s] the defendant's explicit consent' to implementation of that strategy." (McCoy, supra, 138 S.Ct. at p. 1505.)
Consistent with the McCoy's court's treatment of Nixon, the California Supreme Court has also repeatedly held that defense counsel may concede a defendant's guilt to a charged offense so long as there is no "explicit indication" that the defendant disagrees with counsel's approach. (People v. Cain (1995) 10 Cal.4th 1, 30 (Cain).) As the Cain court stated:
"We have held trial counsel's decision not to contest, and even expressly to concede, guilt on one or more charges at the guilt phase of a capital trial is not tantamount to a guilty plea requiring a Boykin-Tahl waiver. [Citations.] It is not the trial court's duty to inquire whether the defendant agrees with his counsel's decision to make a concession, at least where, as here, there is no explicit indication the defendant disagrees with his attorney's tactical approach to presenting the defense. [Citations.]" (Id. at p. 30.)
While defense counsel may concede a defendant's guilt during closing argument, as long as the record does not indicate that the defendant objects to the concession (McCoy, supra, 138 S.Ct. at p. 1505), in People v. Farwell (2018) 5 Cal.5th 295, 299 (Farwell), the California Supreme Court explained that "[a] stipulation that admits all of the elements of a charged crime necessary for a conviction is tantamount to a guilty plea," and thus "the record must demonstrate that the defendant voluntarily and intelligently waived his constitutional trial rights." (Farwell, supra, at pp. 299-300, italics added.) The Farwell court explained that this is so because a "stipulation conclusively establishe[s] the stipulated facts as true and completely relieve[s] the prosecution of its burden of proof." (Id. at p. 300.)
In People v. Burns (2019) 38 Cal.App.5th 776 (Burns), this court considered whether defense counsel's concession of the defendant's guilt, without evidence of the defendant's consent, violated the defendant's "constitutional rights to the effective assistance of counsel, jury trial, confrontation, and silence" under McCoy or Farnwell. (Id. at p. 781.) The Burns court rejected this claim, concluding that neither case provided any basis for reversal under these circumstances. (Id. at p. 782; see also People v. Lopez (2019) 31 Cal.App.5th 55, 63-67 (Lopez) [rejecting similar arguments premised on Farwell and McCoy].) The Burns court explained that "McCoy does not apply" because "there is nothing in the record to suggest Burns disagreed with his counsel's concession strategy." (Burns, supra, at pp. 784-785.)
In Burns, defense counsel told the jury:
"I'll start with count 2, the felony evading. Find him guilty. That's the first thing you should go back in the jury room and find that verdict form and find him guilty.
"The domestic violence charge [in count 3]. The only thing that I'm going to say about that is yes, he is guilty." (Burns, supra, at p. 781.)
The Burns court also explained that defense counsel's concession of guilt did not amount to a stipulation under Farwell:
"[U]nlike in Farwell, there was no stipulation admitting the elements of counts 2 and 3 that narrowed the jury's role. [Citation.] The jury was still instructed that the prosecution had to prove guilt beyond a reasonable doubt and that statements made by attorneys were not evidence. [Citation.] Despite defense counsel's concession, the prosecution still had to present competent evidence to establish the essential elements of each charge, something it would not have had to do had Burns pleaded guilty. [Citation]) . . . .B. The closing arguments in this case
"Burns suggests there is no meaningful distinction between stipulating to the elements of a crime and conceding guilt during attorney argument; he argues that both circumstances render guilt a foregone conclusion. But . . . courts have repeatedly drawn such distinctions. [Citations.] In short, Burns's reliance on Farwell is unavailing. Defense counsel's concession was not tantamount to a guilty plea and did not necessitate a Boykin-Tahl waiver." (Burns, supra, 38 Cal.App.5th at pp. 783-784; see also People v. Marsh (2019) 37 Cal.App.5th 474, 491 (Marsh) [rejecting defendant's claim that defense counsel's closing argument that defendant was guilty of this vandalism charge was tantamount to a guilty plea on that count and distinguishing Farwell].)
During his closing argument in this case, defense counsel stated:
"So what we' re asking you to do is find Mr. Means not guilty of the things he's not guilty of. Count 7, right, which is the Pizza Hut, September 18th, 2014. Count 8, the Jack in the Box from September 18th, 2014. And he's not guilty of the personal use of a firearm allegations as to Counts 1, 3, 4, 7, 8 and 9."
Defense counsel also stated the following at the very end of his argument:
"So what we ask you to do, like I know you'll do, is look at each of these things carefully, determine what's been proven beyond a reasonable doubt, and only convict Mr. Means of things that you know have been proven to you beyond a reasonable doubt. That's it. Not guilty [o]n Count 7. Not guilty on Count 8. Did not use a firearm[:] allegations, Counts 1, 3, 4, 7, 8 and 9. Thank you."
During his rebuttal closing argument, the prosecutor stated:
"It's up to you, the way in which you review the verdict forms and the way you consider the evidence in the counts. But I would suggest that you can go to -- as soon as you get to the jury deliberation room, you can go to all the counts except for the 7 and 8. And those are the counts that [the] defense just conceded, right? They asked you -- they argued Count 7, which is that first robbery of the second Pizza Hut with Ms. Aranda[, the victim]. And they asked for a not guilty on the Del Taco. Everything else, they did not argue. So you can just go back, first thing that you do -- it's up to you, but the first thing you can do is sign the guilty forms for the rest of the counts."C. Application
Means argues that his convictions on counts 1, 2, 3, and 9 must be reversed under McCoy because defense counsel conceded Means's guilt to these offenses "without [his] permission."
The jury found Means guilty of a total of six offenses: counts 1, 2, 3, 4, 7, and 9. Defense counsel expressly urged the jury to find Means not guilty of count 7. In his brief on appeal, Means does not specifically contend that counsel conceded his guilt on count 4. However, even assuming that Means intended to raise such an argument, we would reject it for the reasons stated in the text with respect to his claim as to counts 1, 2, 3, and 9.
We assume, but do not hold, that defense counsel conceded Means's guilt on counts 1, 2, 3, and 9 during his closing argument. We make this assumption because, even assuming such a concession, it is clear that Means is not entitled to reversal of these convictions on these counts under McCoy. That is because, as Means expressly acknowledges in his brief on appeal, "there is no evidence in the record that [Means] objected to defense counsel's strategy to concede four counts." In the absence of such evidence, Means's McCoy claim fails. (See e.g., Burns, supra, 38 Cal.App.5th at pp. 784-785 [stating that "McCoy does not apply" because "there is nothing in the record to suggest Burns disagreed with his counsel's concession strategy"].)
In their brief, the People state, "defense counsel here impliedly told the jury that appellant was guilty of four of the charges during argument."
Means's suggestion that we may infer his lack of agreement with counsel's tactical strategy because, in his statement to police, Means did not admit having committed all of the offenses with which he was subsequently charged, is without merit. Under McCoy, the question is whether defense counsel disregarded the defendant's desire for counsel not to concede the defendant's guilt during counsel's closing argument. As Means concedes, there is no evidence in the record with respect to defense counsel's interactions with Means pertaining to counsel's planned summation. Thus, there is nothing in the record from which we may determine that counsel disregarded a request from Means not to concede his guilt as to any of the charged offenses during his closing argument. Certainly, the mere fact that Means had not admitted guilt to all of the charged offenses in a police interview in no way establishes that Means objected to his counsel's closing argument.
In sum, the record contains no evidence that defense counsel violated Means's "right to insist that counsel refrain from admitting guilt," (italics added) under McCoy. (McCoy, supra, 138 S.Ct. at p. 1505; see Lopez, supra, 31 Cal.App.5th at p. 66 [rejecting claim of McCoy error because "unlike in McCoy, there is no evidence that appellant raised any objection to his counsel's decision to concede guilt on the hit-and-run charge"].) Accordingly, Means is not entitled to reversal of his convictions on counts 1, 2, 3, and 9 due to ineffective assistance of counsel under McCoy.
Means's argument under Farwell does not fare any better. Unlike in Farwell, defense counsel did not enter into a stipulation admitting Means's commission of the elements of the charged offenses. (Compare with Farwell, supra, 5 Cal.5th at pp. 298-299 [stating that the "parties entered into . . . [a] stipulation, which was read to the jury," that "encompassed all of the elements of [the charged offense], as alleged in count 2"].) In addition, unlike in Farwell, the jury in this case was not instructed that it "must accept [a set of] stipulated facts as true." (Id. at p. 299.) On the contrary, the trial court in this case instructed the jury that it was required to consider whether the prosecution had proven Means's guilt beyond a reasonable doubt based upon the evidence presented in the case and that statements made by the attorneys were not evidence. The court also instructed the jury that it was the jury's "duty to talk with one another and to deliberate in the jury room." Under these circumstances, it is clear that defense counsel in this case did not enter into a "stipulation" of guilt to a charged offense under Farwell. (See Burns, supra, 38 Cal.App.5th at pp. 782-784; Lopez, supra, 31 Cal.App.5th at pp. 63-67; Marsh, supra, 37 Cal.App.5th at p. 491 [all rejecting similar arguments].)
In reaching this conclusion, we reject Means's arguments that "the requirement to deliberate was effectively taken from the jury by defense counsel's concession," and that "defense counsel's concession in the present case 'relieved the prosecution of its burden of proof.' " As outlined above, the trial court expressly instructed the jury that it was required to deliberate and that the People were required "to prove the defendant guilty beyond a reasonable doubt," and defense counsel ended his closing argument by asking the jury to "look at each of these things carefully, determine what's been proven beyond a reasonable doubt, and only convict Mr. Means of things that you know have been proven to you beyond a reasonable doubt." The fact that the prosecutor, in his closing argument, urged the jury to find Means guilty on the "counts that [the] defense just conceded," did not create a stipulation under Farwell that relieved the People of their burden of proof. "We presume not only that jurors follow instructions in general [citation], but also 'that jurors treat the court's instructions as a statement of the law by a judge, and the prosecutor's comments as words spoken by an advocate in an attempt to persuade.' " (People v. Potts (2019) 6 Cal.5th 1012, 1037.)
Defense counsel repeatedly reminded the jury that the People bore the burden of proof during his closing argument.
Accordingly, we conclude that Means is not entitled to reversal of his convictions on counts 1, 2, 3, and 9 on the ground that defense counsel improperly conceded his guilt to these counts during closing argument.
IV.
DISPOSITION
The judgment is affirmed.
AARON, J. WE CONCUR: HUFFMAN, Acting P. J. O'ROURKE, J.