and inflicting corporal injury) on the basis that his counsel conceded guilt during opening
and closing statements without his express consent. Consistent with our recent decision
in People v. Marsh (2019) 37 Cal.App.5th 474 (Marsh), we reject this claim as contrary
to controlling precedent. However, we accept Burns's remaining claim that the case
should be conditionally reversed for the trial court to consider his eligibility for mental
health diversion pursuant to newly enacted Penal Code section 1001.36.1 As more fully
set forth in the Disposition, we conditionally reverse the judgment with directions for
further proceedings under section 1001.36.
FACTUAL AND PROCEDURAL BACKGROUND
Bystanders called 911 in September 2017 after witnessing Burns repeatedly strike
his girlfriend K.B. in a hotel parking lot while struggling over a set of car keys. K.B.
tried to drive away, but Burns managed to get into the car. After K.B. drove a short
distance, Burns made her stop the vehicle to switch seats. K.B. sat in the rear seat of the
1 Further statutory references are to the Penal Code unless otherwise indicated. 2
parked vehicle as Burns repeatedly swung at her, prompting another bystander to call
911.
San Diego Police Department Officer Matthew Steinbach responded to the call
and ordered Burns to get out of the vehicle. Ignoring this command, Burns drove off and
led Steinbach on a high-speed chase. Steinbach briefly lost sight of the vehicle as it
headed toward the naval base in Point Loma. Spotting it a couple of seconds later, he
resumed pursuit. At some point Burns jumped out of the moving vehicle while it
continued to speed ahead. K.B. jumped out seconds later, and the car then collided with
an oncoming vehicle and crashed into a wall. An off-duty Border Patrol agent who saw
Burns jump out of the moving vehicle pursued him on foot and detained him until police
arrived.
The San Diego County District Attorney's Office charged Burns by amended
information with kidnapping (§ 207, subd. (a), count 1), evading a police vehicle (Veh.
Code, § 2800.2, subd. (a), count 2), infliction of corporal injury on a spouse or cohabitant
(Pen. Code, § 273.5, subd. (a), count 3), and two counts of assault with a deadly weapon
(§ 245, subd. (a)(1), counts 4 & 5). The information further alleged an enhancement for a
prior serious felony (§§ 667, subds. (a)(1)−(2), 668, 1192.7, subd. (c)) and two prior
strikes (§§ 667, subds. (b)–(i), 668, 1170.12).
In May 2018, a jury convicted Burns of the lesser included offense of false
imprisonment on count 1 (§ 236) but otherwise found him guilty as charged. After the
jury was discharged, Burns admitted the prior conviction allegations. At sentencing, the
3
court granted Burns's Romero motion2 and struck one of the two prior strike convictions.
This decision was a "very close call"; the court stated for the record that the public would
be in "significant danger" were Burns to be paroled after three years. It imposed a total
term of 19 years and eight months in state prison.
DISCUSSION
Burns raises two contentions on appeal. First, he claims concessions by defense
counsel made during opening and closing statements compel reversal of his convictions
on counts 2 and 3. Second, he argues the case should be remanded for mental health
diversion proceedings under newly enacted section 1001.36. As we explain, we reject the
first claim but accept the second.
1. Concessions by Defense Counsel
Defense counsel conceded Burns's guilt on counts 2 and 3 during his opening and
closing arguments. In his opening statement, he commented:
"And I want to note that there were mistakes made by Mr. Burns on September 27th, 2017. There were mistakes made. And I'm going to ask you to hold him accountable for those mistakes because this case is about accountability.
"He hit [the victim] . . . . He hit her. There's no question about it. He did it. It was wrong - - and I'm going to get up here in closing argument and ask you to hold him accountable for it.
"He drove recklessly from Officer Steinbach. He did it. It was wrong. I'm going to ask you to hold him accountable for that."
2 People v. Superior Court (Romero) (1996) 13 Cal.4th 497, 529−530. 4
Likewise during his closing statement, defense counsel urged the jury to convict on
counts 2 and 3:
"So this case is about accountability. . . . [¶]
"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. The only thing that I'm going to say about that is yes, he is guilty."
The record is silent as to whether Burns agreed or disagreed to his counsel's concession,
and he was neither advised of, nor expressly waived, his constitutional trial rights. The
jury convicted him as charged on counts 2 and 3, finding him guilty of evading a police
officer and inflicting corporal injury.
Burns argues that counsel's concession, without his express consent, violated his
constitutional rights to the effective assistance of counsel, jury trial, confrontation, and
silence. Citing McCoy v. Louisiana (2018) 138 S.Ct. 1500 (McCoy) and People v.
Farwell (2018) 5 Cal.5th 295, 299 (Farwell), he maintains this error compels reversal on
counts 2 and 3 because it was tantamount to a guilty plea to which he never agreed. As
we explain, we reject his claim under controlling law.
"Several federal constitutional rights are involved in a waiver that takes place
when a plea of guilty is entered in a state criminal trial." (Boykin v. Alabama (1969) 395
U.S. 238, 243 (Boykin).) "These include the privilege against self-incrimination, the right
to trial by jury, and the right to confrontation." (Farwell, supra, 5 Cal.5th at p. 299.) For
a plea to be constitutionally valid, the record must demonstrate a defendant's knowing
5
and voluntary waiver of these three constitutional trial rights, now known as a "Boykin-
Tahl waiver"; waiver cannot be presumed from a silent record. (Boykin, at p. 243; In re
Tahl (1969) 1 Cal.3d 122, 132.)
Because a guilty plea constitutes a criminal conviction, it "is not simply a strategic
choice." (Florida v. Nixon (2004) 543 U.S. 175, 187 (Nixon).) Counsel lacks authority
to consent to a guilty plea on a client's behalf, and a client's tacit acquiescence in the
decision does not suffice. (Id. at pp. 187−188.) It follows that "in the event of a guilty
plea or other conduct tantamount to a plea, 'the record must demonstrate that the
defendant voluntarily and intelligently waived his constitutional trial rights.' " (People v.
question is whether defense counsel's concessions during his opening and closing
statements at trial were tantamount to a guilty plea. (Ibid.)
On this threshold question, California law has long been settled: "trial counsel's
decision not to contest, and even expressly to concede, guilt on one or more charges
. . . is not tantamount to a guilty plea requiring a Boykin-Tahl waiver." (Cain, supra, 10
Cal.4th at p. 30, accord People v. Lucas (1995) 12 Cal.4th 415, 446.) The trial court has
no duty to inquire whether the defendant agrees with his attorney's concession strategy, at
least where there is no explicit indication he disagrees with the approach. (Cain, at
3 The Lopez court initially concluded defense counsel's concession of guilt on a hit- and-run charge during arguments was tantamount to a guilty plea, requiring an express waiver of the defendant's constitutional trial rights. Following rehearing, it vacated its earlier decision and reversed course under People v. Cain (1995) 10 Cal.4th 1, 30 (Cain), discussed post. (Lopez, supra, 31 Cal.App.5th at pp. 57, 63−67.) 6
p. 30.) Thus in Cain, the California Supreme Court concluded that defense counsel's
concession of his client's guilt as to murder and burglary charges during closing
arguments was not equivalent to a guilty plea and did not necessitate a Boykin-Tahl
waiver. (Ibid. & fn. 4.) A decade later, the United States Supreme Court reached a
similar conclusion: An attorney's concession of guilt, to which the defendant neither
expressly consented nor objected, was not tantamount to a guilty plea because the
defendant "retained the rights accorded a defendant in a criminal trial." (Nixon, supra,
543 U.S. at pp. 188−189.)
Burns argues two recent authorities change this long-standing rule. In Farwell, the
California Supreme Court concluded that a stipulation encompassing all elements of a
charged offense was tantamount to a guilty plea because it conclusively established all
elements of the charged offense, rendering a guilty verdict a foregone conclusion.
(Farwell, supra, 5 Cal.5th at pp. 299, 308.) Although the jury still had a role, it was
constrained; presuming it followed the court's instruction to accept stipulated facts as
true, it had no option but to find the defendant guilty. (Id. at p. 300.) Burns contends his
attorney's concession, like the stipulation in Farwell, rendered guilt a foregone
conclusion, necessitating a Boykin-Tahl waiver.
Burns also relies on McCoy, in which defense counsel conceded his client's guilt
on murder charges during opening and closing statements against his client's repeated
objections. (138 S.Ct. at p. 1506.) The United States Supreme Court concluded that this
concession was structural error, violating the defendant's Sixth Amendment right to the
effective assistance of counsel. (Id. at pp. 1508−1509.) As McCoy explained, choice of
7
the defense objective is a client's prerogative; he may opt to steadfastly assert innocence,
notwithstanding his attorney's view that conceding guilt would be a better strategy.
(Ibid.; see generally, People v. Flores (2019) 34 Cal.App.5th 270, 279.) Burns contends
his counsel's concession is similar to the one in McCoy, requiring reversal
notwithstanding his failure to expressly object.
Division Four of the Second Appellate District rejected a claim identical to the one
Burns makes here. (Lopez, supra, 31 Cal.App.5th at pp. 63−67.) Lopez relied on Cain
and distinguished Farwell and McCoy. (Id. at pp. 63, 64, 66.) Having recently followed
Lopez in Marsh, supra, 37 Cal.App.5th 474, we decline the invitation to reject it here.
As Lopez explained, unlike in Farwell, there was no stipulation admitting the
elements of counts 2 and 3 that narrowed the jury's role. (Lopez, supra, 31 Cal.App.5th
at p. 64.) 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. (CALCRIM
Nos. 220, 222.) 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. (Lopez, at p. 64.) The prosecutor's
comment during his closing argument that he would spend little time on counts 2 and 3
given the defense concession neither changed the burden of proof nor limited the scope of
the jury's role. (Ibid.) Indeed, the prosecutor emphasized that those charges remained his
burden to prove. Furthermore, unlike a guilty plea, Burns had a jury trial with the
opportunity to confront adverse witnesses "and could endeavor, as [defense counsel] did,
8
to exclude prejudicial evidence." (Nixon, supra, 543 U.S. at p. 188.) He exercised his
right against self-incrimination by not taking the stand.
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 as Lopez noted, courts have
repeatedly drawn such distinctions. (Lopez, supra, 31 Cal.App.5th at p. 65, citing Nixon,
supra, 543 U.S. at p. 188 [concession was not tantamount to a guilty plea because the
defendant retained his constitutional trial rights]; Boykin, supra, 395 U.S. at pp. 242−243
& fn. 4 [a guilty plea is more than a confession admitting guilt; it is a stipulation that the
prosecution need not advance proof]; and People v. Hendricks (1987) 43 Cal.3d 584,
592−593 [counsel's lackluster presentation of a defense was not tantamount to a guilty
plea requiring a personal, on-the-record waiver of defendant's constitutional trial rights].)
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. (Lopez, at
p. 65.)
Lopez also persuasively rejected the argument Burns makes here under McCoy,
finding no authority "allowing extension of McCoy's holding to a situation where the
defendant does not expressly disagree with a decision relating to his right to control the
objective of his defense." (Lopez, supra, 31 Cal.App.5th at p. 66.) As McCoy explained,
when a defendant declines to participate in his defense, his counsel may pursue a strategy
believed to be in his best interest. (McCoy, supra, 138 S.Ct. at p. 1509.) But where a
client makes "express statements" indicating his will to maintain innocence, "counsel
9
may not steer the ship the other way." (Ibid.) McCoy is thus predicated on a client's
express objection to defense counsel's concession strategy. Writing for the majority,
Justice Ginsberg distinguished her earlier opinion in Nixon on this very basis: "in
contrast to Nixon, the defendant vociferously insisted that he did not engage in the
charged acts and adamantly objected to any admission of guilt." (McCoy, supra, 138
S.Ct. at p. 1505.) Here, as in Lopez, there is nothing in the record to suggest Burns
disagreed with his counsel's concession strategy. (Lopez, at p. 66.) McCoy does not
apply.4
2. Mental Health Diversion
Burns argues the case should be remanded for the trial court to evaluate his
eligibility for pretrial mental health diversion pursuant to newly enacted section 1001.36.
Effective June 27, 2018, the new statute authorizes diversion for eligible defendants with
qualifying mental disorders. (Stats. 2018, ch. 34, § 24.) An express purpose of the new
law is to increase diversion of individuals with mental disorders while protecting public
safety. (§ 1001.35, subd. (a).) The People assert the new law does not apply
retroactively to defendants like Burns who have already been sentenced, and that even if
it does, remand would be a futile act. For reasons we explain, we agree with Burns and
4 Burns contends that McCoy abrogates Cain. We disagree. McCoy, supra, 138 S.Ct. 1500 did not abrogate Nixon, supra, 543 U.S. 175, which like Cain differentiates a concession strategy from a guilty plea. Burns attempts to distinguish Nixon on the ground that he (unlike the defendant in Nixon) was not apprised of his attorney's concession strategy. However, it was the express nature of the defendant's objection, not the extent of attorney-client discussions on trial strategy, that distinguished Nixon from McCoy. (McCoy, at pp. 1504, 1509.) 10
conditionally reverse the judgment to permit the trial court to evaluate his eligibility for
diversion.
The new statute defines "pretrial diversion" as "the postponement of prosecution,
either temporarily or permanently, at any point in the judicial process from the point at
which the accused is charged until adjudication, to allow the defendant to undergo mental
health treatment . . . ." (§ 1001.36, subd. (c).) A trial court has discretion to grant pretrial
diversion if it finds all of the following: (1) defendant has been diagnosed with a
qualifying mental disorder; (2) the disorder was a significant factor in the commission of
the charged offense; (3) defendant's symptoms will respond to treatment; (4) defendant
consents to diversion and waives his or her speedy trial rights; (5) defendant agrees to
comply with treatment, and (6) defendant will not pose an unreasonable risk of danger to
public safety as defined in section 1170.18 if treated in the community. (§ 1001.36, subd.
(b)(1).) Defendants charged with certain crimes, such as murder and rape, are ineligible
for diversion. (§ 1001.36, subd. (b)(2).) If diversion is granted, the court may postpone
prosecution for a maximum of two years and refer the defendant to an inpatient or
Estrada applies not only to statutes that lessen punishment for a particular crime,
but also to legislation that ameliorates the possible punishment for a class of persons.
(Lara, supra, 4 Cal.5th at p. 308.) Thus in Lara, the Supreme Court retroactively applied
Proposition 57—which mandated transfer hearings for juveniles to be tried as adults—to
juvenile defendants who had already been charged in adult court. Significantly, Lara
considered a statute that included language regarding timing and procedure for transfer
hearings. A prosecutor seeking to try a minor in adult court was required to file a motion
12
"prior to the attachment of jeopardy" in juvenile court. (Welf. & Inst. Code, § 707,
former subd. (a)(1), now subd. (a)(1) & (a)(2), as amended by Stats. 2018, ch. 1012, § 1.)
Despite this language, Lara concluded that the Estrada rule applied such that the new
statutory procedure could be invoked even by defendants already charged and convicted
as adults, as long as their judgments of conviction were not final.
Courts are divided as to whether section 1001.36 applies retroactively to cases not
yet final on appeal. (Compare People v. Frahs (2018) 27 Cal.App.5th 784, review
granted Dec. 27, 2018, S252220 (Frahs), and People v. Weaver (2019) 36 Cal.App.5th
1103, 1121 with People v. Craine (2019) 35 Cal.App.5th 744, 749 (Craine).) Frahs
observed that just as the timing requirement for transfer motions did not bar retroactive
application of Proposition 57 to nonfinal cases, section 1001.36, subdivision (c)'s
reference to "pretrial" diversion before "adjudication" merely reflected "how this
particular program is ordinarily designed to operate" and did not bar retroactivity.
(Frahs, at p. 791.) Disagreeing with Frahs, Craine relied on the statutory text to
conclude a pretrial diversion program could not apply to a defendant who had already
been convicted and sentenced. (Craine, at p. 751.) Weaver acknowledged the statutory
text cited by Craine, but found it insufficient to rebut Estrada's inference of retroactivity
as applied in Lara. (Weaver, at pp. 1120–1121.)
Were we writing on a blank slate, we might find Craine's reasoning persuasive.
Language in section 1001.36 reflects certain legislative assumptions about how the
mental health diversion program will operate, and the references to pretrial diversion
seem to suggest an understanding about the anticipated timing of such a request.
13
However, addressing a statute that also contained express timing requirements, the
California Supreme Court in Lara unanimously concluded the Estrada presumption
applied even though those requirements could not be met if the statute were invoked in
cases not final on appeal. (Lara, supra, 4 Cal.5th at p. 309.)
It is true, as Craine points out, that Lara did not specifically discuss this statutory
"timing" language in Proposition 57. (Craine, supra, 35 Cal.App.5th at p. 756; see Welf.
& Inst. Code, § 707, former subd. (a)(1), now subd. (a)(1) & (a)(2).) Nevertheless, we
can find no reasonable way to factually distinguish Lara on this point. Craine's
suggestion that the statutory timing language in Lara "did not facially preclude
retroactive application of Proposition 57" and "only presented a theoretical obstacle for
prosecutors in terms of getting cases previously filed under the old law transferred from
juvenile court back into criminal court" (Craine, at p. 757) does not persuade us. The
relevance of the timing language in both statutes is that it reflects legislative intent as to
how the new procedure will normally operate. If that intent is not enough to dictate
prospective application in Lara as to Proposition 57, we do not see how it can require
prospective application as to mental health diversion in section 1001.36. And to reject
Lara on the basis that a decision is not authority for a proposition not specifically
discussed would be to conclude that the Supreme Court reached the wrong result because
it overlooked crucial statutory language. Absent further guidance from our high court,
we believe our institutional role compels us to follow Frahs and Weaver in applying Lara
to permit retroactive application of section 1001.36.
14
Legislative history does not change our conclusion. Citing an Assembly report,
the People suggest that the Legislature was motivated by potential cost savings in
enacting section 1001.36, a motivation inconsistent with retroactive application to
defendants like Burns. (Assem. Floor Analysis of Assem. Bill No. 1810 (2017−2018
Reg. Sess.) as amended June 12, 2018, pp. 7–10.) Craine took a similar view. (Craine,
supra, 35 Cal.App.5th at pp. 758−759.) But as Burns points out, section 1001.35
provides an express statutory statement of legislative intent:
"The purpose of this chapter is to promote all of the following: [¶] (a) Increased diversion of individuals with mental disorders to mitigate the individuals' entry and reentry into the criminal justice system while protecting public safety. [¶] (b) Allowing local discretion and flexibility for counties in the development and implementation of diversion for individuals with mental disorders across a continuum of care settings. [¶] (c) Providing diversion that meets the unique mental health treatment and support needs of individuals with mental disorders."
Cost savings are not mentioned, and the first and third objectives would be promoted by
retroactive application. A similar legislative purpose, to stop the revolving door of
criminal justice for juveniles, was found in Lara to "support the conclusion that Estrada's
inference of retroactivity is not rebutted." (Lara, supra, 4 Cal.5th at p. 309.) Given the
express indication of legislative intent, we need not consider legislative history. (See
People v. Cochran (2002) 28 Cal.4th 396, 400−401.) But even if we considered it, the
mention of cost savings in a legislative report does not amount to clear indication of
legislative intent overcoming normal application of Estrada. (Buycks, supra, 5 Cal.5th at
p. 881.)
15
To the extent section 1001.36 applies retroactively, the People contend remand
would be a futile act because Burns has not made a sufficient showing of eligibility. In
Frahs, remand was warranted where the defendant appeared to meet a single
requirement, a diagnosed mental disorder. (27 Cal.App.5th at p. 791, rev. granted.)
Here, contrary to the People's claim, the record could be read to support all six threshold
eligibility requirements. Attached to Burns's sentencing brief was a postconviction
psychological evaluation by Dr. Cynthia Boyd, who diagnosed Burns with a qualifying
mental disorder. (§ 1001.36, subd. (b)(1)(A).)5 Boyd believed that Burns experienced a
"fear driven limbic system response" outside his "volitional control" connected to his
disorder when Officer Steinbach confronted him, prompting him to flee. (§ 1001.36,
subd. (b)(1)(B).)
The record also potentially supports other eligibility criteria. Dr. Boyd noted that
Burns "unfortunately" did not seek psychiatric treatment and "hence, his symptoms
remained," suggesting his symptoms might respond to treatment. (§ 1001.36, subd.
(b)(1)(C).) At sentencing, defense counsel requested that Burns be screened for mental
health counseling in prison. This and the fact that Burns seeks diversion on appeal
indicate that Burns would likely consent to diversion and treatment. (§ 1001.36, subd.
(b)(1)(D)−(E).) Finally, the record does not compel the conclusion that Burns poses an
unreasonable risk of danger to public safety, as defined in section 1170.18, if treated in
5 To protect Burns's privacy interests, we do not include an extended discussion of Dr. Boyd's diagnosis. Based on our review, it is sufficient to note that Boyd's report supports a conclusion that Burns likely suffers from a qualifying mental disorder. 16
Accordingly, I will limit this dissent to the statement Craine was correctly decided and
People v. Weaver (2019) 36 Cal.App.5th 1103, was not. Ultimately, the high court will
decide whether the statute should be applied to post judgment cases. Until the court
clarifies the issue I will continue to dissent, albeit briefly.
HUFFMAN, Acting P. J.
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Holding. The court held that defense counsel's concession of guilt during trial was not tantamount to a guilty plea requiring a Boykin-Tahl waiver, but remanded the case for the trial court to determine the defendant's eligibility for mental health diversion under Penal Code section 1001.36.
Issues
Whether defense counsel's concession of guilt during opening and closing statements without the defendant's express consent violated the defendant's constitutional rights.
Whether Penal Code section 1001.36 regarding mental health diversion applies retroactively to nonfinal judgments.
Disposition. Conditionally reversed and remanded.
Quotations verified verbatim against the opinion
“trial counsel's decision not to contest, and even expressly to concede, guilt on one or more charges . . . is not tantamount to a guilty plea requiring a Boykin-Tahl waiver.”
“Defense counsel's concession was not tantamount to a guilty plea and did not necessitate a Boykin-Tahl waiver.”
“we conditionally reverse the judgment with directions for further proceedings under section 1001.36.”