In order for a Sixth Amendment violation to lie under McCoy v. Louisiana (2018) 584 U.S. _ [200 L.Ed.2d 821], a defendant must make his intention to maintain his innocence as a defense strategy clear to counsel. Defendant was convicted of voluntary manslaughter for killing his girlfriend. Prior to trial, defendant attempted to have defense counsel replaced, and refused to speak with counsel about the case. During closing argument, counsel conceded that defendant was with the victim when she was injured and was at the victim’s house shortly before family members found her body. Counsel argued the real issue was “what happened in the house” between the victim and defendant, that it was reasonable for defendant to have a “physical response” when the victim scratched and injured him, and that the victim (who was strangled) may have been injured when defendant was trying to restrain her to stop her from scratching him. On appeal, defendant argued his conviction must be overturned based on counsel’s implicit concession that defendant killed the victim. Held: Affirmed. Under McCoy, allowing defense counsel to concede guilt over the defendant’s “intransigent and unambiguous objection” violates the Sixth Amendment. However, for a Sixth Amendment violation to lie, a defendant must make his intention to maintain innocence clear to his counsel, and counsel must override that objective by conceding his guilt. Although defendant denied guilt during police interrogations and expressed a general desire to help his lawyer “fight” the prosecution’s evidence, nothing in the record indicated that he ever made it clear to counsel that the objective of his defense was to maintain innocence. Rather than voicing opposition to counsel’s strategy, defendant refused to speak with his lawyer about the case and regularly rejected counsel’s correspondence. On this record, there was no violation of the Sixth Amendment right recognized in McCoy.

The Court of Appeal concluded a remand to allow the trial court to exercise its discretion under Senate Bill No. 1393 to consider striking the five-year prior serious felony enhancement (Pen. Code, 667.5, subd. (a)) would be futile. SB 1393, which went into effect on January 1, 2019, amends sections 667, subdivision (a) and 1385, subdivision (b) to allow a trial court to exercise its discretion to strike or dismiss a prior serious felony allegation for sentencing purposes. The parties conceded that SB 1393 applied retroactively in this case. (See In re Estrada (1965) 63 Cal.2d 740.) However, the Court of Appeal concluded that a remand would be futile. Remand is required unless the record shows that the trial court clearly indicated when it originally sentenced the defendant that it would not in any event have stricken the enhancement even if it had the discretion. Here, there was a clear indication that the trial court would not exercise its discretion under SB 1393. “During the sentencing hearing, the court elected to impose the upper term, finding that the aggravating factors ‘greatly outweigh[ed]’ the mitigating factors, including that the crime involved ‘great violence’ and defendant had an ‘extensive’ criminal history. Beyond that, however, the court stated on the record that it would not have dismissed defendant’s prior serious felony even if it had discretion to do so[.]” [Editor’s Note: Justice Robie filed a concurring and dissenting opinion, expressing his “fundamental disagreement with the majority’s conclusion not to remand.”]

The full opinion is available on the court’s website here: https://www.courts.ca.gov/opinions/archive/C085073M.PDF