Defense counsel’s concession of defendant’s guilt on charge of hit and run was not tantamount to a guilty plea and does not require reversal of that conviction. While driving under the influence of alcohol, Lopez hit and killed a motorcyclist, then fled the scene. He had prior convictions for driving under the influence of alcohol. Lopez was convicted of second degree murder and felony hit and run resulting in death. On appeal he argued his attorney’s concession of guilt as to the hit and run, without any evidence he knowingly waived his constitutional trial rights, required reversal of his convictions. Held: Affirmed. When a defendant enters a guilty plea or its equivalent, the trial court must ensure the defendant knowingly and voluntarily waived his constitutional trial rights. Conceding guilt to a charge during open and closing argument is not tantamount to a guilty plea when there is no stipulation to the elements because the prosecution must still present competent, admissible evidence establishing the elements of each charge. The jury was instructed that statements by counsel were not evidence and was still required to find Lopez guilty beyond a reasonable doubt based on the evidence. Thus, defense counsel’s concession of guilt as to the hit and run was not tantamount to a guilty plea and no waiver was required.

McCoy v. Louisiana (2018) 138 S.Ct. 1500 is not implicated when the record does not indicate defendant objected or otherwise expressly disagreed with counsel’s concession at trial. In McCoy, defense counsel conceded his client’s guilt of three murders in an attempt to avoid the death penalty over the express objections of his client. The U.S Supreme Court concluded that counsel may not admit his client’s guilt of a charged crime over the client’s objections, as the decision whether to plead guilty is reserved for the client alone. Unlike McCoy, here there was no evidence that Lopez raised any objection to his attorney’s decision to concede guilt on the hit and run charge. The holding in McCoy does not extend to a situation where the defendant does not expressly disagree with a decision relating to his right to control the objective of his defense.

The full opinion is available on the court’s website here: https://www.courts.ca.gov/opinions/archive/B282867A.PDF