Lawyer cannot concede client is guilty when client insists on a defense of factual innocence
Defendant was found guilty of first degree murder and using a knife in the commission of the crime after his lawyer conceded his guilt of voluntary manslaughter during closing argument. Defendant’s request to replace counsel was denied at sentencing and the court and imposed a sentence of 25 years to life, plus one year for the knife enhancement.
The Court of Appeal reversed the judgment and held that the Defendant’s absolute Sixth Amendment right to maintain his innocence was violated when counsel conceded guilt of voluntary manslaughter during closing argument, despite the defendant disagreeing with the strategy. It did not matter that defendant did not consistently assert his right to maintain innocence or object to counsel’s concession until after he was convicted.
The court defined the decisions that the attorney may make in providing assistance to the client and what decisions may be made by the client and honored by the attorney.
The Sixth Amendment to the United States Constitution, as interpreted by the Supreme Court of the United States in McCoy v. Louisiana (2018) 584 U.S. ___ [200 L.Ed.2d 821, 138 S.Ct. 1500] (McCoy), affords A defendant has an absolute right to insist that his counsel refrain from admitting guilt, even when counsel’s expertise advocates that confessing guilt might give the best outcome at trial. Here, defendant’s absolute right under McCoy to maintain his innocence was violated.
Sixth Amendment Right to Counsel: Decisions a lawyer may and may not make
The Sixth Amendment guarantees criminal defendants the right to assistance of counsel in his or her defense. (McCoy, supra, 548 U.S. at p. ___ [200 L.Ed.2d at p. 829].) McCoy elucidates “‘[t]he right to defend is personal,’ and a defendant’s choice in exercising that right ‘must be honored out of “that respect for the individual which is the lifeblood of the law.”’
The Sixth Amendment, in grants the accused personally the right to make his defense with the assistance of counsel, and an assistant, however expert, is still an assistant. Counsel makes decisions as to what arguments to pursue, what evidentiary objections to raise, and what agreements to conclude regarding the admission of evidence. The client decides whether to plead guilty, waive the right to a jury trial, testify in one’s own behalf, and forgo an appeal.
Defendant has the right to insist on innocence
A defendant may refuse to plead guilty in the face of overwhelming evidence against her, or reject the assistance of legal counsel despite the defendant’s own inexperience and lack of legal training. These are not strategic choices about how best to achieve a client’s objectives; they are choices about what the client’s objectives in fact are. (McCoy, supra, 584 U.S. at pp. ___ [200 L.Ed.2d at pp. 829–830].)
McCoy recognized that even in the face of counsel’s better judgment and experience, “[w]hen a client expressly asserts that the objective of ‘his defen[s]e’ is to maintain innocence of the charged criminal acts, his lawyer must abide by that objective and may not override it by conceding guilt.” (McCoy, supra, 584 U.S. at p. ___ [200 L.Ed.2d at p. 831].)
With individual liberty—and, in capital cases, life—at stake, it is the defendant’s prerogative, not counsel’s, to decide on the objective of his defense: to admit guilt in the hope of gaining mercy at the sentencing stage, or to maintain his innocence, leaving it to the State to prove his guilt beyond a reasonable doubt.” (Id. at p. ___ [200 L.Ed.2d at p. 827].)
A violation of the client’s right to maintain his or her defense of innocence implicates the client’s autonomy (not counsel’s effectiveness) and occurs once counsel usurps control of an issue within the defendant’s “sole prerogative.” McCoy held that error of this kind is structural and not subject to harmless error review because it “blocks the defendant’s right to make fundamental choices about his own defense” and “the effects of the admission would be immeasurable.” (Id. at p. ___ [200 L.Ed.2d at p. 834].)
People v. Eddy; C085091; 2019 Cal. App. LEXIS 257 Court of Appeal of California, Third Appellate District’ March 26, 2019, Opinion Filed
Ineffective Assistance of Counsel when attorney fails to advise client that mandatory deportation will result from a plea
The Court granted Reyna Perez Hernandez’s petition for writ of habeas corpus seeking to have her conviction for possession of methamphetamine for sale in violation of Health and Safety Code section 113781 vacated and the opportunity to withdraw her guilty plea. Her appointed trial counsel failed to advise her before she entered her guilty plea that her plea would subject her to mandatory deportation.
Plea to possession of methamphetamine for sale results in mandatory deportation
A conviction for violating section 11378 carries with it the penalty of mandatory deportation. When an immigration consequence is “truly clear, as it was in this case,” Hernandez’s trial counsel’s duty to give correct advice “is equally clear.” (Padilla v. Kentucky (2010) 559 U.S. 356, 375 (Padilla) [if a plea carries with it the consequence of mandatory deportation, counsel must so advise].) The record does not show that Hernandez’s trial counsel informed her that her guilty plea would result in mandatory deportation.
Hernandez, a legal permanent resident, had lived in the United States since she was three years old and was single parent of three minor children (their father has passed away) who are all citizens, one of whom has serious medical issues. She has been gainfully employed as a medical assistant. She had no prior criminal record other than traffic infractions. Shortly after she pleaded guilty and served 43 days in jail, she was taken into custody by federal immigration officials and refused to agree to deportation. remaining in immigration custody for eight months before being released on bond.
Her attorney provided ineffective representation at the time she pleaded guilty by failing to (1) determine her immigration status, (2) advise her that pleading guilty to a violation of section 11378 would result in her mandatory deportation, and (3) investigate and attempt to negotiate an immigration-neutral alternative to the plea deal proposed by the deputy district attorney.
In Padilla, the United States Supreme Court held that a criminal defense counsel’s Sixth Amendment obligations include properly advising as to the immigration consequences of a guilty or no contest plea. The court acknowledged that federal immigration law is often complex and that, in some] cases, the likelihood of deportation as a consequence of a conviction is neither clear nor certain. In those cases, the court held, the most the Sixth Amendment may require of defense counsel concerning immigration consequences is a warning that a criminal conviction may have adverse immigration consequences. (People v. Patterson (2017) 2 Cal.5th 885, 897–898)
However, federal immigration law specifies in “succinct, clear, and explicit” terms that a conviction will result in deportation, the criminal defense attorney’s duty to “give correct advice is equally clear” (Padilla, supra, 559 U.S. at pp. 368–369) and “a criminal defense attorney must accurately advise his or her client of that consequence before the client enters a guilty plea.” The California Supreme Court in Patterson stated that “[t]he generic advisement under [Penal Code] section 1016.5 is not designed, nor does it operate, as a substitute for such advice.”
Hernandez initialed the paragraph on the Tahl form stating she understood that if she were not a citizen, her “conviction for the offense charged will have the consequence of deportation, exclusion from admission to the United States, or denial of naturalization pursuant to the laws of the United States.” But the Tahl form did not advise that her specific plea would result in mandatory deportation. Although the Tahl form contains the word “will” and not “may,” it, standing alone, is akin to the “generic advisement” required of the court under Penal Code section 1016.5, subdivision (a) addressed in Patterson, and it similarly “is not designed, nor does it operate, as a substitute for such advice” of defense counsel regarding the applicable immigration consequences in a given case.
In re Hernandez; G054623; 2019 Cal. App. LEXIS 261 Court of Appeal of California, Fourth Appellate District, Division Three; March 26, 2019,