Opinion
C086764
11-15-2019
THE PEOPLE, Plaintiff and Respondent, v. STEVE GENE HINZMAN, Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 14F06325)
Following a trial, a jury found defendant Steve Gene Hinzman guilty of two counts of burglary and one count of resisting an executive officer by force or violence. In a separate proceeding, the trial court found that defendant suffered two prior serious felony convictions (Pen. Code, § 667, subd. (a)). His aggregate sentence included 10 years for the two serious felony prior convictions. On appeal, he contends: (1) one burglary count must be reversed because defense counsel violated his Sixth Amendment right by making a comment about the strength of the prosecution's case that was tantamount to "conceding guilt," and (2) remand is required to allow the trial court to exercise its discretion whether to strike the prior serious felony enhancements pursuant to the recently enacted Senate Bill No. 1393 (2017-2018 Reg. Sess.) (Senate Bill 1393). We remand to permit the court to exercise its newfound discretion. In all other respects, we affirm.
Undesignated statutory references are to the Penal Code.
FACTUAL AND PROCEDURAL BACKGROUND
On August 24, 2014, the victim was in her home when she heard banging upstairs and discovered a man she described as possibly Hispanic with an olive complexion, between 5 feet 5 inches and 5 feet 9 inches tall, medium build, approximately in his 20's, with a dark hat or dark hair, wearing a red long-sleeved T-shirt, black pants, a bandana over his face, and possibly gloves. She ran from the home and called 911. Police responded and searched the home and discovered a pushed-in window screen and dirty footprints on the carpet below. A briefcase containing a purse and credit cards was missing.
That day, the victim received fraud alerts for her credit cards' activity at various locations, including transactions at Thunder Valley Casino in Lincoln and an attempted transaction at Fry's Electronics in Roseville. At approximately 2:30 p.m. at Fry's, surveillance video showed a woman named Lisa R. tried to use one of the stolen credit cards to make a $5,037.69 purchase, but that transaction was declined. Lisa R. then walked to a BMW parked in the Fry's parking lot and contacted defendant, who was sitting in the driver's seat. Phone records show that defendant's phone and Lisa R.'s phone exchanged several calls that day, before and after the burglary. Both defendant's phone and Lisa R.'s phone "pinged" in the area of the casino and Fry's during the times that the credit cards were used.
On September 4, 2014, two deputies responded to a burglary alarm at a residence and found defendant inside the home. Defendant fled and the deputies pursued, arresting him following a struggle. There was a BMW key inside defendant's pocket, which matched a BMW that was registered to defendant and parked nearby.
During closing argument, defense counsel noted that the prosecutor wanted the jury to focus on what happened on September 4th, when a deputy came face to face with defendant in the burglarized home, which defense counsel conceded was "a pretty strong case." Defense counsel argued that the prosecutor "started with a strong case, and then he went to a much weaker case, and then he wanted to say well, look what happened on September 4th so he must be guilty of what happened on August 24th." Defense counsel further argued: "[The prosecutor's] trying to use a strong -- stronger case with a weaker case. He's trying to make sure that he gets two counts of burglary against [defendant], but the evidence just is not there. It's not strong enough for a conviction for what happened on August 24th, 2014. [¶] And going to what happened on September 4th, 2014, obviously [defendant] was in the house. Deputies saw him in the house, running out of the house." Defense counsel also argued: "[The prosecutor] has a strong case for what happened on September 4th. There's no question about it. But I want you to look at what happened on August 24th and say we're not gonna let you just bootstrap [defendant] into another burglary just because you have a stronger case on September 4th." In rebuttal, the prosecutor argued: "[T]here was no argument in regards to the burglary that took place on September 4th because, as we know, he was caught in the house committing the burglary." The prosecutor also argued, "And so when you look at this case, when you consider it -- as defense has conceded the burglary that happened on September 4th, we know for sure that burglary was, in fact, a first degree burglary, it happened in an inhabited home." Defense counsel did not object to the prosecutor's statements.
The jury found defendant guilty of two counts of first degree residential burglary (§ 459) and one count of resisting an executive officer by force or violence (§ 69). Additionally, the jury found an allegation that a person other than an accomplice was present in the residence during the August 24th burglary true (§ 667.5, subd. (c)(21)). Finally, the trial court found true the allegations that defendant suffered two prior serious felony convictions (§ 667, subd. (a)). The trial court sentenced defendant to an aggregate prison term of 50 years to life plus 14 years determinate, including two 5-year enhancements for the prior serious felony convictions (§ 667, subds. (a), (e)-(i)).
DISCUSSION
I
Defense Counsel's Alleged Concession
Defendant contends that his conviction for the September 4th burglary must be reversed because defense counsel violated his Sixth Amendment right by implicitly "conceding guilt," which was tantamount to an unauthorized guilty plea. In his view, defense counsel conceded his guilt of the September 4th burglary (1) during closing argument by arguing that the prosecution used the stronger case of the September 4th burglary to prove the weaker August 24th charge, and (2) by failing to object to the prosecution's closing argument that defense counsel had conceded defendant's commitment of burglary on September 4th. We are not persuaded.
"Under both the Sixth Amendment to the United States Constitution and article I, section 15, of the California Constitution, a criminal defendant has the right to the assistance of counsel." (People v. Ledesma (1987) 43 Cal.3d 171, 215; accord, McCoy v. Louisiana (2018) ___ U.S. ___, .) Generally, "[t]rial management is the lawyer's province: Counsel provides his or her assistance by making decisions such as 'what arguments to pursue, what evidentiary objections to raise, and what agreements to conclude regarding the admission of evidence.' [Citation.] Some decisions, however, are reserved for the client—notably, whether to plead guilty, waive the right to a jury trial, testify in one's own behalf, and forgo an appeal." (McCoy, supra, at p. 1508.) Counsel has "traditional power to control the conduct of a case" but "with respect to certain fundamental decisions in the course of a criminal action, a counsel's control over the proceedings must give way to the defendant's wishes." (People v. Frierson (1985) 39 Cal.3d 803, 812.) When counsel overrides a defendant's autonomy on a fundamental decision that is reserved for the client, the defendant's Sixth Amendment rights are violated. (McCoy, supra, at pp. 1507-1508.) 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. Farwell (2018) 5 Cal.5th 295, 300 (Farwell).) "A violation of the client's right to maintain his or her defense of innocence implicates the client's autonomy (not counsel's effectiveness) . . . ." (People v. Eddy (2019) 33 Cal.App.5th 472, 480 (Eddy).) Accordingly, such an error is structural and not subject to harmless-error review. (McCoy, supra, at p. 1511.)
In making the argument that his Sixth Amendment rights were violated, defendant relied extensively on People v. Lopez (2018) 28 Cal.App.5th 758 (Lopez I) in his opening brief. As he acknowledges in his reply brief, the court vacated Lopez I upon rehearing and found on "reexamination of this issue . . . defense counsel's statements during argument were not tantamount to a guilty plea." (See People v. Lopez (2019) 31 Cal.App.5th 55, 58 (Lopez II). Nevertheless, citing McCoy, defendant contends his defense counsel implicitly admitted that the evidence was sufficient for a conviction for the alleged September 4th burglary. This, defendant argues, was tantamount to a guilty plea. Not so. As this court recently explained, "McCoy makes clear . . . that 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 guilt." (People v. Franks (2019) 35 Cal.App.5th 883, 891.) Here, as in Franks, the record does not demonstrate that defendant made clear to his counsel any intention to maintain his innocence of the September 4th burglary charge. (But see Eddy, supra, 33 Cal.App.5th at p. 481 [finding a Sixth Amendment violation where counsel conceded the defendant's guilt during trial because the record "establish[ed] that trial counsel knew that defendant did not agree with the strategy of conceding manslaughter in closing argument"].)
Lopez II presents similarly to this case, wherein defense counsel in closing argument focused solely on disputing a murder charge, stating as to another charge, " 'I've never disputed it. He's guilty of it; he should be punished for it.' " (Lopez II, supra, 31 Cal.App.5th at p. 62.) The court concluded this concession was not tantamount to a guilty plea, distinguishing Farwell, where "the Supreme Court found that a 'stipulation that admits all of the elements of a charged crime necessary for a conviction is tantamount to a guilty plea.' " (Id. at p. 64, quoting Farwell, supra, 5 Cal.5th at p. 299.) As observed in Lopez II, our high court rejected the argument that a partial concession of guilt was tantamount to a guilty plea in People v. Cain (1995) 10 Cal.4th 1, overruled on other grounds in People v. Moon (2005) 37 Cal.4th 1, 17. (Lopez II, supra, at p. 63.) In Cain, defense counsel told the jury during argument that the defendant was guilty of burglary and multiple felony murder. (Cain, supra, at pp. 29-30.) On appeal, our high court rejected the defendant's argument that these statements were the equivalent of a guilty plea on those charges, holding that "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 . . . ." (Id. at p. 30.)
Here, as in Lopez II, there was no stipulation admitting the elements of the September 4th burglary charge "as an evidentiary matter." (Lopez II, supra, 31 Cal.App.5th at p. 64.) And here, as in Lopez II, "the jury was instructed that the prosecution had to prove guilt on all counts beyond a reasonable doubt and that statements by counsel were not evidence. Thus, the prosecution was still required to present 'competent, admissible evidence establishing the essential elements' of each charge. [Citation.]" (Ibid.) We presume that jurors are intelligent people capable of understanding and correlating all of the instructions. (People v. Gonzales (2011) 51 Cal.4th 894, 940.) We adhere to our high court's reasoning in Cain, which is binding on this court (see Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455), and find the reasoning in Lopez II persuasive. Neither defense counsel's concession that the prosecutor's case on the September 4th burglary was strong, nor counsel's failure to object to the prosecutor's closing argument, changed the prosecutor's burden of proof or otherwise limited the scope of the jury's role in this case. Accordingly, we reject defendant's argument that defense counsel's concession was tantamount to a guilty plea.
II
Prior Serious Felony Enhancements
Defendant contends, and the Attorney General concedes, that his case must be remanded so the trial court can exercise its discretion whether to strike the prior felony conviction enhancement under section 667, subdivision (a), pursuant to Senate Bill 1393. We accept the Attorney General's concession.
At the time the trial court sentenced defendant, section 1385 did not authorize a trial court to strike or dismiss a section 667 prior serious felony conviction enhancement. (Former § 1385, subd. (b), as amended by Stats. 2014, ch. 137, § 1.) Senate Bill 1393 amended sections 667 and 1385, effective January 1, 2019, deleting the provisions in those statutes which prohibited a trial judge from striking a section 667 prior serious felony conviction enhancement in furtherance of justice. (Stats. 2018, ch. 1013, §§ 1-2.) "Senate Bill 1393 applies retroactively to all cases or judgments of conviction in which a five-year term was imposed at sentencing, based on a prior serious felony conviction, provided the judgment of conviction is not final . . . ." (People v. Garcia (2018) 28 Cal.App.5th 961, 971-972.) Because defendant was convicted and sentenced for two prior serious felony enhancements under section 667, subdivision (a) and his conviction is not yet final, remand is required to allow the trial court to exercise its discretion whether to strike the enhancements.
DISPOSITION
The judgment is affirmed. The matter is remanded to the trial court for the limited purpose of allowing the trial court to exercise its discretion pursuant to sections 667, subdivision (a) and 1385, as amended by Senate Bill 1393, as to whether to strike the prior serious felony enhancements.
/s/_________
RAYE, P. J. We concur: /s/_________
HULL, J. /s/_________
DUARTE, J.