People v. Burns

• Decision Date: 14 August 2019
• Docket Number: D074536
• Citation: 251 Cal.Rptr.3d 442,38 Cal.App.5th 776
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Derrick Lyle BURNS, Defendant and Appellant.

38 Cal.App.5th 776

251 Cal.Rptr.3d 442

The PEOPLE, Plaintiff and Respondent,

v.Derrick Lyle BURNS, Defendant and Appellant.

D074536

Court of Appeal, Fourth District, Division 1, California.

Filed August 14, 2019

John L. Staley, San Diego, under appointment by the Court of Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Steve Oetting and Warren J. Williams, Deputy Attorneys General, for Plaintiff and Respondent.

DATO, J.

Derrick Lyle Burns struck his girlfriend and led law enforcement on a high-speed chase. A jury convicted him of false imprisonment, evading a police vehicle, infliction of corporal injury on a spouse or cohabitant, and two counts of assault with a deadly weapon; Burns admitted two prior strikes. After dismissing one of the strikes, the trial court sentenced Burns to a total term of 19 years, eight months in state prison.

Burns seeks reversal of his convictions on counts 2 and 3 (evading a police officer 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, 249 Cal.Rptr.3d 749 ( 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 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 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."

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) ––– U.S. ––––, 138 S.Ct. 1500, 200 L.Ed.2d 821 ( McCoy ) and People v. Farwell (2018) 5 Cal.5th 295, 299, 234 Cal.Rptr.3d 434, 419 P.3d 913 ( 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, 89 S.Ct. 1709, 23 L.Ed.2d 274 ( 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, 234 Cal.Rptr.3d 434, 419 P.3d 913.) For a plea to be constitutionally valid, the record must demonstrate a defendant's knowing 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, 89 S.Ct. 1709 ; In re Tahl (1969) 1 Cal.3d 122, 132, 81 Cal.Rptr. 577, 460 P.2d 449.)

Because a guilty plea constitutes a criminal conviction, it "is not simply a strategic choice." ( Florida v. Nixon (2004) 543 U.S. 175, 187, 125 S.Ct. 551, 160 L.Ed.2d 565 ( 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, 125 S.Ct. 551.) 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. Lopez (2019) 31 Cal.App.5th 55, 63, 242 Cal.Rptr.3d 451 ( Lopez ), italics added.)³ Thus, the threshold 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, 40 Cal.Rptr.2d 481, 892 P.2d 1224, accord People v. Lucas (1995) 12 Cal.4th 415, 446, 48 Cal.Rptr.2d 525, 907 P.2d 373.) 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 p. 30, 40 Cal.Rptr.2d 481, 892 P.2d 1224.) 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, 125 S.Ct. 551.)

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, 234 Cal.Rptr.3d 434, 419 P.3d 913.) 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, 234 Cal.Rptr.3d 434, 419 P.3d 913.) Burns contends his attorney's concession, like the...