Filed 5/26/20

                            CERTIFIED FOR PUBLICATION

            IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                            FOURTH APPELLATE DISTRICT

                                   DIVISION TWO




                                                     E073871
 In re TOM SMITH
                                                     (Super.Ct.No. FSB802363)
        on Habeas Corpus.
                                                     OPINION




        ORIGINAL PROCEEDINGS: Petition for writ of habeas corpus. Kyle S. Brodie

and Gregory S. Tavill, Judges.1 Petition denied.

        REQUEST FOR JUDICIAL NOTICE: Granted in part, denied in part.

        Michael B. Petersen and Paula M. Mitchell, Loyola Law School Project for the

Innocent, for Petitioner.

        Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney

General, Julie L. Garland, Senior Assistant Attorney General, Michael Pulos and Britton

B. Lacy, Deputy Attorneys General, for Respondent.



        1
          The Honorable Kyle S. Brodie was the trial judge. The Honorable Gregory S.
Tavill was the superior court judge who ruled on the habeas petition which we reviewed
in In re Tom Smith on Habeas Corpus (Feb. 6, 2019, E071609).

                                            1
       A jury found petitioner guilty of first degree murder, assault by means likely to

produce great bodily injury, dependent adult abuse, conspiracy to commit murder,

custodial possession of a weapon, custodial manufacture of a weapon, and misdemeanor

damage to prison property, along with various enhancements, arising from an attack on a

fellow inmate at Patton State Hospital. Petitioner was sentenced to an aggregate term of

168 years to life. He appealed, raising, among other issues, the ineffectiveness of his trial

counsel based on defense counsel’s closing argument, in which he conceded petitioner’s

guilt of the crime but asked the jury to find him guilty of second degree murder, rather

than first degree. The judgment was affirmed on direct appeal. (People v. Smith (Apr.

13, 2012, E052044) [nonpub. opn.] [Hollenhorst, Acting P.J.; King & Codrington, JJ.,

concurring].) Petitioner did not seek review in our Supreme Court. However, he did file

multiple petitions seeking to collaterally attach the judgment.

       In May 2018, the U.S. Supreme Court decided McCoy v. Louisiana (2018) 584

U.S.__ [138 S.Ct. 1500, 200 L.Ed.2d 821] (McCoy). Petitioner filed a habeas petition in

superior court re-arguing the issue of his trial counsel’s ineffective assistance based on

McCoy, and, when that petition was denied, he raised the same issue in this appellate

court, and we denied the petition. Petitioner then pursued the issue in the Supreme Court,

which issued an order to show cause before this court why petitioner is not entitled to




                                              2
relief pursuant to the holding of McCoy, and why McCoy should not apply retroactively

to final judgments on habeas corpus.2, 3 We deny the petition.

                                          BACKGROUND

       We recite the facts as set forth in our original opinion on direct appeal, People v.

Smith, (nonpub. opn., E052044), filed on April 13, 2012:

       In 2005 petitioner was a patient at Patton State Hospital (Patton), where he roomed

with Jason Porter, Michael Zamora and Robert Lucas in housing Unit 33. Petitioner was

five feet five inches tall and weighed 260 pounds. Because he was overweight, he was on

a reduced calorie diet and always wore black suspenders to keep his pants up. He was

assigned to the caseload of Psychiatric Technician Marie Rockwell, who had observed

him unravel the fabric from his suspenders and attach the string to other objects, like a

pen.

       On the evening of September 6, 2005, hotdogs were being served for dinner in the

dining room at Patton. Petitioner became upset and enraged that he could not have a

second portion, and the staff calmed him down. After 9:00 p.m., Rockwell saw Porter

       2
         Petitioner appended portions of the record to his petition, while respondent
requested we take judicial notice of the records in the direct appeal, E052044, People v.
Smith, as well as petitioner’s prior habeas petitions (Smith v. Gipson, EDCV 13-00553
JVS (SS), and In re Tom Smith, Case Nos. S204302 and S206819.) We granted the
request for judicial notice as to Case No. E052044, but denied the request as to EDCV
13-00553JVS and Supreme Court cases S204302 and S206819.
       3
          In their return, the People argued, in addition to the question relating to the
retroactivity of McCoy, that the current claim is procedurally barred. Although the
transfer directed us to consider whether defendant is entitled to relief under McCoy, and
whether McCoy applies retroactively, we address the question of whether a procedural
bar applies.

                                              3
run into the main bathroom. Ten or 15 minutes later, Porter came out “hurrying” while

putting on a prison-issued khaki button up.

       At 10:15 p.m., Albert Rennie, a registered nurse, went to petitioner’s room to

deliver a CPAP (continuous positive airway pressure) machine for sleep apnea to help

petitioner sleep. As he entered the room, Rennie saw petitioner and Porter sitting on the

bed whispering to each other while playing loud music. A half-hour later, senior

psychiatric technician Mark Carty conducted rounds at housing Unit 33. As he was

checking the bathrooms, he saw petitioner and Porter in adjoining stalls, Porter said, “Oh

shit. Oh shit.” Smith and Porter identified themselves when Carty stated he was doing

the count.

       However, upon proceeding to Room 33-23, Carty saw Lucas lying on the floor,

completely wrapped in bedding with only his ankles showing. The bedding was wet and

smelled of urine. Lucas’s feet were discolored. Carty touched Lucas’s left shoulder but

there was no response. Further shaking produced no response from Lucas, who was not

breathing. Carty testified there appeared to be “some type of black material wrapped

tightly around [Lucas’s] neck,” which looked like the black suspenders used by heavyset

patients at Patton to keep pants up. He saw a “moderate amount of blood spots” on the

floor and the wall. Zamora was lying on an upper bed with his eyes closed. Carty

notified the nurse’s station and Rockwell ran to retrieve the crash cart.

       The staff attempted to revive Lucas but was unable to do so. The suspender

material wrapped around his neck was so tight the staff had to use a knife to cut it off.



                                              4
Zamora continued to lie in bed during the resuscitation efforts. Rockwell later heard

petitioner and Porter talking about how proud they were of killing Lucas. They were

unremorseful about killing him, saying they were glad they did it. Petitioner said, “we

just wanted to see how it felt to kill someone.”

       Charles Risch, a police sergeant at Patton, contacted petitioner and Porter and read

them their Miranda4 rights. Petitioner agreed to speak. The sergeant separated the two

men. Petitioner said, “I killed him. I strangled him with the suspenders.” He then said

that Porter had stabbed Lucas with a pen and punched him. According to petitioner, he

and Porter had been planning for a while to kill Lucas “because he [Lucas] was a child

molester.” Petitioner said he got blood on his clothes. The sergeant saw blood on the

floor of the room. When Sergeant Risch spoke to Porter and read him his rights, Porter

admitted he was “in on it” with petitioner and that he (Porter) stabbed Lucas with a pen.

       Later, while outside smoking a cigarette, petitioner told Officer Donald Sumner,

an investigator at Patton, “I did it.” Petitioner said he used the suspenders and wrapped

them around Lucas’s head and face. He said the suspenders initially were in Lucas’s

mouth, but he was making a noise, so petitioner wrapped them around Lucas’s head and

face again. When petitioner made this statement, he made a circular twisting motion with

his hand to indicate how he had wrapped the suspenders around Lucas’s head and face.

Petitioner said the second wrap of suspenders caused Lucas to begin to lose his breath.




       4
           Miranda v. Arizona (1966) 384 U.S. 436.

                                             5
       During the early morning of September 7, 2005, homicide detectives David Dillon

and William Flesher of the San Bernardino Police Department investigated the homicide

of Lucas at Patton, collecting evidence. Detective Dillon spoke to Zamora, who said he

had not been threatened. Detective Flesher conducted a tape-recorded interview with

petitioner, which was played for the jury. In the interview, petitioner admitted killing

Lucas because, among other reasons, Lucas was a bully. Petitioner described Lucas lying

on his side in bed. Petitioner said, “Hale [sic] Satan.” Petitioner described tying the

material around Lucas’s mouth and neck. Zamora was sleeping but got up when he heard

the commotion and asked what was going on. Porter told Zamora to go back to bed.

Zamora was scared, so he complied.

       In response to Lucas struggling, petitioner wrapped the material a second, and then

a third time, around Lucas’s neck, and they tied a knot. They put a blanket on Lucas and

then urinated on him. Porter was laughing and said they were going to prison, where they

would drink “real coffee” and be with his “Arian [sic] brothers.” Petitioner said he was

not high on drugs when he killed Lucas.

       During the interview, petitioner stated that while Porter’s excuse for killing Lucas

was that Lucas was a child molester, petitioner did not know if this was true. Petitioner

stated that petitioner is a sex offender who “caught a[n] assault with intent to commit

rape on a grown woman . . .” in 1992. Petitioner felt a bond toward Porter, who gave

petitioner money and liked the same kind of music. Petitioner wanted to tell the district

attorney that he was guilty, but not guilty by reason of insanity, because he heard Satan’s



                                             6
voice when it was actually Porter that he was hearing. Although petitioner thought he

had to do what Porter told him to do when he killed Lucas, petitioner admitted it was his

fault that they killed Lucas. Based on the autopsy of Lucas, the medical examiner opined

that Lucas’s death was a homicide caused by ligature strangulation.

        On May 1, 2009, during a cell check at West Valley Detention Facility (West

Valley), Deputy Sheriff Guillermo Macias of the San Bernardino County Sheriff’s

Department saw a shank on top of a desk in petitioner’s cell. The shank was made from

an inmate-issued comb that was sharpened to a point, and strings of a bedding sheet were

used to form a handle. The deputy also saw that the sheet had been ripped and pieces

were removed. When Deputy Macias held up the shank, petitioner said, “that’s mine.”

After being read his Miranda rights, petitioner admitted he had made the shank two days

prior to the cell check. Petitioner claimed that he was using the shank as protection

against other inmates; however, he would not reveal the names of the inmates from

whom he needed protection. The deputy was unaware of any trouble with petitioner at

the jail.

        At trial, defense counsel did not give an opening statement. Petitioner testified in

his own defense. He denied killing Lucas, claiming it was Zamora and Porter who did it.

He said he was going to leave, but Porter threatened to get him too if he did. Petitioner

stated he helped them wipe up the blood with his clothes, and Zamora said he was

returning to bed because he was medicated and “d[id]n’t know shit.” Petitioner went to

the bathroom to change clothing and was “panicking” because he did not have a change



                                              7
of clothes. Petitioner testified he and Porter planned what they were going to say to the

police. During cross-examination, petitioner said that at least half of what he said to

Detective Flesher was a lie.

       In rebuttal, Ronnie Paez testified that he was in custody with petitioner at West

Valley. Petitioner told Paez that he strangled the victim from behind, and it turned him

on sexually. Petitioner also said that Porter had stabbed the victim while petitioner was

strangling him. Petitioner told Paez that he (petitioner) was going to lie and tell the court

or jury the only reason he had admitted killing the victim the day of the incident was

because they were treating him badly at the hospital. Petitioner also told Paez that he

(petitioner) had a prior conviction; that if he could win at trial, he would go back to attack

and rape other women as he had done in the past.

       During closing argument, the prosecutor stated that the evidence was like a

“documentary” about how Lucas was strangled to death by petitioner and Porter, how

petitioner detailed the murder to the detective, and how petitioner used skills to make the

tools necessary to kill Lucas. Interrupting the prosecution’s closing argument, petitioner

told the court that he wanted to leave the courtroom. He stated: “It’s just been so long,

your Honor. I’m tired of hearing it. I didn’t do it.” Defense counsel wanted petitioner to

be present, so the trial court denied petitioner’s request and asked him to “hold it

together.” The prosecutor resumed, arguing there was no second degree murder; rather,

all the charges, including first degree murder, had been proven.




                                              8
       Next, defense counsel argued, telling the jury: “Well, my job just got harder

because after the documentary, I found out what my documentary is going to be. But I’ll

carry on. [¶] For all of you parents out there let me offer you some advice for a certain

few who might meet this criteria in terms of for a job description. Undeterred by

impossible odds. Ready to change your story at the drop of a hat. The ability to look 12

citizens in the eye and look sincere. Doesn’t mind losing once in a while. That would be

a defense lawyer. And welcome to the defense bar.”

       Defense counsel then reminded the jury about the presumption of innocence and

the prosecutor’s burden of proof. He argued his belief that this was a second degree

murder, not a first degree murder case. At that point, petitioner interjected, “Did I

understand him correct? Did he just say—” The trial court asked petitioner to be quiet.

Petitioner stated, “He said second-degree murder. I said I didn’t do it. [¶] . . . [¶] I

object to that.”

       Defense counsel continued arguing second degree murder because there was no

premeditation and deliberation as evidenced by Porter’s statement to petitioner that now

they would get hot coffee and get to fight and reap their reward for being sent to state

prison.5 Defense counsel argued that the prosecution could not prove first degree murder

because that discussion between petitioner and Porter demonstrated a lack of

       5
         The jury had heard petitioner’s taped interview with the detective, where
petitioner said, “Porter was laughin’ and said, ‘Ha, we’re goin’ to prison now. . . . We
gonna drink some real coffee . . .’ . . . I was confused, man, you know what I’m sayin’?
I couldn’t believe what was happenin’ but all’s I remember now was lookin’ at . . .
Lucas’[s] face. . . . And it was nothin’ funny, man. It wasn’t . . . nothin’ nice, you
know.”

                                              9
premeditation and deliberation and there was no one else present when Lucas was killed.

The following exchange occurred:

       “THE DEFENDANT: And that’s my lawyer saying that.

       “THE COURT: Mr. Smith—

       “THE DEFENDANT: I want to go back to my holding cell, man. I’m tired of this

bull shit. I don’t want to be here, homie.

       “THE COURT: Mr. Smith—

       “THE DEFENDANT: I don’t care. I don’t want to listen to that bull shit. I did

not commit murder. I didn’t kill that son of a bitch.

       “THE COURT: Take Mr. Smith out of the courtroom.

       “THE DEFENDANT: Thank you. You lying sack of shit.”

       Defense counsel then concluded his argument, as follows: “You take your clients

as you find them, okay. Despite his actions, despite his outbursts, despite his numerous

problems, remember this is still a guy that it seems like the guy never caught—you can’t

consider sympathy in your deliberations—but I can’t think of a time in this guy’s life

when he caught a break. And I would like you to disregard his outbursts and think about

the facts, that it took two people to hold and do the poking. And find him guilty of

second-degree murder instead of first. Thank you.”

       On direct appeal, petitioner argued that the closing argument of defense counsel

violated his right to effective assistance of counsel for abandoning his claim of innocence

and conceding guilt on second degree murder, along with a related claim not relevant



                                             10
here. On April 13, 2012, we rejected this argument because the concession was tactically

justifiable, relying on People v. Gamache (2010) 48 Cal.4th 347, 392-393, and its

progeny. Petitioner did not file a petition for review, so that judgment became final.

Petitioner filed multiple post-conviction collateral attacks on the judgment arguing he

was deprived of effective assistance of counsel when his attorney argued to the jury that

it should convict him of second degree murder, not first, but each was denied in turn.

       Petitioner now seeks to collaterally challenge his conviction based on the recent

decision by the United States Supreme Court in McCoy. The trial court denied his

petition for writ of habeas corpus, and we also summarily denied it (In re Tom Smith on

Habeas Corpus [Feb. 6, 2019, E071609]). The California Supreme Court has issued an

order to show cause before this court why petitioner is not entitled to relief under McCoy,

and why McCoy should not be applied retroactively.

                                            DISCUSSION

       The California Supreme Court has transferred this matter, directing us to

determine whether petitioner is entitled to relief from his conviction based on the United

States Supreme Court decision in McCoy, supra, 584 U.S.__ [138 S.Ct. 1500, 200

L.Ed.2d 821] and whether the holding of McCoy applies retroactively to cases that were

already final at the time of the decision in McCoy. Petitioner asserts that McCoy is

retroactive and that it applies to his case. Respondent argues that the claim is

procedurally barred, not retroactive, and inapplicable to the facts of this case.




                                             11
       Because the Supreme Court transferred the case to us specifically to address the

substantive issues of whether McCoy applies to the facts of this case and whether it is

retroactive, and because the issuance of an order to show cause indicates the Supreme

Court has determined the claim is not procedurally barred (see Maas v. Superior Court

(2016) 1 Cal.5th 962, 974; In re Coley (2012) 55 Cal.4th 524, 537; In re Large (2007) 41

Cal.4th 538, 548-549), we address the merits only.

       A.     Whether Petitioner is Entitled to Relief Under McCoy

       Petitioner argues that McCoy applies to his case because it is clear from the record

that defendant wanted to assert his innocence at trial, and made that fact known to his

trial counsel, but counsel conceded his guilt anyway. According to petitioner, his trial

testimony demonstrated his intent to assert his innocence of the murder, as did his

statements made in open court after counsel’s closing argument. We disagree.

       In McCoy, supra, the defendant was convicted of three counts of first degree

murder and sentenced to death. (McCoy, 584 U.S. at p. ___ [138 S.Ct. at p. 1507].) The

defense strategy was to concede that defendant had committed the murders, and to argue

he should be convicted of second degree murder because his mental capacity precluded

him from forming the requisite intent to commit first degree murder. (Id., at p.___ , fn. 1

[138 S.Ct. at p. 1506].) However, throughout the proceedings, the defendant “insisted”

on maintaining his factual innocence. (Id. at p. ___ [138 S.Ct. at p. 1510].)

       Two weeks prior to trial, defense counsel informed the defendant that the evidence

against defendant was overwhelming, and, absent a concession of guilt, the death penalty



                                            12
was inevitable at the penalty stage. (McCoy, supra, 584 U.S. at p.___[138 S.Ct. at p.

1506].) The defendant was “‘furious’” and explicitly instructed his counsel not to make

the concession. (Ibid.) Two days prior to trial, defendant sought to terminate the

attorney’s representation and the attorney requested to be relieved, but the trial court

denied the defendant’s request for new counsel. (Ibid.)

       At the inception of his trial, McCoy’s counsel made an opening statement arguing

that after hearing the prosecution’s evidence, there was “no way reasonably possible” for

the jury to conclude anything except that defendant was the cause of the victims’ deaths.

(McCoy, supra, 584 U.S. at p. ___ [138 S.Ct. at pp. 1506-1507].) Defendant protested.

Defendant testified in his own defense that he was innocent and relied on an alibi defense

described as “difficult to fathom.” (Id., at p. 1507.) In closing argument, defense counsel

again conceded defendant killed the victims (ibid.), yielding three first degree murder

convictions. (Ibid.) At the penalty stage, defense counsel urged the jury to have mercy,

but the jury returned three death verdicts. (Ibid.)

       The trial court in McCoy denied the defendant’s subsequent motion for a new trial,

reasoning that, despite the defendant’s opposition, defense counsel had authority to

concede guilt because it was reasonable to believe that this strategy presented the best

chance to avoid a death sentence. (McCoy, supra, 584 U.S. at p. ___ [138 S.Ct. at p.

1507].) After that ruling was affirmed by the Louisiana Supreme Court, the United States

Supreme Court reversed, holding that it violated the Sixth Amendment to “allow defense

counsel to concede guilt over the defendant’s intransigent and unambiguous objection.”



                                             13
(Ibid.) The court reasoned that while “[t]rial management is the lawyer’s province,”

including decisions as to “‘what arguments to pursue, what evidentiary objections to

raise, and what agreements to conclude regarding the admission of evidence,’” a criminal

defendant is entitled to “[a]utonomy to decide that the objective of the defense is to assert

innocence” and to “insist on maintaining her innocence at the guilt phase of a capital

trial.” (Id., at p. 1508.)

       In reaching its conclusion, the United States Supreme Court acknowledged its

prior holding in Florida v. Nixon (2004) 543 U. S. 175 [125 S.Ct. 551, 160 L.Ed. 2d 565]

(Nixon), where it considered whether the Constitution bars defense counsel from

conceding a capital defendant’s guilt at trial “when [the] defendant, informed by counsel,

neither consents nor objects.” (Id., at p. 178.) In that case, defense counsel had several

times explained to the defendant a proposed guilt-phase concession strategy, but the

defendant was unresponsive. (Id., at p. 186.)

       The United States Supreme Court held that when counsel confers with the

defendant and the defendant remains silent, neither approving nor protesting counsel’s

proposed concession strategy, “[no] blanket rule demand[s] the defendant’s explicit

consent” to implementation of that strategy. (Nixon, supra, 543 U.S. at pp. 181, 192.)

Thus, “[i]f a client declines to participate in his defense, then an attorney may permissibly

guide the defense pursuant to the strategy she believes to be in the defendant’s best

interest,” but, when “[p]resented with express statements of the client’s will to maintain




                                             14
innocence, . . . counsel may not steer the ship the other way.” (McCoy, supra, 584 U.S.

at p. ___ [138 S.Ct. at p. 1509].)

       McCoy makes clear, however, 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. (McCoy, supra, 584 U.S. at p.

___ [138 S.Ct. at p. 1509].) In fact, the Court framed the issue as “whether it is

unconstitutional to allow defense counsel to concede guilt over the defendant’s

intransigent and unambiguous objection.” (McCoy, supra, 584 U.S. at p. ___ [138 S.Ct.

at p. 1507, italics added].)

       Applying these principles, in People v. Franks (2019) 35 Cal.App.5th 883, the

Third District Court of Appeal affirmed a voluntary manslaughter conviction and

sentence on direct appeal where counsel implicitly conceded guilt at closing argument to

the jury but where defendant had not previously made it clear that the objective of his

defense was to maintain innocence. Citing McCoy, the Franks court held that although

defendant denied guilt during police interviews and expressed a desire to review

discovery to fight the prosecution’s evidence, nothing in the record indicated he ever

made it clear to his counsel or the court that the objective of his defense was to maintain

innocence, or that he “voiced ‘intransigent objection’” to the attorney’s defense strategy.

(Franks, supra, 35 Cal.App.5th at p. 891.) Instead, defendant had refused to speak with

counsel during their six meetings to discuss the case. (Ibid.)




                                             15
       Similarly, in People v. Bernal (2019) 42 Cal.App.5th 1160, where defense counsel

conceded guilt on some charges during closing argument to the jury, the court rejected an

argument that McCoy required reversal. There, the court held, “McCoy does not assist

defendant because the record here does not reflect a directive to counsel that defendant’s

objective at trial was to maintain innocence on all charges. There is no indication that

defendant instructed counsel not to concede guilt on the relevant charges in closing

argument, nor did he ask to replace appointed counsel because of disagreement over trial

strategy.” (Bernal, supra, 42 Cal.App.5th at p. 1166.)

       Contrast Franks and Bernal with the situation in People v. Eddy (2019) 33

Cal.App.5th 472, where the defendant made a motion to substitute new counsel to

represent him pursuant to People v. Marsden (1970) 2 Cal.3d 118, after his attorney made

closing argument, conceding defendant had committed the crime of voluntary

manslaughter. However, counsel’s opening statement established defendant’s initial

strategy of factual innocence, and, after the closing statement, defendant complained to

the court that he disagreed with counsel’s abandonment of the factual innocence defense

and counsel’s refusal to allow defendant to testify in his own defense. (People v. Eddy,

supra, 33 Cal.App.5th at pp. 477-478.)

       The Court of Appeal concluded that the defendant’s statements during the

Marsden hearing made it clear the defendant had instructed his attorney not to concede

manslaughter and that counsel had overridden that directive. (People v. Eddy, supra, 33

Cal.App.5th at p. 482.) In reaching its conclusion, the court reasoned that McCoy applied



                                            16
even though the defendant did not object during the argument. Instead, it held that “the

record must show (1) that the defendant’s plain objective is to maintain his innocence and

pursue an acquittal, and (2) that trial counsel disregards that objective and overrides his

client by conceding guilt.” (People v. Eddy, supra, at pp. 482-483, citing McCoy, supra,

584 U.S. at pp. ___, ___[138 S.Ct. at pp. 1505, 1507-1510].)

       In People v. Flores (2019) 34 Cal.App.5th 270, the defendant made his objective

known and was unambiguous in wanting to maintain his innocence of the acts alleged

irrespective of the weight of the evidence against him. Specifically, defendant objected

to his counsel’s decision to admit that Flores was driving the car that seriously injured a

police officer, and to focus the defense on whether defendant had formed the

premeditated intent to kill requisite for attempted murder. In a subsequent trial on

weapons possession charges, counsel adopted a similar approach, conceding that

defendant possessed the weapons but arguing that the possession was not “knowing.”

       The reviewing court held that in the pursuit of the understandable objective of

achieving an acquittal, counsel conceded the actus reus of the charged crimes at both

trials, which, while “any reasonable lawyer might agree with counsel’s judgment, McCoy

instructs that this is a decision for the client to make.” (Flores, supra, 34 Cal.App.5th at

p. 273.)

       Here, upon his arrest, petitioner made a full confession at the police station, and at

trial, defense counsel did not give an opening statement. Petitioner testified in his own

defense that he did not kill the victim, but, rather, Zamora and Porter did it and that his



                                             17
confession was a lie. In rebuttal, the People introduced a witness who had been in

custody with petitioner and to whom petitioner had confessed strangling the victim and

that he planned to lie at trial.

       During the prosecution’s summation to the jury, arguing for a verdict of first

degree murder, petitioner interrupted and complained he wanted to leave the courtroom

and that he did not do it. The court had called counsel to an off-the-record sidebar to

discuss “chatter” between defendant and defense counsel, and to insure it was not

distracting the prosecutor during his summation. There is no indication that a discussion

of defense strategy occurred during this discussion; in fact, petitioner, in his declaration

in support of his traverse, denies that defense counsel informed him of a proposed change

of strategy during the prosecutor’s closing argument.

       After the prosecutor’s argument resumed and ultimately concluded, defense

counsel commenced his closing argument, in which he told the jury that defense counsel

had to be ready to change his story at the drop of a hat and continued by saying he

believed this was second degree murder. At this point, petitioner objected, insisted he did

not do it, and informed the court he did not wish to be present, after accusing his attorney

of lying.

       The trial court excused the jury for the day in order to make a record of what had

transpired. During that discussion, counsel indicated that after the prosecutor’s argument,

he informed petitioner that he believed there was no way the jury would buy his defense

that he did not do it, based on all that had been said, and that he was going to go with the



                                             18
best defense he could. The record does not show petitioner made an express and

unambiguous intent to maintain factual innocence at that time. Thereafter, defense

counsel made his closing argument, conceding petitioner’s involvement in the murder, at

which point petitioner objected.

       Under these circumstances, the McCoy decision does not apply because petitioner

did not object or seek to substitute counsel prior to the defense counsel’s closing

argument. He did not “vociferously insist” that he did not engage in the charged acts

prior to counsel’s argument, although he had been made aware of the change of strategy,

and he did not “adamantly object[] to any admission of guilt” when informed, before the

defense closing argument, that the jury would not buy it.

       In this respect, petitioner’s case is similar to Nixon, Franks, and Bernal, because

defendant did not object and make plain his objective of maintaining his innocence after

his attorney advised him that the jury would not buy his defense that he did not do it, and

before defense counsel presented closing argument. Nor did petitioner object when

counsel informed him he would adopt a different approach, which also occurred prior to

closing argument. While petitioner did object during closing argument, it was after the

concession had been made, so it cannot be said that at the time counsel made the

concession, it was over petitioner’s intransigent and unambiguous objection.

       McCoy does not apply to petitioner’s case.




                                             19
       B.     Retroactivity of McCoy v. Louisiana

       Petitioner argues that McCoy is entitled to retroactive effect as to final judgments

on collateral review under Teague v. Lane (1989) 489 U.S. 288 [109 S.Ct. 1060, 103

L.Ed.2d 334](Teague) because it was dictated by pre-existing precedent.       If a case does

not announce a new rule, then it is retroactive under both federal and California state law.

(Chaidez v. United States (2013) 568 U.S. 342, 347; People v. Guerra (1984) 37 Cal.3d

385, 399.)

       Under federal constitutional principles, when a Supreme Court decision results in

a new constitutional rule, this rule applies to all criminal cases pending on direct review

but applies to convictions that are already final only in limited circumstances. (See

Schriro v. Summerlin (2004) 542 U.S. 348, 351 [124 S.Ct. 2519, 159 L.Ed. 2d

442](Schriro).) In deciding retroactivity issues, a court must first find whether the

Supreme Court decision in question announced a “new rule.” (Teague, supra, 489 U.S.

at pp. 300-301.) If a court determines that a Supreme Court decision announces a new

constitutional rule, it must then determine whether that new rule satisfies an exception to

the general prohibition against the retroactive application of new rules to cases on

collateral review. (Teague, supra, 489 U.S. at pp. 305-310.) New substantive rules

generally apply retroactively, while new rules of criminal procedure generally do not.

(Schriro, supra, 542 U.S. at pp. 351-52.)

       State courts are “‘free to give greater retroactive impact to a decision than the

federal courts choose to give.’” (In re Gomez (2009) 45 Cal.4th 650, 655, fn. 3, citing In



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re Johnson (1970) 3 Cal.3d 404, 415; see Danforth v. Minnesota (2008) 552 U.S. 264

[169 L.Ed. 2d 859, 128 S.Ct. 1029].) Thus, in the event McCoy is determined to have

created a new rule, it may nevertheless apply retroactively to his final judgment applying

the three-factor test for retroactivity applicable under California law, as set forth in

Guerra.

       The question is whether McCoy created a new rule. In Guerra, the California

Supreme Court noted that “[t]he most common examples of decisions that do not

establish a new rule of law in this sense are those which explain or refine the holding of a

prior case, those which apply an existing precedent to a different fact situation, even if

the result may be said to “extend” the precedent, or those which draw a conclusion that

was clearly implied in or anticipated by previous opinions.” (People v. Guerra, supra, 37

Cal.3d at p. 399, citing as examples, People v. Superior Court (Kiefer) (1970) 3 Cal.3d

807, explained in Gallik v. Superior Court (1971) 5 Cal.3d 855, 859-860.)

       The holding of McCoy extended the precedent under Nixon, supra, 543 U.S. 175,

drawing a conclusion clearly implied in or anticipated by that opinion. Nixon established

the parameters of a claim of ineffective assistance of counsel where counsel makes a

strategic decision to concede guilt in order to avoid harsher consequences where the

defendant never asserted a defense objective of maintaining innocence and never verbally

approved or protested counsel’s proposed approach. McCoy, on the other hand, held that

Nixon and Strickland do not apply where counsel’s decision overruled the defendant’s

unambiguous and intransigent objection to that admission, usurping the defendant’s



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prerogative to choose the object of his defense and to decide whether to maintain his

innocence.

       McCoy interpreted and extended the rule of Nixon to provide guidance in

situations where the defendant expressly objects to counsel’s strategy of conceding guilt.

Defendant argued on direct appeal that his trial attorney deprived him of his Sixth

Amendment right to effective assistance of counsel by conceding his guilt of second

degree murder. In this respect, we conclude that McCoy did not announce a new rule.

Instead it was foreshadowed by Nixon and is entitled to retroactive application.

Nevertheless, for the reasons stated above, it does not apply to petitioner.

                                           DISPOSITION

       The petition is denied.

       CERTIFIED FOR PUBLICATION
                                                                RAMIREZ
                                                                                        P. J.


We concur:

FIELDS
                           J.

RAPHAEL
                           J.




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