Reported / Citable
Background
In the summer of 1995, Run Peter Chhuon and Samreth Sam Pan — senior members of the Tiny Rascals Gang (TRG) — carried out a series of violent crimes in Sacramento and Pomona. In Sacramento, Chhuon entered an apartment where the Le family operated a small home-based shop, shot and killed two family members, and wounded a third. Twelve days later in Pomona, Chhuon and Pan shot at two men from a passing car, killing one of them after mistakenly believing the victims were members of a rival gang. Both defendants were tried jointly before separate juries in Los Angeles County under a 1998 venue-consolidation statute that allowed multi-county murder cases to be tried together when the killings were connected in their commission.
Both juries returned guilty verdicts on all counts — including three first-degree murders, two attempted murders, first-degree burglary, and attempted robbery — found true multiple special circumstances, and sentenced both men to death. The case generated an automatic appeal to the California Supreme Court, which addressed claims ranging from the admissibility of evidence and gang enhancement statutes to, most significantly, what happened during Pan’s closing argument.
The case had been languishing for decades when it finally reached the Supreme Court, in part because defense counsel for Pan made a fateful strategic choice during closing argument: despite Pan’s explicit instructions to maintain his innocence, counsel told the jury that Pan was guilty — at minimum, of second-degree murder — and asked jurors to return that verdict. Pan immediately wrote to the trial court protesting this. Defense counsel later acknowledged he knew Pan did not want him to argue guilt, but believed the concession was necessary to preserve credibility with the jury for the penalty phase.
The Court’s Holding
The California Supreme Court, in a 4-3 decision authored by Justice Groban, reversed Pan’s conviction in its entirety and affirmed Chhuon’s conviction with one modification. As to Pan, the court held that defense counsel’s concession of guilt during closing argument — made over Pan’s express objection — was a structural constitutional error under McCoy v. Louisiana (2018), a U.S. Supreme Court decision holding that a defendant has the absolute right to decide the fundamental objective of his defense. Because Pan had instructed his lawyer not to claim any guilt on his behalf, and because counsel nonetheless told the jury “My client is guilty, if anything, of second degree murder,” the error was not subject to harmless-error review. The court reversed all of Pan’s convictions, finding the concession infected not just the murder counts but all charged crimes and enhancements. Pan may be retried.
As to Chhuon, the court found no reversible error in the trial court’s decision to join the Sacramento and Pomona cases under Penal Code section 790(b), rejecting arguments that retroactive application of the joinder statute violated ex post facto principles and that trying the cases together in Los Angeles violated the defendants’ right to be tried by a jury drawn from the community where the crimes occurred (the vicinage right). The court also upheld the admission of evidence of an uncharged murder the defendants committed two days before the Pomona crimes, finding it properly showed identity, motive, and a common scheme. However, the court — with the Attorney General’s concession — vacated both defendants’ gang enhancements under Assembly Bill 333 (effective 2022), which prohibits using currently charged offenses to establish the pattern of criminal activity required to prove a gang enhancement.
Key Takeaways
- McCoy error is structural and automatic reversal follows: when a defendant in a capital case expressly insists on maintaining innocence, defense counsel may not concede guilt — not even as a lesser-included-offense strategy — and a violation requires reversal without any showing of prejudice to the defendant.
- The McCoy concession can infect the entire case: the court extended the reversal beyond the murder counts themselves to all charges and enhancements, reasoning that a concession on the killings necessarily swept in the simultaneous attempted murders, firearm use findings, and related allegations.
- Assembly Bill 333’s gang enhancement reform applies retroactively to pending cases: prosecutors can no longer rely on the currently charged offense to establish the “pattern of criminal gang activity” required for a gang enhancement, and cases tried under the old rules may need to be retried on those allegations.
- The retroactive application of California’s multi-county murder consolidation statute (Pen. Code § 790(b)) does not violate ex post facto principles, because joining murders for trial is a procedural rule that does not increase the punishment that was already available before the law was enacted.
- A capital defendant whose claim is reversed on McCoy grounds may still face retrial: the court separately reviewed Pan’s sufficiency-of-evidence claims and found the evidence was constitutionally sufficient, meaning double jeopardy does not bar a new trial.
Why It Matters
The McCoy holding from 2018 settled an important principle: in criminal cases, certain decisions — including whether to maintain innocence or concede guilt — belong to the defendant alone, not to counsel. This case is the California Supreme Court’s most extensive application of that principle in a capital case, and it shows just how sweeping the consequences can be. An experienced capital defense attorney, acting out of genuine strategic concern for his client’s life, made a choice that resulted in decades of convictions being wiped away. For defense lawyers, the lesson is unambiguous: document your client’s wishes, abide by them on the fundamental question of guilt, and find other ways to protect the client at sentencing.
The Assembly Bill 333 vacatur carries its own practical significance. The 2022 amendments to California’s gang enhancement statute tightened the evidentiary requirements significantly, and courts have consistently held those changes apply to all cases not yet final when the law took effect — including very old cases on direct appeal. Prosecutors handling pending cases need to assess whether their proof of the predicate “pattern of criminal gang activity” relies on the charged offenses, and defense lawyers reviewing old convictions on appeal should examine whether gang enhancements were established the same way.