Unreported / Non-Citable
Background
A jury convicted Otis McKinzy, Jr. of carjacking, kidnapping with intent to commit rape, forcible oral copulation, and sodomy by force, and found true allegations that he kidnapped the victim for sexual purposes and had prior serious felony and strike convictions. The trial court sentenced him to an aggregate indeterminate term of 225 years to life plus 14 years determinate. The charges arose from a March 20, 2024 attack in which McKinzy stabbed Ana Maria in the chest with a steel fork as she organized documents in her car, forced her into the backseat, drove her to remote fields, sexually assaulted her, and stopped at a bank, where she escaped and summoned police.
On December 11, 2024, McKinzy physically attacked his defense counsel in the courtroom and bailiffs restrained and removed him. The next day, after questioning jail personnel who confirmed he refused to come to court and had threatened further violence, the trial court found he had forfeited his right to be present and proceeded without him, instructing the jury not to consider his absence or the attack. Because he was absent and could not waive a jury, the bifurcated prior-conviction allegations were tried to the jury on December 17, 2024, also in his absence. He was present for sentencing on January 16, 2025.
The Court’s Holding
The Court of Appeal rejected McKinzy's claim that the trial court erred in extending his exclusion to the bifurcated prior-conviction trial. A defendant has constitutional and statutory rights to be present at critical stages, but those rights may be forfeited by disruptive conduct, and erroneous exclusion is trial error requiring a showing of prejudice, not structural error. The record—the violent attack on counsel that ended only when he was restrained, continued verbal threats, refusal to appear, and escalating aggression—supported the finding that he would remain disruptive and dangerous. The court had no duty to re-inquire on December 17 whether he was willing to behave, and McKinzy never reclaimed his right to be present by expressing willingness to conform to courtroom decorum. Nor did the court err in trying the bifurcated allegations to a jury, since section 1025 gives him a jury right and he cited no authority establishing an unconditional right to waive a jury while absent.
The court also rejected McKinzy's claim that defense counsel's closing concessions on the carjacking and kidnapping counts violated his Sixth Amendment right to control his defense under McCoy v. Louisiana. McCoy forbids conceding guilt over the defendant's intransigent and unambiguous objection, but California courts apply it only where the defendant actively opposes the concession. Even assuming the statements were concessions of guilt, McKinzy showed no opposition: counsel stated on the record, in McKinzy's presence, that his client had consented to conceding certain counts, and McKinzy voiced no objection before or after closing argument. The court therefore found no violation of his right to control the objective of his defense.
Key Takeaways
- A defendant who physically attacks counsel and refuses to come to court forfeits the right to be present, and the trial court need not repeatedly inquire whether he is willing to behave before continuing proceedings in his absence.
- Erroneous exclusion of a defendant from a critical proceeding is trial error reversible only on a showing of prejudice, not structural error requiring automatic reversal.
- A defendant removed for disruptive conduct bears the burden of reclaiming the right to be present by informing the court of a willingness to conform to courtroom decorum.
- McCoy v. Louisiana applies only where the defendant expressly and unambiguously objects to counsel's concession of guilt; where the record shows consent or silence, no Sixth Amendment violation lies.
- A defendant has no unconditional right to waive a jury trial on bifurcated prior-conviction allegations while absent after forfeiting the right to be present.
Why It Matters
The decision reinforces the broad discretion trial courts exercise in managing violent and disruptive defendants, confirming that a single forfeiture finding can extend to later stages of trial—including a bifurcated prior-conviction proceeding—without renewed stage-specific inquiry when the defendant's conduct demonstrates a continuing threat. It also underscores that defendants who forfeit their presence cannot later complain of the consequences, such as the inability to personally waive a jury on bifurcated allegations.
On the McCoy issue, the opinion adds to the line of California authority limiting structural-error claims to cases where the defendant actively and unambiguously opposed counsel's concession strategy. Practitioners should ensure that any client disagreement with a concession strategy is placed on the record, because silence or documented consent will defeat a later claim that counsel overrode the defendant's right to maintain innocence.