People v. McKinzy CA5

Filed 10/28/26 P. v. McKinzy CA5 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or or dered published for purposes of rule 8.1115. IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIFTH APPELLATE DISTRICT THE PEOPLE, F089238 Plaintiff and Respondent, (Super. Ct. No. MCR080656) v. OTIS MCKINZY, JR., OPINION Defendant and Appellant. APPEAL from a judgment of the Superior Court of Madera County. Dale J. Blea, Judge. Stephen M. Lathrop, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Charles C. Ragland, Chief Assistant Attorney General, Kimberley A. Donohue, Assistant Attorney General, Darren K. Indermill and Jeffrey A. White, Deputy Attorneys General, for Plaintiff and Respondent. -ooOoo-  INTRODUCTION A jury convicted defendant Otis McKinzy, Jr. (defendant) of carjacking, kidnapping with intent to commit rape, forcible oral copulation, and sodomy by force. The jury also found true allegations that defendant had kidnapped the victim for sexual purposes and allegations defendant had suffered prior serious felony convictions and prior strike convictions. During trial, defendant physically attacked his counsel in the courtroom. Following the physical attack, defense counsel stated he could fairly represent defendant with or without him in the courtroom and the trial court questioned the sergeant from the jail who confirmed that defendant had refused to leave the jail and come to court. The court found that “[b]ased upon … defendant’s actions and his refusal to come to court today, he has forfeited his right to be present at the trial, and we will proceed without him.” After discussing jury instructions, defense counsel asked about waiving a jury trial on the bifurcated issues. The court explained the bifurcated proceeding would occur before a jury because defendant was not present to waive a jury trial. Defendant was not present during the bifurcated proceeding. On appeal, defendant contends the trial court erred in issuing a blanket exclusion order that included excluding defendant from the bifurcated proceeding and his counsel erred in conceding guilt on certain counts in closing though defendant did not agree to do so. We affirm. FACTUAL BACKGROUND Evidence by the Prosecution On March 20, 2024, Ana Maria left the recreational vehicle she shared with her partner Josue V. at around 6:30 a.m. for work. Ana Maria left work at noon. When she got home, Ana Maria parked and got out of her car. She opened the back door on the 2. driver’s side of the car, leaned over, and began organizing some personal documents inside her car; her back was facing the outside. After a minute, defendant approached Ana Maria aggressively from behind on her right side. Ana Maria had seen defendant before; he used to park his car behind her. Ana Maria testified that she understands very basic English, specifically “[t]he alphabet, the letters, [and] some numbers.” Defendant was yelling. He asked for money, saying “ ‘Money. Money. Money.’ ” Defendant showed Ana Maria a steel fork in his hand as he approached and Ana Maria got scared. Defendant stabbed Ana Maria in the chest with the fork. Ana Maria said, “Wait,” and she leaned over to look for money in the front seat. Defendant then pushed her near the right side of her shoulder, and Ana Maria fell forward onto the backseat. Her feet were still outside of the car. Defendant lifted Ana Maria’s feet and forced them into the car. He got in the backseat and closed the door. Ana Maria grabbed her wallet and gave him money. Defendant yelled for the keys and then he started punching Ana Maria in the face because she did not give them to him immediately. Ana Maria felt “out of it” and gave defendant the keys. Defendant took the keys and went to the driver’s seat from the inside of the car. He signaled to Ana Maria to come to the front seat; she complied. She tried to open the door to leave and he said, “No.” Ana Maria listened to defendant; she was frightened after he had punched her. Defendant turned on the engine and started driving down streets and then through fields. After approximately 30 minutes, he stopped the car and turned off the engine. He signaled to Ana Maria to take off her seatbelt and open the door. Ana Maria followed the directions because she was scared. Defendant signaled to Ana Maria to join him behind the car. When Ana Maria got there, defendant had his pants down below the knee and his erect penis was exposed. Defendant signaled to Ana Maria to perform oral sex on him; Ana Maria complied. Defendant initially told Ana Maria to lower her pants but then he directed Ana Maria to get into the trunk; she did so. Defendant closed the trunk, started 3. the car, and began driving. Ana Maria sent messages to Josue and Josue’s friend Raul from her phone while she was in the trunk. Defendant drove for approximately 30 to 40 minutes. He stopped in a field and helped Ana Maria out of the trunk. Ana Maria did not know where they were. Defendant pulled his pants down to his knees. He handed Ana Maria a box of condoms and asked her to put one on him. Defendant signaled to Ana Maria to go to the driver’s seat and to pull down her pants. He told Ana Maria to get on her back in the driver’s seat. Ana Maria stood outside the driver’s seat and leaned over; defendant was behind her. Defendant briefly inserted his penis into Ana Maria’s vagina and then her anus; “[h]e did it more through the anus.” On cross-examination, Ana Maria testified she did not recall defendant penetrating her vaginally. Defendant “finished” and pulled his pants up. Ana Maria peed and pulled her pants up and then defendant told her to sit next to him in the front passenger seat. He signaled to Ana Maria to put on her seatbelt, and he told her he wanted more money. She told him she had money in the bank. Defendant began driving and stopped to ask someone where to find the bank. The man gave defendant an address and defendant drove to the bank. When they arrived, Ana Maria opened her wallet to get her bank card, but her wallet was empty. Ana Maria opened the car door and ran. She saw a man and tried to contact him, but he did not understand her because of the language barrier. Ana Maria continued running and she saw a woman, Virgilia S., with two children. Ana Maria told Virgilia she wanted to go to the police. Virgilia called the police, and she let Ana Maria call Josue. Ana Maria waited at a fast food restaurant and the police arrived. The police took Ana Maria to the police department to take her statement. In her statement to police, Ana Maria reported orally copulating defendant and him penetrating her vagina and rectum at the second location where they stopped. She indicated that at the first location where she was forced into the trunk, no sexual assaults occurred. 4.  After Ana Maria gave her statement to the police, the police took her to see a nurse who conducted a sexual assault exam and took blood samples. The nurse photographed Ana Maria’s injuries, including bruising and swelling to Ana Maria’s forehead and lip. She also took pictures of a puncture wound on Ana Maria’s chest, a bruise on Ana Maria’s right shoulder, a scab-like abrasion on Ana Maria’s left elbow, and abrasions on both of Ana Maria’s wrists and her left leg. She noted that Ana Maria reported having “ ‘vaginal tenderness,’ ” though the nurse did not see any injuries to corroborate anal or vaginal penetration. The nurse also did a head-to-toe assessment of defendant. She noted defendant had swelling to his right hand. Ana Maria testified her whole face was swollen. In the month following the incident, Ana Maria had difficulty breathing out of her mouth or nose and her chest hurt. Ana Maria reached out to the police again because she found two red condoms in the glove compartment of her car. Josue testified he and Ana Maria had been in a relationship since 2021. On March 20, 2024, Josue left for work at approximately 6:00 a.m. At approximately 3:00 p.m., Josue read a message from Ana Maria asking for help. Josue tried to call Ana Maria three times, but she did not answer. He left work. About an hour later, Josue called 911. He received a call from another number at around 5:00 p.m.; it was Ana Maria. Approximately three days after the incident, Josue photographed Ana Maria’s physical condition. She had injuries to her eyes and cheekbone and a puncture wound on her breasts. Officer Brandon Herron testified he contacted defendant at approximately 11:30 p.m. on March 20, 2024, at a gas station in Elk Grove. Defendant was in the driver’s seat of a 2016 silver car. Herron and two other officers approached the car and “cleared” it. Herron had the vehicle towed to a tow yard. The car was processed and swabbed for DNA. A box of condoms was collected by the Department of Justice and turned over to the Madera Police Department during the processing of the vehicle. 5.  At around 6:30 p.m. on March 20, 2024, Detective Joshua Gibbs responded to a rural area where defendant’s GPS location data was pinging. Defendant’s GPS monitor was found on a steep embankment. A pair of scissors was found approximately 20 yards down the embankment. The strap of defendant’s GPS monitor had been cut. Agent Darren Beatty testified an alarm went off to indicate the security of the strap was compromised. Beatty notified his supervisor who initiated an investigation. An investigator from the district attorney’s office used software to create a “visual overlay on top of a map” representing the GPS pings of defendant’s GPS monitor showing its movement. In an interview with the police, defendant admitted that he removed his GPS monitor. Defendant’s Physical Attack on Defense Counsel and Related Proceedings On December 11, 2024, the day before the parties rested, defendant physically attacked his counsel in the courtroom “and the bailiffs had to take [defendant] down” and remove him from the courtroom to a holding cell. Defense counsel asked if they could finish without defendant the next day and the trial court stated, “That’s one of the possibilities.” Court was adjourned. The next day, December 12, 2024, defendant was not present. Outside of the presence of the jury, the trial court explained on the record: “[Y]esterday afternoon … [defendant] physically attacked [defense counsel]. I would point out that prior to that, before the jury had come in and off the record, [defendant] was angry and was not happy about the way the evidence was coming in. I thought I had calmed him down. Obviously, I had not. “And that I just would point out that that’s the most violent thing that I have ever seen in the courtroom in my 23 years as a prosecutor and my almost 16 years as a judge. [¶] I am thankfully surprised that you, [defense counsel], were not injured more than you were … but the attack was heard. [Defendant] was heard in Department 29 to my north, and the criminal division to my south, and in the traffic division below us. Thankfully, the response was by other bailiffs and security was quick. 6.  [Defendant] has refused to come to court, and I’m told he got very aggressive with jail staff when they tried to extract him.” The trial court asked defense counsel if he felt he could “still fairly represent [defendant] in this trial.” Defense counsel responded, “[a]bsolutely,” that despite the physical attack, he was “very confident” he could put it aside and represent defendant to the best of his abilities. The trial court noted that, after it denied defendant’s Marsden1 motion two months earlier, defendant had threatened that he would not cooperate, though the court “thought … he was being cooperative.” Defense counsel stated that when the judge was not there, defense counsel had appeared with defendant “and he was extremely violent and loud and yelling. It was one of the worst [defense counsel had] seen of verbal disruptions, and [defendant] had to be escorted out.” Defense counsel noted “it deteriorated over the course of trial.” The trial court conducted a voir dire examination of Sergeant Andy Villanueva. Villanueva explained that defendant refused to leave jail and come to court. Another officer advised defendant he was on the list to go to court and defendant asked why he would have to go “ ‘after what [he] did to [his] attorney.’ ”2 The court then stated on the record its belief that “if [defendant] is brought back into this trial, that he’s going to be 1 People v. Marsden (1970) 2 Cal.3d 118. 2 Later that day, the trial court conducted a voir dire of Laura Williams, a correctional officer from Madera County Jail. She told the court she contacted defendant that morning and he stated he would not be going to court. She told him a second time that he might be required to go to court and to get ready and defendant stated “given what he did to his attorney yesterday, he would not be going.… His attorney was not doing anything for him, so he would not be okay to be in the same room.” Joaquin Dominguez testified he worked “correctional in the transportation unit” and he transported defendant the day before; defendant “was agitated when he came down.” When Dominguez “took over from the two bailiffs that were escorting [defendant] down the elevator from the incident, [defendant] stated that he wanted to kill this person.” Dominguez asked defendant if he was done for the day and defendant said, “ ‘I’m not gonna go up there today. I’m not going anymore. I will go off on this guy.’ ” 7. both verbally and physically aggressive.” Defense counsel agreed with the court’s assessment and noted “this was not the first instance of his aggression. And in this trial, the past few days, [defense counsel] could see [defendant’s] aggression building.” Defense counsel noted he expressed concern to the deputy, and, in response, another deputy was brought into the courtroom. Defense counsel also explained that defendant had been verbally aggressive to him in the past and counsel did “not believe [defendant] would cooperate with the proceedings if he were brought today.” Defense counsel represented that he could represent defendant without defendant’s presence, and he noted a subsequent trial could place defendant in a worse position than in this trial despite the attack, noting the People received late evidence of DNA that was on defendant’s scrotum that matched the complaining witness. The prosecutor also noted he had received information that defendant continued to make threats to his attorney. The trial court found, “[b]ased upon … defendant’s actions and his refusal to come to court today, he has forfeited his right to be present at the trial, and we will proceed without him.” The trial then continued without defendant present. The court told the jury that defendant would “no longer be present during the proceedings.” It directed the jury that it was “not to consider that for any purpose, especially in your deliberations.” The court also instructed the jury not to consider in its deliberations “what happened yesterday and [defendant’s] actions in reaching [a] verdict.” After discussing jury instructions, the prosecutor asked whether the special allegations “would be bifurcated to the jury or to the [c]ourt.” The trial court stated, “[t]here is no jury waiver, so everything goes to the jury.” Defense counsel asked if he could “waive that.” The court stated that he could not unless counsel could find the court research that defense counsel could waive it though defendant was not present. The prosecutor asked whether defendant would be shackled if he was “invited to come to court Tuesday.” The court responded that defendant “is not coming to court anymore,” 8. “[h]e has forfeited that right.” The court could not “guarantee that he won’t act up or hurt somebody.” On December 17, 2024, the next court date, defendant again was not present. The prosecutor asked the trial court to make a finding that the threatening statements defendant made while being transported were referring to defense counsel. The court stated that was its understanding and would “so find.” The court also explained the attack further on the record, noting defendant was in one chair and defense counsel was in another, and defendant “began punching and attacking” defense counsel and “that’s when the bailiff jumped in.” Defense counsel stated that he and defendant were about two feet apart at the time and defendant punched defense counsel as counsel was leaning in to speak to him. The court found defendant to be a danger for all those reasons. The court instructed the jury, counsel proceeded with closing arguments, and the jury returned its verdict. Thereafter, that same day, the court proceeded with the bifurcated jury trial on the prior conviction allegations. Verdict and Sentence The jury found defendant guilty as charged of carjacking (§ 209.5, subd. (a), count 1), kidnapping with intent to commit rape (§ 209, subd. (b)(1), count 2), forcible oral copulation (§ 287, subd. (c)(2)(A), count 4), and sodomy by force (§ 286, subd. (c)(2)(A), count 5). The jury also found true special allegations as to counts 4 and 5, respectively, that the defendant kidnapped Ana Maria for purposes of committing oral copulation by force and sodomy by force, fear, or threats. In the bifurcated proceeding, the jury found true allegations that defendant had been convicted of three prior convictions all with the conviction date of January 28, 1998: a violation of sections 207, subdivision (a)/208, subdivision (d); a violation of section 261, subdivision (a)(2); and a violation of former section 288a, subdivision (c), all arising from Madera Superior Court case No. 14175. 9.  On December 17, 2024, the trial court ordered defendant to be present for sentencing. The sentencing hearing was conducted on January 16, 2025, in defendant’s presence. The court sentenced defendant to indeterminate terms of 75 years to life each on counts 2, 4, and 5 pursuant to sections 667.71 and 667, subdivision (e)(2)(A)(i), for an aggregate indeterminate term of 225 years to life, plus 14 years determinate comprised of five years for a section 667, subdivision (a)(1) enhancement and nine years for a section 667.8, subdivision (a) enhancement.3 The court ordered stayed the 25-years-to-life sentence on count 1 pursuant to section 654. DISCUSSION I. The Trial Court Did Not Err by Excluding Defendant from the Bifurcated Proceeding Defendant first contends the trial court erred in excluding him during the bifurcated prior conviction trial in violation of his right to be present. He argues the error was structural and, thus, requires reversal. We disagree with defendant’s contentions. A. Standard of Review and Applicable Law “It is established that a defendant has a federal constitutional right, emanating from the confrontation clause of the Sixth Amendment and the due process clause of the Fourteenth Amendment, to be present at any stage of the criminal proceedings ‘[t]hat is critical to the outcome if his presence would contribute to the fairness of the procedure.’ ” (People v. Bradford (1997) 15 Cal.4th 1229, 1356–1357; see People v. Cunningham (2015) 61 Cal.4th 609, 633.) “In addition, a defendant has the right to be personally present at critical proceedings pursuant to the state Constitution [citations], as well as pursuant to statute (§ 977, 1043).” (Bradford, at p. 1357; see Cal. Const., art. I, § 15.) “But the right [to be present] is not an absolute one. [Citation.] It may be expressly or impliedly waived.” (People v. Espinoza (2016) 1 Cal.5th 61, 72.) And 3 The five-year terms for the two other section 667, subdivision (a)(1) enhancements were ordered stayed pursuant to section 654. 10. “ ‘[a] disruptive defendant waives his right to be present at trial.’ ” (People v. Medina (1995) 11 Cal.4th 694, 738; accord, People v. Sully (1991) 53 Cal.3d 1195, 1239.) Indeed, section 1043, subdivision (b)(1) provides that “[t]he absence of the defendant in a felony case after the trial has commenced in their physical presence shall not prevent continuing the trial to, and including, the return of the verdict in … [¶] … [a]ny case in which the defendant, after being warned by the judge that they will be removed if they continue their disruptive behavior, nevertheless insists on acting in a manner so disorderly, disruptive, and disrespectful of the court that the trial cannot be carried on with the defendant present in the courtroom.” (§ 1043, subd. (b)(1).) Notably, “ ‘[t]he trial court’s ability to remove a disruptive or potentially disruptive defendant follows not only from section 1043, subdivision (b)(1), but also from the trial court’s inherent power to establish order in its courtroom.’ ” (People v. Majors (1998) 18 Cal.4th 385, 415; accord, People v. Holmes, McClain and Newborn (2022) 12 Cal.5th 719, 804 [“Trial courts have ‘ “ ‘broad power to maintain courtroom security and orderly proceedings.’ ” ’ ”].) Our highest court has held: “It is essential to the proper administration of criminal justice that dignity, order, and decorum be the hallmarks of all court proceedings in our country. The flagrant disregard in the courtroom of elementary standards of proper conduct should not and cannot be tolerated. We believe trial judges confronted with disruptive, contumacious, stubbornly defiant defendants must be given sufficient discretion to meet the circumstances of each case. No one formula for maintaining the appropriate courtroom atmosphere will be best in all situations.” (Illinois v. Allen (1970) 397 U.S. 337, 343.) “We generally defer to the trial court’s determination as to when a disruption has occurred or is likely to occur.” (People v. Bell (2019) 7 Cal.5th 70, 116 (Bell).) The California Supreme Court has held “[e]rroneous exclusion of the defendant is not structural error that is reversible per se, but trial error that is reversible only if the defendant proves prejudice.” (People v. Perry (2006) 38 Cal.4th 302, 312; see People v. 11. Perez (2018) 4 Cal.5th 421, 438 [“Although the exclusion of the defendant from a critical proceeding constitutes error, it is not structural error”]; People v. Bradford, supra, 15 Cal.4th at p. 1357 [“Defendant has the burden of demonstrating that his absence prejudiced his case or denied him a fair trial”].) Under the federal Constitution, error pertaining to a defendant’s presence is evaluated under the harmless beyond a reasonable doubt standard set forth in Chapman v. California (1967) 386 U.S. 18, 23. (People v. Davis (2005) 36 Cal.4th 510, 532.) B. Analysis Defendant asserts that the trial court’s “blanket exclusion order” deprived him of his right to be present at the bifurcated prior conviction trial necessitating reversal of the prior conviction findings. He concedes the court was entitled to remove him on December 11 and to continue the guilt-phase proceedings on December 12 “while the immediate refusal and threats persisted.” But he contends, the court erred in “extending that exclusion, without any renewed stage-specific determination, into the separate bifurcated prior conviction trial,” which was a separate proceeding governed by its own procedural protections under sections 1025 and 1128. He also contends the court’s exclusion order deprived him of the right to waive a jury trial on the prior conviction allegations, resulting in structural error. The People contend the court’s initial removal order did not need to be renewed to exclude defendant from the bifurcated proceedings based on the nature and timing of the attack and defendant’s continued threats and refusal to come to court. They also argue defendant did not have a constitutional or statutory right to waive a jury trial on the bifurcated allegations. Under the circumstances, we cannot conclude the court erred in proceeding with the bifurcated trial proceeding in defendant’s absence. Initially, as defendant concedes, it was clearly within the trial court’s discretion to conclude defendant’s physical attack on his counsel necessitated his removal from court and absence from the trial proceedings on December 11 and 12, 2024. (See Bell, supra, 7 12. Cal.5th at p. 117 [“It was within the trial court’s discretion to conclude defendant’s violent physical outburst necessitated his removal from court and absence for the remainder of the afternoon’s proceedings.”].) “Although the record includes no evidence of an express warning, one was not required under the circumstances here.” (Ibid.; see People v. Banks (2014) 59 Cal.4th 1113, 1181 [defendant’s actions “went much further than more typical types of misconduct, such as verbal disruptions or abusive language, that might call for a specific warning before a defendant is excluded from trial”], abrogated on another ground in People v. Scott (2015) 61 Cal.4th 363, 391, fn. 3.) “Whether it makes sense to expect a defendant in a given case, once removed from the trial, to actually abandon a strategy of disruption and conform to courtroom decorum if allowed to return depends to a large extent on nuanced assessment of the severity and persistence of the disruptive conduct. The trial court is best situated to evaluate the defendant’s conduct and the likelihood of further disruption. Which is why it makes sense for the decision to bar a defendant from the remainder of a trial to rest within the broad discretion of the trial court.” (People v. Johnson (2018) 6 Cal.5th 541, 560 (Johnson).) The record—namely evidence of defendant’s violent physical attack on his counsel that only ended when he was restrained, his verbal threats, and his refusal to come to court—supports the trial court’s conclusion that defendant would continue to be disruptive and that his exclusion was necessary during the bifurcated proceeding on December 17, 2024. (See Bell, supra, 7 Cal.5th at p. 116 [“Combined with the severity of defendant’s outburst the day before, counsel’s explanation of defendant’s physical and mental state and unwillingness to attend court provided substantial support for the court’s conclusion that defendant would be disruptive if compelled to be present.”]; Johnson, supra, 6 Cal.5th at p. 558 [“Defendant’s physical assault against counsel, followed by his repeated disruption of the subsequent hearing by banging on the metal door of his lockup cell, were sufficient in themselves to justify his exclusion from the courtroom”]; People 13. v. Price (1991) 1 Cal.4th 324, 406 [“Because defendant had recently assaulted officers during transportation to the courtroom, the trial court could reasonably anticipate that any effort to bring defendant to the courtroom against his will would endanger the safety of the transporting officers and of persons in the courtroom.”].) Here, defendant attacked his counsel during trial, in the presence of the jury, in an outburst that the judge described as “the most violent thing that [the judge had] ever seen in the courtroom in [his] 23 years as a prosecutor and [his] almost 16 years as a judge.” Defendant had to be physically restrained and then he continued making verbal threats against his counsel. Defendant then refused to come to court the following day. And the record reflects defense counsel witnessed defendant’s aggression escalating over the course of trial and defendant had previously engaged in a verbal disruption in court. On this record, “[t]he trial court in this case found that defendant posed a continuing threat. Defendant’s conduct at trial leaves no doubt about why the court made this decision.” (Johnson, at p. 561.) We also cannot conclude the trial court had a duty to inquire again on December 17, 2024, whether defendant was refusing to come to court. “Defendant cites no authority to suggest that a trial court lacks the power to deploy tools useful in confronting violent conduct. Nor does he explain why the court is bound to offer a dangerous defendant repeated … opportunities to inflict physical injury on counsel or others in the courtroom.” (Johnson, supra, 6 Cal.5th at pp. 561–562.). “A court need not engage in the empty ritual of periodically inquiring whether a defendant is willing to correct his behavior once it has reasonably determined that the defendant cannot be trusted to do so.” (Id. at p. 561.) Accordingly, here, the superior court did not abuse its discretion in excluding defendant from the bifurcated trial after evaluating his conduct and the likelihood of further disruption and/or danger. Notably, there is no evidence defendant “ ‘reclaimed’ ” his right to be present before the bifurcated proceeding by informing the trial court he wished to be readmitted to the courtroom and was willing to behave appropriately. Thus, his statutory and 14. constitutional claims also fail on this basis. (See Bell, supra, 7 Cal.5th at p. 118 [“Defendant’s statutory and constitutional claims also fail because he did not ‘reclaim’ his right to be present Thursday afternoon by informing the court he wished to be readmitted to the courtroom and was willing to behave appropriately.”]; People v. Banks, supra, 59 Cal.4th at p. 1181 [“[D]efendant’s claim that the trial court failed to give him a chance to return to trial fails. Defense counsel never informed the court that defendant was willing to reform his behavior and wished to be readmitted to the courtroom.… It is a defendant’s duty to ‘reclaim’ his right to be present at trial by moving to do so and by demonstrating a willingness ‘to conduct himself consistently with the decorum and respect inherent in the concept of courts and judicial proceedings.’ ”].) To the extent defendant is alleging there was no offer of alternative participation such as closed-circuit television, there is no evidence defendant asked the court to consider this, so he has forfeited the claim. (See Johnson, supra, 6 Cal.5th at p. 562.) Irrespective, “there is no … statute or court rule that requires a trial court to provide a defendant with an audio or video feed of the trial testimony when a defendant is removed from the courtroom.” (People v. Mayham (2013) 212 Cal.App.4th 847, 856.) Defendant also cites no authority to support a conclusion the trial court erred in proceeding with a jury trial on the bifurcated allegations or that a defendant has an unconditional right to waive a jury trial for the bifurcated proceedings. Rather, as the People note, defendant had a right to a jury trial on these allegations, and he received one as required by section 1025. (See § 1025, subd. (b) [“the question of whether or not the defendant has suffered the prior conviction shall be tried by the jury that tries the issue upon the plea of not guilty … by a jury impaneled for that purpose, or by the court if a jury is waived”].) For these reasons, we reject defendant’s first contention. 15. II. Defendant Has Not Established Defense Counsel’s Statements in Closing Constitute Reversible Error Defendant next argues that reversal is required because his counsel conceded counts 1 and 2 in closing argument in defendant’s absence without authority in violation of the Sixth Amendment. We, again, reject defendant’s contention. A. Relevant Factual Background In his opening statement, defense counsel stated “[t]here are things that the district attorney told you that he anticipates the evidence showing. Some of those things will not be contested.” Defense counsel then asserted that he anticipated the absence of DNA evidence or vaginal or anal injuries consistent with vaginal and anal rape. On December 5, 2024, in defendant’s presence and outside of the jury’s presence, defense counsel noted on the record that in his opening statement, he “essentially made some concessions as to what the evidence would show and essentially agreeing with the People, that they may show things.” Defense counsel explained, “[m]y client provided me consent to indicate that we are conceding certain counts, so that had to be on the record. So that is all.” The trial court responded, “you didn’t concede and say which counts you were conceding,” and defense counsel stated, “[j]ust in general, I mentioned, but my client gave me permission to do so.”4 In his closing argument, defense counsel contrasted the evidence of the carjacking and kidnapping against that of the sexual assaults. He noted that in addition to Ana Maria’s testimony, there were pictures of Ana Maria’s injuries, the text messages documenting her conversations with Josue, and the GPS coordinates that aligned with Ana Maria’s description. He asserted, “[i]t’s important because what we have regarding the sexual assaults … is Ana Maria’s statement.” He argued, “unlike the other 4 In a July 23, 2024, hearing pursuant to People v. Marsden, supra, 2 Cal.3d 118, months before trial, counsel noted he had spoken to his client and they had, “[e]arly on, … developed a strategy for this case.” 16. statements, there’s no … corroborating information or evidence that would tend to support her statement beyond just her statement.… That’s what’s important.” Defense counsel asserted the evidence of the sexual acts “should have been concrete”; “[t]hose are things that … would be difficult to mistake.” He asserted Ana Maria told police that she was vaginally raped and that no sexual assaults occurred at the first location in contrast to her testimony in court. He also asserted the lack of physical evidence amounted to “reasonable doubt.” He argued, “[i]t’s reasonable to believe that you would expect to have those injuries, it would be reasonable to expect that person, Ana Maria, to be consistent in terms of [‘]I was raped vaginally,[’] and to say it there again, consistent in terms of these sexual encounter and events. The fact that wasn’t, again, there is doubt.” Defense counsel noted, “in the beginning of this, I talked about the People[’s] evidence in terms of carjacking. Why is that important? Because there you saw what, in your mind, potentially could be beyond a reasonable doubt. Physical evidence to corroborate the fork, the GPS monitor that was right in the area, the path that was taken, the video surveillance of [defendant] getting scissors …. That is a good example of what beyond a reasonable doubt could look like in your mind. [¶] It’s not a good example, in my opinion, is the sexual assaults.” (Sic.) Defense counsel also asked the jury to consider if the kidnapping and carjacking “was … done with the intent for that rape, or did that intent form somewhere down the road .…” He also stated that he “fe[lt] confident” that if the jury looked at the evidence it would “return for the special allegations as not true. Because there wasn’t enough evidence presented that beyond a reasonable doubt, that this crime initially occurred with the intent for rape, when we know [defendant], per testimony, was demanding money and pursued money and had no money and had no vehicle of his own.” B. Standard of Review and Applicable Law In McCoy v. Louisiana (2018) 584 U.S. 414, the defendant “vociferously insisted that he did not engage in the charged acts and adamantly objected to any admission of 17. guilt.”5 (McCoy, at p. 417.) But the trial court permitted defense counsel to tell the jury during the guilt phase of a capital trial the defendant “ ‘committed three murders…. [H]e’s guilty.’ ” (Ibid.) The United States Supreme Court held that the Sixth Amendment forbids allowing defense counsel to concede a defendant’s guilt “over the defendant’s intransigent and unambiguous objection.” (Id. at pp. 420, 426.) That is, “a defendant has the right to insist that counsel refrain from admitting guilt, even when counsel’s experienced-based view is that confessing guilt offers the defendant the best chance to avoid the death penalty.” (Id. at p. 417.) Accordingly, “[w]hen a client expressly asserts that the objective of ‘his defence’ is to maintain innocence of the charged criminal acts, his lawyer must abide by that objective and may not override it by conceding guilt.” (Id. at p. 423; see People v. Bloom (2022) 12 Cal.5th 1008, 1039 [decision whether to concede guilt of a crime is, ultimately, a decision that belongs to the defendant, if the defendant chooses to make it].) McCoy concluded that “counsel’s admission of a client’s guilt over the client’s express objection is error structural in kind” as it “blocks the defendant’s right to make the fundamental choices about his own defense,” and “the effects of the admission would be immeasurable, because a jury would almost certainly be swayed by a lawyer’s concession of his client’s guilt.” (McCoy, at pp. 427, 428.). “California courts following McCoy repeatedly have held that case applies only where defendant actively opposes counsel’s concession.” (People v. Villa (2020) 55 Cal.App.5th 1042, 1056; see People v. Franks (2019) 35 Cal.App.5th 883, 891 [“for a 5 McCoy contrasted the circumstances of its case, which involved the defendant’s adamant objection to any admission of guilt with the circumstances of Florida v. Nixon (2004) 543 U.S. 175, in which the 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 .…” (McCoy v. Louisiana, supra, 584 U.S. at p. 417; quoting Nixon, at pp. 178, 181, 192.) 18. 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. Lopez (2019) 31 Cal.App.5th 55, 66 [“[W]e have found no authority, nor has [the defendant] cited any, allowing extension of McCoy’s holding to a situation where the defendant does not expressly disagree with a decision relating to his right to control the objective of his defense.”]