Curl v. Superior Court (People)
| Decision Date | 05 May 1989 |
| Docket Number | No. F011191,F011191 |
| Citation | 258 Cal.Rptr. 308,223 Cal.App.3d 1058 |
| Court | California Court of Appeals Court of Appeals |
| Parties | Previously published at 223 Cal.App.3d 1058 223 Cal.App.3d 1058 Robert Zane CURL, Petitioner, v. The SUPERIOR COURT of Fresno County, Respondent. The PEOPLE, Real Party in Interest. |
An information was filed charging petitioner, Robert Zane Curl, with murder (Pen.Code, § 187). A special circumstance that petitioner had previously been convicted of second degree murder (Pen.Code, § 190.2, subd. (a)(2)) was also alleged.
Petitioner filed a motion to strike the special circumstance in superior court based upon multiple grounds. The grounds included that petitioner was under the influence of drugs and was not properly advised of his rights pursuant to Boykin v. Alabama (1969) 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 and In re Tahl (1969) 1 Cal.3d 122, 81 Cal.Rptr. 577, 460 P.2d 449 when he entered his guilty plea to second degree murder on July 1, 1977.
Following the hearing on the motion to strike the special circumstance allegation, the superior court found by clear and convincing evidence that the prior murder conviction was constitutional, and a trial date was scheduled. Petitioner filed in this court a request for stay and a petition for writ of mandate and prohibition. We granted the stay in order to determine the first impression issue of what standard of proof a trial court must use when it determines a pretrial challenge to the constitutionality of a prior murder conviction that is used to support a special circumstance. We will hold that such a challenge to the constitutional validity of the prior murder conviction used as a special circumstance is the equivalent of a Penal Code section 995 motion and the court should therefore decide that pretrial challenge based on whether or not reasonable cause has been shown to bind the defendant over for trial on the special circumstance. Absent a waiver by both sides of the right to a jury trial on the special circumstance allegation, only this procedure protects the defendant from the consequences of an unwarranted special circumstance trial while preserving to the People their statutory right to have the special circumstance allegation decided by the jury that finds the defendant guilty of first degree murder. ( § 190.4, subd. (a).) Since the superior court found by clear and convincing evidence that defendant's prior conviction was constitutional, we will deny the petition for writ of mandate.
On July 1, 1977, petitioner was brought before Solano County Superior Court Judge Thomas N. Healy for a change of plea on a pending murder charge against him. Mr. Ronald Moe represented petitioner. The People were represented by Deputy District Attorney Hugh Comisky, Jr.
Petitioner was charged with the murder of another inmate at Vacaville and was at the time of the hearing still housed at Vacaville. The minute order of the change-of-plea proceeding indicates that counsel reached a stipulated plea of second degree murder. The minute order then states as follows:
Petitioner waived time for sentencing and was ordered confined in state prison for the term prescribed by law. This sentence was ordered to run concurrently to the term already being served.
Retired Judge Healy testified at the hearing on defendant's motion to strike the special circumstance allegation that he had no recollection of the proceedings on July 1, 1977, nor of petitioner. He was unable to locate a transcript of that hearing. He then testified regarding his custom and habit of assuring a complete review with a defendant, either by himself or by counsel, of all of the defendant's rights. He would not accept a guilty plea if any of the answers obtained while questioning the defendant were unsatisfactory.
At that same hearing on the motion to strike, Mr. Comisky, who represented the People at the July 1, 1977, hearing, testified that he specifically recalled petitioner and the change-of-plea hearing; he had no problem recollecting that petitioner was advised of his rights; he could not accurately recall whether the term of imprisonment was discussed or who advised defendant of his rights; he did not notice that defendant displayed any objective signs of intoxication, yet he acknowledged that there was a big problem with drugs in Vacaville during that particular time; and the district attorney's file on the charges against petitioner contained a notation that there was a "full voir dire by the Court and counsel," and he would not have made this notation if the petitioner was not questioned about recent drug ingestion.
Mr. Moe, petitioner's counsel at the July 1, 1977, hearing, had some memory of the case but could not remember any particulars. He testified he was in the custom and habit of either having a defendant complete a waiver form or of going over each and every right prior to the hearing; he also had a custom and habit of assessing whether his client was under the influence of alcohol or drugs at the time of the hearing; he generally advised defendants he represented of the future consequences of the plea; he usually voir dired his clients as to the rights they would be waiving by entering a guilty plea; and he would not agree to the plea unless there was a specific waiver by his client as to each of the required rights.
Petitioner testified that he participated in a change-of-plea hearing on July 1, 1977. He understood he was to receive a six-year concurrent term that would not affect him in the future. Petitioner claimed he took drugs every day while incarcerated at Vacaville and was under the influence of something all the time. He testified that he was not advised of his rights and supported his conclusion by stating he would not have entered a guilty plea to second degree murder if he had been advised of his rights.
The trial court found that the People met their original burden of proving the 1977 conviction when it produced a certified copy of the abstract of judgment of that conviction. The burden then shifted to petitioner. The court found that petitioner by his testimony made an adequate showing of constitutional infirmity to put the burden back on the People to rebut petitioner's evidence and show the constitutional validity of the prior. The trial court found that the People met this burden by clear and convincing evidence but stated it would not make this finding if the standard of proof were proof beyond a reasonable doubt.
Petitioner contends the trial court erred in applying the clear-and-convincing-evidence standard. He argues that it would be unfair to find the burden of proof of a prior murder conviction to be less than beyond a reasonable doubt when a prior drunk driving conviction that is challenged on constitutional grounds must be proved beyond a reasonable doubt. As a secondary contention, petitioner asserts that an express waiver of Boykin- Tahl rights cannot be demonstrated from mere custom-and-habit evidence. Because much of the evidence below was custom-and-habit evidence, petitioner urges that the trial court's findings are unsustainable.
Before considering petitioner's specific contentions, we will examine generally the legal underpinnings for petitioner's challenge to the special circumstance allegation against him.
In Boykin v. Alabama, supra, 395 U.S. 238, 89 S.Ct. 1709 the United States Supreme Court held that a court may not accept a guilty plea from a defendant until it determines that he is aware of the constitutional rights he is waiving by pleading guilty. The defendant must knowingly and voluntarily waive the privilege against compulsory self-incrimination, the right to trial by jury, and the right to confront his accusers. This determination must be made in all guilty plea situations, even if the defendant is represented by an attorney.
Thus, the defendant must be advised of his right to a jury trial, his right to confront and cross-examine witnesses, and his right against self-incrimination. (People v. Wright (1987) 43 Cal.3d 487, 493, 233 Cal.Rptr. 69, 729 P.2d 260.) In addition, he must understand the nature and consequences of his plea. (Bunnell v. Superior Court (1975) 13 Cal.3d 592, 605, 119 Cal.Rptr. 302, 531 P.2d 1086.) This encompasses the direct consequences of his conviction, such as the permissible range of punishment. (People v. Flores (1974) 38 Cal.App.3d 484, 487, 113 Cal.Rptr. 272.) It is not required that a defendant be advised of the collateral consequences of his plea "which could conceivably include innumerable factors wholly outside the trial court's knowledge or contemplation." (Ibid.) An increased sentence which a defendant might receive for a later conviction is a secondary and collateral consequence. (Ganyo v. Municipal Court (1978) 80 Cal.App.3d 522, 527, fn. 1, 145 Cal.Rptr. 636; People v. Lomboy (1981) 116 Cal.App.3d 67, 72, 117 Cal.Rptr. 812.) Thus, contrary to petitioner's assertion, when the court accepted petitioner's guilty plea to second degree murder it was not required to advise him that the conviction might later be used as a special circumstance subjecting him...
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Curl v. Superior Court (People)
...in Interest. No. S010655. Supreme Court of California, In Bank. Aug. 17, 1989. As Modified Sept. 21, 1989. Prior report: Cal.App., 258 Cal.Rptr. 308. Petitions for review The order granting review is hereby modified: Pursuant to Rule 29.2(b) of the California Rules of Court, review is limit......