Dabney, In re

• Decision Date: 23 April 1969
• Docket Number: Cr. 13003
• Citation: 452 P.2d 924,76 Cal.Rptr. 636,71 Cal.2d 1
• Court: California Supreme Court
• Parties: , 452 P.2d 924 In re Israel DABNEY on Habeas Corpus.

Page 636

76 Cal.Rptr. 636

71 Cal.2d 1, 452 P.2d 924

In re Israel DABNEY on Habeas Corpus.

Cr. 13003.

Supreme Court of California In Bank.

April 23, 1969.

C. William Simmons, San Francisco, under appointment by the Supreme Court, for petitioner.

Thomas C. Lynch, Atty. Gen., Edward P. O'Brien, Derald E. Granberg and Don Jacobson, Deputy Attys. Gen., for respondent.

TOBRINER, Justice.

Israel Dabney petitions for a writ of habeas corpus claiming that both his conviction and his augmented penalty as a second narcotics offender were obtained by means of a constitutionally invalid prior conviction. At petitioner's trial the People introduced before the jury an unconstitutionally obtained prior conviction to prove his guilt by impeaching petitioner's testimony and by demonstrating his knowledge that a packet alleged to be in his possession contained heroin. We conclude that the admission of that prior conviction was erroneous in the light of People v. Coffey (1967) 67 Cal.2d 204, 60 Cal.Rptr. 457, 430 P.2d 15, and Burgett v. Texas (1967) 389 U.S. 109, 88 S.Ct. 258, 19 L.Ed.2d 319, and that the error was harmful under the standards of Chapman v. California (1967) 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705. We further conclude that although the prohibition against the introduction of such invalid priors should not be given unlimited retrospective application, petitioner's case lies within the scope of the limited retroactivity appropriate for this type of constitutional error. Since the prior conviction was constitutionally invalid, petitioner is entitled to a new trial and, if convicted, to the sentence of a first, rather than a second narcotics offender.

1. The Facts.

Since People v. Dabney (1967) 250 Cal.App.2d 933, 59 Cal.Rptr. 243, details the early history of this case, it needs only brief summary here. On January 8, 1965, petitioner was arrested and charged with possession of heroin in violation of Health and Safety Code section 11500. By amendment to the original information the People charged petitioner with a prior Illinois conviction in 1956 for possession of heroin. Although petitioner at first denied the prior, he subsequently admitted it when rearraigned at the time of his trial September 2, 1965. During the trial itself petitioner testified on his own behalf, and, in response to a question asked for impeachment purposes by the People, admitted his prior conviction in the presence of the jury. Petitioner was convicted of possession of heroin in violation of section 11500 and subjected to the heightened penalty proscribed for persons with a prior narcotics conviction.

After the trial and during the pendency of petitioner's appeal to the Court of Appeal, we filed our decision in In re Woods (1966) 64 Cal.2d 3, 48 Cal.Rptr. 689, 409 P.2d 913. In that case we held (a) that the constitutional validity of a prior conviction could be challenged if the People sought to make use of it at a subsequent criminal proceeding, and (b) that if such a prior conviction served as the basis of augmented punishment, the right to level such a collateral attack on that prior conviction would enjoy complete retroactivity. We expressed no opinion as to the retroactivity of the right to challenge a prior conviction if it had been used as evidence of guilt. Although petitioner had earlier admitted the prior Illinois conviction, he challenged its validity on appeal, contending that in the Illinois proceeding, in violation of Gideon v. Wainwright (1963) 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799, he had neither been offered nor waived counsel.

Because the record contained no evidence as to the constitutionality of the prior conviction, the Court of Appeal declined to consider the question and affirmed petitioner's conviction and sentence, but it explicitly did so without prejudice to petitioner's right to challenge the prior conviction by way of a collateral attack. (People v. Dabney, supra, 250 Cal.App.2d 933, 950, 59 Cal.Rptr. 243.) We denied a petition for hearing on July 12, 1967. (250 Cal.App.2d at p. 950, 59 Cal.Rptr. 243.) Before the expiration of the period for petitioning the Supreme Court for certiorari, we filed our decision in People v. Coffey, supra, 67 Cal.2d 204, 60 Cal.Rptr. 457, 430 P.2d 15. In Coffey we allowed an attack on a conviction obtained by means of a constitutionally invalid prior introduced to prove guilt; that case, however, came to us on appeal, and we expressed no opinion as to whether such an attack could be made on a judgment already final.

On August 30, 1967, petitioner filed with the Court of Appeal a 'Petition for Writ of Error Coram Nobis/Motion to Vacate' challenging both his conviction and sentence because of the use of the Illinois prior conviction. The Court of Appeal elected to treat the petition as an application for a writ of habeas corpus. Because the petition raised factual issues, the Court of Appeal referred the issue of their resolution to the judge who had presided over petitioner's California trial. The judge, as referee, concluded that petitioner had not been advised of his right to counsel in the Illinois proceeding, and that he had not intelligently waived that right. The Attorney General acknowledged that petitioner had not in fact been represented by an attorney at the Illinois trial.

Since the testimony of both petitioner and his wife supported the referee's findings, we must conclude, as did the Court of Appeal, that petitioner's Illinois conviction violated the holding of Gideon v. Wainwright, supra, 372 U.S. 335, 83 S.Ct. 792. Accordingly, petitioner was entitled to be considered for probation and, if probation were denied, to sentencing as an offender without a previous narcotics conviction. (In re Woods, supra, 64 Cal.2d 3, 48 Cal.Rptr. 689, 409 P.2d 913.)

The Court of Appeal rejected petitioner's challenge to the validity of the California conviction itself. Although concluding that such an attack could be made only on convictions which became final after July 28, 1967, the date of the filing of Coffey, that court did recognize that petitioner's conviction had not become final until some 10 weeks after Coffey, when the period for petitioning for certiorari expired. The Court of Appeal further reasoned, however, that the California conviction nonetheless could stand because the admission of the Illinois prior conviction for impeachment purposes did not constitute prejudicial error under Chapman v. California, supra, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705. Petitioner's petition for a hearing by this court followed.

2. Harmfulness of the Error.

We conclude that the admission before the jury of petitioner's prior Illinois conviction was prejudicial under Chapman v. California, supra, 386 U.S. 18, 87 S.Ct. 824, and that the instant California conviction is therefore invalid.

We have repeatedly held that prior convictions obtained in violation of Gideon v. Wainwright, supra, 372 U.S. 335, 83 S.Ct. 792, cannot be used for impeachment or any other purposes. (In re Woods, supra, 64 Cal.2d 3, 48 Cal.Rptr. 689, 409 P.2d 913; In re Luce (1966) 64 Cal.2d 11; In re Tucker (1966) 64 Cal.2d 15, 48 Cal.Rptr. 697, 409 P.2d 921; People v. Coffey, supra, 67 Cal.2d 204, 60 Cal.Rptr. 457, 430 P.2d 15; In re Caffey (1968) 68 Cal.2d 762, 69 Cal.Rptr. 93, 441 P.2d 933.) An accused cannot be forced to suffer anew from the earlier deprivation of his Sixth Amendment right. (Burgett v. Texas, supra, 389 U.S. 109, 115, 88 S.Ct. 258, 19 L.Ed.2d 319.)

The People contend that they have shown beyond a reasonable doubt that the use of the invalid prior conviction 'did not contribute to the verdict obtained,' as required by Chapman v. California, supra, 386 U.S. 18, 24, 87 S.Ct. 824. Subsequent to the decision in Chapman we concluded that the use of an invalid prior conviction to impeach an accused testifying in his own defense was not prejudicial per se, and therefore did not necessarily effect reversible error. (People v. Coffey, supra, 67 Cal.2d 204, 219, 60 Cal.Rptr. 457, 430 P.2d 15.) We found no reasonable possibility that such erroneous admission contributed to the verdict obtained if the accused's testimony were contradicted by 'convincing and extensive evidence' introduced by the prosecution. (People v. Coffey, supra, 67 Cal.2d 204, 224, fn. 24, 60 Cal.Rptr. 457, 430 P.2d 15.)

Four months after Coffey, the United States Supreme Court decided Burgett v. Texas, supra, 389 U.S. 109, 88 S.Ct. 258. In Burgett the trial court tentatively admitted four invalid prior felony convictions, three for forgery and one for burglary, against an accused charged with assault with intent to commit murder. The prosecution had introduced the convictions solely for sentencing purposes, not, as here, to impeach the accused or to show knowledge on his part. At the end of the testimony the Texas trial judge instructed the jury not to consider the alleged prior offenses for any purpose whatever. Convicted of assault as charged, the accused was sentenced as a first offender. The Texas Court of Criminal Appeals affirmed the conviction, but the Supreme Court reversed.

The Supreme Court had earlier recognized in Spencer v. Texas (1967) 385 U.S. 554, 560, 561, 562, 564, 87 S.Ct. 648, 17 L.Ed.2d 606, the danger of prejudice resulting from the introduction of valid prior convictions. That court recognized that jurors ordinarily will more readily find an accused guilty if they believe he has suffered a previous conviction. But the court thought that the state's interest in the admission of such evidence for a number of legitimate purposes outweighed any such danger. In Burgett, however, the invalidity of the prior convictions destroyed any viable state interest in the introduction of those priors. Accordingly, the court reasoned: 'The admission of a prior criminal conviction which is constitutionally infirm under the standards of Gideon v. Wainwright is inherently prejudicial,' and added: '(W)e are...