Garcia v. Superior Court

Decision Date22 November 1995
Docket NumberNo. G017206,G017206
Citation40 Cal.App.4th 552,46 Cal.Rptr.2d 913
CourtCalifornia Court of Appeals Court of Appeals
PartiesPreviously published at 40 Cal.App.4th 552, 44 Cal.App.4th 1464, 49 Cal.App.4th 143 40 Cal.App.4th 552, 44 Cal.App.4th 1464, 49 Cal.App.4th 143, 95 Cal. Daily Op. Serv. 8935, 95 Daily Journal D.A.R. 15,469 David John GARCIA, Petitioner, v. The SUPERIOR COURT of Orange County, Respondent; The PEOPLE, Real Party In Interest.

SONENSHINE, Associate Justice.

Does a motion to strike a prior conviction for ineffective assistance of counsel survive the United States Supreme Court's decision in Custis v. United States (1994) 511 U.S. 485, 114 S.Ct. 1732, 128 L.Ed.2d 517 and Proposition 8? Yes.


Petitioner David Garcia pleaded not guilty to possessing a small amount (35 milligrams) of heroin (Health & Saf.Code, § 11350), and denied allegations he suffered two prior convictions within the meaning of Penal Code section 667, subdivisions (d) and (e)(2). Under the "three strikes" law he faces a potential prison term of 25 years to life if convicted and the allegations are found true. Before trial, he moved to strike one of the priors, a 1990 guilty plea conviction for residential burglary, alleging counsel ineffectively represented him in that matter. The superior court refused to entertain the motion, relying on Custis v. United States, supra, 511 U.S. 485, 114 S.Ct. 1732, 128 L.Ed.2d 517. 1

We issued an order to show cause and stayed petitioner's trial. The People (through the district attorney) responded and thereafter both sides provided supplemental responses and replies.


In People v. Coffey (1967) 67 Cal.2d 204, 60 Cal.Rptr. 457, 430 P.2d 15 the California Supreme Court held a superior court is obligated to entertain a defendant's motion to strike a prior conviction for denial of counsel. (See Gideon v. Wainwright (1963) 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799.) The court noted "to the extent that statutory machinery relating to penal status or severity of sanction is activated by the presence of prior convictions, it is imperative that the constitutional basis of such convictions be examined if challenged by proper allegations. [Citations.] The fact that a prior conviction was sustained in another jurisdiction does not preclude such examination. 'To the extent that any State makes its penal sanctions depend in part on the fact of prior convictions elsewhere, necessarily it must assume the burden of meeting attacks on the constitutionality of such prior convictions.' [Citations.] [p] Though these principles were first given application in a series of cases involving collateral attacks on final judgments [citations], it is clearly in the interest of efficient judicial administration that attacks upon the constitutional basis of prior convictions be disposed of at the earliest possible opportunity, and we are therefore of the view that, if the issue is properly raised at or prior to trial, it must be determined by the trial court. We are further of the view that the procedure here sought to be utilized, to wit, a motion to strike the prior before trial, is a proper method by which to raise the issue and initiate proceedings to determine the constitutional validity of the prior conviction." (People v. Coffey, supra, 67 Cal.2d at pp. 214-215, 60 Cal.Rptr. 457, 430 P.2d 15, fn. omitted, italics added.)

The Supreme Court in People v. Coleman (1969) 71 Cal.2d 1159, 80 Cal.Rptr. 920, 459 P.2d 248 subsequently recognized the motion to strike could also be based on ineffectiveness of counsel. People v. Amaya (1986) 180 Cal.App.3d 1, 225 Cal.Rptr. 313 held there was "no question" a defendant could move to strike a prior conviction for inadequate assistance of counsel. And Lucas v. Superior Court (1988) 201 Cal.App.3d 149, 247 Cal.Rptr. 59 laid to rest any speculation Coleman's observation might be dictum on the point. The Supreme Court denied review in Lucas without a dissent. Both Amaya and Lucas relied on People v. Sumstine (1984) 36 Cal.3d 909, 917, 206 Cal.Rptr. 707, 687 P.2d 904, where the court explicitly noted a defendant could bring any challenge that undermined the constitutional basis of the prior conviction. Sumstine extended the availability of the motion to defendants who did not knowingly and intelligently waive their rights under Boykin v. Alabama (1969) 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (privilege against compulsory self-incrimination, the right to trial by jury, and the right to confront accusers). (See also In re Tahl (1969) 1 Cal.3d 122, 132, 81 Cal.Rptr. 577, 460 P.2d 449.)


In Custis v. United States, supra, 511 U.S. 485, 114 S.Ct. 1732, 128 L.Ed.2d 517, the United States Supreme Court held a defendant in a sentencing proceeding under the Armed Career Criminal Act (18 U.S.C. § 924(e)) had no federal constitutional right to challenge at sentencing a prior state court conviction based on ineffectiveness of counsel. The court determined only a Gideon violation, i.e., a total denial of counsel, could be asserted there. 2


The superior court determined Custis changed California law: "[The court is not] in too much of a position to render constitutional decisions. I would say that the logical decision as the court views it is that the result of such a procedure being permitted would really place a huge burden on the court system in this type of an attack--one probably not contemplated by the appellate authorities to date, except perhaps other than as stated in Custis. And I think that it probably is a matter better left for [habeas] or appeal, rather than getting into this type of process at the commencement of every jury trial. [p] And I find that Custis is the prevailing authority. So, in essence, the question that you want to pose to the [Court of Appeal] is whether or not California has[,] ... aside from federal authority of Custis[,] any independent constitutional authority to permit reaching the validity of the plea [sic ] by way of ineffective assistance of counsel. So I guess I'm saying no, by saying Custis prevails in this matter."


We conclude a motion to strike on the basis of ineffective assistance of counsel survives Custis. 3 As noted above, People v. Sumstine, supra, 36 Cal.3d 909, 206 Cal.Rptr. 707, 687 P.2d 904 held a defendant could attack a prior on the ground it was obtained in violation of any constitutional right. Although the court's discussion necessarily focused on the United States Supreme Court's decision in Boykin as an explanation for why the court in Coffey had not discussed the availability of the motion vis-a-vis other constitutional rights, the court specifically refused to limit the motion to strike to the Sixth Amendment right to counsel: "We would be the last court to diminish the importance of the right to counsel. Nevertheless, in Tahl we decided that when a defendant pleads guilty the preservation of [the] right to counsel does not alone insure that [ ] other constitutional rights have been protected. This conclusion, coupled with our concern in Coffey that prior convictions obtained in violation of any of a defendant's constitutional rights not be used to enhance a prison sentence, militates against allowing a defendant to challenge a prior conviction on the ground that it was obtained in violation of [the] right to counsel but not on the ground that it was obtained in violation of other constitutional rights." (People v. Sumstine, supra, 36 Cal.3d at pp. 918-919, 206 Cal.Rptr. 707, 687 P.2d 904, italics added.)

We find it significant the Sumstine court used the phrase "our concern" (People v. Sumstine, supra, 36 Cal.3d at p. 918, 206 Cal.Rptr. 707, 687 P.2d 904) and in the very next paragraph stated it had "decided that a motion to strike prior convictions on Boykin/Tahl grounds should be allowed...." (Id. at p. 919, 206 Cal.Rptr. 707, 687 P.2d 904, italics added.) These crucial statements, made without citation to federal authority, convince us the motion to strike was a procedural device created by the California Supreme Court to maximize judicial efficiency. This procedural determination is not affected by Custis and its interpretation of what the federal constitution requires at a federal sentencing hearing. We thus reject the district attorney's argument that the Coffey line of cases have been "based on the United States Constitution." 4 The obvious concern in Coffey was that a defendant should not suffer from an illegal conviction more than once. Thus, "[t]he purpose of a motion to strike is to challenge only the present effect of the prior conviction." (People v. Sumstine, supra, 36 Cal.3d at p. 921, 206 Cal.Rptr. 707, 687 P.2d 904.) In Coffey, the Supreme Court recognized it previously entertained a habeas corpus attack on a final judgment where a criminal defendant alleged his sentence had been increased with an uncounseled conviction, and it was "clearly in the interest of efficient judicial administration" to allow a pre-conviction attack. (Coffey, supra, 67 Cal.2d at p. 215, 60 Cal.Rptr. 457, 430 P.2d 15; In re Woods (1966) 64 Cal.2d 3, 48 Cal.Rptr. 689, 409 P.2d 913.)

Conversely, the Supreme Court in Custis considered a forum question; the defendant wanted to challenge state convictions at a federal sentencing. The issue was not whether, but where, the prior could be attacked. (See Brock v. Weston (9th Cir.1994) 31 F.3d 887, 890 [Custis clearly premised on permitting collateral attacks based on other constitutional defects to be heard on habeas review].) The Supreme Court opined...

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  • Garcia v. Superior Court (People)
    • United States
    • California Supreme Court
    • February 29, 1996
    ...COURT, Respondent; PEOPLE, Real Party in Interest. No. S050827. Supreme Court of California. Feb. 29, 1996. Prior report: Cal.App., 46 Cal.Rptr.2d 913. Petition for review The stay of trial heretofore issued by the Court of Appeal is to remain in effect pending final determination of the pe......

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