People v. Sumstine

• Decision Date: 17 September 1984
• Docket Number: Cr. 23438
• Citation: 687 P.2d 904,206 Cal.Rptr. 707,36 Cal.3d 909
• Court: California Supreme Court
• Parties: , 687 P.2d 904 The PEOPLE, Plaintiff and Respondent, v. James SUMSTINE, Defendant and Appellant.

Page 707

206 Cal.Rptr. 707

36 Cal.3d 909, 687 P.2d 904

The PEOPLE, Plaintiff and Respondent, v. James SUMSTINE, Defendant and Appellant.

Cr. 23438.

Supreme Court of California,

In Bank.

Sept. 17, 1984.

Rehearing Denied November 29, 1984.

Wilbur F. Littlefield, Public Defender, Laurence A. Sarnoff and Chloris A. deBrauwere, Deputy Public Defenders, as amici curiae on behalf of defendant and appellant.

John K. Van de Kamp, Atty. Gen., Robert R. Anderson and Christine C. Franklin, Deputy Attys. Gen., for plaintiff and respondent.

Thomas W. Sneddon, Jr., Dist. Atty., Santa Barbara, and Gerald McC. Franklin, Senior Deputy Dist. Atty. as amici curiae on behalf of plaintiff and respondent.

MOSK, Justice.

This case presents the issue whether a defendant whose sentence has been enhanced because he suffered a prior conviction may collaterally attack the validity of that conviction by moving to strike on the ground of a Boykin/Tahl violation.

In Boykin v. Alabama (1969) 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274, the United States Supreme Court held that even if a defendant is represented by an attorney, a court may not accept a guilty plea from him until it determines both that he is aware of the constitutional rights waived by pleading guilty--namely, the privilege against compulsory self-incrimination, the right to trial by jury, and the right to confront his accusers--and that he has knowingly and voluntarily chosen to waive those rights. Subsequently, in In re Tahl (1969) 1 Cal.3d 122, 132, 81 Cal.Rptr. 577, 460 P.2d 449, we interpreted the refusal of the majority in Boykin to presume waiver of the three enumerated rights from a silent record to mean that the record must show on its face that the defendant was made aware of his rights and that he expressly waived them.

The defendant here maintains that a prior conviction must automatically be stricken if the record of that conviction is silent regarding the preservation of his Boykin/Tahl rights. We hold rather that a defendant may move to strike a prior conviction on Boykin/Tahl grounds, but it is not enough for him to allege that the record of his prior conviction is silent regarding those rights. He must affirmatively allege that at the time of his prior conviction he did not know of, or did not intelligently waive, such rights. And this does not end the matter: once such an allegation is made, the court must hold an evidentiary hearing of the type set forth in People v. Coffey (1967) 67 Cal.2d 204, 60 Cal.Rptr. 457, 430 P.2d 15, to determine the truth of the allegation.

In February 1982 defendant was charged in Los Angeles County with nine counts of committing a lewd and lascivious act on a child under the age of 14. (Pen.Code, § 288, subd. (a).) The information also alleged that in July 1974 he had been convicted in Kern County of the same offense. He initially entered a plea of not guilty and denied the prior, but pursuant to a negotiated disposition he later pleaded guilty to three of the counts. He agreed that the trial court could read the preliminary hearing transcript to establish a factual basis for the alleged offenses, and he admitted the factual basis of the prior, reserving the right to challenge its constitutional validity.

At the sentencing hearing he presented the following motion to strike the prior: "This challenge is directed at the Kern County court's complete failure to make a record showing that the plea was knowing, intelligent and voluntary. Nor is there a record to show that the defendant was informed of his rights to jury trial, confrontation of witnesses, silence and presentation of evidence. Finally the defendant was not informed of the consequences of his plea." He cited both Boykin and Tahl. ¹

In ruling on this motion the court felt constrained by People v. Reeves (1981) 123 Cal.App.3d 65, 176 Cal.Rptr. 182. In Reeves, the Court of Appeal concluded that defendants may not raise Boykin/Tahl issues in motions to strike priors because People v. Coffey, supra, 67 Cal.2d 204, 60 Cal.Rptr. 457, 430 P.2d 15, "apparently limited use of the motion to strike to situations where a defendant clearly alleged that 'he neither was represented by counsel nor waived the right to be so represented.' " (People v. Reeves, 123 Cal.App.3d at p. 68, 176 Cal.Rptr. 182.) Since what little record exists of defendant's 1974 conviction confirms that he had been represented by counsel, the court denied the motion. The court thereupon sentenced defendant to ten years in state prison: seven years on count I of the current charges and three additional years for the prior. ² Defendant filed an appeal contesting the denial of his motion to strike and the enhancement of his sentence by three years. ³

Coffey, decided two years before Boykin and Tahl, dealt with a claim by a defendant that a conviction obtained against him in 1949 was invalid because he had been denied his constitutional right to the assistance of counsel. (67 Cal.2d at p. 210, 60 Cal.Rptr. 457, 430 P.2d 15.) In a pretrial motion he sought to have the portion of the information charging him with this prior conviction stricken. He filed the 1949 minute entry, which indicated that he represented himself at the time he entered a guilty plea. He also filed points and authorities "which stated that he 'was indigent at the time of his plea,' that 'he did not understand his right to counsel,' and that he 'did not clearly and expressly and intelligently waive his right to counsel.' " (Ibid.) The trial court denied the motion without a hearing on the ground that it was irregular, i.e., that there was no statutory authority for such a motion.

We reversed the ensuing conviction on another ground, and for the guidance of the court on retrial we explained that the defendant had the right to challenge his prior conviction by means of a motion to strike. We reasoned, "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.] ... 'To the extent that any State makes its penal sanctions depend in part on the fact of prior convictions ... necessarily it must assume the burden of meeting attacks on the constitutionality of such prior convictions.' [Citations.] ... [p] We emphasize, however, that the issue must be raised by means of allegations which, if true, would render the prior conviction devoid of constitutional support. 'One seeking to challenge prior convictions charged against him may do so only through a clear allegation to the effect that, in the proceedings leading to the prior conviction under attack, he neither was represented by counsel nor waived the right to be so represented.' (Original italics.) (People v. Merriam (1967) 66 Cal.2d 390, 397 [58 Cal.Rptr. 1, 426 P.2d 161].)" (Id. at pp. 214-215, 60 Cal.Rptr. 457, 430 P.2d 15.)

It was the italicized portion of the quotation from Merriam that the Court of Appeal in Reeves read as limiting motions to strike priors to allegations raising right to counsel issues. ⁴ Such a reading of Coffey is unduly strained. By focusing on that one phrase the Reeves court failed to consider the preceding words that clearly imply a defendant may bring any challenge that undermines the constitutional basis of his prior conviction.

The quotation from Merriam does not deal with what challenges may be brought, but how they may be brought. The defendant in Merriam sought to challenge a prior conviction by alleging that " 'the record is silent on the issue of appellant's representation or waiver of counsel at the time of the prior conviction.' " (66 Cal.2d at p. 396, 58 Cal.Rptr. 313, 426 P.2d 881.) We found this allegation wanting, and thus held that if a defendant challenges a prior on the issue of representation by counsel, it is not sufficient to claim that the record is silent on the issue; he must affirmatively allege that his right to counsel was denied. (Id. at p. 397, 58 Cal.Rptr. 313, 426 P.2d 881.) That we quoted Merriam only for the specific purpose of setting out the standard for determining the sufficiency of an allegation can be seen by reading the paragraphs following the disputed quotation: those paragraphs consider the Attorney General's contention that the defendant in Coffey did not present an allegation sufficient under Merriam. (67 Cal.2d at pp. 215-217, 60 Cal.Rptr. 457, 430 P.2d 15.)

Ignoring the purpose of the Merriam quotation, respondent insists that Coffey limited motions to strike priors to allegations involving the issue of representation by counsel because in that opinion we did not discuss other constitutional rights of defendants. He admits that defendant Coffey did not raise any issues other than denial of the right to counsel, but he maintains that Coffey is nevertheless precedent for constitutional issues not discussed because the court "was aware that future defendants might try to raise constitutional challenges other than right to counsel and yet ... made no provision for such challenges." In addition to presenting the novel theory that this court establishes precedent by refusing to employ a dictum, respondent misperceives the nature of the challenges available to defendants at the time of Coffey.

In the pre-Boykin era, a defendant who pleaded guilty to an offense could challenge his conviction by alleging a denial of the right to counsel, but could not separately allege denial of the privilege against self-incrimination, the right to trial by jury, or the right to confront his accusers. As we explained in detail in Tahl, pre-Boykin law on the acceptance of guilty pleas focused on the presence or absence of an attorney. If the defendant had an attorney, "courts have generally assumed, in the absence of evidence to the contrary, counsel will perform his duty as an advocate and an officer of the court to...