People v. Sumstine
| Citation | 147 Cal.App.3d 866,195 Cal.Rptr. 535 |
| Decision Date | 06 October 1983 |
| Docket Number | Cr. 42934 |
| Parties | The PEOPLE, Plaintiff and Respondent, v. James SUMSTINE, Defendant and Appellant. |
| Court | California Court of Appeals |
Quin Denvir, State Public Defender, under appointment by the Court of Appeal, and Nancy Ann Stoner, Deputy State Public Defender, for defendant and appellant.
John Van De Kamp, Atty. Gen., Robert R. Anderson and Christine C. Franklin, Deputy Attys. Gen., for plaintiff and respondent.
James Sumstine, appellant herein, appeals from a judgment of the trial court sentencing him to ten years in state prison, of which three years were an enhancement due to a prior felony conviction.
The question presented is whether the appellant may challenge a prior felony conviction, in which he was represented by counsel at time of the plea, by collateral attack on grounds that said conviction was constitutionally infirm under 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. We conclude that he is not so precluded.
Appellant was charged with nine counts of committing a lewd and lascivious act upon a child under the age of fourteen (Pen.Code, § 288, subd. (a)) and with having sustained a prior felony conviction in Michigan for a similar offense in 1974. (Pen.Code, § 667.5(a).) Pursuant to a negotiated disposition, appellant withdrew his initial plea of not guilty to enter a guilty plea to three counts of violation of Penal Code section 288, subdivision (a). He agreed that the trial court could read the preliminary hearing transcript to establish a factual basis for the alleged offenses, and admitted the factual basis for the alleged prior conviction, reserving the right to challenge its constitutional validity.
At the sentencing hearing appellant, by written motion, challenged the constitutional validity of the prior conviction, and therefore its use for purposes of sentence enhancement on grounds the record failed to show that appellant was informed of and intelligently waived his rights to jury trial, to confront witnesses and against self-incrimination. (Boykin v. Alabama, supra, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 and In re Tahl, supra, 1 Cal.3d 122, 81 Cal.Rptr. 577, 460 P.2d 449.) The trial court denied appellant's motion because People's exhibit number one documenting the prior conviction showed on its fact that appellant was represented by counsel at the time of the plea. The court found that, although the prior conviction was entered subsequent to Boykin and Tahl and the record failed to show that appellant was advised of his Boykin-Tahl rights, People v. Reeves (1981) 123 Cal.App.3d 65, 176 Cal.Rptr. 182, interpreted People v. Coffey (1967) 67 Cal.2d 204, 60 Cal.Rptr. 457, 430 P.2d 15, to limit collateral attack on a prior conviction to denial of right to counsel. The court was uncertain whether a defendant could overcome Reeves by showing that, despite the presence of counsel at the time of the plea, he was unaware of his Boykin-Tahl rights, but finally concluded that Reeves precludes such collateral attack, and while indicating that the issue is ripe for appellate review, found the prior conviction to be constitutionally valid.
Although appellant has failed to obtain a certificate of probable cause, the trial court by its statement in effect certified the appeal. (See People v. Padfield (1982) 136 Cal.App.3d 218, 185 Cal.Rptr. 903.)
People v. Reeves, supra, 123 Cal.App.3d 65, 176 Cal.Rptr. 182, upon which authority In People v. Coffey (1967) 67 Cal.2d 204, 60 Cal.Rptr. 457, 430 P.2d 15, defendant was charged by information with four counts of assault with intent to commit murder; four counts of assault with a deadly weapon upon the person of a police officer; being armed with a concealed weapon; and with a prior felony conviction in the State of Oklahoma. Before trial, defendant moved that the prior conviction be stricken based upon denial of counsel in the proceedings leading to that conviction in that he, in propria persona, had entered a plea of guilty and was sentenced to state prison for five years. In support of his motion, defendant filed a sworn declaration including the minute entry of his arraignment on the 1949 charge and points and authorities stating 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." The court denied the motion without hearing "on grounds that under California law, no such motion can be entertained as it is irregular." (Id., p. 211, 60 Cal.Rptr. 457, 430 P.2d 15.) Defendant admitted the prior "reserving the right to pursue whatever remedy is available on the motion heretofore heard by the court with respect to striking the priors (sic)." (Id., p. 211, 60 Cal.Rptr. 457, 430 P.2d 15.) The prior conviction was then used, over objection, to impeach defendant during trial. The Supreme Court held that (p. 214, 60 Cal.Rptr. 457, 430 P.2d 15) and further held that (Id., 67 Cal.2d at p. 215, 60 Cal.Rptr. 457, 430 P.2d 15.)
the trial court felt constrained to deny appellant's motion to strike the prior conviction, acknowledged that there is a split of authority on the issue of whether a motion to strike may be used to collaterally attack a prior conviction on grounds other than denial of the right to counsel. 1 (See discussion in People v. McFarland (1980) 108 Cal.App.3d 211, 218-221, 166 Cal.Rptr. 429.) Reeves cited People v. Coffey (1967) 67 Cal.2d 204, 60 Cal.Rptr. 457, 430 P.2d 15 as the case in which the California Supreme Court first recognized explicitly such a procedure but concluded that "the court in Coffey 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, supra, 123 Cal.App.3d at p. 68, 176 Cal.Rptr. 182.) The Reeves court stated it was guided by the decision in People v. Superior Court (Gaulden) (1977) 66 Cal.App.3d 773, 136 Cal.Rptr. 229, which also took a restrictive view of Coffey to avoid "the difficulty and lengthy delays in prosecution and trial of criminal cases which would result if the role [sic] were extended to matters 'other than the easily determined fact of representation by, or waiver of, counsel.' [Citations.]" (People v. Reeves, supra, 123 Cal.App.3d at p. 69, 176 Cal.Rptr. 182.)
Coffey then discussed the proper procedures to make such attack by quoting from People v. Merriam (1967) 66 Cal.2d 390, 397, 58 Cal.Rptr. 1, 426 P.2d 161, which also dealt with a challenge to a prior conviction on grounds of lack of representation based upon a silent record. Merriam, quoted by the court in Coffey, required 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." (People v. Coffey (1967) 67 Cal.2d at p. 215, 60 Cal.Rptr. 457, 430 P.2d 15), quoting from People v. Merriam (1967) 66 Cal.2d 390, 397, 58 Cal.Rptr. 1, 426 P.2d 161 (overruled on other grounds in People v. Rincon-Pineda (1975) 14 Cal.3d 864, 882, 123 Cal.Rptr. 119, 538 P.2d 247.) The Supreme Court in Coffey suggested "for the guidance of courts and counsel who will be called upon to deal with similar matters in the future" that (1) after defendant raises the issue for determination, the prosecutor has the initial burden of producing evidence of the prior conviction sufficient to justify a finding that the defendant experienced such previous conviction; (2) once the prima facie showing has been made, the burden shifts to defendant to produce evidence that his constitutional right was infringed in the prior proceeding; (3) if the defendant bears this burden, the prosecutor has the right to produce evidence in rebuttal; and (4) the court must then find upon the evidence produced and must strike any prior conviction constitutionally invalid. (People v. Coffey, supra, 67 Cal.2d at p. 217, 60 Cal.Rptr. 457, 430 P.2d 15.)
We disagree with People v. Reeves, as well as the cases cited therein which support its proposition, and believe that People v. Coffey does not restrict collateral attack on a prior conviction to Sixth Amendment grounds. People v. Coffey was decided two years prior 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. In re Tahl interpreted Boykin to require that when a trial court accepts a guilty plea "the record must contain on its face direct evidence that the accused was aware, or made aware, of his right to confrontation, to a jury trial, and against self-incrimination, ..." (1 Cal.3d at p. 132, 81 Cal.Rptr. 577, 460 P.2d 449.) Boykin established a new constitutional standard, i.e., that a waiver of the three aforementioned important federal rights will not be presumed from a silent record. (395 U.S. at pp. 243-244, 89 S.Ct. at 1712-1713.)
Whereas it is true that the California Constitution had expressly reserved the right to a jury trial...
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