People v. Vienne

• Decision Date: 30 January 1973
• Docket Number: Cr. 10507
• Citation: 105 Cal.Rptr. 584,30 Cal.App.3d 266
• Court: California Court of Appeals Court of Appeals
• Parties: PEOPLE of the State of California, Plaintiff and Respondent, v. James VIENNE, Defendant and Appellant.

Page 584

105 Cal.Rptr. 584

30 Cal.App.3d 266

PEOPLE of the State of California, Plaintiff and Respondent, v. James VIENNE, Defendant and Appellant.

Cr. 10507.

Court of Appeal, First District, Division 2, California.

Jan. 30, 1973.

Hearing Denied March 29, 1973.

Linda L. Tedeschi, San Francisco, for defendant and appellant.

Evelle J. Younger, Atty. Gen., State of California, Edward A. Hinz, Jr., Asst. Atty. Gen.--Crim. Div., William E. James, Asst. Atty. Gen.--Appeals Section, Robert R. Granucci, Deputy Atty. Gen., San Francisco, for plaintiff and respondent.

KANE, Associate Justice.

Defendant appeals from a judgment of conviction of robbery (Pen.Code, § 211); from being adjudged an habitual criminal (Pen.Code, § 644, subd. (a)); and from an order denying his motion to vacate the adjudication of habitual criminality.

In the morning hours of September 22, 1971, defendant, after parking his bicycle, slashed and unlocked a rear screen door of Carlyle Jewelers in San Mateo. Paul Kaplan, the store's owner, heard the slashing and investigated. Defendant, carrying a pistol, was just entering the store and said to Mr. Kaplan, 'Don't--I'm hopped up. Do what I say and you won't get hurt.' Defendant attempted to avoid identification through the use of a pillow placed on his stomach under his clothing and the use of a mask, wig, rubber gloves and a false moustache.

Defendant made Mr. Kaplan kneel down, took his watch, and shut him in a separate room in the rear of the store. Mr. Kaplan set off a silent burglar alarm. Orville Nelson entered the store and was put into the same room as Mr. Kaplan. After about four minutes, Mr. Kaplan opened the door and saw defendant placing merchandise in a paper bag. The merchandise was worth $13,000. Mr. Kaplan ran out of the store, screaming for help. Defendant ran out of the store, mounted his bicycle, but was captured by Mr. Kaplan.

On appeal, defendant makes a three-pronged attack upon the judgment. First, he seeks to challenge the validity of a prior (1961) felony conviction. Secondly, he urges us to declare the habitual criminal act (Pen.Code, § 644) unconstitutional. Finally, he contends that claimed errors during the trial below require reversal. For reasons which shall appear in our discussion and rejection of each contention, we affirm.

Prior 1961 Conviction

Defendant contends that his prior 1961 conviction is constitutionally invalid and should have not been utilized to adjudge him an habitual criminal. In addition, appellant argues that the trial court erred in not holding a hearing as to the validity of his prior convictions when they were introduced during trial.

The Attorney General argues that this issue was not property raised by defendant at trial and is therefore not properly before us. We agree.

(A) Sufficiency of the Challenge

People v. Coffey (1967) 67 Cal.2d 204, 60 Cal.Rptr. 457, 430 P.2d 15, discusses at great length the proper procedure to be followed in order to challenge the use of prior convictions. The Supreme Court concluded that the trial court was the proper place for attacks upon the constitutionality of prior convictions to be decided since such challenges should be disposed of at the earliest opportunity. The court emphasized, however, that the constitutional issues could only be raised by a 'clear allegation' that the defendant "neither was represented by counsel nor waived the right to be so represented." (p. 215, 60 Cal.Rptr. p. 465, 430 P.2d p. 23, quoting from People v. Merriam (1967) 66 Cal.2d 390, 397, 58 Cal.Rptr. 1, 426 P.2d 161.) Although the court in Coffey set out the proper procedure for pretrial consideration to be followed in contesting the validity of prior convictions (67 Cal.2d pp. 217--218, 60 Cal.Rptr. 457, 430 P.2d 15), the court later stated in People v. Curtis (1969) 70 Cal.2d 347, 74 Cal.Rptr. 713, 450 P.2d 33, that 'so long as the objection is asserted before the case is submitted to the jury,' it is insignificant that the issue arises during and not before trial (pp. 360--361, 74 Cal.Rptr. p. 721, 450 P.2d p. 41).

Although it is apparent that the learned trial judge was fully cognizant of the rules laid down in Coffey, it appears that neither defendant's trial nor appellate counsel fully comprehend them. Furthermore, this court has observed from briefs and oral arguments, not only in this but other cases as well, that a surprising number of members of the Bar suffer from the same misunderstanding. It is therefore worthwhile to repeat what out Supreme Court so clearly outlined over five years ago.

The Coffey court went out of its way 'to delineate the nature of the contemplated hearing, . . . for the guidance of courts and counsel who will be called upon to deal with similar matters in the future: First, when a defendant, whether by motion to strike the prior conviction or convictions on constitutional grounds, or by denial of such prior conviction or convictions on constitutional grounds at the time of entering his plea to the same, raises the issue for determination, the court shall, prior to trial, hold a hearing outside the presence of the jury in order to determine the constitutional validity of the charged prior or priors in issue. Second, in the course of such hearing the prosecutor shall first have the burden of producing evidence of the prior conviction sufficient to justify a finding that defendant 'has suffered such previous conviction.' (Pen.Code, § 1025.) Third, when this prima facie showing has been made, the defendant shall thereupon have the burden of producing evidence that his constitutional right to counsel was infringed in the prior proceeding at issue. Fourth, if defendant bears this burden, the prosecution shall have the right to produce evidence in rebuttal. Fifth, the court shall make a finding on the basis of the evidence thus produced and shall strike from the accusatory pleading any prior conviction found to be constitutionally invalid.' (Emphasis partially added.)

The threshold question before us, therefore, is simply whether defendant raised a 'clear allegation' that the 1961 conviction was constitutionally infirm. The record rather clearly demonstrates that he did not. Thus, before the prosecutor offered the certified copies of the abstracts of judgment of the two charged priors into evidence, a recess was taken to enable defense counsel to examine them. Upon resumption of the trial defense counsel objected to the admission of the documents 'on the basis that there has been no showing that the defendant at all critical stages of the proceedings was represented by counsel at those proceedings, whether preliminary hearing, line-up or during trial.' The objection was overruled.

Defendant now argues that his objection to the admissibility of the abstracts of his prior convictions was a sufficient allegation to require a hearing to be held outside the jury on the constitutionality of his 1961 conviction. We disagree.

It is obvious that the objection erroneously sought to misplace 'the evidentiary burdens . . . concerning the prior convictions' (People v. Nugent (1971) 18 Cal.App.3d 911, 915, 96 Cal.Rptr. 209, 210). It is settled that production of certified copies of an abstract of judgment by the prosecutor makes out a prima facie showing of validity and the defendant thereupon has 'the burden of producing evidence that his constitutional right to counsel had been infringed in the prior proceedings' (People v. Nugent, supra, p. 915, 96 Cal.Rptr. p. 210).

(B) The Scope of Inquiry

In the case at bench defendant urges that if a hearing on the validity of his 1961 conviction had been held, such hearing should encompass and consider not only whether he was represented by, or validly waived, counsel in the 1961 proceedings, but also such matters as the propriety of any pretrial lineup and the competency of his counsel during the 1961 trial.

This contention points up the misunderstanding by some members of the bar as to the limited scope of inquiry to which the trial court is restricted in conducting a hearing based upon a 'clear allegation' that an alleged prior conviction is invalid. The court in Coffey made it abundantly clear that the only question to be resolved in such a hearing is 'whether, in the proceedings leading to that (prior) conviction, defendant was accorded his right to counsel in accordance with the Sixth and Fourteenth Amendments.' (People v. Coffey, 67 Cal.2d at p. 217, 60 Cal.Rptr. at p. 466, 430 P.2d at p. 24.)

It should be obvious that any alleged constitutional infirmity in a prior conviction--other than the right to counsel--is a matter which must be left to proceedings in habeas corpus. Otherwise, the hearing on the alleged infirmity of the prior could involve more issues and more trial time than the substantive case itself. For example, the prior conviction will often have arisen in another jurisdiction. To explore matters other than the easily determined fact of representation by, or waiver of, counsel could--and no doubt would--require a lengthy recess of the trial in order to procure witnesses and other evidence with the resultant possibility of frequent declaration of mistrials.

In the case at bench we have independently examined the exhibits pertaining to defendant's 1961 conviction. These show on their face that defendant was represented by counsel. Thus, under the clear-cut holding of People v. Coffey and People v. Nugent, both supra, a prima facie showing of validity was established and the burden thereupon shifted to defendant.

As shown by the record defendant, in fact, made no affirmative allegation whatever that the prior convictions, or either of them, were constitutionally invalid nor did defendant offer any evidence on the point. Since defendant could have properly raised the issue by a pretrial motion to strike (e.g., People v. Coffey, supra, 67 Cal.2d at pp. 217--218, 60 Cal.Rptr. 457, 430 P.2d 15; People v. Nugent, supra, 18...