PEOPLE v. RIZO

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Court of Appeal, Third District, California.

The PEOPLE, Plaintiff and Respondent, v. David RIZO, Defendant and Appellant.

No. C025164.

Decided: February 11, 1998

R. Charles Johnson, under appointment by the Court of Appeal, Petaluma, for Defendant and Appellant. Daniel E. Lungren, Attorney General, George Williamson, Chief Assistant Attorney General, Robert R. Anderson, J. Robert Jibson, Janine R. Busch, Deputy Attorneys General, for Plaintiff and Respondent.

Defendant was convicted by jury of first degree burglary (Pen.Code, § 459) and allegations of two prior serious felonies were found true (Pen.Code, §§ 667, subd. (a);  667, subds. (b)-(i);  1170.12).   The trial court struck one prior and sentenced defendant to 18 years in prison.   On appeal defendant contends the trial court abused its discretion in allowing him to be impeached with two 20-year-old robbery convictions;  the case should be remanded for an evidentiary hearing on the voluntariness of defendant's plea on his priors;  his counsel was ineffective;  and the trial court erred in failing to instruct on lesser related offenses.   In the published portion of this opinion, we hold that under Garcia v. Superior Court (1997) 14 Cal.4th 953, 59 Cal.Rptr.2d 858, 928 P.2d 572, defendant may not challenge the constitutional validity of a prior conviction used to increase his punishment on the ground that his plea in the prior proceeding was not voluntary.   We reject his other contentions in the unpublished portion.

FACTS

On March 25, 1995, Georgia and Sherman Brock were away for the weekend.   That night a neighbor heard the sound of breaking glass at their residence and called the police.

Sheriff's deputies arrived and discovered a broken kitchen window.   A deputy looked through a bedroom window and saw a man crawling down the hall.   The deputy called for backup.

Deputy Brian Isenogle responded and saw a black pickup he assumed was the suspect's.   He saw someone behind a bush and yelled for him to come out.   Defendant appeared, wearing gloves.   Due to a mix-up in communication, defendant was released.   He went to his girlfriend's next door and sat down on a planter box.

A canine unit also responded to the call.   The dog traced the scent and alerted as he came around the corner to where defendant was sitting.   Defendant was arrested.

In the bush where defendant had been hiding there was a flashlight, screwdriver and keys to the black truck laying on top of a pillowcase.   Inside the pillowcase were jewelry and war medals that belonged to the Brocks.

A detective interviewed defendant.   Defendant first told him he went to his girlfriend's house to meet her;  he then said he went there to spy on her.   Finally, he said he “did it” with another who ran away.   The statement was not tape recorded and defendant was not asked to write it down.

Defendant testified at trial.   His girlfriend lived next door to the Brocks.   He went to meet her, not to spy on her.   A friend drove him to her house because he had a suspended license.   The friend took a walk and later came out of the yard of the empty house with a pillowcase and told defendant to hold on to it.   The friend put the pillowcase behind a bush.   Defendant went to retrieve his keys when he was approached by the deputy.

After the jury found defendant guilty of burglary, there was a jury trial on defendant's prior convictions.   The jury found the second prior true, but could not reach a verdict on the first.   The court declared a mistrial.   After a court trial on that prior, the court found it true.

The trial court exercised its discretion to strike one “strike” prior.   It sentenced defendant to 18 years in prison, consisting of the midterm of four years doubled, plus two 5-year enhancements.

DISCUSSION

I-II**

III

At sentencing defense counsel noted that defendant wanted him to make a motion for an evidentiary hearing as to the sufficiency of his waiver of rights during his prior convictions.   Counsel believed that since defendant was represented by counsel and the record reflected some waiver, the law was against defendant.2  Counsel then became aware of a case that held an evidentiary hearing was available.   That case was currently before the California Supreme Court, so “I don't think I am in a place to make that motion.”

Defendant contends either he adequately moved for an evidentiary hearing or counsel was ineffective in failing to so move.   He asserts that in either case the matter must be remanded for an evidentiary hearing on the voluntariness of his pleas in his prior convictions.   The Attorney General urges that defendant's attempted collateral attack on his prior convictions is now precluded by Garcia v. Superior Court, supra, 14 Cal.4th 953, 59 Cal.Rptr.2d 858, 928 P.2d 572.   We agree.

In People v. Coffey (1967) 67 Cal.2d 204, 60 Cal.Rptr. 457, 430 P.2d 15, the California Supreme Court formulated procedures to be followed by trial courts when a defendant collaterally attacks the constitutionality of a prior conviction in state court.   Defendant had moved to strike a prior conviction on the ground that he had been denied assistance of counsel in the proceeding leading to the conviction.   The trial court denied the motion as “irregular.”  (Id. at p. 211, 60 Cal.Rptr. 457, 430 P.2d 15.)   The Supreme Court found “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.”  (Id. at p. 215, 60 Cal.Rptr. 457, 430 P.2d 15.)   A motion to strike the prior before trial was the proper method to raise the issue.  (Ibid.) Once the issue was properly raised, the trial court was to hold an evidentiary hearing outside the presence of the jury to determine the constitutional validity of the prior conviction.  (Id. at pp. 217-218, 60 Cal.Rptr. 457, 430 P.2d 15.)

In People v. Sumstine (1984) 36 Cal.3d 909, 206 Cal.Rptr. 707, 687 P.2d 904, the court held a defendant is entitled to an evidentiary hearing of the type formulated in Coffey to attack a prior conviction used to enhance his current sentence on the basis that such prior was obtained in violation of his rights 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.   The court rejected the argument that the Coffey procedure should be limited to claims that assistance of counsel was denied.  (People v. Sumstine, supra, at pp. 918-919, 206 Cal.Rptr. 707, 687 P.2d 904.)   The court also rejected the argument that allowing Boykin/Tahl challenges on a motion to strike would be unnecessarily time-consuming.   It noted that the court had permitted defendants to raise inadequate assistance of counsel on a Coffey motion, citing People v. Coleman (1969) 71 Cal.2d 1159, 1169, 80 Cal.Rptr. 920, 459 P.2d 248.  (Sumstine, supra, at p. 919, fn. 6, 206 Cal.Rptr. 707, 687 P.2d 904.)

In Custis v. United States (1994) 511 U.S. 485, 114 S.Ct. 1732, 128 L.Ed.2d 517, the United States Supreme Court held a defendant in a federal sentencing proceeding has no right to attack collaterally a prior state conviction used to enhance his sentence, with the sole exception of a conviction obtained in violation of the right to counsel.   This distinction between the denial of right to counsel and other constitutional violations was justified because the former was “a unique constitutional defect.”  (Id. at p. 496, 114 S.Ct. at p. 1738, 128 L.Ed.2d at p. 528.)   The court noted that “[e]ase of administration” also supported this distinction.   While failure to appoint counsel can usually be easily determined from the record, “determination of claims of ineffective assistance of counsel, and failure to assure that a guilty plea was voluntary, would require sentencing courts to rummage through frequently nonexistent or difficult to obtain state court transcripts or records that may date from another era, ․” (Ibid.) Finally, the interest in promoting finality of judgments also supported the court's decision.   The court noted that where the prior convictions was the result of a guilty plea, as in Custis, the principles of finality “bear extra weight ․ because when a guilty plea is at issue, ‘the concern with finality served by the limitation on collateral attack has special force.’ ”  (Id. at p. 497, 114 S.Ct. at p. 1739, 128 L.Ed.2d at p. 529.)

In People v. Horton (1995) 11 Cal.4th 1068, 47 Cal.Rptr.2d 516, 906 P.2d 478, the California Supreme Court held that Custis did not preclude a collateral attack on a prior conviction in a capital proceeding in California.   It expressly reserved the issue of the permissibility of collateral attacks on priors in a noncapital setting.  (Id. at p. 1134, 47 Cal.Rptr.2d 516, 906 P.2d 478.)

That issue was addressed in Garcia v. Superior Court, supra, 14 Cal.4th 953, 59 Cal.Rptr.2d 858, 928 P.2d 572.   Defendant sought to challenge the constitutional validity of a prior conviction in a current prosecution;  the basis of the challenge was ineffective assistance of counsel.   The court concluded neither federal nor state constitutional law entitled defendant to make such a challenge.  (Id. at p. 964, 59 Cal.Rptr.2d 858, 928 P.2d 572.)   The court found it significant that the United States Supreme Court had distinguished denial of the right to counsel from other constitutional violations in part on the basis of the administrative burden in determining errors other than the denial of assistance of counsel in a collateral proceeding during sentencing.  (Id. at pp. 961-962, 59 Cal.Rptr.2d 858, 928 P.2d 572.)   It rejected a reading of Sumstine, supra, 36 Cal.3d 909, 206 Cal.Rptr. 707, 687 P.2d 904 that the motion-to-strike procedure set forth in Coffey, supra, 67 Cal.2d 204, 60 Cal.Rptr. 457, 430 P.2d 15 is available to challenge the validity of a prior conviction on any constitutional ground, refusing to read Sumstine to go beyond its facts.3  (Garcia, supra, at p. 964, 59 Cal.Rptr.2d 858, 928 P.2d 572.)

The Garcia court next considered whether policy considerations, such as the interest in efficient judicial administration, supported a judicially established rule of procedure entitling defendant to make a collateral attack on his prior.  “We conclude that the effective administration of criminal justice would not be furthered, but rather would face serious disruption, if-in the course of the proceedings related to a current offense-the trial court were required to entertain and adjudicate an attack on the validity of a challenged prior conviction based upon a claim of ineffective assistance of counsel.   Policy considerations similar to those that led the United States Supreme Court in Custis to restrict narrowly the basis for collateral attacks in a federal sentencing proceeding justify precluding a claim of ineffectiveness of counsel in the prior proceeding as a ground that will support a motion to strike.   Past decisions have recognized that claims of incompetence of counsel generally cannot be resolved based upon the appellate record-because the record alone will not shed light on the existence or nonexistence of a tactical basis for a defense attorney's course of conduct-and therefore more appropriately should be resolved on habeas corpus.  [Citations.]   Such a claim often will necessitate a factual investigation with regard to counsel's actions, omissions, and strategic decisions, requiring the parties and the court to reconstruct events possibly remote in time, and to scour potentially voluminous records, substantially delaying the proceedings related to the current offense.   Conducting evidentiary hearings on these types of claims also would protract substantially the proceedings on the current offense.”  (Garcia, supra, at pp. 964-965, 59 Cal.Rptr.2d 858, 928 P.2d 572.)

Although Garcia addressed only a challenge to a prior conviction based on ineffective assistance of counsel, its reasoning is equally applicable to a claim that the plea was not voluntary due to inadequate waivers.   The concerns expressed in Garcia about efficient judicial administration apply to Boykin/Tahl issues as well as to claims of ineffective assistance of counsel.   In Custis, the constitutional challenge to the prior conviction included both claims of ineffective assistance and that the guilty plea was not knowing and intelligent.   In considering what claims may be raised in a collateral attack on a prior conviction, Custis made the distinction between the right to counsel on one hand and claims of ineffective assistance or involuntary guilty pleas on the other.  (Custis v. United States, supra, 511 U.S. at p. 497, 114 S.Ct. at p. 1739, 128 L.Ed.2d at p. 528.)   Issues relating to the voluntariness of the plea will almost always be intertwined with issues relating to effectiveness of counsel.   We see no reason to grant an evidentiary hearing on the former where our state Supreme Court has expressly precluded one on the latter.  (Garcia, supra, 14 Cal.4th 953, 956, 59 Cal.Rptr.2d 858, 928 P.2d 572.)   Further, as Custis noted, where the prior conviction was obtained as the result of a guilty plea, the interest in finality of judgments is especially strong and precludes a collateral attack.  (Custis v. United States, supra, 511 U.S. 485, 497, 114 S.Ct. 1732, 1739, 128 L.Ed.2d 517, 529.)

Since Garcia followed Custis in denying a collateral attack on a prior conviction where the basis is ineffective assistance of counsel, and since we perceive no principled distinction between that constitutional challenge and one based on the denial of Boykin/Tahl rights in the context of the constitutional validity of a prior conviction used in sentencing, we read Garcia to adopt Custis in noncapital cases.   To the extent People v. Sumstine, supra, 36 Cal.3d 909, 206 Cal.Rptr. 707, 687 P.2d 904 suggests a contrary result, we conclude Garcia implicitly overruled it.   Defendant had no right to an evidentiary hearing on the voluntariness of his pleas in his prior convictions.

IV***

DISPOSITION

The judgment is affirmed.

FOOTNOTES

FOOTNOTE.   See footnote *, ante.

2.   Defense counsel on appeal sought to augment the record to have the evidence of defendant's prior convictions made part of the record.   The clerk of the superior court declared that such material was returned to the district attorney.

3.   To the extent that People v. Coleman, supra, 71 Cal.2d 1159, 80 Cal.Rptr. 920, 459 P.2d 248 suggested a Coffey hearing was available to challenge ineffective assistance of counsel in a prior conviction, Garcia overruled it.  (Garcia, supra, 14 Cal.4th at p. 966, fn. 6, 59 Cal.Rptr.2d 858, 928 P.2d 572.)

FOOTNOTE.   See footnote *, ante.

MORRISON, Associate Justice.

NICHOLSON, Acting P.J., and CALLAHAN, J., concur.

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