GARCIA v. PEOPLE

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Court of Appeal, Fourth District, Division 3, California.

David John GARCIA, Petitioner, v. The SUPERIOR COURT of Orange County, Respondent; The PEOPLE, Real Party In Interest.

No. G017206.

Decided: November 22, 1995

Brian Ducker, Alternate Defender, Kevin J. Phillips, Deputy Alternate Defender, for Petitioner. No appearance for Respondent. Michael R. Capizzi, District Attorney, Maurice L. Evans, Chief Assistant District Attorney, and James J. Mulgrew, Deputy District Attorney, for Real Party in Interest.

OPINION

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.

Facts

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.

Coffey–Sumstine Motion

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.]  [¶] 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.)

Custis v. United States

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

Superior Court's Ruling

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.  [¶] 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.”

Discussion

 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-à-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 Custis should go to state court (or seek federal habeas corpus relief) because he had no right under the federal constitution to challenge the prior at his federal sentencing.  (Custis v. United States, supra, 511 U.S. at p. ––––, 114 S.Ct. at p. 1739.)

Here, petitioner sought his remedy in state court.   And our Supreme Court has determined in an unbroken line of cases beginning with Coffey a motion to strike is the proper procedural vehicle to test an allegedly unconstitutional prior conviction.   Unlike the United States Supreme Court, our high court has determined the motion to strike is administratively efficient.   Nothing in Custis changes that.

Significantly, the district attorney apparently agrees petitioner may challenge the prior conviction after it is used to increase his sentence.5  For instance, he argues “it is not appropriate to litigate such motions to strike priors in a pretrial setting ” (italics added) and suggests habeas corpus review is an adequate remedy.   He asserts most motions to strike lack merit and suggests requiring resort to post-conviction remedies would give the defense adequate time to investigate and would pare down the number of meritless filings.

We disagree.   A baseless motion will not pass the pleading stage.6  Moreover, the district attorney does not support his position with any facts.   He estimates his office sees only one non-Gideon motion to strike a week;  not many, given the number of criminal filings in this county.   And while a criminal defendant has had the right to attack a prior on the grounds of ineffective assistance of counsel since at least 1969 (People v. Coleman, supra, 71 Cal.2d 1159, 1169, 80 Cal.Rptr. 920, 459 P.2d 248), the district attorney has not demonstrated motions to strike have burdened the prosecution or court system, or affected the speedy resolution of cases in any way.  (Pen.Code, § 1050.)

Relegating a defendant to post-conviction relief is an unsatisfactory alternative.   Petitions for extraordinary relief should not be encouraged when the issue can be resolved in a current prosecution where discovery is available, sources of proof are more readily at hand, and defendant will be represented by counsel.   Also, an adequate record will be available for any appellate review.   These factors continue to support the California Supreme Court's determination that a motion to strike is the efficient alternative to post-conviction relief.

Finally, we do not rest our decision on the California Constitution, as petitioner urges.7  Rather, we believe the motion to strike derives from the Supreme Court's supervisory authority over state criminal procedure.  (See People v. Howard, supra, 1 Cal.4th at p. 1175, 5 Cal.Rptr.2d 268, 824 P.2d 1315;  [“[i]n the exercise of our supervisory powers, we shall continue to require that trial courts expressly advise defendants on the record of their Boykin/Tahl rights”] );  In re Podesto (1976) 15 Cal.3d 921, 938, 127 Cal.Rptr. 97, 544 P.2d 1297 [statement of reasons required for denial of bail on appeal];  People v. Vickers (1972) 8 Cal.3d 451, 461, 105 Cal.Rptr. 305, 503 P.2d 1313 [efficient administration of justice requires the defendant be assisted by retained or appointed counsel at parole/probation revocation proceedings];  People v. Cahan (1955) 44 Cal.2d 434, 442, 282 P.2d 905 [judicially declared rule of evidence;  evidence obtained in violation of constitutional guarantees is inadmissible].)  Simply stated, Coffey recognized a criminal defendant has the right to attack his or her sentence, and to challenge the allegedly invalid prior that comprised part of it, in a petition for writ of habeas corpus.8  However, Coffey and its progeny also recognized it is more efficient to litigate these issues in the current prosecution, even where the constitutional claim involves issues not “easily determined on the face of the record.”  (People v. Sumstine, supra, 36 Cal.3d 909, 919, fn. 6, 206 Cal.Rptr. 707, 687 P.2d 904;  In re Caffey (1968) 68 Cal.2d 762, 773, 69 Cal.Rptr. 93, 441 P.2d 933 [defendants must ordinarily raise a constitutional issue by a motion to strike but failure to do so not a waiver of the right to relief from a substantial increase in punishment based on a constitutionally invalid conviction].)  Custis does not affect this procedural determination.9

Proposition 8

The district attorney also argues the motion to strike violates Proposition 8.   This argument was not raised in the lower court and lacks merit in any event.

Article I, section 28, subdivision (f) of the California Constitution provides in pertinent part, “Any prior felony conviction of any person in any criminal proceeding, whether adult or juvenile, shall subsequently be used without limitation for purposes of impeachment or enhancement of sentence in any criminal proceeding.”  (Italics added.)   In People v. Prather (1990) 50 Cal.3d 428, 267 Cal.Rptr. 605, 787 P.2d 1012, the Supreme Court applied the “without limitation” language of section 28, subdivision (f) and determined a prior prison term enhancement imposed under Penal Code section 667.5 could not be constitutionally subjected to the double-the-base term limitations of Penal Code section 1170.1, subdivision (g).

 We have reviewed the legislative history supplied by the district attorney.   There is nothing in the legislative analysis or ballot arguments suggesting Article I, section 28, subdivision (f) of the California Constitution was intended to supplant Coffey, or confine the case to its facts.   The general intent of the enactment was to increase prison terms, but recognizing a motion to strike as an appropriate remedy does not decrease the length of prison terms.   Elimination of the motion simply shifts the timing of and forum for the challenge.

Prather also used the words “otherwise valid,” i.e., Penal Code section 1170.1, subdivision (g) “provides such a ‘limitation’:  It expressly precludes application of an otherwise valid prior felony sentence enhancement solely because it would extend the total length of incarceration beyond certain specified limits.”  (People v. Prather, supra, 50 Cal.3d 428, 436, 267 Cal.Rptr. 605, 787 P.2d 1012, original italics.)   One of the meanings of “invalid” as used by the courts of this state is “unconstitutional.”  (See People v. Cooper (1992) 7 Cal.App.4th 593, 600, 8 Cal.Rptr.2d 912 [“Sumstine has its genesis in cases holding that prior, uncounseled convictions are invalid and may not be used in sentence enhancements.”  (Second italics added.) ].)

Finally, a strike allegation is not necessarily an “enhancement” (at least within the meaning of Pen.Code, § 1385).  (People v. Glaster (1995) 36 Cal.App.4th 785, 45 Cal.Rptr.2d 65.)   Therefore, article I, section 28, subdivision (f), directed at enhancements, has no application here.

The district attorney's argument the “truth-in-evidence” provision of Proposition 8 (Cal. Const., art. I, § 28, subd. (d)) bars the motion is also flawed.   The cases relied on (People v. Wheeler (1992) 4 Cal.4th 284, 14 Cal.Rptr.2d 418, 841 P.2d 938;  People v. Mickle (1991) 54 Cal.3d 140, 284 Cal.Rptr. 511, 814 P.2d 290;  and People v. Harris (1989) 47 Cal.3d 1047, 255 Cal.Rptr. 352, 767 P.2d 619) each concerned a statute excluding relevant evidence.   In an analogous situation, the Supreme Court found section 28, subdivision (d) did not alter the state imposed reversal per se rule relating to coerced confessions.  “By its terms, the Truth-in-Evidence provision affects only the admissibility of evidence, largely eliminating state law rules that restricted the admissibility of relevant evidence more narrowly than was required by the federal Constitution.  [Citations.]   There is nothing in the Truth-in-Evidence provision that purports to affect the standard for determining the prejudicial effect, under state law, of the introduction at trial of evidence that remains inadmissible under California law.”  (People v. Cahill (1993) 5 Cal.4th 478, 500, 20 Cal.Rptr.2d 582, 853 P.2d 1037, fn. omitted, original italics.)   Similarly, the issue here is not the exclusion of relevant evidence, but the proper forum in which to attack an allegedly unconstitutional prior.   The concepts are apples and oranges.

Disposition

A motion to strike an allegation under the “three strikes” law based on ineffective assistance of counsel survives Custis v. United States, supra, 511 U.S. 485, 114 S.Ct. 1732, 128 L.Ed.2d 517 and Proposition 8.   The petition for writ relief is granted.   Let a peremptory writ of mandate issue directing the lower court to vacate its order denying petitioner's motion, and ordering it to determine whether the matter should be set for hearing.   We express no opinion on the merits of the motion.   This court's previously issued stay order is dissolved upon finality of this decision.

I concur completely with the majority opinion, but write separately to address the dissent.   The dissent can be divided into two parts:  a discussion of whether a defendant should be afforded a collateral pretrial attack on the constitutionality of a prior conviction;  and, a subtle knock on criminal defense attorneys coupled with an inferential attack on the majority's motives.   The majority opinion fully addresses the first point;  I shall limit my comments to the second.

Our dissenting colleague states, “Inadvertently, the majority knocks a large hole in the three strikes law.”  (Dis. opn. at p. 924.)   Not so.   The three strikes law provides for an enhanced sentence when the defendant has valid qualifying prior convictions.   If our colleague thinks we have knocked a large hole in the law it is because he believes there are a large number of invalid prior convictions.1  We are simply applying the law and letting the chips fall where they may.   If the Supreme Court disagrees with our analysis or wants to change its rule, it may certainly do so, and these opinions will be mere ghosts on the radar screen of stare decisis.   In any event, the majority opinion reaches the result it does for one reason:  we opt to take the conservative judicial approach and rule consistently with the vast majority of the case law, which includes two supreme court pronouncements.2

In contrast, the dissent is an in terrorem offering that misconstrues the reasons for allowing collateral attacks on incompetence of counsel grounds while unfairly demonizing the defense bar.   Our colleague's bottom line is he “can think of no worse way for the judiciary to throw money into a bottomless pit.”  (Dis. opn. at p. 923.)   But due process and fundamental fairness have always borne a price tag.

While the circumstances giving rise to a third strike may be as innocuous as a petit theft (see Pen.Code § 666),3 or stealing a bushel of avocados (see § 487, subd. (b)(1)(A)), or conspiring to poach 196 abalone, (see People v. Tatman (1993) 20 Cal.App.4th 1, 7–9, 24 Cal.Rptr.2d 480), the term imposed is as serious as that imposed for first degree murder.  (Compare § 190 with § 667, subd. (e)(2)(A)(ii).)   So while the impact on the victim in murder case may differ substantially from the other examples, the third strike defendant is every bit as interested in receiving a thorough defense as any murder defendant.   While a few penologists may argue we have something to learn from some Middle Eastern cultures about judicial economy, our system has traditionally preferred to make deliberate determinations concerning the circumstances giving rise to a potential life sentence.

In the case of third strike defendants, prior convictions are what give rise to such a sentence.   So it is not surprising defense attorneys would attack those prior convictions with a ferocity not present when the cost is a one-year or five-year enhancement.  (See §§ 667.5 and 667, subd. (a)(1).) 4  Adopting our dissenting colleague's view that a competency challenge must be made in the case giving rise to the prior conviction would force every appellate attorney to do an incompetency analysis and investigation for every case on the ground it might someday be a 25–year prior.   That would be a waste of judicial resources and public funds.

But there is a more invidious consequence of our dissenting colleague's proposed result:  virtually every defendant who pleads guilty will never be able to attack the quality of representation even though the case later becomes a 25–year enhancement.5  There is no appeal from a guilty plea as a matter of right.   A defendant who thinks he or she received inadequate representation must somehow obtain counsel to pursue a writ of habeas corpus.  (People v. Pope (1979) 23 Cal.3d 412, 428, 152 Cal.Rptr. 732, 590 P.2d 859 [habeas corpus is an appropriate remedy to challenge incompetent counsel].) 6  This will usually be a Herculean task for a person who perceives he or she has a successful defense, but lacks the intellect or gumption to pursue a trial and pleads guilty on advice of counsel.

Another kind of defendant is even more at risk, however, the defendant who is not aware of a potentially meritorious defense.   In this sense, it is beyond ironic that the one area where the United States Supreme Court finds a constitutional right to a collateral attack is where the defendant had no counsel at all.   If there is a case where a defendant would intuit a right has been violated, it is when he or she is not provided an attorney.   That is the scenario where it is most reasonable to require a timely complaint.   On the other hand, a defendant, unschooled in the law, cannot be expected to realize his or her attorney, the “expert” in whose hands the defendant's fate has been placed, has made some disastrous error in handling the case.

The dissent's problem is it assumes the defendant who attacks the prior conviction is creating an incompetency claim out of whole cloth.7  The judicial system's concern should be for those defendants whose potentially meritorious defense went for naught due to attorney incompetency.   It is those defendants the courts have sought to protect when providing for collateral incompetency attacks.

The dissent's suggestion a defendant has other effective avenues to challenge incompetency is ingenuous.   If the issue has been raised in a prior appeal, the determination is res judicata.   But as noted, most of these cases do not arise in contexts where the defendant has a right to appeal.   The dissent also mentions habeas corpus in state or federal court.   But those proceedings are subject to the doctrine of laches.  (People v. Miller (1992) 6 Cal.App.4th 873, 881–882, 8 Cal.Rptr.2d 193.)   Every defendant seeking habeas corpus relief would be put to the task of proving he or she was reasonably unaware of the issue, a task that would involve the same investigation needed to prove the incompetency of prior counsel.8

And this brings to the front why the dissent's approach is a waste of judicial resources.   Our colleague's solution is presumably to allow the defense to bring a habeas corpus proceeding in the court where the prior conviction arose.9  It is wrong headed for at least two reasons.   First, it requires litigation in a court as to which the conviction is final for all practical purposes.   That court has no interest in the new offense.   Yet, it would be burdened with “reexamin[ing] every miscreant's past journey [ ] through [its] court system.”  (Dis. opn. at p. 923.)   Second, the defendant's present attorney would be forced to travel to that court to litigate the issue, an additional expense to the county handling the present case.10  And who would handle the prosecution's case;  the prosecutor in the present case or the office that handled the prior case? 11

These matters should be heard by the court trying the present case.   It provides for better judicial economy.   If laches is an issue, it can be determined ably by the present court.   If the claim is frivolous, the court can rule accordingly and take any further appropriate action.   The time and expense required to examine these issues is a product of the 25–year prior conviction enhancement.   They will be and should be challenged when grounds exist.   Our dissenting colleague is understandably disgruntled because the three strikes law is not as easily administered as one might have hoped.   But that is no excuse for denying due process or fundamental fairness.

I respectfully dissent.   The majority opinion will turn every “three strikes” case into a long drawn-out replay of strikes one and two.   Cases Clarence Darrow could not have won will be relitigated in an attempt to clothe the poor defense attorney in the sackcloth and ashes of incompetence.   Every nook and cranny of those cases will be scrutinized;  every tactical decision reexamined and critiqued in minute detail, all in a futile attempt to demonstrate that had something, anything, different been done, one or both of those strikes would have been acquittals instead of a guilty plea or verdict.   The truth is that this Monday morning quarterbacking will result in few nunc pro tunc touchdowns (People v. Felix (1994) 23 Cal.App.4th 1385, 1390, 28 Cal.Rptr.2d 860) while the waste of precious judicial resources will be enormous.1

In a state with one of the best systems for appellate review in the entire world, a system which provides every indigent person convicted of a serious crime with a highly qualified appellate lawyer at state expense, claims relating to trial counsel's competence can and should be raised on appeal from that conviction.   The reason we do not see many of these claims on appeal is because they are frivolous and would make appellate counsel look foolish.   Contrary to popular belief, appellate counsel for defendants in criminal cases are almost always someone other than trial counsel.   The assumption that a trial attorney's competence will never be questioned on appeal fails simply because it is appellate counsel, not trial counsel, who is arguing in the appellate court.   If the convicted defendant did have a meritorious claim of incompetent counsel in an earlier case, appellate counsel in California will have already noticed and raised the issue when that conviction came for appellate review.   Nothing could be closer to “instant replay” than the appellate process.   Failure to call for a replay via an appeal should end the matter sine die.

This is not to say, as concluded by the concurring opinion, that I am critical of the criminal defense bar.   Quite the contrary, it is their professionalism and effectiveness that I am trying to preserve.   I am hardpressed to comprehend how any group would relish the mandate to attack every predecessor in their position.   The lack of civility and professional respect resulting from the majority's approach will make the present state of attorney relationships look like a courteous game of cricket.

If our Supreme Court does not address this question, the future is clear.   Prior to every three strikes trial, counsel will ask for appointment of an investigator at taxpayers' expense to investigate the previous two strikes and then make a request for appointment of a defense expert attorney, again at taxpayers' expense, who will testify as to the incompetence of the lawyers on the first and second strike.   And when Strike I or II was a guilty plea, valid on its face, with every constitutional right and consequence of the plea explained and personally waived in open court, the investigation will go behind that plea to ascertain if counsel did everything humanly possible to find a potential defense before advising his client to plead guilty.   This will be a horrendous if not physically impossible task.   In the case of guilty pleas, we are not talking about reviewing a trial transcript of counsel's performance;  we are talking about dealing with unrecorded conversations between counsel and client, confidential interviews with potential witnesses and undisclosed leads that never panned out.   Considering what it takes to examine counsel's conduct preceding a client's guilty plea—let alone a trial—every three strikes trial will become a new full trial of all three strikes.   The logic of the majority opinion compels this result, and I can think of no worse way for the judiciary to throw money into a bottomless pit.

Because incompetence of counsel claims can be raised on appeal, and those few of truly constitutional dimensions can be raised long after judgment by writ of habeas corpus, there is no reason to saddle an already overburdened judiciary with another avenue to reexamine every miscreant's past journeys through the court system.  Custis v. United States (1994) 511 U.S. 485, 114 S.Ct. 1732, 128 L.Ed.2d 517 has made it quite clear that the Constitution does not require this procedure.   That opinion emphasizes the difference between not having counsel at all at an earlier guilty plea and having counsel who is now being alleged as incompetent;  it is not a mere technical or semantic distinction but a jurisdictional one.  (Id. at p. ––––, 114 S.Ct. at p. 1738.)   Simply put, no constitutional right exists permitting such a belated attack on a prior conviction by plea when counsel was present.

Custis even notes that judicial efficiency requires a rejection of Garcia's claim to this procedure.   Failure to appoint counsel at all will be obvious from the judgment document itself;  but claims of ineffective assistance by the counsel who concurred in the defendant's own choice to plead guilty “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.)

Interest in promoting closure provides additional support for this constitutional conclusion.  “As we have explained, ‘inroads on the concept of finality tend to undermine confidence in the integrity of our procedures' and inevitably delay and impair the orderly administration of justice.  [Citations.]”  (Id. at pp. ––––, ––––, 114 S.Ct. at pp. 1738–1739.)   If every player could contest a referee's call years after the game is over, no one would bother to watch the Super Bowl much less care who won an individual game.   Likewise with our system of justice, confidence in the judiciary depends on the finality of its judgments.

It is already established that a criminal defendant can attack a prior guilty plea conviction for ineffective assistance of counsel (1) on appeal from the conviction by trial or guilty plea;  (2) by petition for writ of habeas corpus after appeal in state court;  and (3) by petition for habeas corpus in federal court.   Why should we create yet another avenue to again review the conviction's constitutionality, when the only extant authority on the issue is against it?  Custis eliminated any question of constitutional considerations and People v. Allen (1995) 39 Cal.App.4th 1513, 1516–1517, 46 Cal.Rptr.2d 569 held there are no contrary state concerns.   Inadvertently, the majority knocks a large hole in the three strikes law.

People v. Sumstine (1984) 36 Cal.3d 909, 206 Cal.Rptr. 707, 687 P.2d 904 did not establish the right to attack prior guilty pleas on the basis that appointed counsel was inadequate.   It declared that a pretrial motion to strike a prior conviction was the appropriate remedy for a prior guilty plea which was not validly entered, as required 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.   And as then-Associate Justice Lucas noted in his concurrence and dissent, ineffective assistance of counsel is not a proper ground to bring a pretrial motion to strike a prior conviction.   (Sumstine, supra, 36 Cal.3d at pp. 924–925, 206 Cal.Rptr. 707, 687 P.2d 904;  see Allen, supra, 39 Cal.App.4th at p. 1516, ––––, 46 Cal.Rptr.2d 569.)   Citing People v. Coleman (1969) 71 Cal.2d 1159, 1169, 80 Cal.Rptr. 920, 459 P.2d 248 as authority for the “right” to bring such a motion on this ground is weak at best; 2  Coleman properly raised an ineffective assistance claim through a petition for writ of habeas corpus.   As the Supreme Court was reversing Coleman's most recent conviction and remanding it for retrial, he was permitted to litigate the factual issues of the prior conviction before the same court in a pretrial motion to strike, simply because it was the easiest way for the evidentiary hearing necessary for the claims to be expeditiously heard by the trial court which originally heard the matter.   Nowhere did Coleman state that all belated attacks on earlier guilty plea convictions may be dealt with by waiting until the defendant reoffends and then rewarding him for his new misconduct by permitting him to relitigate his previous guilty plea.

Once the final gun has sounded, the game should be over.   At some point, there must be an end to the challenges.   This is that point.

FOOTNOTES

1.   The superior court did not decide whether petitioner pleaded a prima facie case for relief.   The sufficiency of the allegations is therefore not before us.

2.   The Court determined it had historically treated the right to counsel as unique, and thus had long allowed collateral attacks on convictions where that right had been denied.   It also noted permitting attacks on other grounds would be administratively inconvenient for federal sentencing courts.   Finally, the court observed collateral attacks on final state court judgments (even where the purpose is other than to overturn the prior judgment) tend to undermine confidence in the integrity of judicial procedures, and inevitably delay and impair the orderly administration of justice, especially where the prior conviction was based on a guilty plea.  (Custis v. United States, supra, 511 U.S. 485, –––– – ––––, 114 S.Ct. 1732, 1737–1739, 128 L.Ed.2d 517.)

3.   The Second District recently found otherwise in People v. Allen (1995) 39 Cal.App.4th 1513, 46 Cal.Rptr.2d 569.   However, the Allen court failed to address the long line of cases we discuss.   Moreover, its superficial treatment of the issue and blind adherence to Custis undermines the opinion's persuasiveness.

4.   People v. Howard (1992) 1 Cal.4th 1132, 5 Cal.Rptr.2d 268, 824 P.2d 1315 is distinguishable.   There the court reconsidered previous decisions holding Boykin–Tahl–Yurko (In re Yurko (1974) 10 Cal.3d 857, 112 Cal.Rptr. 513, 519 P.2d 561) error was reversible per se in light of overwhelming federal authority to the contrary.   But in Howard, the Supreme Court noted it had “expressly based [its] decision in Yurko on the interpretations of federal law set out in Boykin and Tahl.  (See Yurko, supra, 10 Cal.3d at p. 863, 112 Cal.Rptr. 513, 519 P.2d 561.)   However, the overwhelming weight of authority no longer supports the proposition that the federal Constitution requires reversal when the trial court has failed to give explicit admonitions on each of the so-called Boykin rights.   Accordingly, we have no choice but to revisit our prior holdings.  ‘The question of an effective waiver of a federal constitutional right in a proceeding is of course governed by federal standards.’  (Boykin, supra, 395 U.S. at p. 243 [89 S.Ct. at p. 1712].)”  (People v. Howard, supra, 1 Cal.4th at p. 1175, 5 Cal.Rptr.2d 268, 824 P.2d 1315.)   We find no similar expression in Coffey or its progeny.

5.   But regardless whether the prosecutor concedes this point, we agree with the thoughts expressed in Smith v. Farley (7th Cir.1994) 25 F.3d 1363, 1368–1369:  “[F]or the systemic concerns of both fairness and efficiency, [a defendant] should be allowed to raise [ ] arguments concerning [a] prior conviction at some point after it has been used to enhance [a] new sentence.”  (Fn. omitted, original italics.)   Apart from the obvious unfairness were the rule otherwise, a contrary rule might discourage guilty pleas (because a defendant may not know how and by how much a present plea may be used in the future to enhance a later conviction).   Also, were California to preclude relief from a sentence based in part on an unconstitutional prior conviction, a defendant would still, presumably, have resort to the federal courts:  “[O]ne may mount a habeas challenge [in federal court] to his [or her] conviction on constitutional grounds [including a predicate enhancement], insofar as he [or she] alleges that his [or her] conviction is ‘fundamentally unfair and unreliable[ ]’ ․ and he [or she] was not afforded a full and fair, state, post-conviction, collateral review of his [or her] claim.”  (Smith v. Farley, supra, 25 F.3d at p. 1369, original italics;  see also Tredway v. Farley (7th Cir.1994) 35 F.3d 288, 293, cert. den. (1995) 513 U.S. 1129, 115 S.Ct. 941, 130 L.Ed.2d 885;  Sones v. Hargett (5th Cir.1995) 61 F.3d 410, 418, fn. 14;  but see Partee v. Hopkins (8th Cir.1994) 30 F.3d 1011 [Custis establishes Nebraska's decision not to allow collateral Boykin attacks as a matter of state law does not entitle Partee to federal habeas corpus relief];  Partee v. Hopkins (8th Cir.1994) 35 F.3d 365, 366 [Beam, C.J., dissenting from denial of rehearing en banc] [Custis specifically preserves the right of an “in custody” criminal defendant, like Partee, to collaterally attack an unconstitutional prior conviction through federal habeas in an effort to set aside an enhanced sentence based, in part, upon the invalid prior conviction].)

6.   The defense must plead and prove the prior was unconstitutionally obtained of course.  (Curl v. Superior Court (1990) 51 Cal.3d 1292, 276 Cal.Rptr. 49, 801 P.2d 292.)

7.   There is no legislative authorization for the motion to strike in the ordinary case.   The Legislature has provided a procedure for constitutional challenges to prior convictions under specified provisions of the Vehicle Code (Veh.Code, §§ 41403, 23209 [prior convictions for drunk driving and driving on a suspended license may with limited exception be challenged only once and determination is conclusive in subsequent proceedings].)

8.   We express no opinion whether this state could constitutionally limit any post-“enhancement” attack on a prior to denial of counsel.

9.   We conclude a pretrial collateral attack survives Custis because such a procedure is historically rooted in California law.   Our dissenting colleague finds this result economically unsound and violative of the three-strikes philosophy.   While we find neither concern to be warranted, we note he fails to address the only issue presented.

1.   The only other way to interpret our colleague's comment would be to assume he believes defense counsel will paralyze the system by intentionally bringing a plethora of frivolous motions.  (See, i.e., dis. opn. at p. 922.)   But he protests he is not saying he is “critical of the defense bar, and is trying to preserve their “professionalism and effectiveness.”   He intensifies his in terrorem approach by warning, “The lack of civility and professional respect resulting from the majority's approach will make the present state of attorney relationships look like a courteous game of cricket.”  (Id. at p. 923.)   No defense attorney likes to attack another defense attorney's competence.   But the defense bar understands it is necessary and proper to protect the defendant's rights by exposing incompetence where it exists.   Our colleague's foreboding only exists when attorneys bring bogus claims, something I am not willing to assume.   It is certainly not something the majority opinion countenances or encourages.

2.   Until recently, it was the exclusive position of the courts.   People v. Allen (1995) 39 Cal.App.4th 1513, 46 Cal.Rptr.2d 569 reached the contrary result;  our majority opinion ably addresses that case.

3.   All statutory references are to the Penal Code, unless otherwise indicated.

4.   To use our dissenting colleague's People v. Eckstrom approach (People v. Eckstrom (1974) 43 Cal.App.3d 996, 118 Cal.Rptr. 391), a Category II attorney would not show the same concern about a 1–year or 5–year prior conviction enhancement as he or she would show toward a 25–year prior conviction enhancement.

5.   Our dissenting colleague devotes considerable discussion to the scenario where the prior conviction results from a guilty verdict in a trial.   But as we all know, the vast majority of convictions are based on guilty pleas.

6.   Our dissenting colleague says, “[I]ncompetence of counsel claims can be raised on appeal․”  (Dis. opn. at p. 923.)   But a defendant may not appeal on those grounds after a guilty plea.  (People v. Pinon (1979) 96 Cal.App.3d 904, 909–910, 158 Cal.Rptr. 425, cited with approval in In re Troy Z. (1992) 3 Cal.4th 1170, 1180, 13 Cal.Rptr.2d 724, 840 P.2d 266.)   A petition for writ appears to be the only viable vehicle.

7.   This view is not completely cynical.   We have seen many claims which can only charitably be described as marginal.   Still, incompetent representation is not the product of fancy.   In slightly more than a decade (1978 until 1990), the California Supreme Court found reversible incompetency in 9 instances, and the Courts of Appeal reached the same result in 21 published cases.  (Miller, OOPS!:  An Analysis of Post–Pope Attorney Incompetency Cases for Trial and Appellate Counsel (1990) 17 Western St.U.L.Rev. 257, 259–260.)   Most of the Supreme Court cases were death penalty cases, where one expects only the most competent attorneys to be appointed.  (Ibid.)  In many more Supreme Court and Court of Appeal cases, incompetency was established, but prejudice was not shown.  (Id. at p. 263.)   And incompetency was undoubtedly also found in numerous unpublished cases.   But even if this were not true, to effectively deny incompetence claims on the ground they are seldom successful is analogous to denying defendants trials because they are seldom innocent.

8.   It is impossible to prove a defendant is reasonably unaware of something without proving what that something is.

9.   I choose not to interpret our colleague's analysis cynically by concluding he really intends to insulate all prior convictions of third strike defendants from any attack other than the constitutionally mandated allowance for claims there was no counsel at all.   This is inconsistent with his suggestion there are other hoops through which the defendant might be allowed to jump.  (Dis. opn. at pp. 923, 924;  but see dis. opn. at p. 923 [“Failure to call for a replay via an appeal should end the matter sine die.”].)

10.   At least in the vast majority of cases, where counsel is appointed rather than retained.

11.   I assume it would be the former, since only the present case would be affected by the ruling.   Thus, the county where the present offense is being tried would bear the additional expense of the prosecutor's travels.   Of course, there would be no additional burden if the prior conviction arose in the court where the third strike case is being heard, but then it would not matter whether the challenge were denoted as a petition for writ of habeas corpus or a motion to strike the prior conviction.

1.   I note, in passing, that this result will undoubtedly hold every criminal defense attorney to the standard described by Justice Gardner in People v. Eckstrom (1974) 43 Cal.App.3d 996, 118 Cal.Rptr. 391 as a “Category I” lawyer who “files every conceivable motion and presents issues ad nauseum.   This attorney slows down the wheels of the administration of justice, exasperates trial judges, and bores and often succeeds in confusing juries.   He does everything ‘by the book’ and his win-loss ratio usually leaves much to be desired.   On appeal, it must be conceded that he has made a good record.   No stone has been left unturned.   Of course, he lost his case but he has made a dandy record․  [¶]  The second category of trial attorneys is usually much more effective.   He has the capacity for reducing issues to simple terms.   He is as miserly with motions, objections and issues as an Ernest Hemingway with words or a Louis Armstrong with musical notes.   He has an instinct for the jugular, an ability to explore the meritorious and to ignore the trivial, a capacity for keeping issues understandable, a high respect for the intelligence of the jury, and by reason of all this is usually as effective as the attorney in the first category is ineffective.   Of course, to the nitpicker, his record on appeal leaves much to be desired since he has not pressed every motion or made every possible objection, nor has he presented issues which in his professional judgment were a waste of time.  [¶]  From a reading of the transcript in [this] case, trial counsel falls into the second category.   This, of course, infuriates an attorney of the first category simply because all possible objections have not been made, all possible motions have not been advanced, and all possible issues have not been explored․”  (Id. at pp. 1002–1003, 118 Cal.Rptr. 391.)   Assuredly, the Category II lawyer will always be characterized as incompetent by the Category I lawyer, particularly one blessed with hindsight, a gift reserved by definition for the appellate counsel.

2.   Lucas v. Superior Court (1988) 201 Cal.App.3d 149, 247 Cal.Rptr. 59, cited by the majority as alternative authority, rested its decision on Coleman, supra, 71 Cal.2d at page 1169, 80 Cal.Rptr. 920, 459 P.2d 248, although conceding that authority was questionable.   However, the Lucas court was bound by stare decisis to follow People v. Amaya (1986) 180 Cal.App.3d 1, 225 Cal.Rptr. 313 which assumed the pretrial motion to strike was an acceptable method to contest a prior plea's validity due to counsel's alleged incompetence.   But Amaya cited no authority whatsoever for this assumption.   Of course, Custis eliminates the quandary the Lucas court faced:  Custis clearly stated there was no constitutional right to attack a guilty plea for alleged attorney incompetence in a collateral fashion such as this.   The proper way is, as it has always been, to petition a court with jurisdiction of the matter for a writ of habeas corpus, assuming the period for an appeal to be filed has expired.

SONENSHINE, Associate Justice.

WALLIN, J., concurs.