Reset A A Font size: Print

Court of Appeal, Second District, Division 4, California.

The PEOPLE, Plaintiff and Respondent, v. Sherman ALLEN, Defendant and Appellant.

No. B090990.

Decided: November 09, 1995

Harvey L. Goldhammer, under appointment by the Court of Appeal, Glendale, for Defendant and Appellant. Daniel E. Lungren, Attorney General, George Williamson and Carol Wendelin Pollack, Assistant Attorneys General, and Kenneth C. Byrne and Susan C. Diamond, Deputy Attorneys General, for Plaintiff and Respondent.

Sherman Allen appeals from a judgment sentencing him to state prison for ten years after a jury found him guilty of selling a controlled substance.   (Health & Saf.Code, § 11352, subd. (a).)  The trial court, sitting without a jury, heard and sustained allegations that appellant had suffered a 1969 robbery conviction within the meaning of the three-strikes law (Pen.Code, § 667, subds. (b) through (i)), plus two other felony convictions resulting in separate prison terms.  (§ 667.5, subd. (b).)  The evidence, viewed in a light favorable to the jury's verdict, showed that appellant sold rock cocaine to a sheriff's deputy.

A week before his trial, appellant asked the trial court to strike the allegation he had suffered the first-strike robbery conviction, on Boykin/ Tahl/Sumstine grounds.  (Boykin v. Alabama (1969) 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 [before accepting a guilty plea, trial court must determine whether the defendant is aware of his constitutional rights and knowingly and voluntarily chooses to waive them];  In re Tahl (1969) 1 Cal.3d 122, 81 Cal.Rptr. 577, 460 P.2d 449 [before accepting a guilty plea, trial court must make a record which shows compliance with Boykin ];  People v. Sumstine (1984) 36 Cal.3d 909, 206 Cal.Rptr. 707, 687 P.2d 904 [if defendant asks that a prior conviction be stricken for violation of Boykin/Tahl, trial court must hold an evidentiary hearing].)

Documentary evidence placed before the trial court established that appellant was represented by counsel when he pleaded guilty to the robbery charge—shortly after Boykin was decided—and that reporter's transcripts of the plea could not be obtained.   The trial court did not hold an evidentiary hearing.   Rather, it denied appellant's motion on the authority of Custis v. United States (1994) 511 U.S. 485, 114 S.Ct. 1732, 128 L.Ed.2d 517, which bars federal-court collateral attack on prior state-court convictions alleged for sentence enhancement purposes, unless the defendant was unrepresented at the time of the prior conviction.

Appellant contends:  (1) The robbery conviction does not count as a first strike because it was suffered before the three-strikes law was enacted, and the statute specifies that determination whether a prior conviction is a strike “shall be made upon the date of that prior conviction.”  (§ 667, subd. (d)(1).)  (2) The trial court erred in not holding an evidentiary hearing on appellant's Boykin/Tahl challenge to the constitutional validity of the robbery conviction.

 Appellant's first contention is meritless.  (People v. Reed (1995) 33 Cal.App.4th 1608, 40 Cal.Rptr.2d 47;  People v. Anderson (1995) 35 Cal.App.4th 587, 41 Cal.Rptr.2d 474;  People v. Green (1995) 36 Cal.App.4th 280, 42 Cal.Rptr.2d 249;  Gonzales v. Superior Court (1995) 37 Cal.App.4th 1302, 44 Cal.Rptr.2d 144.)

 Appellant's other contention presents an important question of first impression in California:  whether Custis should be applied in state-court cases, displacing the evidentiary-hearing requirement of Sumstine unless the defendant was deprived of the right to counsel at the time of his guilty plea.   In Custis, a defendant was accused of a federal crime, with sentence enhancement allegations that he had suffered prior state court convictions.   In the district court, he sought to challenge the constitutional validity of the prior convictions on Boykin and ineffective assistance grounds.   The Supreme Court held such an attack is barred unless at the time of the prior conviction the defendant was deprived of his right to counsel.   This was the same rule advocated in the concurring opinion in Sumstine.  (36 Cal.3d at pp. 924–925, 206 Cal.Rptr. 707, 687 P.2d 904 (conc. opn. of Lucas, J.).)

In Custis the Supreme Court articulated several reasons supporting its decision.  (1) The Constitution does not require that such collateral attacks be heard.  (2) The federal sentencing statute in the particular case did not authorize collateral attack, unlike sentencing statutes pertaining to other federal offenses.  (3) The interest in promoting finality of judgments, and the related interest in fostering confidence in the integrity of judicial proceedings, militate against allowing collateral attacks, especially attacks on convictions resulting from guilty pleas.  (4) Collateral attacks are a heavy drain on the resources of court and counsel because they present fact-intensive issues and require marshaling of documents and transcripts that are often difficult or impossible to obtain.  (5) Such attacks can unduly prolong the sentencing process.  (6) A strong historical basis supports viewing deprivation of the right to counsel as more fundamental than other constitutional deprivations in criminal proceedings, for without counsel, other rights cannot be assured.  (7) The documentary record necessary to show whether counsel was afforded is usually more readily available than a complete record.  (8) In some instances a collateral attack can be maintained in the court where the prior conviction was suffered, or in another state or federal court, and, if successful, can provide a basis for requesting resentencing in the new case.  (9) Collateral attacks on state convictions in federal courts implicate considerations of comity and federalism.

This reasoning is persuasive.   Only the ninth reason is usually absent in state prosecutions.

 The Supreme Court of the United States is the final arbiter in questions of federal constitutional law.   It plays no role in the interpretation of state law, including state constitutional law.  Sumstine was the first decision of our own Supreme Court holding that a defendant may collaterally attack prior convictions used for sentence enhancement on constitutional grounds other than the right to counsel.  (See 36 Cal.3d at pp. 915–919, 206 Cal.Rptr. 707, 687 P.2d 904.)   Nothing in the opinion in Sumstine suggested its holding was based on an independent state-law ground.   To the contrary, California decisions in the Boykin/Tahl field are based on federal constitutional law.  (See People v. Howard (1992) 1 Cal.4th 1132, 1174–1179, 5 Cal.Rptr.2d 268, 824 P.2d 1315.)

We conclude the trial court correctly denied appellant an evidentiary hearing on the constitutional validity of his guilty plea to the 1969 robbery charge, once it ascertained appellant had been represented by counsel in connection with that plea.   In the absence of a statute providing otherwise (e.g., Veh.Code, § 41403), a trial court need not entertain a defendant's motion for an order striking a sentencing-related allegation of a prior conviction on the ground the conviction was constitutionally infirm, unless deprivation of the right to counsel is established.

The judgment is affirmed.


We have read appellant's petition for rehearing filed on November 27, 1995.   The petition for rehearing is granted.   Further briefing is to be on the stare decisis effect of People v Sumstine (1984) 36 Cal.3d 909, 206 Cal.Rptr. 707, 687 P.2d 904.

Petitioner having fully briefed that issue in his petition for rehearing, respondent is requested to respond to this issue on or before December 15, 1995.   Petitioner has until December 28, 1995 to reply thereto.



BRETT KLEIN, Associate Justice.* FN* Judge of the Municipal Court for the Los Angeles Judicial District, assigned by the Chairperson of the Judicial Council.

EPSTEIN, Acting P.J., and CHARLES S. VOGEL, J., concur.