DABNEY v. <<

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Court of Appeal, First District, Division 1, California.

In Israel DABNEY on Habeas Corpus.

Cr. 7038.

Decided: October 31, 1968

C. William Simmons, San Francisco, for petitioner. Thomas C. Lynch, Atty. Gen. of California, Derald E. Granberg, Don Jacobson, Deputy Attys. Gen., San Francisco, for respondent.

These proceedings involve the question of the validity of a prior conviction for the possession of heroin allegedly suffered by petitioner in 1956 in the State of Illinois. Petitioner, who was sentenced to state prison following a verdict which found him guilty of possession of heroin in this state in 1965, seeks to be relieved of the additional penalty resulting from an existing adjudication that he suffered the prior conviction (see Health & Saf. Code, § 11500). He also attacks his latest conviction because at the trial which resulted in that judgment his testimony was impeached by reference to his prior conviction. (See People v. Coffey (1967) 67 Cal.2d 204, 218–219, 60 Cal.Rptr. 457, 430 P.2d 15.) It is concluded that defendant is entitled to be relieved of the adjudication that he suffered a prior conviction, but that on the record presented his present conviction should not be set aside.

Background

The prior conviction was first charged by amendment to the information filed when defendant was arraigned on the charge of possession of heroin on April 1, 1965. Although he originally denied the prior, he subsequently admitted it when rearraigned at the time of his trial September 2, 1965, and again in testifying at that trial.1 He first advanced the contention that the prior conviction was invalid because of lack of counsel and effective waiver of counsel in his brief on appeal from the judgment in the latter proceedings. This court was unable to consider the point because no record had been made below. (People v. Dabney (1967) 250 Cal.App.2d 933, 944–946, 59 Cal.Rptr. 243; and see People v. Williams (1967) 67 Cal.2d 226, 231–232, 60 Cal.Rptr. 472, 430 P.2d 30; and People v. Merriam (1967) 66 Cal.2d 390, 398, 58 Cal.Rptr. 1, 426 P.2d 161.) The judgment was affirmed without prejudice to defendant's right to take appropriate proceedings to collaterally attack the adjudication that he had suffered a prior conviction (id. 250 Cal.App.2d p. 950, 59 Cal.Rptr. 243). The decision affirming the judgment was rendered May 15, 1967. Hearing in the Supreme Court was denied July 12, 1967, and the remittitur was filed below on July 18, 1967.

On August 30, 1967 petitioner filed with this court his ‘Petition for Writ of Error Coram Nobis/Motion to Vacate’ in which he attacks his prior conviction because he had not been advised of his right to the aid of counsel, did not know he had a right to the aid of counsel, and did not waive his right to the aid of counsel. He further asserts that despite his admissions at the trial, the prior offense was a misdemeanor and not a felony (cf. People v. Dabney, supra, at pp. 946–950, 59 Cal.Rptr. 243).2 Consideration of the latter question is rendered moot since the conviction is found to be invalid.

Attached to the petition is what appears to be a transcript of proceedings before The Municipal Court of Chicago. They reveal that on January 23, 1956 an information was filed charging petitioner, as Israel Daney, Jr., with possession of heroin in violation of ‘Par. 192–2 Chap. 38 Illinois Revised Statutes 1953’; that petitioner who had theretofore been arrested was present in court and was ordered held to answer for the offense charged subject to release on bail; and that on the motion of the state, proceedings were postponed and set for trial on February 9, 1956. On February 9th, the record recites, ‘Now come the people by the State's Attorney and the defendant as well in his own proper person as by counsel also come, and said defendant being duly arraigned and forthwith demanded of and concerning the charge alleged against him in the information herein how he will acquit himself thereof for a plea in that behalf say that he is not guilty in manner and form as charged in said information.

‘Said defendant being duly advised by the Court as to his right to a trial by jury in this cause, elects to waive a trial by jury, and this cause is by agreement in open Court between the parties hereto, submitted to the Court for trial without a jury.’ After hearing the evidence the court found petitioner guilty and sentenced him to five years in the House of Correction of the City of Chicago, which, according to the recitals in the transcript, was authorized by contract with the county to receive persons sentenced by the sentencing court.

In his affidavit attached to the petition the petitioner alleged that he was arrested without a warrant on January 20, 1956, subsequently advised of the charges while in jail and taken to court. He alleges ‘that I was thereafter taken to court; that I was unable to hire an attorney of my own choice and that at no time did anyone advise me of my rights to an attorney; that I did not know that I had a right to have an attorney during any course of the proceedings; that at the time of my trial in the Illinois proceedings, that I was charged with a misdemeanor because at that time, I did not have any prior narcotics convictions, and that it was not the cus-tom [sic] of the Municiple [sic] courts to appoint indigent defendants counsels on misdemeanors, such as mine.’

The foregoing facts, if established, would render the prior conviction invalid. (In re Caffey (1968) 68 A.C. 815, 826, 69 Cal.Rptr. 93, 441 P.2d 933; People v. Coffey (1967) 67 Cal.2d 204, 214–215, 60 Cal.Rptr. 457, 430 P.2d 15; In re Woods (1966) 64 Cal.2d 3, 5–6, 48 Cal.Rptr. 689, 409 P.2d 913; In re Luce (1966) 64 Cal.2d 11, 13, 48 Cal.Rptr. 694, 409 P.2d 918; and In re Tucker (1966) 64 Cal.2d 15, 16, 48 Cal.Rptr. 697, 409 P.2d 921.) Since defendant's trial (September 7, 1965) occurred prior to the decision in In re Woods, supra (January 26, 1966), it is unnecessary to determine whether he waived the right to attack his prior conviction by failure to raise the question prior to his conviction. (See In re Caffey, supra, 68 A.C. at pp. 826–827, 69 Cal.Rptr. 93, 441 P.2d 933; and cf. People v. Dabney, supra, 250 Cal.App.2d 933, 945, 59 Cal.Rptr. 243.)

The Attorney General acknowledged that the petition could be treated as an application for a writ of habeas corpus to test the validity of petitioner's confinement which at the time was at San Quentin prison. (See Neal v. State of California (1960) 55 Cal.2d 11, 16, 9 Cal.Rptr. 607, 357 P.2d 839; discussion People v. Williams (1965) 238 Cal.App.2d 585, 595, 48 Cal.Rptr. 67; and Cal.Const., art. VI, § 10; and Gov.Code, § 69109.) He admitted that petitioner was not represented by counsel at the time of the alleged prior conviction, but sought an opportunity to secure records of the Illinois court which would show that petitioner waived his right to counsel. When it subsequently appeared that the records could not be located, an order to show cause why a writ should not issue striking the prior conviction from the record was issued.

With his return to this order to show cause, the Attorney General filed a declaration of the judge who presided over the arraignment, trial and sentencing of petitioner. The judge stated, ‘* * * due to the serious nature of the charge and of the penalty involved in this type of case, if the defendant was not represented by counsel, it was my custom and practice to advise said defendant of his right to have an attorney appointed to defend him and that were none desired, to secure a knowing and intelligent waiver of that right.’ (See In re Caffey, supra, 68 A.C. 815, 825–826, 69 Cal.Rptr. 93, 441 P.2d 933; In re Tucker, supra, 64 Cal.2d 15, 17–19, 48 Cal.Rptr. 697, 409 P.2d 921; and In re Luce, supra, 64 Cal.2d 11, 13–14, 48 Cal.Rptr. 694, 409 P.2d 918; In re Johnson (1965) 62 Cal.2d 325, 330–331, 42 Cal.Rptr. 228, 398 P.2d 420.) The factual issues raised by the petition and the return were referred to the judge who presided over the petitioner's trial and sentencing in this state, to determine the following: ‘1. Was the petitioner advised of his right to counsel in the Illinois proceeding referred to herein? 2. If so, was there an intelligent waiver by the petitioner of his right to counsel?’

The report and findings of the referee disclose that he took testimony from petitioner and petitioner's wife and received in evidence the Illinois judge's affidavit and copies of the records of the Illinois proceedings. The referee concluded: ‘1. Petitioner, Israel Dabney, was not advised of his right to counsel in the Illinois proceeding entitled People vs. Israel Daney (Dabney), Municipal Court of Chicago, No. 56 MC 29248. 2. Petitioner, not having been advised of his right to counsel, made no intelligent waiver of that right.’ An examination of the record before the referee discloses that the conclusions of the referee are supported by the evidence. They are adopted as the findings of this court.

The prior conviction must be stricken from the judgment convicting and sentencing petitioner. Since its invalidity removes the bar to petitioner's eligibility for probation (see Health & Saf. Code, § 11715.6; and People v. Atwood (1963) 221 Cal.App.2d 216, 219–220, 34 Cal.Rptr. 361), the judgment and sentence must be set aside, and the petitioner must be remanded to the trial court to be rearraigned for sentencing and for such further proceedings as may be provided by law.

There remains for consideration petitioner's contention that his conviction should be set aside because when he testified he was impeached by questioning which elicited his admission that he had been convicted of possession of heroin, a felony, eleven years previously in Chicago. (See People v. Dabney, supra, 250 Cal.App.2d at p. 943, fn. 3, 59 Cal.Rptr. 243.) In People v. Coffey, supra, the court ruled, ‘We are convinced that the use of a constitutionally invalid prior conviction to impeach testimonial credibility is improper, and that to allow such impeachment is error under California law. [Citations.] Further, we are of the view that such error is of federal constitutional dimension. It is clear that a conviction of crime, no matter when sustained, is constitutionally invalid if it was obtained in violation of the Sixth and Fourteenth Amendments. [Citations.] We think it equally clear that the utilization of such a conviction, at the trial of a subsequent offense, for any purpose leading to a conviction for such subsequent offense, is violative of the due process clause of the Fourteenth Amendment. Therefore, in assessing the prejudicial effect of such erroneous utilization, we are required to apply the test recently set forth by the United States Supreme Court in Chapman v. State of California (1967) 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705. * * *’ (67 Cal.2d at pp. 218–219, 60 Cal.Rptr. at p. 467, 430 P.2d at p. 25.)

Although the second error complained of is ‘of federal constitutional dimension’ and has to a certain extent the qualitative features of Gideon v. Wainwright (1963) 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799, 93 A.L.R.2d 733, it is not quantitatively identical with that case, or with the question of the use of the invalid prior conviction to support an adjudication which affects the petitioner's penal status and the severity of his punishment, as it has been disposed of above. In Coffey the court noted: ‘It must be emphasized, however, that we are not here concerned with the bare right to counsel; rather we are concerned with a derivative right to remain free from impeachment of testimonial credibility by means of prior convictions obtained in violation of the right to counsel.’ (67 Cal.2d at p. 219, fn. 17, 60 Cal.Rptr. at p. 467, 430 P.2d at p. 25.)

The increase in the severity of punishment which results from a prior conviction is, under the statutes of this state, a separate and identifiable additional consequence which can be segregated and struck down without affecting the conviction to which it is appended.3 On the other hand, the use of the prior conviction for impeachment purposes is intertwined with the proof of the act or omission involving the new principal charge. Its effect on the establishment of that charge will of necessity vary with the circumstances of each case.

It is, therefore, not sufficient to say, as petitioner urges, that since the error is of constitutional dimensions, it may be raised by collateral attack at any time. In re Caffey, supra, recognizes ‘that defendants must ordinarily raise a constitutional issue by a pretrial motion to strike the prior conviction from he information or indictment, or by entering a plea denying the prior conviction. [Citation.]’ (68 A.C. at p. 826, 69 Cal.Rptr. at p. 101, 441 P.2d at p. 941.) In excusing Caffey's failure to do so, the opinion suggests that in cases tried after the decisions in Woods, Luce and Tucker (January 26, 1966), collateral attack would be barred where the petitioner had failed to attack the prior conviction at his trial. (Id., p. 827, fn. 9, 69 Cal.Rptr. 93, 441 P.2d 933 and accompanying text.) In proceeding retrospectively, Woods, Luce and Tucker all indicate that a prior conviction used to affect the petitioner's penal status or the severity of his punishment, in a conviction suffered prior to the date of their pronouncement, may be collaterally attacked, and that the strictures which are attributable to the invalid prior conviction may be stricken. It does not necessarily follow, however, that the conviction of a new offense may be similarly stricken, because the prior conviction was one factor interposed in the fact finding process attendant to that conviction. The setting aside of the principal conviction raises problems attendant to the administration of justice which transcend those raised by merely relieving the defendant of the enhanced punishment, because it necessitates either the discharge or retrial of the accused. Therefore, although, as pointed out by petitioner, the problem of establishing the invalidity of the prior conviction which is used for impeachment encompasses no issue not raised in attacking the same conviction when used to enhance the penalty, the grant of appropriate relief involves different issues.

The law does not permit collateral attack of every conviction which is predicated upon an error of constitutional dimensions. Stovall v. Denno (1967) 388 U.S. 293, 296–301, 87 S.Ct. 1967, 18 L.Ed.2d 1199; and People v. Feggans (1967) 67 Cal.2d 444, 448, 62 Cal.Rptr. 419, 432 P.2d 21 [presence of counsel at police lineup]; Johnson v. State of New Jersey (1966) 384 U.S. 719, 726–735, 86 S.Ct. 1772, 16 L.Ed.2d 882; People v. Rivers (1967) 66 Cal.2d 1000, 1005, 59 Cal.Rptr. 851, 429 P.2d 171; People v. Rollins (1967) 65 Cal.2d 681, 685–691, 56 Cal.Rptr. 293, 423 P.2d 221; In re Shipp (1965) 62 Cal.2d 547, 549, 43 Cal.Rptr. 3, 399 P.2d 571; In re Lessard (1965) 62 Cal.2d 497, 512, 42 Cal.Rptr. 583, 399 P.2d 39; and In re Lopez (1965) 62 Cal.2d 368, 372–382, 42 Cal.Rptr. 188, 398 P.2d 380 [presence of counsel at police interrogation]; In re Spencer (1965) 63 Cal.2d 400, 413, 46 Cal.Rptr. 753, 406 P.2d 33; and In re Gaines (1965) 63 Cal.2d 234, 237–240, 45 Cal.Rptr. 865, 404 P.2d 473 [comment on defendant's failure to testify]; and Linkletter v. Walker (1964) 381 U.S. 618, 619–640, 85 S.Ct. 1731, 14 L.Ed.2d 601; In re Shipp, supra, 62 Cal.2d at pp. 549–550, 43 Cal.Rptr. 3, 399 P.2d 571; and In re Lessard, supra, 62 Cal.2d at pp. 502–504, 42 Cal.Rptr. 583, 399 P.2d 39 [use of illegally obtained evidence].)

Petitioner points out that the right to counsel is fundamental and may be asserted by collateral attack. (Gideon v. Wainwright, supra, 372 U.S. 335, 344, 83 S.Ct. 792, 9 L.Ed.2d 799, 93 A.L.R.2d 733; Douglas v. People of State of California (1963) 372 U.S. 353, 356–357, 83 S.Ct. 814, 9 L.Ed.2d 811; and United States ex rel. Durocher v. LaVallee (2d Cir. 1964) 330 F.2d 303, 310–313 [cert. den. (1964) 377 U.S. 998, 84 S.Ct. 1921, 12 L.Ed.2d 1048]. See also Roberts v. Russell (1968) 392 U.S. 293, 294–295, 88 S.Ct. 1921, 20 L.Ed.2d 1100 [Sixth Amendment right to confrontation as applied to use of codefendant's extrajudicial statement which implicated petitioner, see Bruton v. United States (1968) 391 U.S. 123, 135–137, 88 S.Ct. 1620, 20 L.Ed.2d 476; and cf. People v. Aranda (1965) 63 Cal.2d 518, 524–527, 47 Cal.Rptr. 353, 407 P.2d 265; and People v. Charles (1967) 66 Cal.2d 330, 333–337, 57 Cal.Rptr. 745, 425 P.2d 545]; and Jackson v. Denno (1964) 378 U.S. 368, 376–377, 84 S.Ct. 1774, 12 L.Ed.2d 908, 1 A. L.R.3d 1205 [use of involuntary confession].) The right to counsel issue is determinative of the first issue discussed herein—the use of the prior conviction to enhance the penalty. This second issue, however, is more limited. May the petitioner, who has admitted a prior conviction, collaterally attack a subsequent conviction because the admitted prior conviction, which itself was subject to collateral attack, was used to impeach his testimony at the trial on the subsequent offense? The determination of this question must be guided by the principles which have been laid down in connection with establishing whether a newly applied principle shall be applied retroactively. To escape the general rule that known constitutional rights must be asserted by direct attack, the new principle involved must be considered as that defined in Caffey, to wit, ‘That a factual hearing may be appropriate and permissible to establish constitutional infirmities' with respect to a prior conviction which is used in a subsequent hearing as has been established by Woods, Luce and Tucker in 1966. (68 A.C. at p. 827, fn. 9, 69 Cal.Rptr. at p. 101, 441 P.2d at p. 941.)

In Stovall v. Denno, supra, the court observed, ‘The criteria guiding resolution of the question implicates (a) the purpose to be served by the new standards, (b) the extent of the reliance by law enforcement authorities on the old standards, and (c) the effect on the administration of justice of a retroactive application of the new standards.’ (388 U.S. at p. 297, 87 S.Ct. at p. 1970. See also Johnson v. State of New Jersey, supra, 384 U.S. at p. 727, 86 S.Ct. 1772; Tehan v. United States ex rel. Shott (1965) 382 U.S. 406, 410, 86 S.Ct. 459, 15 L.Ed.2d 453; Linkletter v. Walker, supra, 381 U.S. at p. 629, 85 S.Ct. 1731; People v. Rivers, supra, 66 Cal.2d at p. 1002, fn. 2 and text, 59 Cal.Rptr. 851, 429 P.2d 171; and In re Lopez, supra, 62 Cal.2d at p. 372, 42 Cal.Rptr. 188, 398 P.2d 380.)

Respondent seizes on the last criteria. The People urge that to allow collateral attack of all judgments in which the defendant has taken the stand and been impeached by evidence of a prior conviction, which allegedly was secured when he was unconstitutionally deprived of the right to counsel, would have a detrimental effect on the administration of justice. Such an attack involves, of course, determination of the questions of whether the defendant was represented by counsel, and if appointed counsel, whether the attorney appointed was his counsel in fact as well as pro forma, or, if without counsel whether he waived the right to the assistance of counsel. The problems attendant to the resolution of those issues did not deter the court in Woods, Luce or Tucker, nor have they deterred this court in resolving the issue of the enhanced punishment which was improperly meted out to petitioner. The vacating of petitioner's conviction does, however, unleash further problems. In Stovall, the court commented on the retroactive application of the rule requiring counsel present at a lineup, as follows: ‘At the very least, the processing of current criminal calendars would be disrupted while hearings were conducted to determine taint, if any in identification evidence, and whether in any event the admission of the evidence was harmless error. Doubtless, too, inquiry would be handicapped by the unavailability of witnesses and dim memories.’ (388 U.S. at p. 300, 87 S.Ct. at. p. 1970. See also Johnson v. State of New Jersey, supra, 384 U.S. at p. 731, 86 S.Ct. 1772; Tehan v. United States ex rel. Shott, supra, 382 U.S. at pp. 418–419, 86 S.Ct. 459; Linkletter v. Walker, supra, 381 U.S. at p. 637, 85 S.Ct. 1731; People v. Rivers, supra, 66 Cal.2d at p. 1005, 59 Cal.Rptr. 851, 429 P.2d 171; In re Gaines, supra, 63 Cal.2d at p. 240, 45 Cal.Rptr. 865, 404 P.2d 473; and In re Lopez, supra, 62 Cal.2d at p. 381, 42 Cal.Rptr. 188, 398 P.2d 380.) To determine whether the use of the invalid prior conviction for impeachment was harmless error (see People v. Coffey, supra, 67 Cal.2d at pp. 219–224, 60 Cal.Rptr. 457, 430 P.2d 15), involves a review of the record of the proceedings leading to the conviction under attack which, although appropriate and available on appeal, may be beset with difficulties with respect to convictions long since imposed in which no records are available. Moreover, if such convictions are vacated the administration of justice is faced with the results envisaged in Lopez, as follows: ‘Nor can we overlook the further consideration that retroactivity would impose impossible burdens upon the administration of criminal justice. Unlimited retroactive application of Escobedo would result in the reconsideration of countless cases that were correctly decided under the law in force at the time of trial; in many of such cases witnesses and evidence would no longer be available. Many hardened and dangerous criminals would glean the greatest profit from unlimited retroactivity; they serve lengthy sentences imposed long ago; their cases thus offer the least likelihood of successful retrial. To require a general release of prisoners of undoubted guilt would be to cripple the orderly administration of the criminal laws. [Citations and footnote omitted.]’ (62 Cal.2d at p. 381, 42 Cal.Rptr. at p. 198, 398 P.2d at p. 390.)

On the other hand, the cases which have denied collateral attack or retrospective application of newly declared principles have scrupulously pointed out that constitutional errors which involve ‘serious flaws in the fact-finding process at trial’ should not be denied retroactive application. (See Roberts v. Russell, supra, 392 U.S. at p. 294, 88 S.Ct. at p. 1922, and cases cited.) The fact that a prior conviction may be used for impeachment of itself establishes that such use affects the factfinding process. The extent to which it does so is a matter of degree. (See Stovall v. Denno, supra, 388 U.S. 298, 87 S.Ct. 1967, 18 L.Ed.2d 1199; and Johnson v. State of New Jersey, supra, 384 U.S. at pp. 728–729, 86 S.Ct. 1772, 16 L.Ed.2d 882.) No dogmatic rule can be applied. The effect on the truth-finding process of improper impeachment will vary from case to case. One of the subcriteria for determining whether or not collateral attack should be allowed is ‘the certainty and frequency’ with which injustice occurred in convictions which are final. (See Stovall v. Denno, supra, 388 U.S. at p. 299, 87 S.Ct. at p. 1971.) It is obvious that under this test resolution of the question of retroactive application would in turn have to rest on the findings from such application, a process which leads to the administrative difficulties alluded to above.

Petitioner contends, however, that the right to apply the constitutional principle retroactively should be evaluated under the particular circumstances of his case. He points out that the situation here does not involve just the impeachment of a witness for the defense, but the defendant himself. Under such circumstances, the evidence of a prior conviction is recognized as highly prejudicial and is inadmissible except for purposes of impeachment. (See Pen.Code, §§ 1025 and 1093, subd. 1; Code Civ.Proc., former §§ 2051 and 2065; and Evid.Code, § 788.) In fact, the rule which permits such impeachment, although retained, has been subjected to criticism. (See People v. Martin (1967) 250 Cal.App.2d 263, 266–267, 58 Cal.Rptr. 481; Spencer v. State of Texas (1967) 385 U.S. 554, fn. 8, Mr. Chief Justice Warren, dissenting, 87 S.Ct. 648, 17 L.Ed.2d 606; and cf. People v. Stewart (1966) 240 Cal.App.2d 1, 7 and fns. 1 and 2, 50 Cal.Rptr. 26.) It is generally accepted that on direct attack an unwarranted reference to a prior conviction will constitute prejudicial error. (Burgett v. State of Texas (1967) 389 U.S. 109, 115, 88 S.Ct. 258, 19 L.Ed.2d 319; People v. Kelley (1967) 66 Cal.2d 232, 245, 57 Cal.Rptr. 363, 424 P.2d 947; People v. Sanchez (1950) 35 Cal.2d 522, 529–530, 219 P.2d 9; People v. Hamilton (1948) 33 Cal.2d 45, 51, 198 P.2d 873; People v. Sansome (1890) 84 Cal. 449, 450–452, 24 P. 143; People v. Hudgins (1943) 59 Cal.App.2d 175, 183–184, 138 P.2d 311; People v. Hobbs (1940) 37 Cal.App.2d 8, 11–12, 98 P.2d 775.) Evidence of a prior conviction of possession of contraband may be used to show knowledge of the nature of such contraband in connection with a later charge. (People v. Sykes (1965) 238 Cal.App.2d 156, 162, 47 Cal.Rptr. 596; People v. Jackson (1961) 198 Cal.App.2d 698, 706–707, 18 Cal.Rptr. 214.) Nevertheless, if the defendant admits such Knowledge, it is error to admit evidence of the prior conviction solely for that purpose. (People v. Gonzales (1968) 262 A.C.A. 291, 293–296, 68 Cal.Rptr. 578; People v. Spencer (1956) 140 Cal.App.2d 97, 102–105, 294 P.2d 997.)

On the other hand, in Coffey the court ruled, ‘* * * we reject defendant's contention that impeachment by means of a constitutionally invalid prior conviction is per se prejudicial, and that error committed through allowing such impeachment over proper objection cannot be considered harmless under any circumstances.’ (67 Cal.2d at p. 219, 60 Cal.Rptr. at p. 467, 430 P.2d at p. 25.) In the application of this rule the court found that the error was prejudicial with respect to those charges on which defendant-witness' denial of his intent was only countered by weak circumstantial evidence, and was harmless with respect to those charges in which the testimony and physical evidence which circumstantially evinced his intent rendered the defendant-witness' explanation disbelievable as attributable to his interest in the outcome of the case. (67 Cal.2d at pp. 223–224, 60 Cal.Rptr. 457, 430 P.2d 15.) In People v. Knighton (1967) 250 Cal.App.2d 221, 58 Cal.Rptr. 700, it was urged that the prosecution should establish that defendant-witness had counsel in the earlier proceedings before using a prior conviction for impeachment. The court observed, ‘It seems to us the same reasoning is justly applicable to the factual situation where the prior conviction is admitted for the limited purpose of impeaching evidence. The jury considers the evidence of prior convictions together with a comprehensive body of other evidence to determine credibility. The jury does not determine credibility of the witness solely from the prior conviction but is instructed to consider the character of the witness, the manner of the witness while on the witness stand, the witness' relation to the case, his degree of intelligence, his bias or prejudice, his testimony, evidence of his character for truth, honesty or integrity or of contradictory evidence, and the witness' inconsistent statements. Thus the evidence of a prior conviction is only an element, only one element which is to be considered by the jury in determining the credibility of a witness. We cannot state that a juror or a jury will give a lesser or greater weight to one element over another or others.’ (250 Cal.App.2d at pp. 230–231, 58 Cal.Rptr. at p. 706.)

Petitioner relies upon the following language in Burgett, ‘To permit a conviction obtained in violation of Gideon v. Wainwright to be used against a person either to support guilt or enhance punishment for another offense (see Greer v. Beto, 384 U.S. 269, 86 S.Ct. 1477 [16 L.Ed.2d 526]) is to erode the principle of that case. Worse yet, since the defect in the prior conviction was denial of the right to counsel, the accused in effect suffers anew from the deprivation of that Sixth Amendment right.

‘The admission of a prior criminal conviction which is constitutionally infirm under the standards of Gideon v. Wainwright is inherently prejudicial and we are unable to say that the instructions to disregard it made the constitutional error ‘harmless beyond a reasonable doubt’ within the meaning of Chapman v. State of California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705.' (389 U.S. at p. 115, 88 S.Ct. at p. 262.) Several considerations distinguish Burgett from the instant case. In the first place, the defendant, as did the defendant in Coffey, objected to the use of the prior conviction at the time of his trial. Secondly, the priors were adduced at the trial for the purpose of enhancing the punishment, whereas in the instant case the principle references were to the use of the priors for impeachment. The majority opinion distinguished Spencer v. State of Texas, supra, 385 U.S. 554, 87 S.Ct. 648, 17 L.Ed.2d 606, in which the court had upheld the Texas practice of permitting reference to prior convictions, presumptively valid, under appropriate limiting instructions. In a concurring opinion in Burgett, Mr. Chief Justice Warren urged outright rejection of the Spencer rule. (389 U.S. at p. 120, 88 S.Ct. 258, 19 L.Ed.2d 319.) Reference to the Chief Justice's dissent in Spencer, in which Mr. Justice Fortas joined, serves to put the present case in proper perspective. He acknowledged that evidence of a prior conviction may be admitted when ‘the possibility of prejudice resulting from the evidence of prior convictions is thought to be outweighed by the legitimate purposes served by the evidence,’ such as to show common design, modus operandi, or intent, or to impeach the defendant's credibility when he takes the stand. (385 U.S. at pp. 575–578, 87 S.Ct. at p. 660.) He found no such redeeming value in the reference to an admitted prior at the trial of guilt when it was offered for the sole purpose of establishing recidivism. He, therefore, concluded that the reference to the prior conviction, as was the reference in this case, was improper. (Id., 578–582, 87 S.Ct. 648.) In concluding, however, he distinguished between two cases in which the point had been raised by direct attack on appeal, and a third case in which the federal courts had denied habeas corpus. With respect to the last case, he concluded: ‘In contrast to the unconstitutional procedures involved in the cases discussed above, the admission of prior-convictions evidence in connection with a recidivist statute does not seem to me to justify reversal of final convictions. The fact that prior-convictions evidence has been traditionally admitted when related to guilt or innocence suggests that its prejudice has not been thought so great as to undermine ‘the very integrity of the fact-finding process' and to involve a ‘clear danger of convicting the innocent.’ See Linkletter v. Walker, 381 U.S., at 639, 85 S.Ct., at 1743; Tehan v. United States ex rel. Shott, 382 U.S., at 416, 86 S.Ct., at 465. Consequently, I would not apply a decision in line with this dissent to final convictions, such as No. 70, a habeas corpus proceeding.' (Id., p. 585, 87 S.Ct., p. 665.) The contention that the reference to the invalid prior conviction in this case was so prejudicial as to directly contaminate the finding of guilt, although used for the limited purpose of impeachment is therefore rejected. As has been noted, its indirect effect on the issue of guilt, because of the erroneous impeachment of defendant's testimony, is too conjectural to permit reopening the conviction by collateral attack.

Petitioner has yet another arrow for his bow. He points out that on July 28, 1967, when Coffey was decided, his conviction, affirmed May 15, 1967 and hearing by the California Supreme Court denied July 12, 1967, was still subject to review by the United States Supreme Court, and that therefore he should be permitted to collaterally attack it despite a general policy against retroactive collateral attack of a conviction which involves improper impeachment of a defendant-witness. (See In re Spencer, supra, 63 Cal.2d 400, 404–406, 46 Cal.Rptr. 753, 406 P.2d 33.) In Spencer, unlike the instant case, there apparently was a record of the facts upon which defendant could predicate his charge of constitutional infirmity. The record on the prior appeal showed that no counsel was present when defendant was subjected to interrogation by the police following his arrest, nor, subsequently, when he was interrogated by a psychiatrist. In this case not only is the original record silent as to the presence or waiver of counsel at the time of the earlier conviction, but defendant expressly acknowledged by his plea and testimony that he had suffered the conviction of which he now complains. (Cf. People v. Banks (1959) 53 Cal.2d 370, 378, 1 Cal.Rptr. 669, 348 P.2d 102.) Nevertheless, under Caffey, he is excused from failing to attack the prior at the time of his trial, and the record does show that he advanced his objections at the earliest opportunity after the propriety of such attack was recognized. (See People v. Dabney, supra, 250 Cal.App.2d at p. 944, 59 Cal.Rptr. 243.) The application of the Coffey rule regarding impeachment to cases which were not final at the time of its pronouncement and in which objection was voiced on appeal, limits its application to a narrow group of cases, and avoids the administrative problems of attempting to review a record of issues tried at an indefinite period in the past to determine prejudice, or of attempting to retry those issues if prejudice is found. It also brings this case in line with People v. Ebner (1966) 64 Cal.2d 297, 304–305, 49 Cal.Rptr. 690, 411 P.2d 578, where a case on appeal was remanded to determine the factual issue of the validity of the prior conviction when the point first arose on appeal. (Cf. People v. Merriam, supra, 66 Cal.2d 390, 396–398, 58 Cal.Rptr. 1, 426 P.2d 161.)

Petitioner contends the reference to the prior conviction was prejudicial because of the tendency of the fact finders to associate prior criminality with present criminality, as has been noted in the authorities referred to above, which on direct appeal have struck down convictions when improper reference to a prior conviction was made. In this case, the references were the petitioner's admission on cross-examination, the prosecutor's comment, which has been limited to the issues of knowledge and credibility,4 and the court's statement that ‘a witness may be impeached also by proof that he has been previously convicted of a felony’ as embraced in a lengthy general instruction substantially identical with that set forth as CALJIC (1946) Instruction No. 52. Any prejudice because of an alleged failure to give the limiting language found in CALJIC (1946) Instruction No. 54–B (cf. People v. Coffey, supra, 67 Cal.2d at p. 218, fn. 16, 60 Cal.Rptr. 457, 430 P.2d 15) was waived by the petitioner's failure to request such an instruction. (People v. Knighton, supra, 250 Cal.App.2d 221, 231, 58 Cal.Rptr. 700.) Moreover, it would have been inappropriate in view of the admissibility of the admitted prior conviction on the issue of knowledge.

The assertion that petitioner was prejudicially deprived of the use of the defense of lack of knowledge of the nature of the contraband by reason of the use of the invalid conviction will not bear analysis. According to the officers the petitioner fled the apartment in which he had been visiting, attempted to conceal himself when discovered on the second floor back porch, and threw away a bindle which proved to contain heroin. If the jury believed this testimony they could not avoid finding that petitioner knew full well that the contents of the bindle were contraband.

Petitioner has carefully analyzed the evidence in an attempt to demonstrate that ‘it appears reasonably possible that the error might have materially influenced the jury in arriving at its verdict,’ and that ‘the likelihood of material influence is * * * within the realm of reasonable possibility.’ (See People v. Coffey, supra, 67 Cal.2d at p. 220, 60 Cal.Rptr. at p. 467, 430 P.2d at p. 25; Chapman v. State of California (1967) 386 U.S. 18, 24, 87 S.Ct. 824, 17 L.Ed.2d 705; and People v. Modesto (1967) 66 Cal.2d 695, 712, 59 Cal.Rptr. 124, 427 P.2d 788 [disapproved on other grounds, Maine v. Superior Court, etc. (1968) 68 A.C. 386, 394, 66 Cal.Rptr. 724, 438 P.2d 372].) Here, as in the second group of charges in Coffey, there was direct evidence to show the commission of the offense. The alleged discrepancies in the testimony of the three officers does not materially affect the testimony that petitioner had in his possession and dropped a bindle of heroin. Petitioner's denial and explanation of his actions must be weighed not only against his impeachment by reference to the prior felony, but also against the unimpeached testimony to the contrary, and the necessary implication of perjury or frame-up if it was to be disbelieved, and also against his interest in the outcome of the case. After a review of the prior record it is concluded, as in Coffey, ‘* * * we are of the view that there is no reasonable possibility that erroneous impeachment of defendant's testimonial credibility by means of [the] prior conviction materially influenced the jury in arriving at its verdicts * * *; we therefore conclude * * * that the prosecution has proved ‘beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained’ (Chapman v. State of California, supra, 386 U.S. 18, 24, 87 S.Ct. [824] 828.)' (67 Cal.2d at p. 224, fn. omitted, 60 Cal.Rptr. at p. 470, 430 P.2d at p. 28.)

The writ is granted, the adjudication of a prior conviction is vacated, and the Department of Corrections is directed to remand the petitioner to the sentencing court for rearraignment for sentence as one convicted of violation of section 11500 of the Health and Safety Code without a prior conviction.

FOOTNOTES

1.  Details of these proceedings are related in People v. Dabney (1967) 250 Cal.App.2d 933 at pages 943–944, 59 Cal.Rptr. 243.

2.  Petitioner further attacks his latest conviction on the following grounds: (1) denial of the effective aid of counsel because he and a codefendant were jointly represented by the same public defender; (2) failure of the court to advise him of his right to separate counsel, or to appoint separate counsel on its own motion; (3) denial of a fair trial because he and his codefendant, although charged in the same indictment, were actually charged with possession of different packages of contraband and should have been separately tried; (4) failure of the trial court to sever the trial on its own motion because the use of his codefendant's statement allegedly implicated petitioner in violation of principles laid down in People v. Aranda (1965) 63 Cal.2d 518, 528–531, 47 Cal.Rptr. 353, 407 P.2d 265; and (5) because he was convicted on the basis of perjured testimony. The allegations are not sufficient to raise any issues which could not more properly have been raised on appeal. No facts entitling the petitioner to relief by either coram nobis or habeas corpus have been alleged in connection with any of the foregoing grounds. (See People v. Shipman (1965) 62 Cal.2d 226, 230, 42 Cal.Rptr. 1, 397 P.2d 993; In re Streeter (1967) 66 Cal.2d 47, 52, 56 Cal.Rptr. 824, 423 P.2d 976; and In re Dixon (1953) 41 Cal.2d 756, 759, 264 P.2d 513.)

3.  It is recognized that the prior conviction may also affect the degree of the offense (see Pen.Code, § 667; and People v. Shanklin (1966) 243 Cal.App.2d 94, 52 Cal.Rptr. 28), or the very existence of the offense (see Pen.Code, § 12021; and People v. McGinnis (1967) 249 Cal.App.2d 613, 57 Cal.Rptr. 661). Nevertheless, even under those circumstances, the proof of the substantive acts giving rise to the current charge may be dissociated from the proof of the existence of the prior conviction.

4.  The prosecutor stated in opening argument: ‘Ladies and gentlemen, you have heard here that each of the accused has been convicted of a felony. Each of them has been convicted of possession of narcotics, heroin. Ladies and gentlemen, in this case that is significant for two reasons: Number 1, knowledge. They knew this. They knew what they were dealing with here. Secondly, ladies and gentlemen, each of them was felons. Time honored in our law, ladies and gentlemen, it is a rule that a person who has been convicted of a felony, his testimony, ladies and gentlemen, is one that is to be viewed with caution by you. Conviction of a felony in and of itself, ladies and gentlemen, does not mean that a person who has been so convicted is lying to you. That is not the law at all, but the law is that it is a circumstance bearing directly upon their credibility. You should consider that.’

SIMS, Associate Justice.

MOLINARI, P. J., and ELKINGTON, J., concur.