CURL v. PEOPLE (1989)

OPINION

An information was filed charging petitioner, Robert Zane Curl, with murder (Pen.Code, § 187).   A special circumstance that petitioner had previously been convicted of second degree murder (Pen.Code, § 190.2, subd. (a)(2)) was also alleged.

Petitioner filed a motion to strike the special circumstance in superior court based upon multiple grounds.   The grounds included that petitioner was under the influence of drugs and was not properly advised of his rights pursuant to 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 when he entered his guilty plea to second degree murder on July 1, 1977.

Following the hearing on the motion to strike the special circumstance allegation, the superior court found by clear and convincing evidence that the prior murder conviction was constitutional, and a trial date was scheduled.   Petitioner filed in this court a request for stay and a petition for writ of mandate and prohibition.   We granted the stay in order to determine the first impression issue of what standard of proof a trial court must use when it determines a pretrial challenge to the constitutionality of a prior murder conviction that is used to support a special circumstance.   We will hold that such a challenge to the constitutional validity of the prior murder conviction used as a special circumstance is the equivalent of a Penal Code section 995 motion and the court should therefore decide that pretrial challenge based on whether or not reasonable cause has been shown to bind the defendant over for trial on the special circumstance.   Absent a waiver by both sides of the right to a jury trial on the special circumstance allegation, only this procedure protects the defendant from the consequences of an unwarranted special circumstance trial while preserving to the People their statutory right to have the special circumstance allegation decided by the jury that finds the defendant guilty of first degree murder.  (§ 190.4, subd. (a).)  Since the superior court found by clear and convincing evidence that defendant's prior conviction was constitutional, we will deny the petition for writ of mandate.

FACTUAL AND PROCEDURAL BACKGROUND

On July 1, 1977, petitioner was brought before Solano County Superior Court Judge Thomas N. Healy for a change of plea on a pending murder charge against him.   Mr. Ronald Moe represented petitioner.   The People were represented by Deputy District Attorney Hugh Comisky, Jr.

Petitioner was charged with the murder of another inmate at Vacaville and was at the time of the hearing still housed at Vacaville.   The minute order of the change-of-plea proceeding indicates that counsel reached a stipulated plea of second degree murder.   The minute order then states as follows:  “Counsel and Court now voir dire defendant as to the charge, whereupon the change of plea is granted.   Having considered the transcript of proceedings had in the lower court, the Court finds the pleas to be free and voluntary, predicated on a factual basis, with an intelligent waiver of rights and with understanding of the nature of the charges and possible consequences and the plea is accepted.”

Petitioner waived time for sentencing and was ordered confined in state prison for the term prescribed by law.   This sentence was ordered to run concurrently to the term already being served.

Retired Judge Healy testified at the hearing on defendant's motion to strike the special circumstance allegation that he had no recollection of the proceedings on July 1, 1977, nor of petitioner.   He was unable to locate a transcript of that hearing.   He then testified regarding his custom and habit of assuring a complete review with a defendant, either by himself or by counsel, of all of the defendant's rights.   He would not accept a guilty plea if any of the answers obtained while questioning the defendant were unsatisfactory.

At that same hearing on the motion to strike, Mr. Comisky, who represented the People at the July 1, 1977, hearing, testified that he specifically recalled petitioner and the change-of-plea hearing;  he had no problem recollecting that petitioner was advised of his rights;  he could not accurately recall whether the term of imprisonment was discussed or who advised defendant of his rights;  he did not notice that defendant displayed any objective signs of intoxication, yet he acknowledged that there was a big problem with drugs in Vacaville during that particular time;  and the district attorney's file on the charges against petitioner contained a notation that there was a “full voir dire by the Court and counsel,” and he would not have made this notation if the petitioner was not questioned about recent drug ingestion.

Mr. Moe, petitioner's counsel at the July 1, 1977, hearing, had some memory of the case but could not remember any particulars.   He testified he was in the custom and habit of either having a defendant complete a waiver form or of going over each and every right prior to the hearing;  he also had a custom and habit of assessing whether his client was under the influence of alcohol or drugs at the time of the hearing;  he generally advised defendants he represented of the future consequences of the plea;  he usually voir dired his clients as to the rights they would be waiving by entering a guilty plea;  and he would not agree to the plea unless there was a specific waiver by his client as to each of the required rights.

Petitioner testified that he participated in a change-of-plea hearing on July 1, 1977.   He understood he was to receive a six-year concurrent term that would not affect him in the future.   Petitioner claimed he took drugs every day while incarcerated at Vacaville and was under the influence of something all the time.   He testified that he was not advised of his rights and supported his conclusion by stating he would not have entered a guilty plea to second degree murder if he had been advised of his rights.

The trial court found that the People met their original burden of proving the 1977 conviction when it produced a certified copy of the abstract of judgment of that conviction.   The burden then shifted to petitioner.   The court found that petitioner by his testimony made an adequate showing of constitutional infirmity to put the burden back on the People to rebut petitioner's evidence and show the constitutional validity of the prior.   The trial court found that the People met this burden by clear and convincing evidence but stated it would not make this finding if the standard of proof were proof beyond a reasonable doubt.

DISCUSSION

Petitioner contends the trial court erred in applying the clear-and-convincing-evidence standard.   He argues that it would be unfair to find the burden of proof of a prior murder conviction to be less than beyond a reasonable doubt when a prior drunk driving conviction that is challenged on constitutional grounds must be proved beyond a reasonable doubt.   As a secondary contention, petitioner asserts that an express waiver of Boykin–Tahl rights cannot be demonstrated from mere custom-and-habit evidence.   Because much of the evidence below was custom-and-habit evidence, petitioner urges that the trial court's findings are unsustainable.

Before considering petitioner's specific contentions, we will examine generally the legal underpinnings for petitioner's challenge to the special circumstance allegation against him.

In Boykin v. Alabama, supra, 395 U.S. 238, 89 S.Ct. 1709 the United States Supreme Court held that a court may not accept a guilty plea from a defendant until it determines that he is aware of the constitutional rights he is waiving by pleading guilty.   The defendant must knowingly and voluntarily waive the privilege against compulsory self-incrimination, the right to trial by jury, and the right to confront his accusers.   This determination must be made in all guilty plea situations, even if the defendant is represented by an attorney.

 Thus, the defendant must be advised of his right to a jury trial, his right to confront and cross-examine witnesses, and his right against self-incrimination.  (People v. Wright (1987) 43 Cal.3d 487, 493, 233 Cal.Rptr. 69, 729 P.2d 260.)   In addition, he must understand the nature and consequences of his plea.  (Bunnell v. Superior Court (1975) 13 Cal.3d 592, 605, 119 Cal.Rptr. 302, 531 P.2d 1086.)   This encompasses the direct consequences of his conviction, such as the permissible range of punishment.   (People v. Flores (1974) 38 Cal.App.3d 484, 487, 113 Cal.Rptr. 272.)   It is not required that a defendant be advised of the collateral consequences of his plea “which could conceivably include innumerable factors wholly outside the trial court's knowledge or contemplation.”  (Ibid.)  An increased sentence which a defendant might receive for a later conviction is a secondary and collateral consequence.  (Ganyo v. Municipal Court (1978) 80 Cal.App.3d 522, 527, fn. 1, 145 Cal.Rptr. 636;  People v. Lomboy (1981) 116 Cal.App.3d 67, 72, 117 Cal.Rptr. 812.)   Thus, contrary to petitioner's assertion, when the court accepted petitioner's guilty plea to second degree murder it was not required to advise him that the conviction might later be used as a special circumstance subjecting him to an increased punishment at a later time.   This is an indirect consequence which was collateral to the plea.

In In re Tahl, supra, 1 Cal.3d 122, 81 Cal.Rptr. 577, 460 P.2d 449 the California Supreme Court interpreted Boykin to require that the record must show on its face that the defendant was made aware of his rights and that he expressly waived them.   Thus, came the evolution of what is now referred to as Boykin–Tahl rights.

 The general rule is that a defendant can move before trial to strike the portion of an information charging that he has suffered a prior criminal conviction.   This procedure was approved by the Supreme Court in People v. Coffey (1967) 67 Cal.2d 204, 60 Cal.Rptr. 457, 430 P.2d 15.   That court explained that “it is clearly in the interest of efficient judicial administration that attacks upon the constitutional basis of prior convictions be disposed of at the earliest possible opportunity, ․” (Id. at p. 215, 60 Cal.Rptr. 457, 430 P.2d 15.)

In Coffey, the defendant asserted that his prior conviction for enhancement purposes was invalid because he had been denied his constitutional right to the assistance of counsel.  (People v. Coffey, supra, 67 Cal.2d at 210, 60 Cal.Rptr. 457, 430 P.2d 15.)   Although the defendant's conviction was reversed on a different ground, for the guidance of the trial court the Supreme Court explained that the defendant could challenge his prior conviction by means of a motion to strike.   It set forth the following procedure for such a hearing:

“First, when a defendant, whether by motion to strike the prior conviction or convictions on constitutional grounds, or by denial of such prior conviction or convictions on constitutional grounds at the time of entering his plea to the same, raises the issue for determination, the court shall, prior to trial, hold a hearing outside the presence of the jury in order to determine the constitutional validity of the charged prior or priors in issue.   Second, in the course of such hearing the prosecutor shall first have the burden of producing evidence of the prior conviction sufficient to justify a finding that defendant ‘has suffered such previous conviction.’  (Pen.Code, § 1025.)   Third, when this prima facie showing has been made, the defendant shall thereupon have the burden of producing evidence that his constitutional right to counsel was infringed in the prior proceeding at issue.15  Fourth, if defendant bears this burden, the prosecution shall have the right to produce evidence in rebuttal.   Fifth, the court shall make a finding on the basis of the evidence thus produced and shall strike from the accusatory pleading any prior conviction found to be constitutionally invalid.”  (Id. at pp. 217–218, 60 Cal.Rptr. 457, 430 P.2d 15.)

Footnote 15 states:

“Though the burden of proof as to the constitutionality of the charged prior conviction remains with the prosecution, and the burden of producing evidence rests initially with it, the latter burden shifts to the defendant upon proof of the fact of his having ‘suffered’ the prior conviction.  (See Evid.Code, § 550.)”  (Id. at p. 217, fn. 15, 60 Cal.Rptr. 457, 430 P.2d 15.)

People v. Sumstine (1984) 36 Cal.3d 909, 206 Cal.Rptr. 707, 687 P.2d 904 extended the evidentiary hearing allowed in Coffey to include a collateral attack on a prior conviction on the ground of a Boykin–Tahl violation.   “The state at first need prove only the fact of the prior conviction, but once the defendant has produced evidence tending to show his constitutional rights were infringed, it will not be sufficient rebuttal for the state to simply invoke the regularity of the silent record.”  (Id. at p. 923, 206 Cal.Rptr. 707, 687 P.2d 904.)

The court went on to state that the presumption that official duty has been performed is not appropriate when the official records fail to meet minimum standards.  (People v. Sumstine, supra, at p. 924, 206 Cal.Rptr. 707, 687 P.2d 904.)   Thus, when dealing with post-Boykin–Tahl convictions, the People cannot use the presumption of regularity in meeting their burden.   Nor can the People rely on the absence of reporter's notes destroyed pursuant to legislative direction to aid their position.  “We can see no reason to presume from this silent record that defendant's Boykin/Tahl rights were observed merely because the county at one time possessed a more complete record that purportedly might have resolved the issue.10”  (Ibid.)   Footnote 10 of the text states:  “Absence of an adequate record does not prevent the state from offering any proof it might have as to the rights of which defendant was informed.   The state is always free to offer evidence intended to fill in gaps in the record.  (See In re Smiley [ (1967) ] 66 Cal.2d [606, 617, 58 Cal.Rptr. 579, 427 P.2d 179];  cf. In re Johnson (1965) 62 Cal.2d 325, 331 [42 Cal.Rptr. 228, 398 P.2d 420]․)”

Although Coffey and Sumstine set forth a procedure to be followed during the motion to strike a prior conviction, nowhere is it explained what the People's burden of proof is once the defendant has met his burden.   Neither party has cited to any such authority nor have we been able to discover California authority on this point.   Contrary to the People's assertion, we find nothing in Coffey or Sumstine that establishes what the proper burden is.

We turn now to consider petitioner's initial argument that a special circumstance allegation should not be subject to a lesser burden of proof than an allegation of a previous drunk driving conviction.  (Veh.Code, § 41403.)   This section sets out the procedures to be used when a defendant challenges the constitutional validity of a prior drunk driving conviction he is alleged to have suffered.   As part of this procedure it provides:  “The burden of proof remains with the prosecution throughout and is that of beyond a reasonable doubt.”  (Veh.Code, § 41403, subd. (b)(1).)   This section shifts the burden of producing evidence as set forth in Coffey and Sumstine.  (Veh.Code, § 41403, subd. (b)(2)–(b)(4).)

In Worsley v. Municipal Court (1981) 122 Cal.App.3d 409, 176 Cal.Rptr. 324, the People contended that the “ ‘beyond a reasonable doubt’ standard prescribed by [Vehicle Code] section 23102.2 [now Veh.Code, § 41403] is invalid in that its application is clearly the result of confusing the People's burden of producing evidence that a prior conviction occurred with the defendant's pretrial burden of proving the same prior unconstitutional.”  (Id. at p. 421, 176 Cal.Rptr. 324.)   The appellate court disagreed:

“[I]t is purely within the Legislature's powers to define the burden of proof in the manner they feel best suits public policy so long as it remains constitutional.  (See Evid.Code, §§ 115, 500, 501;  see also Pen.Code, § 1096.)   Since ‘a legislative act is presumed to be constitutional and any doubts must be resolved in favor of its validity,’ it is up to the challenger of the statute to do more than merely allege it fails to follow the traditional burden.”  (Ibid.)

 Although a review of the legislative history of the enactment of this Vehicle Code provision offers no insight as to why this particular burden of proof was chosen by the Legislature, the Legislature has the power to choose whichever burden of proof “they feel best suits public policy.”   (Ibid.)  Petitioner has failed to show that this public policy decision by the Legislature was more than just that and was meant to carry over into every section dealing with proof of a prior conviction.   This argument of petitioner must fail.

The general rule is that “Except as otherwise provided by law, the burden of proof requires proof by a preponderance of the evidence.”   (Evid.Code, § 115.)   The People contend this is the burden of proof required of it in proving the constitutional validity of the second degree murder conviction contained in the special circumstance allegation.   (Pen.Code, § 190.2, subd. (a)(2).)   But this contention does not confront the rule that in criminal cases the burden of proof as to the elements of the crime charged is proof beyond a reasonable doubt.  (People v. Tewksbury (1976) 15 Cal.3d 953, 963, 127 Cal.Rptr. 135, 544 P.2d 1335.)

“ ‘The requirement of proof beyond a reasonable doubt has [a] vital role in our criminal procedure for cogent reasons.   The accused during a criminal prosecution has at stake interests of immense importance, both because of the possibility that he may lose his liberty upon conviction and because of the certainty that he would be stigmatized by the conviction ․

“ ‘Moreover, use of the reasonable-doubt standard is indispensable to command the respect and confidence of the community in applications of the criminal law.   It is critical that the moral force of the criminal law not be diluted by a standard of proof that leaves people in doubt whether innocent men are being condemned.’  [Citation.]”  (Mullaney v. Wilbur (1975) 421 U.S. 684, 699–700, 95 S.Ct. 1881, 1889–1890, 44 L.Ed.2d 508.)

 Special circumstances are in a unique category, they are neither a crime, an enhancement, nor a sentencing factor.  (People v. Garcia (1984) 36 Cal.3d 539, 552, 205 Cal.Rptr. 265, 684 P.2d 826.)   There is, however, a strong resemblance between a special circumstance proceeding and a trial to determine guilt.  (Ibid.)

“In the California scheme the special circumstance is not just an aggravating factor:  it is a fact or set of facts, found beyond reasonable doubt by a unanimous verdict (Pen.Code, § 190.4), which changes the crime from one punishable by imprisonment of 25 years to life to one which must be punished either by death or life imprisonment without possibility of parole.   The fact or set of facts to be found in regard to the special circumstance is no less crucial to the potential for deprivation of liberty on the part of the accused than are the elements of the underlying crime which, when found by a jury, define the crime rather than a lesser included offense or component.”  (People v. Superior Court (Engert) (1982) 31 Cal.3d 797, 803, 183 Cal.Rptr. 800, 647 P.2d 76 fn. omitted.)

“In view of the importance of a special circumstance finding, we do not believe the courts can extend a defendant less protection with regard to the elements of a special circumstance than for the elements of a criminal charge.”  (People v. Garcia, supra, 36 Cal.3d 539, 552, 205 Cal.Rptr. 265, 684 P.2d 826.)

If, as real party in interest argued at oral argument, the People need only prove the fact of defendant's prior conviction in order to sustain a true finding for the special circumstance, then the burden of proof as to the validity may be less than proof beyond a reasonable doubt.   If, as petitioner contends, the fact and the constitutional validity of the conviction must be proved by the prosecution in order to sustain a true finding for the special circumstance, then the burden of proof is upon the People and is proof beyond a reasonable doubt.

 Exhaustive research has failed to produce a case that squarely determines this issue.   We do find support for petitioner's argument in federal cases and in certain language contained in California Supreme Court and appellate court cases.   Although these authorities are not binding on this court, we find their reason and logic to be persuasive that proof of a prior conviction entails proof of a constitutionally valid prior conviction.

To permit the use of a constitutionally invalid conviction to be used to support guilt or enhance punishment is to erode the principles of the constitutional rights which are to be protected.   The accused in effect suffers anew from the deprivation of those rights.  (Burgett v. Texas (1967) 389 U.S. 109, 114–115, 88 S.Ct. 258, 261–262, 19 L.Ed.2d 319.)

We first reject real party in interest's argument that the question of the validity of the conviction is a preliminary fact question similar to questions such as the voluntariness of a confession or the validity of a search and seizure.

“Both Gideon [v. Wainwright (1963) 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799] and Boykin are concerned with the validity of convictions and with the integrity of the process by which convictions are obtained.   They do not involve merely evidentiary rules, even of constitutional proportions [citation] that bar use of otherwise probative evidence.”  (United States v. Megura (D.Conn.1975) 394 F.Supp. 246, 249.)

Several federal courts have stated the view that constitutional validity is an essential element of the People's case.  “In a prosecution brought pursuant to a recidivist statute, the existence of a constitutionally valid prior conviction is an essential jurisdictional element of the offense which the government must prove beyond a reasonable doubt.”  (U.S. v. Gaylor (4th Cir.1987) 828 F.2d 253, 255.)  “Again, the existence of a valid prior conviction is an essential element in the crime and has to be proved by the prosecution just like any other essential fact of the case.”   (Brown v. United States (4th Cir.1973) 483 F.2d 116, 121–122.)  “[T]he validity of the Oklahoma conviction is a prerequisite to the federal conviction.”  (United States v. DuShane (2d Cir.1970) 435 F.2d 187, 190.)   The West Virginia habitual offender statute provides for a life term if the defendant has “been twice before convicted.”  (W.Va.Code, § 61–11–18, formerly § 6131.)  “Manifestly, the West Virginia habitual offender statute ․ contemplates constitutionally valid underlying convictions.”  (Williams v. Coiner (4th Cir.1968) 392 F.2d 210, 212.)   See also United States v. Lufman (7th Cir.1972) 457 F.2d 165, which states that once the defendant raises the question of invalidity, the government has the “heavy burden of proving absence of constitutional defect or waiver of rights.”   The “government must affirmatively prove otherwise.”  (Id. at p. 166–167, fn. 2, emphasis added.)

An analysis of federal cases involving felony convictions for ex-felons who possess firearms provides insight into the question, highlighting the critical distinction of when only the “fact” of the prior conviction need be proved versus proof of a valid prior conviction.   In Lewis v. United States (1980) 445 U.S. 55, 100 S.Ct. 915, 63 L.Ed.2d 198 the defendant was charged with having received and possessed a firearm and having suffered a prior felony conviction.   The defendant sought to challenge his prior conviction on the basis that he was denied counsel during that prior proceeding.   The United States Supreme Court would not allow such an attack.   That court distinguished this particular crime from other enhancements and crimes involving prior convictions.   The focus in firearm statutes is on the fact of the conviction and not its reliability.   In these cases the prior did not support guilt or enhance punishment and was essentially a civil disability enforced through criminal sanctions.  (Id. at p. 67, 100 S.Ct. at p. 922.)   This disability is similar to other deprivations one maintains by virtue of felony status, i.e., practicing medicine and disenfranchisement.   (See also United States v. Graves (3d Cir.1977) 554 F.2d 65.)

Without agreeing or disagreeing with the holdings in regard to firearm prosecutions (see In re Rogers (1980) 28 Cal.3d 429, 438, fn. 7, 169 Cal.Rptr. 222, 619 P.2d 415), we find the above cases helpful to our analysis of the appropriate burden of proof here.   The prior conviction special circumstance before us is clearly not similar to a firearm disability enforced through criminal sanctions.   The prior conviction here is being used to enhance punishment in the most extreme way possible.   Thus, more than just the “fact” of the conviction must be proved by the People.

We turn now to California authority.   In People v. Lo Cicero (1969) 71 Cal.2d 1186, 80 Cal.Rptr. 913, 459 P.2d 241 the California Supreme Court determined that when a prior conviction affects a defendant's eligibility for probation the prior must be charged and proved according to the relevant provisions of the Penal Code.   The court analyzed these provisions as follows:

“The California Penal Code establishes a detailed procedure for the charging, trying, and finding of previous felony convictions.  (See Pen.Code, §§ 969, 969a, 969b, 969 1/2, 1025, 1093, 1158.)   This procedure affords an accused advance notice that his prior conviction is in issue (§§ 969, 969a) and gives him an opportunity to contest the fact and validity of the prior conviction to a jury (§ 1025) which will be instructed that the prosecution must prove the former conviction beyond a reasonable doubt.  (2 Witkin, Cal.Crimes (1963) § 1020;  see People v. Morton (1953) 41 Cal.2d 536, 539 [261 P.2d 523] ․;  In re Tartar (1959) 52 Cal.2d 250, 257 [339 P.2d 553]․)  The jury must return a special verdict on the issue.  (§ 1158.)

“The statutes provide to the accused a safeguard of value, especially in the light of recent decisions opening opportunities for an accused to attack the validity of the prior convictions.”  (Id. at p. 1192, 80 Cal.Rptr. 913, 459 P.2d 241 emphasis added.)

In People v. Bracamonte (1981) 119 Cal.App.3d 644, 174 Cal.Rptr. 191, the appellate court was called upon to determine whether a defendant should be given a bifurcated trial on the issue of guilt and determination of a prior conviction enhancement.   The court found bifurcation to be consistent with legislation for the charging, trying, and finding of previous felony convictions.   In this context the court quoted from Lo Cicero that Penal Code section 1025 gives the defendant the opportunity to contest the fact and validity of the prior.  (Id. at p. 652, 174 Cal.Rptr. 191.)   The court went on to state that “[b]oth the right to a jury trial of the validity of the prior convictions [citations] and the right to a fair trial [citation] are guaranteed by the California Constitution.”  (Id. at p. 653, 174 Cal.Rptr. 191);  see also People v. Wojahn (1984) 150 Cal.App.3d 1024, 1032, 198 Cal.Rptr. 277, where the court quoted the Lo Cicero language in determining whether a defendant in a bifurcated proceeding is entitled to trial by the same jury for both portions of the trial.  (Id. at p. 1032, 198 Cal.Rptr. 277.)

 We find all of the above persuasive authority for holding that the validity of the prior murder conviction alleged as a special circumstance must be proved by the People beyond a reasonable doubt.   The prosecution's introduction of certified copies of the abstract of judgment is proof of the facial validity of the conviction and, absent a sufficient challenge to the validity of the judgment, meets the burden.   At this point the prosecution need not present any additional evidence of validity.   But, once the validity has properly been put in issue, the People have the right to rebuttal pursuant to Coffey and Sumstine.   The prior is presumed to be valid until controverted by the defendant.

Even if we were to conclude that constitutional validity is not an “element” of the special circumstance, we would still find, for policy reasons and notions of fundamental fairness, that the People must controvert defendant's allegation of invalidity by proof beyond a reasonable doubt.

“Justice Bernard S. Jefferson notes that the Legislature and the courts are both empowered under Evidence Code section 500 to assign the burden of proof contrary to that required by the general rule and that purely policy considerations and fairness may dictate the assignment.  (Jefferson, Cal. Evidence Benchbook (1972) § 45.2, pp. 781, 783.)”  (Worsley v. Municipal Court, supra, 122 Cal.App.3d 409, 420, 176 Cal.Rptr. 324.)

As recognized in Page v. Superior Court (1979) 90 Cal.App.3d 959, 153 Cal.Rptr. 730 there is a “stark distinction between the totality of the death penalty and the mere ‘additional punishment’ which may result from proof of conventional ‘enhancement’ allegations made in an accusatory pleading charging a crime other than murder.  [Citation.]  ․ [T]he unique practical consequences of allegations of special circumstances are so substantial that the People, as well as the accused, have a vital interest in the assurance that they are made on firm and considered evidence.”  (Id. at p. 971, 153 Cal.Rptr. 730.)   This distinction is further demonstrated by the Legislature's elaborate scheme dealing only with death penalty cases (Ghent v. Superior Court (1979) 90 Cal.App.3d 944, 953–954, fn. 10, 153 Cal.Rptr. 720), and the California Supreme Court's recognition that for all practical purposes special circumstances must be treated as criminal offenses.

We cannot agree that the People, having proved “the fact” of the prior murder conviction beyond a reasonable doubt, are obligated to impose the ultimate penalty when there remains a reasonable doubt that the conviction upon which that penalty is based is constitutionally invalid.   The People have chosen to reallege that prior conviction in seeking to impose the most severe penalty;  they should be required to prove its reliability by proving it to be a constitutionally valid conviction beyond a reasonable doubt.¹

 Having determined that the constitutional validity of the prior murder conviction must be proved beyond a reasonable doubt does not end our inquiry in this case, for we find that the utilization of a Coffey/Sumstine motion here deprived the People of their right to a jury trial on the truth of the special circumstance allegation.   Unlike any other crime or enhancement, the Legislature has determined that for special circumstance cases the trier of fact shall be a jury “unless a jury is waived by the defendant and by the People.”  (Pen.Code, § 190.4, emphasis added.)

 Since the utilization of a pretrial Coffey–Sumstine motion could render meaningless the People's jury trial guarantee in Penal Code section 190.4, “this court should not accept such an interpretation in the absence of clear legislative direction.”  (People v. Memro (1985) 38 Cal.3d 658, 702, 214 Cal.Rptr. 832, 700 P.2d 446.)   The interests of efficient judicial administration found to favor disposal of attacks on the validity of prior convictions at the earliest possible convenience (as stated in Coffey 67 Cal.2d at p. 215, 60 Cal.Rptr. 457, 430 P.2d 15) are not sufficient to overcome the clear legislative mandate of a jury trial for the People and the defendant.   A pretrial Coffey/Sumstine motion could be utilized by the defendant to circumvent this important right given to the People.   The same considerations do not foreclose a pretrial determination of this question if both the defendant and the People agree to waive a jury trial and submit the determination of this particular special circumstance to the court.   In that event, it would be in the interests of judicial economy to litigate the matter prior to trial of the new murder charge.   A determination in the defendant's favor, in the absence of other special circumstances, would avoid the loss of time and money involved in “death qualifying” a jury.

In finding that a Coffey/Sumstine motion deprives the People of the right to a jury trial on the issue of constitutional validity of a prior conviction alleged as a special circumstance, we must necessarily find that this is a jury question.

In People v. Curtis (1969) 70 Cal.2d 347, 74 Cal.Rptr. 713, 450 P.2d 33, the defendant asserted that he was denied a fair trial in regard to his two prior convictions.   The question of defendant's guilt of the new offense and of the priors was tried to the jury in an unbifurcated proceeding.   The California Supreme Court found merit to defendant's contention.

“In Jackson v. Denno (1964) 378 U.S. 368 [84 S.Ct. 1774, 12 L.Ed.2d 908] ․, the Supreme Court declared unconstitutional a New York practice of submitting to the jury both the evidence of defendant's guilt and that of the voluntariness of his confession, instructing the jury to decide both issues and to ignore the confession if it found it to be involuntary.   Obviously a jury could not reasonably be expected to disregard totally a confession it found to be factually true but legally inadequate due to a procedural defect.

“A comparable situation is involved here.   A jury can no more be expected to disregard a ‘true’ prior conviction because of its unconstitutionality than it can be expected to disregard a confession because it was technically invalid.   California policy clearly requires the question of the constitutionality of a prior conviction to be determined by the court and not by the jury.”  (Id. at p. 360, 74 Cal.Rptr. 713, 450 P.2d 33, emphasis added.)

 These “policy” reasons, designed to prevent unfairness to the defendant, are clearly inapplicable to the situation presented here.   The Legislature has mandated a trifurcated proceeding in death penalty cases that allege section 190.2, subdivision (a)(2), as a special circumstance.   The truth of this particular special circumstance is not submitted to the jury until after the jury has found defendant guilty of first degree murder in the guilt phase.  (Pen.Code, § 190.1, subd. (b).)  Thus, the jury is insulated from learning of the prior murder conviction during the guilt phase of the trial and is not called upon to unfairly disregard the prior conviction in determining guilt of the underlying offense.  (See also Spencer v. Texas (1967) 385 U.S. 554, 565, fn. 8, 87 S.Ct. 648, 654, fn. 8, 17 L.Ed.2d 606.)

Also, as previously discussed the validity of the prior conviction does not involve a mere question of admissibility of the evidence, an area traditionally left for determination by the trial court.   That this determination involves factual questions is clear.  “[T]he matter of waiver of constitutional rights is to be determined on the facts of each particular case.”  (In re Woods (1966) 64 Cal.2d 3, 9, 48 Cal.Rptr. 689, 409 P.2d 913;  see also In re Luce (1966) 64 Cal.2d 11, 14, 48 Cal.Rptr. 694, 409 P.2d 918, and In re Tucker (1966) 64 Cal.2d 15, 19–21, 48 Cal.Rptr. 697, 409 P.2d 921.)   As stated in People v. Chandler (1986) 186 Cal.App.3d 200, 230 Cal.Rptr. 492, after the People presented documentary evidence of the prior conviction “[a]ppellant was free to attack the validity of the documentary evidence, to subpoena and call witnesses in his defense or to take the witness stand in his own behalf.”   (Id. at p. 204, 230 Cal.Rptr. 492.)   The defendant through this procedure raises factual issues which must be resolved by the jury under appropriate instructions from the trial court in order to determine constitutional validity.

 We therefore conclude that a Coffey/Sumstine motion cannot be utilized absent a jury waiver by both parties to determine the question of the constitutional validity of the prior conviction.   But petitioner is not left without any remedy.   He may challenge his prior murder special circumstance by a Penal Code section 995 motion (Ghent v. Superior Court, supra, 90 Cal.App.3d 944, 153 Cal.Rptr. 720) requiring the People to prove reasonable cause for the allegation of the special circumstance.  “[T]he People, as well as the accused, have an overriding interest in the assurance that these [special circumstance] allegations are founded on perceptible evidence showing reasonable cause to make them and to assume their portentous consequences in a prosecution for murder.”  (Id. at p. 954, 153 Cal.Rptr. 720.)

We now turn to the final question facing us in this case.   Can the People rely on custom-and-habit evidence in proving the validity of the prior conviction?   In Youkhanna v. Municipal Court (1978) 86 Cal.App.3d 612, 150 Cal.Rptr. 380, this court held that such evidence “would not suffice to rebut the presumption of invalidity.”  (Id. at p. 616, 150 Cal.Rptr. 380.)   This statement flowed from the now overruled holding that motions to strike are sufficient although they alleged only the silence of the record.   (People v. Sumstine, supra, 36 Cal.3d 909, 923, 206 Cal.Rptr. 707, 687 P.2d 904.)

 In finding custom-and-habit evidence admissible, we cannot disregard the disturbing prospect that the courts may find it difficult to determine the validity of a prior conviction in these situations.  “Records may be stale, incomplete, or missing, and it may hence be difficult accurately to reconstruct events at prosecutions long ago and far away.”  (In re Woods, supra, 64 Cal.2d 3, 6, 48 Cal.Rptr. 689, 409 P.2d 913.)

Evidence Code section 1105 provides:  “Any otherwise admissible evidence of habit or custom is admissible to prove conduct on a specified occasion in conformity with the habit or custom.”

In In re Woods, supra, 64 Cal.2d 3, 48 Cal.Rptr. 689, 409 P.2d 913 the court approved evidence demonstrating “prevailing practice of a particular state” in determining in a habeas corpus action whether the petitioner's prior conviction was constitutionally invalid because he was not represented by counsel.   In the similar case of In re Luce, supra, 64 Cal.2d 11, 48 Cal.Rptr. 694, 409 P.2d 918, the judge who presided over the defendant's case, which was subsequently used as a prior conviction, filed an affidavit detailing his “universal practice.”   He had no independent recollection of the proceedings.   His affidavit was found to be persuasive evidence that petitioner had been informed of his right to counsel.  (Id. at pp. 13–14, 48 Cal.Rptr. 694, 409 P.2d 918.)   In In re Tucker, supra, 64 Cal.2d 15, 48 Cal.Rptr. 697, 409 P.2d 921, another habeas corpus petition, the trial judge was deceased but the affidavit of his clerk concerning the settled practice and custom of this judge was found to be “persuasive evidence that petitioner was advised of his right to the services of court-appointed counsel prior to the entry of his guilty plea.”  (Id. at p. 18, 48 Cal.Rptr. 697, 409 P.2d 921.)   We find no convincing reason to disallow custom-and-habit evidence to disprove a defendant's assertions that his prior conviction was obtained in violation of his constitutional rights.   This evidence is particularly necessary and compelling in light of the difficulty posed by reconstructing events that occurred long ago.

The People are required to prove the constitutional validity of the prior murder conviction used as a special circumstance beyond a reasonable doubt.   Constitutional validity cannot be determined pretrial by the court unless the defendant and the People waive a jury trial on the issue.   The procedure utilized here was therefore invalid as it flies in the face of a clear legislative directive.   The People may offer evidence of custom and habit to prove the constitutional validity of the prior second degree murder conviction.   We deem the motion made below to be the equivalent of a Penal Code section 995 motion.   Because the court utilized a standard much higher than “reasonable cause” to bind the defendant over for trial on the special circumstance, a new hearing on this issue is unnecessary.

The petition is denied and the stay is lifted.

I concur in light of People v. Lo Cicero (1969) 71 Cal.2d 1186, 80 Cal.Rptr. 913, 459 P.2d 241, which, as the lead opinion points out, provides that a defendant is entitled to a jury determination of both the fact and the validity of a prior conviction and requires the prosecution to prove the prior conviction beyond a reasonable doubt.   Although it may be argued the purpose of proving a prior conviction in Lo Cicero was different from the purpose in the case before us, any distinction is irrelevant.   A finding of a valid prior conviction in Lo Cicero rendered the defendant ineligible for probation;  a finding of a prior murder conviction of petitioner would render him ineligible for any sentence other than the death penalty or life in prison without possibility of parole.   In either case, proof of a prior conviction would mandate a more severe sentence than the defendant might otherwise receive.

However, I am troubled by the requirement that a trial court instruct a jury on the complex issues that arise in determining the validity of a prior conviction.   Although murder prosecutions with an allegation of a special circumstance of a prior murder conviction are rare, when they do arise the trial court needs guidance on such questions as who decides the validity of the prior conviction and by what standard.   The precise language of People v. Lo Cicero, supra, 71 Cal.2d at page 1192, 80 Cal.Rptr. 913, 459 P.2d 241, may have been ill-advised and may create an unintended result.   Nevertheless, it is my opinion that a repudiation of such language should come from the Supreme Court.   I would urge that court to review the issue because of the considerable time and resources necessary for the trial of a capital case.

I concur with the denial of the petition and lifting of the stay but disagree with the path traveled in the majority opinion to reach those results.

The elements of the special circumstance alleged here must be proved to the trier of fact beyond a reasonable doubt.  (Pen.Code, § 190.4, subd. (a).)  However, I disagree with the majority opinion's conclusions that:  (1) the constitutional validity of the prior murder conviction is an element of the Penal Code section 190.2, subdivision (a)(2) special circumstance;  (2) the constitutional validity of the prior murder conviction must be determined by the jury, unless waived by the prosecution and defense;  and (3) the prosecution's burden of proving constitutional validity of the prior murder conviction is proof beyond a reasonable doubt.   I fail to ascertain legislative intent consistent with these conclusions.

A review of our murder and special circumstance statutes leads me to conclude that the Legislature did not intend to make the constitutional validity of a prior murder conviction a separate element of the Penal Code section 190.2, subdivision (a)(2) special circumstance.  Penal Code section 190.4, subdivision (a) requires a finding that the defendant is guilty of first degree murder before the trier of fact reaches the issue of the special circumstance.   The special circumstances are enumerated in section 190.2.   The special circumstance alleged here is that the “defendant was previously convicted of murder in the first degree or second degree.”  (Pen.Code, § 190.2, subd. (a)(2).)  Penal Code section 190.4, subdivision (a) requires the trier of fact to then make “a special finding on the truth of [the] alleged special circumstance.”  (Emphasis added.)   A reasonable interpretation of these statutes is that the special circumstance is satisfied when the trier of fact concludes beyond a reasonable doubt that the defendant, in fact, was previously convicted of murder.   To add constitutional validity of the prior murder conviction as an additional element of the special circumstance goes beyond a reasonable construction of the legislation.

Although constitutional validity of the prior murder conviction is not an element of the special circumstance, the court must adjudicate that issue, if raised, pursuant to the procedure set forth in People v. Coffey (1967) 67 Cal.2d 204, 60 Cal.Rptr. 457, 430 P.2d 15 and People v. Sumstine (1984) 36 Cal.3d 909, 206 Cal.Rptr. 707, 687 P.2d 904.  “A jury can no more be expected to disregard a ‘true’ prior conviction because of its unconstitutionality than it can be expected to disregard a confession because it was technically invalid.   California policy clearly requires the question of the constitutionality of a prior conviction to be determined by the court and not by the jury.”  (People v. Curtis (1969) 70 Cal.2d 347, 360, 74 Cal.Rptr. 713, 450 P.2d 33;  see also Jackson v. Denno (1964) 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908.)   The Legislature's passage of Penal Code section 190.1, subdivision (b) reflects its sensitivity to this policy and the reasons underlying it.   It provides,

“(b) If the defendant is found guilty of first degree murder and one of the special circumstances is charged pursuant to paragraph (2) of subdivision (a) of Section 190.2 which charges that the defendant had been convicted in a prior proceeding of the offense of murder of the first or second degree, there shall thereupon be further proceedings on the question of the truth of such special circumstance.”

The majority opinion maintains the separate guilt and special circumstance proceedings cure the problem.   I disagree.   It would be extremely difficult for a jury to dispassionately adjudicate the constitutional validity of a defendant's prior murder conviction after having found him guilty of first degree murder and being made aware of the fact of the prior murder conviction.   The reasons for the rule expressed in People v. Curtis, supra, 70 Cal.2d 347, 74 Cal.Rptr. 713, 450 P.2d 33 and Jackson v. Denno, supra, 378 U.S. 368, 84 S.Ct. 1774 are present here.

The Vehicle Code also reflects legislative intent of state policy requiring the court, not the jury, to determine the issue of constitutional validity of a prior conviction.  (Veh.Code, § 41403, subd. (b)(1).)   This is in accord with the procedures for determining the constitutional validity of prior convictions where the alleged error is in violation of the Boykin–Tahl rule.  (People v. Sumstine, supra, 36 Cal.3d 909, 923–924, 206 Cal.Rptr. 707, 687 P.2d 904;  People v. Coffey, supra, 67 Cal.2d 204, 217–218, 60 Cal.Rptr. 457, 430 P.2d 15;  People v. Nugent (1971) 18 Cal.App.3d 911, 915, 96 Cal.Rptr. 209.)   Analogy to Boykin–Tahl error is especially appropriate because such error affects the validity of plea bargains, the very problem we face here.   The determination of the validity of a defect in a plea bargain involves evaluation of constitutional errors which judges must decide.  (Ibid.)

Furthermore, Penal Code section 1025 states in relevant part that if a criminal defendant denies having suffered a previous conviction, “the question whether or not he has suffered such previous conviction must be tried by the jury which tries the issue upon a plea of not guilty․”  The clear meaning of this statute is that the fact of conviction is a question for the jury to decide.   If the Legislature intended the jury to adjudicate constitutional validity, it could have done so expressly.

The majority opinion relies on People v. Lo Cicero (1969) 71 Cal.2d 1186, 1192, 80 Cal.Rptr. 913, 459 P.2d 241 for the proposition that both “the fact and validity” of a prior conviction are jury issues to be resolved beyond a reasonable doubt.   The validity of the prior conviction was not at issue in Lo Cicero.   Inclusion of the word “validity” in the Lo Cicero decision was not necessary to the outcome of that case and is therefore dictum.   (Hollister Convalescent Hosp., Inc. v. Rico (1975) 15 Cal.3d 660, 668, 674, 125 Cal.Rptr. 757, 542 P.2d 1349.)

The remaining issue is the standard of proof to establish the validity of the prior murder conviction.   Appellant argues that since Vehicle Code section 41403, subdivision (b)(1) requires the prosecution to prove the constitutional validity of a prior drunk driving conviction beyond a reasonable doubt, the same standard of proof should apply in capital cases.   This argument ignores the express language of that section directing the trial court, outside the jury's presence, to determine the constitutional validity “beyond a reasonable doubt.”   If the Legislature had intended to impose this standard of proof for the constitutional validity of the prior murder conviction in a special circumstance case, it could have expressly done so.

In determining the applicable burden of proof for attacking the constitutional validity of a prior conviction resulting from a guilty plea, it is interesting to note that a defendant who seeks to withdraw a guilty plea pursuant to Penal Code section 1018 has the burden to prove mistake, inadvertence, ignorance, or other factors overcoming the exercise of free judgment by clear and convincing evidence.  (People v. Cruz (1974) 12 Cal.3d 562, 566, 116 Cal.Rptr. 242, 526 P.2d 250;  In re Dennis M. (1969) 70 Cal.2d 444, 457, fn. 10, 75 Cal.Rptr. 1, 450 P.2d 296;  People v. Knight (1987) 194 Cal.App.3d 337, 344, 239 Cal.Rptr. 413;  People v. Hunt (1985) 174 Cal.App.3d 95, 102–103, 219 Cal.Rptr. 731;  People v. Barteau (1970) 10 Cal.App.3d 483, 486, 89 Cal.Rptr. 139.)  “Grant or denial of a motion lies within the trial court's sound discretion after consideration of all factors necessary to effectuate a just result;  a reviewing court will not disturb its decision unless abuse is clearly demonstrated.  [Citation.]  Guilty pleas resulting from a bargain should not be set aside lightly and finality of proceedings should be encouraged.  [Citations.]”  (People v. Hunt, supra, 174 Cal.App.3d 95, 103, 219 Cal.Rptr. 731.)

While the Legislature has provided that the prosecution's burden of proving the fact of the defendant's prior murder conviction is beyond a reasonable doubt (Pen.Code, § 190.4, subd. (a)), it has not specifically established a standard of proof for its constitutional validity.   In the absence of such express language, Evidence Code section 115 should control.   It provides in relevant part,

“Except as otherwise provided by law, the burden of proof requires proof by a preponderance of the evidence.”

I conclude that the prosecution's burden of proof in establishing the constitutional validity of the defendant's prior murder conviction is proof by a preponderance of the evidence.  (Evid.Code § 115.)   Since the court applied a higher standard of proof than required, I concur in the majority opinion's denial of the petition and lifting of the stay.

FOOTNOTES

1.   Because we are not called upon to determine this question in regard to prior conviction enhancements, we limit our holding to only the special circumstance listed in Penal Code section 190.2, subdivision (a)(2).

HAMLIN, Acting Presiding Justice.

STONE (Wm. A.) and BAXTER, JJ., concur.