PEOPLE v. SUMSTINE (1983)

James Sumstine, appellant herein, appeals from a judgment of the trial court sentencing him to ten years in state prison, of which three years were an enhancement due to a prior felony conviction.

The question presented is whether the appellant may challenge a prior felony conviction, in which he was represented by counsel at time of the plea, by collateral attack on grounds that said conviction was constitutionally infirm under Boykin v. Alabama (1969) 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 and In re Tahl (1969) 1 Cal.3d 122, 81 Cal.Rptr. 577, 460 P.2d 449.   We conclude that he is not so precluded.

FACTS

Appellant was charged with nine counts of committing a lewd and lascivious act upon a child under the age of fourteen (Pen.Code, § 288, subd. (a)) and with having sustained a prior felony conviction in Michigan for a similar offense in 1974.  (Pen.Code, § 667.5(a).)   Pursuant to a negotiated disposition, appellant withdrew his initial plea of not guilty to enter a guilty plea to three counts of violation of Penal Code section 288, subdivision (a).   He agreed that the trial court could read the preliminary hearing transcript to establish a factual basis for the alleged offenses, and admitted the factual basis for the alleged prior conviction, reserving the right to challenge its constitutional validity.

At the sentencing hearing appellant, by written motion, challenged the constitutional validity of the prior conviction, and therefore its use for purposes of sentence enhancement on grounds the record failed to show that appellant was informed of and intelligently waived his rights to jury trial, to confront witnesses and against self-incrimination.  (Boykin v. Alabama, supra, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 and In re Tahl, supra, 1 Cal.3d 122, 81 Cal.Rptr. 577, 460 P.2d 449.)   The trial court denied appellant's motion because People's exhibit number one documenting the prior conviction showed on its fact that appellant was represented by counsel at the time of the plea.   The court found that, although the prior conviction was entered subsequent to Boykin and Tahl and the record failed to show that appellant was advised of his Boykin-Tahl rights, People v. Reeves (1981) 123 Cal.App.3d 65, 176 Cal.Rptr. 182, interpreted People v. Coffey (1967) 67 Cal.2d 204, 60 Cal.Rptr. 457, 430 P.2d 15, to limit collateral attack on a prior conviction to denial of right to counsel.   The court was uncertain whether a defendant could overcome Reeves by showing that, despite the presence of counsel at the time of the plea, he was unaware of his Boykin-Tahl rights, but finally concluded that Reeves precludes such collateral attack, and while indicating that the issue is ripe for appellate review, found the prior conviction to be constitutionally valid.

DISCUSSION

Although appellant has failed to obtain a certificate of probable cause, the trial court by its statement in effect certified the appeal.  (See People v. Padfield (1982) 136 Cal.App.3d 218, 185 Cal.Rptr. 903.)

People v. Reeves, supra, 123 Cal.App.3d 65, 176 Cal.Rptr. 182, upon which authority the trial court felt constrained to deny appellant's motion to strike the prior conviction, acknowledged that there is a split of authority on the issue of whether a motion to strike may be used to collaterally attack a prior conviction on grounds other than denial of the right to counsel.¹  (See discussion in People v. McFarland (1980) 108 Cal.App.3d 211, 218–221, 166 Cal.Rptr. 429.)  Reeves cited People v. Coffey (1967) 67 Cal.2d 204, 60 Cal.Rptr. 457, 430 P.2d 15 as the case in which the California Supreme Court first recognized explicitly such a procedure but concluded that “the court in Coffey apparently limited use of the motion to strike to situations where a defendant clearly alleged that ‘he neither was represented by counsel nor waived the right to be so represented.’ ”  (People v. Reeves, supra, 123 Cal.App.3d at p. 68, 176 Cal.Rptr. 182.)   The Reeves court stated it was guided by the decision in People v. Superior Court (Gaulden) (1977) 66 Cal.App.3d 773, 136 Cal.Rptr. 229, which also took a restrictive view of Coffey to avoid “the difficulty and lengthy delays in prosecution and trial of criminal cases which would result if the role [sic] were extended to matters ‘other than the easily determined fact of representation by, or waiver of, counsel.’  [Citations.]”  (People v. Reeves, supra, 123 Cal.App.3d at p. 69, 176 Cal.Rptr. 182.)

In People v. Coffey (1967) 67 Cal.2d 204, 60 Cal.Rptr. 457, 430 P.2d 15, defendant was charged by information with four counts of assault with intent to commit murder;  four counts of assault with a deadly weapon upon the person of a police officer;  being armed with a concealed weapon;  and with a prior felony conviction in the State of Oklahoma.   Before trial, defendant moved that the prior conviction be stricken based upon denial of counsel in the proceedings leading to that conviction in that he, in propria persona, had entered a plea of guilty and was sentenced to state prison for five years.   In support of his motion, defendant filed a sworn declaration including the minute entry of his arraignment on the 1949 charge and points and authorities stating he “was indigent at the time of his plea,” that he “did not understand his right to counsel,” and that he “did not clearly and expressly and intelligently waive his right to counsel.”   The court denied the motion without hearing “on grounds that under California law, no such motion can be entertained as it is irregular.”  (Id., p. 211, 60 Cal.Rptr. 457, 430 P.2d 15.)   Defendant admitted the prior “reserving the right to pursue whatever remedy is available on the motion heretofore heard by the court with respect to striking the priors (sic).”  (Id., p. 211, 60 Cal.Rptr. 457, 430 P.2d 15.)   The prior conviction was then used, over objection, to impeach defendant during trial.   The Supreme Court held that “to the extent that statutory machinery relating to penal status or severity of sanction is activated by the presence of prior convictions, it is imperative that the constitutional basis of such conviction be examined if challenged by proper allegations.  [Citations.]”  (p. 214, 60 Cal.Rptr. 457, 430 P.2d 15) and further held that “ ‘[t]o the extent that any state makes its penal sanctions depend in part on the fact of prior convictions elsewhere, necessarily it must assume the burden of meeting attacks on the constitutionality of such prior convictions.’  (United States v. Jackson (2d Cir.1957) 250 F.2d 349, 355;  see In re Woods, supra, 64 Cal.2d 3, 5, 48 Cal.Rptr. 689, 409 P.2d 913.)”  (Id., 67 Cal.2d at p. 215, 60 Cal.Rptr. 457, 430 P.2d 15.)

Coffey then discussed the proper procedures to make such attack by quoting from People v. Merriam (1967) 66 Cal.2d 390, 397, 58 Cal.Rptr. 1, 426 P.2d 161, which also dealt with a challenge to a prior conviction on grounds of lack of representation based upon a silent record.  Merriam, quoted by the court in Coffey, required a “clear allegation to the effect that, in the proceedings leading to the prior conviction under attack, he neither was represented by counsel nor waived the right to be so represented. ”  (People v. Coffey (1967) 67 Cal.2d at p. 215, 60 Cal.Rptr. 457, 430 P.2d 15), quoting from People v. Merriam (1967) 66 Cal.2d 390, 397, 58 Cal.Rptr. 1, 426 P.2d 161 (overruled on other grounds in People v. Rincon-Pineda (1975) 14 Cal.3d 864, 882, 123 Cal.Rptr. 119, 538 P.2d 247.)   The Supreme Court in Coffey suggested “for the guidance of courts and counsel who will be called upon to deal with similar matters in the future” that (1) after defendant raises the issue for determination, the prosecutor has the initial burden of producing evidence of the prior conviction sufficient to justify a finding that the defendant experienced such previous conviction;  (2) once the prima facie showing has been made, the burden shifts to defendant to produce evidence that his constitutional right was infringed in the prior proceeding;  (3) if the defendant bears this burden, the prosecutor has the right to produce evidence in rebuttal;  and (4) the court must then find upon the evidence produced and must strike any prior conviction constitutionally invalid.  (People v. Coffey, supra, 67 Cal.2d at p. 217, 60 Cal.Rptr. 457, 430 P.2d 15.)

COLLATERAL ATTACK PROPER

 We disagree with People v. Reeves, as well as the cases cited therein which support its proposition, and believe that People v. Coffey does not restrict collateral attack on a prior conviction to Sixth Amendment grounds.   People v. Coffey was decided two years prior 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.  In re Tahl interpreted Boykin to require that when a trial court accepts a guilty plea “the record must contain on its face direct evidence that the accused was aware, or made aware, of his right to confrontation, to a jury trial, and against self-incrimination, ․”  (1 Cal.3d at p. 132, 81 Cal.Rptr. 577, 460 P.2d 449.)   Boykin established a new constitutional standard, i.e., that a waiver of the three aforementioned important federal rights will not be presumed from a silent record.  (395 U.S. at pp. 243–244, 89 S.Ct. at 1712–1713.)

Whereas it is true that the California Constitution had expressly reserved the right to a jury trial and the right against self-incrimination to a defendant in a criminal case before the Coffey decision (Cal. Const., art. I, §§ 7, 13) and California case law required an express waiver of jury trial by defendant (People v. Holmes (1960) 54 Cal.2d 442, 444, 5 Cal.Rptr. 871, 353 P.2d 583), for Coffey to have included other constitutional rights would have been dicta since the defendant complained only of denial of right to counsel.   Furthermore, the Supreme Court in Coffey addressed the procedural propriety of a pretrial motion to strike a prior conviction.   The merits of defendant Coffey's constitutional claim were to be decided on remand.

Respondent argues that the right to assistance of counsel is so significant as to compel the result that collateral attack is limited to Sixth Amendment grounds.   This assertion is refuted by Boykin-Tahl and their progeny.   The defendants in both Boykin v. Alabama and In re Tahl were represented by counsel, and in no subsequent case does presence of counsel obviate the necessity of giving Boykin-Tahl admonishments and obtaining the proper waivers.

NO UNDUE TIME CONSUMPTION

The argument made in People v. Vienne (1973) 30 Cal.App.3d 266, 105 Cal.Rptr. 584 and followed in People v. Superior Court (Gaulden) (1977) 66 Cal.App.3d 773, 136 Cal.Rptr. 229;  People v. Lewis (1977) 74 Cal.App.3d 633, 141 Cal.Rptr. 614, and People v. Malloy (1974) 41 Cal.App.3d 944, 116 Cal.Rptr. 592, that exploration of matters other than representation by or waiver of counsel would raise prohibitive numbers of issues and unduly consume trial time is not persuasive.  People v. Vienne and People v. Gaulden held that the trial court had no jurisdiction to hear a pretrial motion to strike a prior conviction based on the ground of ineffective assistance of counsel.   Yet two years after Coffey, the Supreme Court specifically authorized on retrial the procedure outline in Coffey to examine adequacy of counsel in out-of-state prior convictions (People v. Curtis (1969) 70 Cal.2d 347, 359–361, 74 Cal.Rptr. 713, 450 P.2d 33;  People v. Coleman (1969) 71 Cal.2d 1159, 1169, 80 Cal.Rptr. 920, 459 P.2d 248), a task more burdensome than ascertaining from the face of records whether a defendant was properly advised of and expressly waived his Boykin-Tahl rights.

The same court which decided Vienne and Gaulden subsequently approved a Coffey motion to raise the issue of validity of prior conviction on Boykin-Tahl grounds.  (Gonzalez v. Municipal Court (1973) 32 Cal.App.3d 706, 108 Cal.Rptr. 612.)   Furthermore, Vehicle Code section 23208 which codified the Coffey procedure to attack a prior conviction of violation of Vehicle Code section 23152 or 23153 on constitutional grounds does not limit said challenges to Sixth Amendment rights.   There is no persuasive reason why a defendant facing the less onerous consequences of a prior misdemeanor conviction should be afforded more constitutional protection than a defendant confronted with substantially greater penalty.

LACK OF DUE DILIGENCE NOT A BAR TO COLLATERAL ATTACK

 Appellant has not waived the issue of constitutional validity on Boykin-Tahl grounds by not raising it diligently on direct appeal, habeas corpus or coram nobis.   Respondent's argument, that allowing such collateral attack encourages defendants to delay challenge in hope that his records will be destroyed, strains credulity.   A defendant sentenced to prison will not accept his sentence passively and remain incarcerated if he knew that constitutional grounds exist which could vacate his conviction and set him free.

In re Woods (1966) 64 Cal.2d 3, 48 Cal.Rptr. 689, 409 P.2d 913, rejected the argument that petitioner, who was challenging a 1932 Nebraska conviction and a 1946 Utah conviction on Sixth Amendment grounds to prevent their use in adjudicating him a habitual criminal, should be compelled to seek relief from the state courts which convicted him.  Woods further held that courts should indulge every reasonable presumption against waiver of fundamental rights and not presume waiver from a silent record.  “Thus it was Woods which made a ‘clear break with the past’ and which effected the crucial change in the law.   [Citations.]  Coffey ‘merely confirmed the demise of obsolete decisions' regarding the use of unconstitutionally obtained prior convictions for any purposes in criminal proceedings.  [Citations.]”  (In re Dabney (1969) 71 Cal.2d 1, 11, 76 Cal.Rptr. 636, 452 P.2d 924.)

We believe respondent, as well as the courts precluding collateral attack on grounds of lack of due diligence or waiver (People v. Gage (1981) 126 Cal.App.3d 918, 179 Cal.Rptr. 171;  People v. Davis (1980) 103 Cal.App.3d 270, 163 Cal.Rptr. 22;  People v. Lewis (1977) 74 Cal.App.3d 633, 141 Cal.Rptr. 614), misconceive the distinction between the effects of a direct attack and its necessity of timeliness and a collateral attack on a judgment.   A writ of coram nobis and writ of habeas corpus operate to vacate the underlying judgment of conviction as does a direct appeal;  the judgment ceases to exist for all purposes.   Since the prosecution can attempt to retry on the underlying charges, due diligence and timeliness in these procedures affects the prosecution's ability to reinstate the conviction and the law therefore has an interest in finality of judgments and expeditiousness.  (See, Gonzalez v. Municipal Court (1973) 32 Cal.App.3d 706, 108 Cal.Rptr. 612;  Gonzales v. State of California (1977) 68 Cal.App.3d 621, 137 Cal.Rptr. 681.)

 On the other hand, a collateral attack on a judgment by means of a motion to strike is an effort to avoid the effect of the prior judgment as an enhancement to a present charge in another proceeding but does not disturb the underlying conviction.   In a collateral attack the invalidity of the former judgment or order must appear on its face or the judgment is presumed correct.  (Gonzales v. State of California, supra, 68 Cal.App.3d 621, 137 Cal.Rptr. 681.)   Therefore, whereas timeliness and due diligence are important factors in a direct attack upon a judgment, they are not relevant when the purpose is only to prevent use as an enhancement of punishment in a subsequent offense and not to vacate the judgment.  “The case law in California is clear that an individual may challenge the constitutional validity of a prior conviction whenever it is used as a basis for augmenting punishment.   [Citations.]”  (In re Rogers (1980) 28 Cal.3d 429, 433, 169 Cal.Rptr. 222, 619 P.2d 415.)   Therefore, lack of due diligence has no merit as a defense to a collateral attack on a judgment of a prior conviction.   Nor should a defendant be required to initiate proceedings to vacate the judgment before he asserts its invalidity on Boykin-Tahl grounds as a bar to enhancement of punishment.  (See In re Rogers (1980) 28 Cal.3d 429, 437, 169 Cal.Rptr. 222, 619 P.2d 415, including fn. 6.)

EVIDENTIARY STANDARD

 Respondent alleges that even if the Coffey procedure were applicable to a Boykin-Tahl challenge, appellant's claim did not meet the evidentiary standard required.   The basis for said argument is that appellant, instead of expressly claiming that he was deprived of his Boykin-Tahl rights at the time of his prior plea, asserted that the record of conviction introduced by the prosecution failed to show the proper Boykin-Tahl advisements and waivers.   We find respondent's argument without merit.

Whereas, prior to Boykin-Tahl the law in California held that if an accused person was represented by counsel at the time of a guilty plea it was presumed that counsel informed him of his constitutional rights in absence of evidence to the contrary, the burden on defendant to make a “clear allegation” that his constitutional rights were infringed and to produce evidence thereof was removed by Boykin v. Alabama and In re Tahl.  (See, In re Tahl (1969) 1 Cal.3d 122, 127–129, 81 Cal.Rptr. 577, 460 P.2d 449.)

“In the case of In re Tahl, supra, 1 Cal.3d 122, 81 Cal.Rptr. 577, 460 P.2d 449, we construed Boykin to require more than an inferential showing from the record that an accused waived his constitutional rights to confront accusers, to trial by jury, and against compulsory self-incrimination.   We held that the court itself must ‘specifically and expressly’ enumerate each of his rights, ‘employ the time necessary to explain adequately and to obtain express waiver of the rights involved’ prior to acceptance of a guilty plea, and ensure that an adequate record be available for possible review.   [Citations.]”  (In re Yurko (1974) 10 Cal.3d 857, 861, 112 Cal.Rptr. 513, 519 P.2d 561.   Emphasis added.)

Salazar v. Municipal Court (1975) 44 Cal.App.3d 1024, 119 Cal.Rptr. 98, cited by respondent for the proposition that appellant made insufficient allegations of constitutional deficiency of the prior conviction, held that the silent record was insufficient only because the prior conviction in Salazar was subject to law in existence “before Boykin-Tahl-Mills mandated that the record itself must affirmatively indicate a guilty plea was voluntarily and intelligently entered․”  (44 Cal.App.3d at 1026, 119 Cal.Rptr. 98.)

All that is necessary is that defendant give sufficient notice that he is challenging the alleged prior conviction on Boykin-Tahl grounds to enable the prosecution to obtain the necessary records.   Once the appellant herein challenged the prior convictions by motion to strike on Boykin-Tahl grounds, the burden was on the prosecution to establish the facial sufficiency of the record as to the constitutional validity, i.e., that the record contained “on its face direct evidence that the accused was aware, or made aware, of his right to confrontation, to a jury trial, and against self-incrimination․”  (In re Tahl, supra, 1 Cal.3d at p. 132, 81 Cal.Rptr. 577, 460 P.2d 449.)   They failed to do so.  (See People v. Guevara (1980) 111 Cal.App.3d Supp. 19, 169 Cal.Rptr. 19.)

Either a prior conviction is constitutionally valid or it is not.   Since under Boykin-Tahl and their progeny, a record which fails to contain full admonishment and waivers of forfeited constitutional rights will suffice in itself to render a prior conviction unconstitutional, it is nonsense to differentiate between the nature of the constitutional defect as a deciding factor as to which is entitled to examination by means of a Coffey motion.

We therefore hold that the trial court erred in finding appellant's prior conviction constitutionally valid for sentence enhancement purposes and strike the three-year enhancement imposed.   The trial court is ordered to prepare and send an amended abstract of judgment to the Department of Corrections.   As modified the judgment is affirmed.

I respectfully dissent.

I would hold that the trial court did not err in finding appellant's prior conviction constitutionally valid for sentence enhancement purposes and would not strike the three year enhancement imposed.

Collateral attack on a prior plea of guilty in a subsequent proceeding is not available on the ground set forth by appellant.  (People v. Lewis (1977) 74 Cal.App.3d 633, 141 Cal.Rptr. 614.)   In People v. Superior Court (Gaulden) (1977) 66 Cal.App.3d 773, 776, 136 Cal.Rptr. 229, the court held that “[a]lthough a pretrial hearing to determine the constitutional validity of prior convictions is authorized by People v. Coffey (1967) 67 Cal.2d 204, 209, 217, 60 Cal.Rptr. 457, 430 P.2d 15, hearings pursuant to Coffey are limited to the issue of denial of the right to be represented by counsel and ineffective waiver of the right to be so represented.”  (People v. Gage (1981) 126 Cal.App.3d 918, 179 Cal.Rptr. 171;  People v. Reeves (1981) 123 Cal.App.3d 65, 176 Cal.Rptr. 182;  People v. Orozco (1981) 114 Cal.App.3d 435, 170 Cal.Rptr. 604;  People v. Davis (1980) 103 Cal.App.3d 270, 163 Cal.Rptr. 22;  People v. Malloy (1974) 41 Cal.App.3d 944, 116 Cal.Rptr. 592;  People v. Vienne (1973) 30 Cal.App.3d 266, 105 Cal.Rptr. 584.)

FOOTNOTES

1.   Courts authorizing collateral attack by way of motion to strike on Boykin-Tahl grounds include:  Ganyo v. Municipal Court (1978) 80 Cal.App.3d 522, 145 Cal.Rptr. 636;  Salazar v. Municipal Court (1975) 44 Cal.App.3d 1024, 119 Cal.Rptr. 98;  Hartman v. Municipal Court (1973) 35 Cal.App.3d 891, 111 Cal.Rptr. 126;  Gonzalez v. Municipal Court (1973) 32 Cal.App.3d 706, 108 Cal.Rptr. 612;  Cooper v. Justice Court (1972) 28 Cal.App.3d 286, 104 Cal.Rptr. 543.   Courts holding that the Coffey procedure is limited strictly to attacks on the validity of prior convictions based upon the denial of the right to counsel include People v. Vienne (1973) 30 Cal.App.3d 266, 105 Cal.Rptr. 584;  People v. Superior Court (Gaulden) (1977) 66 Cal.App.3d 773, 136 Cal.Rptr. 229;  People v. Lewis (1977) 74 Cal.App.3d 633, 141 Cal.Rptr. 614;  People v. Reeves (1981) 123 Cal.App.3d 65, 176 Cal.Rptr. 182.

STONE, Presiding Justice.

GILBERT, J., concurs.