PEOPLE v. ALLEN (1996)

Appellant Sherman Allen was denied an evidentiary hearing on his motion to collaterally attack a prior conviction alleged for purposes of sentence enhancement.   The prior conviction was the result of a guilty plea entered by appellant to a robbery charge.   Appellant asserted this conviction was obtained in violation of his constitutional rights, declared in decisions of our Supreme Court and the United States Supreme Court in Boykin v. Alabama (1969) 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274;  In re Tahl (1969) 1 Cal.3d 122, 81 Cal.Rptr. 577, 460 P.2d 449;  People v. Sumstine (1984) 36 Cal.3d 909, 206 Cal.Rptr. 707, 687 P.2d 904, and other cases.   The trial court denied his motion without affording him an evidentiary hearing, on the authority of Custis v. United States (1994) 511 U.S. 485, 114 S.Ct. 1732, 128 L.Ed.2d 517.   The court reasoned that since appellant was represented by counsel at the time the plea was taken, his collateral attack was not cognizable.   That, essentially, is the result reached in Custis with respect to a collateral attack in a federal proceeding on a state court prior conviction.   The California rule, announced in Sumstine, is otherwise.   In an earlier opinion, we affirmed the conviction on the basis of Custis.   We granted rehearing to afford a fuller review of the Sumstine decision.   We conclude that Sumstine is based, at least in part, on state grounds, and that it has not been overruled or undermined by later decisions of our Supreme Court.   Consequently, accepted principles of stare decisis command that trial courts and courts of appeal follow Sumstine rather than Custis.   Since the trial court did not, we must reverse.¹

FACTUAL AND PROCEDURAL SUMMARY

Appellant does not attack the validity of his current conviction, or another prior conviction alleged against him.   His attack is focused entirely on whether the guilty plea he entered to a 1969 robbery charge, alleged here for purposes of sentencing, satisfied constitutional requirements.

Appellant's current conviction is for selling a controlled substance, a violation of Health and Safety Code section 11352, subdivision (a), and a felony.²  (CT 80) Because robbery is a serious felony, appellant's conviction of that crime was alleged as a basis for sentencing under the Three Strikes statute.  (Pen.Code § 667, subds. (b)-(i).)   At the sentencing hearing in this case, the state introduced evidence that appellant suffered two prior felony convictions.  (CT 81–90) Appellant filed a motion to strike one of them, the 1969 conviction for robbery, arguing that he had not been adequately advised of his constitutional rights and therefore the guilty plea he entered was obtained without his knowing, intelligent and voluntary waiver of his rights to jury trial, confrontation, and self incrimination.  (CT 29)

The prosecution introduced documents showing that appellant was represented by counsel when he entered his guilty plea to the 1969 robbery charge.  (RT 297;  lines 19–27) Appellant did not challenge the authenticity of the documents.   But he asserted that he was not admonished about his constitutional rights, did not waive them, and that under Sumstine, he was entitled to an evidentiary hearing to prove the absence of admonition and waiver.  (RT 299;  lines 10–17) The prosecution argued that there was no reason for a hearing since appellant had been represented by an attorney when, in 1969, he entered the plea.   The trial court held that appellant was barred from collaterally attacking the 1969 conviction.   The court then decided that the prior conviction was true, and sentenced appellant accordingly.  (RT 299;  lines 18–21)

Appellant has appealed.

DISCUSSION

 The only issue on appeal is whether California trial courts and intermediate appellate courts are bound by Sumstine, or whether that decision has been so undermined by the decision of the United States Supreme Court in Custis that it no longer has precedential value.   As we shall explain, we conclude that Sumstine retains its precedential value and that it commands the decision in this case.³

Sumstine involved a challenge by collateral attack to a prior conviction alleged for purposes of sentencing.   The prosecution introduced evidence that the felony conviction had been suffered.   The defendant sought to avoid its effect on the ground that his guilty plea, upon which the conviction was based, was obtained without a knowing, intelligent and voluntary waiver of his constitutional rights to the privilege against compulsory self-incrimination, to jury trial, and to confront accusers.  (36 Cal.3d at pp. 914–915, 206 Cal.Rptr. 707, 687 P.2d 904;  see 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.)   In Tahl our Supreme Court held the record must show on its face that the defendant was aware of his rights and that they were expressly waived.  (People v. Sumstine, supra, at p. 924, 206 Cal.Rptr. 707, 687 P.2d 904.)  Sumstine laid out the procedure for state courts to follow when a defendant collaterally attacks a prior felony conviction.   The defendant must affirmatively allege that in pleading guilty he or she did not knowingly and voluntarily waive his constitutional rights to jury trial, confrontation, and self incrimination.   The defendant cannot rely on a silent record to establish that the waivers were not given, or are invalid.   The defendant is entitled to an evidentiary hearing to prove that his constitutional rights were violated in taking the plea.  (Id. at p. 914, 206 Cal.Rptr. 707, 687 P.2d 904.)

Sumstine relied upon both federal and California precedent.   It impliedly relied on federal precedent through its treatment of Boykin, a decision applying the federal Constitution.   It also relied on People v. Coffey (1967) 67 Cal.2d 204, 60 Cal.Rptr. 457, 430 P.2d 15, a California decision based on state law.   In Coffey, the court formulated procedures to be followed by trial courts when a defendant collaterally attacks a prior conviction in state court.   The defendant had brought a pre-trial motion to strike a prior conviction alleged for purposes of sentencing.   He argued that he had entered the guilty plea without “understand[ing] his right to counsel.”  (Id. at p. 210, 60 Cal.Rptr. 457, 430 P.2d 15.)   The trial court denied his motion because it thought California law did not permit it to be considered.  (Ibid.) The Supreme Court disagreed:  “to the extent that statutory machinery relating to penal status or severity of sanction is activated by the presence of prior convictions, it is imperative that the constitutional basis of such convictions be examined if challenged by proper allegations.”  (Id. at p. 215, 60 Cal.Rptr. 457, 430 P.2d 15;  In re Woods (1966) 64 Cal.2d 3, 48 Cal.Rptr. 689, 409 P.2d 913;  cf.  In re Streeter (1967) 66 Cal.2d 47, 56 Cal.Rptr. 824, 423 P.2d 976.)  “Though these principles were first given application in a series of cases involving collateral attacks on final judgments (In re Woods, supra, 64 Cal.2d 3 [48 Cal.Rptr. 689, 409 P.2d 913];  In re Luce (1966) 64 Cal.2d 11 [48 Cal.Rptr. 694, 409 P.2d 918];  In re Tucker (1966) 64 Cal.2d 15 [48 Cal.Rptr. 697, 409 P.2d 921] ․ ), 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.”   The court recognized that a motion to strike is properly raised by pre-trial motion (People v. Coffey, supra, 67 Cal.2d at p. 215, 60 Cal.Rptr. 457, 430 P.2d 15), and established five procedures to be followed by trial courts in adjudicating a motion to collaterally attack a prior.  (Id. at pp. 217–218, 60 Cal.Rptr. 457, 430 P.2d 15.)   Because the Coffey court set out detailed procedures to be followed by state courts when a state defendant collaterally attacks a prior state court conviction, we conclude the court was utilizing independent state grounds.   That, we believe, is the way the decision was treated in Sumstine.

In Sumstine, the Attorney General argued that Coffey stood for the proposition that collateral attacks are only permitted in cases where a denial of counsel is alleged.  (People v. Sumstine, supra, 36 Cal.3d at p. 917, 206 Cal.Rptr. 707, 687 P.2d 904.)   The court refused to read Coffey so narrowly.   Instead, it examined the procedures for collateral attack before and after Boykin.   Before Boykin, a defendant had to show a denial of counsel, because it was assumed that counsel adequately informed the defendant of his or her rights.  (People v. Sumstine, supra, at p. 918, 206 Cal.Rptr. 707, 687 P.2d 904.)   If the defendant was self-represented, the prosecution was only required to show counsel had been made available and that defendant waived the right to be represented by an attorney.  (In re Tahl, supra, 1 Cal.3d at p. 129, 81 Cal.Rptr. 577, 460 P.2d 449;  People v. Sumstine, supra, at p. 918, 206 Cal.Rptr. 707, 687 P.2d 904.)  Boykin held that the mere presence of counsel does not guarantee that a guilty plea was intelligently and voluntarily given.  (Boykin v. Alabama, supra, 395 U.S. at p. 244, 89 S.Ct. at pp. 1712–13;  People v. Sumstine, supra, at p. 918, 206 Cal.Rptr. 707, 687 P.2d 904.)

Faced with applying either the law of habeas corpus or the law of motions, the Sumstine court opted for the latter.  (People v. Sumstine, supra, 36 Cal.3d at p. 920, 206 Cal.Rptr. 707, 687 P.2d 904.)   It pointed out that if habeas procedures were applied, the remedy would be a vacation of the earlier conviction, possibly subjecting the defendant to a re-trial.   (Ibid.) The purpose of the motion to strike is only to challenge the present effect of the prior conviction.  (Id. at p. 921, 206 Cal.Rptr. 707, 687 P.2d 904.)   Thus, Sumstine drew on California precedent and state procedural grounds for allowing a collateral attack by motion.

In Custis, the high court rejected a defendant's collateral attack of a state court prior conviction because he had been represented by counsel when it was suffered.  (511 U.S. at p. ––––, 114 S.Ct. at p. 1739.)   After his conviction, Custis' sentence was enhanced pursuant to 18 United States Code section 924(e)(1), the Armed Career Criminal Act, because of two prior convictions.   Custis tried to collaterally attack both priors.   He argued that each was the product of ineffective counsel.  (511 U.S. at p. ––––, 114 S.Ct. at p. 1734.)   The court held his claim to be untenable, and that a claim was cognizable only on a showing of a complete denial of counsel.   (Id. at p. ––––, 114 S.Ct. at p. 1738.)

Custis is distinguishable from the present action in several respects.   The most prominent distinction is the most obvious:  the case was about whether, under federal law, a federal court is obliged to entertain a collateral attack on previous state court convictions.  (511 U.S. at p. ––––, 114 S.Ct. at p. 1734.)   Here, we deal with a collateral attack in a California state court on a prior conviction that was suffered in a court of this state.   In Custis, the district court applied the Armed Career Criminal Act to enhance the sentence.   But “[l]ooking to the language of the statute,” the Supreme Court stated:  “we do not believe § 924(e) authorizes such collateral attacks.”   (Id. at p. ––––, 114 S.Ct. at p. 1735, italics added.)   Instead, the court relied on 21 United States Code section 851(c)(2), another sentence enhancement statute.   The language of that statute allowed a collateral attack when a constitutional violation is alleged.   The court reasoned that by allowing for collateral attacks in 21 United States Code section 851(c)(2), Congress demonstrated that it knew how to provide for them, and that by not providing for collateral attacks in 18 United States Code section 924(e), Congress intended to exclude their use.  (Id. at p. ––––, 114 S.Ct. at 1736.)   The court also stated that, regardless of what section 924(e) has to say about collateral attack, the decision in Johnson v. Zerbst (1938) 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461 permitted it only for unique constitutional defects amounting only to “failure to appoint counsel for an indigent defendant in a federal proceeding . ․” (511 U.S. at p. ––––, 114 S.Ct. at p. 1737, italics added.)   In our case, of course, we do not deal with any statutory bar or restriction in the determination of whether a collateral attack on a prior conviction alleged for purposes of sentencing is cognizable.

Judicial administration also was a factor for the Custis court.   Failure to appoint counsel usually will appear on the judgment roll or minute order.  “But determination of claims of ineffective assistance of counsel, and failure to assure that a guilty plea was voluntary, would require sentencing courts to rummage through frequently nonexistent or difficult to obtain state court transcripts or records that may date from another era, and may come from any one of the 50 States.”  (511 U.S. at pp. –––– – ––––, 114 S.Ct. at pp. 1738–1739.)   The court appears to have been concerned about the considerable effort required by a federal sentencing court to locate the record of an earlier state court proceeding.   In a final note the court added that because Custis “was still ‘in custody’ for purposes of his state convictions at the time of his federal sentencing under § 924(e), [he] may attack his state sentences [in state court] or through federal habeas review. [Citation.]  If ․ successful ․, he may then apply for reopening of any federal sentence enhanced by the state sentences.”  (Id. at p. ––––, 114 S.Ct. at p. 1739, italics added.)   Whatever may be said about the inconvenience of proof in presenting or defending a collateral attack, the issue is not of constitutional significance.

 The Custis decision was reviewed by our Supreme Court in People v. Horton (1995) 11 Cal.4th 1068, 47 Cal.Rptr.2d 516, 906 P.2d 478, a capital case in which the multiple murder special circumstance was charged as a basis for the death penalty.  (Pen.Code, § 190.2, subd. (a)(2).)   The defendant attempted to collaterally attack an out-of-state prior conviction for murder.   (Id. at p. 1086, 47 Cal.Rptr.2d 516, 906 P.2d 478.)   The court concluded that Custis “neither compels nor justifies a modification of existing California law governing a collateral attack, in a capital proceeding, ․” (Id. at p. 1134, 47 Cal.Rptr.2d 516, 906 P.2d 478, italics in original.)   It pointed out that “Custis was not a capital case, and thus the United States Supreme Court did not address the question of the appropriate scope of a collateral challenge in such a setting.”  (Ibid.) The court explicitly left open the interpretation of Custis to a non-capital proceeding.  (Ibid.) It emphasized the special need for reliability in capital cases was best served by giving a defendant the right to ensure that the prior conviction was constitutionally achieved.  (Ibid.) A state is permitted to provide greater rights to a criminal defendant than those required by the federal Constitution.  (See Raven v. Deukmejian (1990) 52 Cal.3d 336, 354, 276 Cal.Rptr. 326, 801 P.2d 1077.)

In People v. Howard (1992) 1 Cal.4th 1132, 5 Cal.Rptr.2d 268, 824 P.2d 1315, the defendant argued that his admission, without admonitions or waivers, of the fact that he had served a previous prison term was tantamount to a violation of his privilege against self-incrimination.   He argued his rights were violated because the trial court failed to expressly advise him that he did not have to admit his previous jail term.  (Id. at p. 1174, 5 Cal.Rptr.2d 268, 824 P.2d 1315;  see also In re Yurko (1974) 10 Cal.3d 857, 863–864, 112 Cal.Rptr. 513, 519 P.2d 561.)   The issue before the Supreme Court was which standard of review—federal or state—applies when such error is alleged.   The court held that “error involving Boykin /Tahl admonitions should be reviewed under the test used to determine the validity of guilty pleas under the federal Constitution.”  (People v. Howard, supra, 1 Cal.4th at p. 1175, 5 Cal.Rptr.2d 268, 824 P.2d 1315.)   Revisiting Tahl, the court stated that although it “considered the argument that the state Constitution also required explicit waivers, we expressly declined to base our holding on state law.   We chose to rely instead on federal law because ‘it was [our] view that Boykin necessitate[d] a more precise showing․’ ”  (Id. at p. 1176, 5 Cal.Rptr.2d 268, 824 P.2d 1315, quoting In re Tahl, supra, 1 Cal.3d at pp. 131, 132, fn. 5, 81 Cal.Rptr. 577, 460 P.2d 449.)

The significance of Howard lies in the court's treatment of conflicting state and federal authority.   When faced with conflicting laws, the court recognized its required adherence to federal law.   In Horton, also faced with conflicting laws, the court recognized that federal law did not require adherence and applied state law.

It is significant that our Supreme Court explicitly left open the question whether a collateral attack on a prior conviction is cognizable in cases where the defendant was represented by counsel when it occurred.   Since that is so, Sumstine remains the law and lower state courts are not free to depart from it in favor of Custis.

DISPOSITION

The judgment is reversed and the case remanded for further proceedings consistent with this opinion.

I would affirm the judgment for the reasons stated in our unanimous opinion filed November 9, 1995.  (People v. Allen (b090990) rehg. granted Dec. 1, 1995.)

Judges make law under principles far too complex to be adequately expressed by reference to the decision in Auto Equity Sales and the maxim stare decisis.   It would serve no purpose in this dissenting opinion to offer an overview of these principles.   Suffice it to say that both the trial courts and the intermediate appellate courts have always had a proper role in the continuing development of the law.

The true significance of today's decision is one neither intended nor countenanced by the majority:  in three-strikes cases, it confers on trial judges the sentencing discretion many have advocated, without truly protecting a defendant's Boykin/Tahl rights.   Nothing we said in our earlier opinion in this appeal prevented trial courts from striking prior convictions if the reporter's transcript of the plea demonstrates a violation of Boykin or Tahl. Here, because there is no transcript, the Sumstine evidentiary hearing will be a mere charade.   It is inconceivable that appellant's memory is so keen that he can meaningfully assist the trial court in deciding what words were spoken in open court when he pleaded guilty to the robbery charge twenty-seven years ago.

Instead, whenever a transcript is unavailable, such hearings will be requested for the ulterior purpose of offering trial judges an opportunity to secretly exercise discretion to ameliorate overly harsh three-strikes-law sentences.   The exercise of discretion through this procedure will have permanent effect;  a prior conviction, once collaterally invalidated, can never again be used as a strike.  (See People v. Howie (1995) 41 Cal.App.4th 729, 48 Cal.Rptr.2d 505.)

Whether judges should be afforded discretion in three-strikes cases has been the subject of continuing political and judicial debate.   Ultimately the question will be resolved according to law, through legitimate legislative and judicial processes.   Discretion should be granted and exercised publicly, not surreptitiously.   The judicial robe should not be worn as a cloak of disguise.

FOOTNOTES

1.   The dissenting opinion takes the position that trial court judges will use the Sumstine hearing as a device to declare a prior conviction unconstitutional—not because of a Boykin/Tahl error, as Sumstine permits, but for the ulterior purpose of evading the sentencing mandate of the Three Strikes law.   That is nothing less than an accusation that judges will violate their oaths.   It demonstrates an unjustified lack of confidence in the integrity of trial judges.   We share the view of our Supreme Court (see People v. Johnson (1989) 47 Cal.3d 1194, 1219, 255 Cal.Rptr. 569, 767 P.2d 1047) that trial judges exercise their discretion honorably;  they do not act “surreptitiously.”

2.   Since the current conviction resulted from a trial rather than a guilty or no contest plea entered as part of a plea bargain, no issue is presented with respect to the absence of a certificate of probable cause under Penal Code section 1237.5.  (Cf. People v. Panizzon (1996) 13 Cal.4th 68, 51 Cal.Rptr.2d 851, 913 P.2d 1061.)

3.   This case involves a claim of inadequate admonition of constitutional rights, not one of ineffective assistance of counsel.   The latter issue is before the Supreme Court in Garcia v. Superior Court (SO50827, review granted Feb. 20, 1996).  (See also People v. Howie (1995) 41 Cal.App.4th 729, 48 Cal.Rptr.2d 505 [state law allows collateral attacks of prior convictions].)

EPSTEIN, Associate Justice.

CHARLES S. VOGEL, P.J., concurs.