Challenging the Prior Convictions |
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A defendant may attack a prior conviction if he had pleaded guilty but
was not advised of his constitutional rights to trial by jury, to confront the
witnesses against him, and to refrain from self-incrimination. (People v.
Sumstine (1984) 36 Cal.3d 909.) Under In re Tahl, 1 Cal.3d 122, the
advisement and waiver must be noted in the record. If, however, the defendant's
prior conviction resulted from a guilty plea that occurred before In re
Tahl was decided in 1969, he will not be able to challenge the prior on the
ground that he was not advised of his rights before he pled guilty. (People
v. Allen (1999) 21 Cal.4th 424.) This is because it would be too much
trouble for a court to determine, years after the fact, whether the defendant
actually knew his rights when he pled guilty in the prior case. Again, one
wonders whether the public knows that a guilty plea by someone unaware of the
rights he is giving up can result in a strike.
A defendant challenging his guilty plea in the prior case cannot rely on the
mere absence of any notation in the record that he was advised of and waived
his constitutional rights. "He must affirmatively allege that at the
time of his prior conviction he did not know of, or did not
intelligently waive, such rights." (People v. Sumstine, supra, 36
Cal.3d at p. 914.) According to People v. Walker (2001) 89 Cal.App.4th
380, the defendant has the burden of producing evidence that his constitutional
rights were violated, and then the prosecution has the right to rebut such
evidence. Thus, the defendant must do more than just show that the record does
not reveal that he was advised of his privilege against compulsory
self-incrimination, his right to trial by jury, and his right to confront his
accusers; he must also provide some evidence (such as his own testimony) that
he was unaware of these rights. Then, the prosecutor may present evidence (if
he has any) that
the defendant was properly advised.
In Garcia v. Superior
Court (1997) 14 Cal.4th 953, 964-965, the Supreme Court held that a
defendant in a non-capital case may not move to strike a prior conviction on
the basis of ineffective assistance of counsel in the prior proceeding. The
Court was concerned that a whole mini-trial of the adequacy of counsel at the
prior trial would complicate the current trial and postpone sentencing. The
convenient solution to the problem is to deny the defendant the right to
challenge the prior conviction on that basis. The Court indicated that the only
errors in the prior case that may be relied on to attack the prior are those
errors that are apparent on the face of the record.
Relying on
Garcia, the First District, Division Two, of the Court of Appeal has
held that a prior conviction cannot be challenged on the basis of a failure to
advise of the penal consequences of a plea. (People v. Tillman A083670,
partially published at 73 Cal.App.4th 771.) The Court extended the rule of
Garcia to cases where
the prior is an element of the crime currently charged. Tillman complained that
he should not have been convicted of failure to register as a sex offender
because he would not have pleaded no contest to the prior sex offense if his
counsel had properly advised him of the registration requirement. The Court
decided that it would be too much trouble to look into the question of whether
he was properly or improperly advised and what choice he would have made if
properly advised. (Id. at 718-719.)
In People v. Davis, 76 Cal.App.4th 1347, filed December 17, 1999, the
appellant pointed out that violations of Penal Code 264.1 (rape in concert)
were not added to section 1192.7, subdivision (c)'s list of serious felonies
until 1998. He argued that because section 264.1 violations were not listed as
serious or violent felonies on June 30, 1993, his prior 264.1 convictions not
be used as strikes against him. Davis relied on Gonzales v. Superior
Court (1995) 37 Cal.App.4th 1302, 1311, which held that the three strikes
legislation applies to felony convictions which fit the definition of a serious
or violent felony under sections 1192.7 and 667.5 as of June 30, 1993. (See
Penal Code section 667, subds. (b) & (d).) The Court of Appeal, Fourth
District, Division One, rejected Davis's contention, ruling that rape in
concert is a form of rape, and rape was listed as a serious felony on June 30,
1993. Davis was sentenced to 25 years to life.
In People v. Dozier, 78 Cal.App.4th 1195, (March 8, 2000), Division Seven of
the Second Appellate District rejected the defendant's argument that his guilty
pleas to his strike priors were based on incorrect information from the
prosecutor regarding the maximum sentence he could get if he went to trial. The
court ruled that even if Dozier had been incorrectly advised, he had not proved
that he would not have pleaded guilty if he had known the true maximum
sentence. The court did not decide whether this collateral attack on the prior
convictions was procedurally barred.
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Date last modified: 8/28/01.
