Opinion
As Modified May 29, 1997.
In denying review, the Supreme Court ordered that the opinion be not officially published. (See California Rules of Court— Rules 976 and 977).
Ordered Not Published Previously published at: 55 Cal.App.4th 698
[DEPUBLISHED BY ORDER DATED JULY 30, 1997]
COUNSEL
[63 Cal.Rptr.2d 707]Thomas F. Coleman, Los Angeles, under appointment by the Court of Appeal, for Defendant and Appellant.
Daniel E. Lungren, Attorney General, George Williamson, Chief Assistant Attorney General, Carolyn Wendelin Pollack, Pamela C. Hamanaka, and Lisa J. Brault, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
Assigned by the Chairperson of the Judicial Council.
Appellant Oren Mines appeals from the judgment entered following his conviction by jury of sale or transportation of cocaine base (Health and Saf.Code, § 11352, subd. (a)), with findings in a bifurcated court trial that he had suffered three prior serious or violent felony convictions within the meaning of Penal Code section 667, subdivisions (b) through (i), two prior convictions within the meaning of Health and Safety Code section 11370.2, subdivision (a), and two prior prison terms within the meaning of section 667.5, subdivision (b). Probation was denied. Appellant was sentenced to an indeterminate term of 31 years to life in state prison, which included 25 years to life for the underlying offense under the three strikes law, plus consecutive enhancements of 3 years as to each of appellant's two prior convictions pursuant to Health and Safety Code section 11370.2, subdivision (a). The trial court struck the two section 667.5, subdivision (b) prior prison term enhancements.
Unless otherwise indicated, all statutory references are to the Penal Code.
FACTS
On March 10, 1995, Los Angeles Police Officer David Cortez and United States Postal Inspector Reginald James were working undercover narcotics enforcement in the area of Burlington and Seventh Streets. Appellant approached their unmarked vehicle and asked James what he was looking for. James replied, " [A] 20," street vernacular for $20 worth of narcotics, and handed appellant a $20 bill. Appellant then walked over to a man who was later identified as Valiente and gave him the $20 bill. Valiente removed an object from his mouth and presented it to appellant. Appellant returned to James with two small pieces of rock cocaine. The undercover officers gave a prearranged signal and other police officers arrested appellant and Valiente.
CONTENTIONS
Appellant contends: I. The sentence should be vacated and the case remanded for resentencing to provide the trial court with [63 Cal.Rptr.2d 708] an opportunity to exercise its discretion to strike a prior conviction. II. The trial court erred when it refused appellant's attempt to collaterally attack two prior convictions on constitutional grounds. III. The trial court erred when it added the two Health and Safety Code section 11370.2, subdivision (a) enhancements to the indeterminate term of 25 years to life.
DISCUSSION
I. The trial court's failure to expressly indicate it had discretion to strike a three strikes prior conviction does not require reversal where the record clearly shows it would not, in any event, strike the prior.
In People v. Superior Court (Romero) (1996) 13 Cal.4th 497, 53 Cal.Rptr.2d 789, 917 P.2d 628 (Romero), our Supreme Court settled the hotly contested question of whether trial courts had authority to strike a three strikes prior conviction in the interests of justice. Our high court held, " A defendant serving a sentence under the Three Strikes law [citations] imposed by a court that misunderstood the scope of its discretion to strike prior felony conviction allegations in furtherance of justice pursuant to section 1385 [, subdivision] (a), may raise the issue on appeal, or, if relief on appeal is no longer available, may file a petition for habeas corpus to secure reconsideration of the sentence." (Romero, supra, at p. 530, fn. 13, 53 Cal.Rptr.2d 789, 917 P.2d 628, italics added.) Romero went on to explain that the requested relief " may be summarily denied if the record shows that the sentencing court was aware that it possessed the discretion to strike prior felony conviction allegations without the concurrence of the prosecuting attorney and did not strike the allegations, or if the record shows that the sentencing court clearly indicated that it would not, in any event, have exercised its discretion to strike the allegations. " (Romero, supra, at p. 530, fn. 13, 53 Cal.Rptr.2d 789, 917 P.2d 628, italics added.)
Appellant argues that since the trial court never indicated it had the authority to strike the three strikes prior convictions and the only reported cases in existence at that time indicated it did not possess such authority, a remand is required under Romero to permit the court to exercise its discretion, if it chooses to do so.
The Attorney General counters that we should infer the trial court knew it possessed discretion under section 1385, subdivision (a), to strike the three strikes prior convictions.
We decline to presume that the trial court intuitively knew our state Supreme Court would ultimately decide judges have discretion to strike prior felony conviction allegations under the three strikes law, notwithstanding the fact that a significant number of appellate decisions held to the contrary. " ‘ It is generally presumed that a trial court has followed established law [citation], but this presumption does not apply where the law in question was unclear or uncertain when the lower court acted [citations].’ " (People v. DeGuzman (1996) 49 Cal.App.4th 1049, 1053, 57 Cal.Rptr.2d 577; see also People v. Houck (1997) 53 Cal.App.4th 375, 381-384, 61 Cal.Rptr.2d 650.)
In this case, the record reflects that immediately prior to sentencing, the defense attorney requested that the court strike the three strikes prior convictions based upon alleged constitutional infirmities, discussed further infra, and in the interests of justice under section 1385, subdivision (a). The defense attorney conceded the issue of whether or not the court retained the power to strike a three strikes prior conviction was then pending before the California Supreme Court in Romero, but argued the court had the inherent power to strike the three strikes prior convictions under the holding in People v. Tenorio (1970) 3 Cal.3d 89, 89 Cal.Rptr. 249, 473 P.2d 993. The trial court asked the prosecutor which prior convictions it could strike. The prosecutor indicated that the court could strike the two prior prison term enhancements (§ 667.5, subd. (b)) and the two Health and Safety Code section 11370.2, subdivision (a) enhancements. The court [63 Cal.Rptr.2d 709] was thus unquestionably aware of its authority to strike the prior convictions under both sections. Nonetheless, the court elected to strike only the section 667.5, subdivision (b) enhancements, while sentencing appellant to consecutive terms on each of the three-year Health and Safety Code § 11370.2, subdivision (a) enhancements. In so doing, the court imposed a sentence far beyond that required under the three strikes law.
Penal Code section 1170.1, subdivision (h) provides as follows:
In People v. Gutierrez (1996) 48 Cal.App.4th 1894, 56 Cal.Rptr.2d 529, we concluded a remand was unnecessary where the record clearly established that the trial court would not, in any event, strike a three strikes prior conviction. The trial court in Gutierrez never expressly indicated that it had the authority to strike the three strikes prior conviction allegations, but did state, " ‘ [T]his is a situation where I do agree with [the prosecutor], there really isn't any good cause to strike it. There are a lot of reasons not to, and this is the kind of individual the law was intended to keep off the street as long as possible.’ " (Id. at p. 1896, 56 Cal.Rptr.2d 529.) " By imposing the high term for count 1 and by imposing two additional discretionary one-year enhancements," the Gutierrez court " increased appellant's sentence beyond what it believed was required by the three strikes law...." (Ibid.) In that situation, we determined, " [N]o purpose would be served in remanding for reconsideration. Moreover, in light of appellant's record and the facts of the present offense, imposition of the maximum term is well within the trial court's sentencing discretion." (Ibid. )
Other appellate courts considering the adequacy of the record supporting an implicit denial of the exercise of discretion to strike three strikes prior conviction allegations have reached comparable results. In People v. Askey (1996) 49 Cal.App.4th 381, 56 Cal.Rptr.2d 782, Division Three of this District ruled, " Because the record clearly indicates the trial court would not have exercised its discretion to strike a prior conviction, remand is unnecessary." (Id. at p. 389, 56 Cal.Rptr.2d 782.) In People v. Sotomayor (1996) 47 Cal.App.4th 382, 54 Cal.Rptr.2d 871, Division Five of this District held, " Of course as mandated by Romero, remand is inappropriate if the record ‘ clearly indicated [the trial court] would not, in any event, have exercised its discretion to strike the allegations.’ " (Id. at p. 390, 54 Cal.Rptr.2d 871.)
In this case, the trial court likewise indicated through its actions that it would not have exercised its discretion to strike the three strikes prior conviction allegations in any event. Therefore, remand is not required.
II. The trial court did not err when it refused to consider appellant's collateral attack upon the alleged prior convictions.
Appellant filed a pretrial motion to " strike" the alleged priors as unconstitutional. The trial court summarily denied the motion solely on the basis that appellant had been represented by counsel at the time his plea had been entered in those cases. The trial court based its decision upon the United States Supreme Court's decision in Custis v. United States (1994) 511 U.S. 485, 114 S.Ct. 1732, 128 L.Ed.2d 517, which held that a defendant in a proceeding under the Armed Career Criminal Act (18 U.S.C. § 924, subd. (e)) had no federal right to challenge a prior state court conviction based upon ineffective assistance of counsel. Custis held that only a total denial of counsel, so-called " Gideon error" (Gideon v. Wainwright (1963) 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799), could be asserted in such a challenge.
The issue of whether or not a defendant in a noncapital state court proceeding may collaterally attack a prior conviction on the basis of ineffective assistance of counsel survives the Custis decision was recently decided by our state Supreme Court in Garcia v. Superior Court (1997) 14 Cal.4th 953, 59 Cal.Rptr.2d 858, 928 P.2d 572 (Garcia ). [63 Cal.Rptr.2d 710] Chief Justice George, writing for a unanimous court held, " We conclude that the effective administration of criminal justice would not be furthered, but rather would face serious disruption, if— in the course of the proceedings related to a current offense— the trial court were required to entertain and adjudicate an attack on the validity of a challenged prior conviction based upon a claim of ineffective assistance of counsel." (Id. at p. 964, 59 Cal.Rptr.2d 858, 928 P.2d 572.)
We note that the Supreme Court's decision in Garcia expressly overruled People v. Coleman (1969) 71 Cal.2d 1159, 80 Cal.Rptr. 920, 459 P.2d 248 and disapproved Lucas v. Superior Court (1988) 201 Cal.App.3d 149, 152, 247 Cal.Rptr. 59 and People v. Amaya (1986) 180 Cal.App.3d 1, 6, 225 Cal.Rptr. 313, which had approved the previous practice of permitting a collateral attack on alleged prior convictions by way of a pretrial motion to strike. (Garcia, supra, 14 Cal.4th at p. 966, fn. 6, 59 Cal.Rptr.2d 858, 928 P.2d 572.)
We are thus confronted with the issue of whether the Supreme Court's holding in Garcia is restricted to collateral attacks upon prior convictions based solely upon ineffective assistance of counsel claims. We requested supplemental briefing from the parties regarding this limited issue. Appellant maintains that Garcia is limited to collateral attacks on prior conviction allegations based solely upon a claim of the denial of effective assistance of counsel. He contends that the Supreme Court intentionally limited its holding to claims based upon ineffective assistance of counsel and had it intended to preclude collateral attacks upon prior convictions on any ground, it would have said so. This does not necessarily follow. Although the Supreme Court could have broadly held that it was precluding collateral attacks upon prior convictions on any ground, other than Gideon error, the court was only addressing the particular claim raised in that case, namely a claim of ineffective assistance of counsel.
In the instant appeal, by contrast, appellant challenges the trial court's refusal to consider his motion to strike the alleged prior convictions on grounds other than ineffective assistance of counsel. Appellant contended below that the guilty pleas did not satisfy the requirements mandated by 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, namely: that he was not adequately advised of the consequences of his plea; the privilege against self-incrimination; his right to a jury trial; his right to confront and cross-examine witnesses; and his right to present an affirmative defense.
We believe the strong policy considerations expressed in Garcia are equally applicable to appellant's situation. Moreover, if the rule established in Garcia were strictly limited to claims of ineffective assistance of counsel, it could easily be circumvented by simply bringing virtually identical collateral attacks premised upon the alleged loss of different constitutional rights, as claimed here, rather than bringing a challenge under the broader claim of ineffective assistance of counsel. It is difficult to imagine a scenario in which an alleged failure to advise a criminal defendant of certain constitutional rights or the consequences of his plea could not also be alleged as ineffective assistance of counsel. No logical reason exists to permit this type of challenge in a noncapital case, if brought under another theory, except, of course, for Gideon error.
Insofar as our Supreme Court's decision in People v. Sumstine (1984) 36 Cal.3d 909, 206 Cal.Rptr. 707, 687 P.2d 904 and other cases which extended the right to challenge a prior conviction allegation in a current case beyond Gideon error might appear to compel a contrary conclusion, we hold they were implicitly overruled by Garcia. " It is an established rule of law that a later decision overrules prior decisions which conflict with it, whether such prior decisions are mentioned and commented upon or not." ([63 Cal.Rptr.2d 711] In re Lane (1962) 58 Cal.2d 99, 105, 22 Cal.Rptr. 857, 372 P.2d 897; see also 9 Witkin Cal. Procedure (3d ed. 1985) Appeal, § 811, pp. 791-792.) Therefore, the trial court did not err in summarily denying appellant's collateral challenge of his alleged prior convictions.
As in Garcia, " [W]e need not, and therefore do not, determine the remedies, if any, that may be available to a defendant who seeks to challenge a prior conviction in a court of appropriate jurisdiction in order to prevent the use of the conviction to increase the punishment for a subsequent offense, or the circumstances that would permit, or the limitations that would apply to, a claim of ineffectiveness of counsel raised in a court of appropriate jurisdiction. If a defendant successfully challenges a prior conviction in such a jurisdiction, and that conviction is vacated or set aside, however, the conviction no longer constitutes a proper basis for increased punishment for a subsequent offense under a recidivist offender sentencing statute. A defendant accordingly may obtain a reduction of a sentence that was imposed on the basis of that prior invalid conviction. [Citation.]" (Garcia, supra, 14 Cal.4th at p. 966, 59 Cal.Rptr.2d 858, 928 P.2d 572.)
III. The trial court did not err in imposing the two prior conviction enhancements pursuant to Health and Safety Code section 11370.2 , subdivision (a) consecutive to the term of 25 years to life.
Appellant contends, as a matter of statutory construction, that the trial court erred in imposing the two 3-year enhancements pursuant to Health and Safety Code section 11370.2, subdivision (a) consecutively to the base term of 25 years to life. Appellant correctly points out that under the three strikes law, when a defendant has two or more qualifying felony convictions which have been pled and proved, the term of the current felony conviction shall be an indeterminate term of life imprisonment, with the minimum term calculated as the greater of: (i) three times the term otherwise provided by law; (ii) 25 years; or (iii) the term under section 1170 for the underlying conviction, including any applicable enhancement. (§§ 667, subd. (e)(2)(A), 1170.12, subd. (c)(2)(A).) He then reasons that since options (i) and (ii) make no reference to the inclusion of enhancements in calculating a defendant's sentence, while option (iii) does, the drafters must have intended to restrict the addition of enhancements to sentences calculated under option (iii). We disagree.
Subdivision (e) of section 667 specifically provides that the sentence to be applied under the three strikes law shall be " in addition to any other enhancement or punishment provisions which may apply" (italics added), language which a number of appellate courts have interpreted to mean that enhancements may properly be added if a 25-year minimum term is selected by the sentencing court. (See, e.g., People v. Samuels (1996) 42 Cal.App.4th 1022, 1029, 50 Cal.Rptr.2d 157; People v. Turner (1995) 40 Cal.App.4th 733, 741-742, 47 Cal.Rptr.2d 42.) The same construction applies to cases arising under the three strikes initiative measure which adopted section 1170.12. (People v. Turner, supra, at p. 742, 47 Cal.Rptr.2d 42.) We concur with the views expressed in those opinions.
Appellant's reliance upon cases interpreting section 667.7 (the habitual offender statute) in an attempt to extrapolate an analogous rule for sentences calculated under section 667, subdivision (e)(2)(A) and 1170.12, subdivision (c)(2)(A) is misplaced. As our Supreme Court explained in People v. Jenkins (1995) 10 Cal.4th 234, 40 Cal.Rptr.2d 903, 893 P.2d 1224, " when the prosecution pleads and proves that a defendant meets the requirements for sentencing as a habitual offender under section 667.7, subdivision (a)(1), the court must impose a life term for the qualifying felony conviction and designate the minimum parole eligibility release date, choosing the alternative that results in the longest period of required imprisonment: (1) 20 years, (2) the period equal to the hypothetical determinate term that would be imposed under § 1170 (if the qualifying conviction is one that otherwise would be punishable under § 1170; see People v. Gonzalez (1988) 201 Cal.App.3d 811, 814, 247 Cal.Rptr. 501[ ]), or (3) the ‘ period prescribed by Section 190 or 3046’ (if the qualifying conviction is murder or any other offense that otherwise, independently of section 667.7, would be punishable by a life sentence)." (Id. at p. 243, 40 Cal.Rptr.2d 903, 893 P.2d 1224.) However, unlike the three strikes law, " [s]ection 667.7 makes no [63 Cal.Rptr.2d 712] mention of adding enhancements to the sentence determined under its provisions." (People v. Cartwright (1995) 39 Cal.App.4th 1123, 1138, 46 Cal.Rptr.2d 351.) Consequently, " [i]f the hypothetical term of imprisonment, calculated so as to include enhancements is less than 20 years, the 20-year period set forth in section 667.7 automatically prevails, without resort to enhancements. " (People v. Jenkins, supra, 10 Cal.4th at p. 253, 40 Cal.Rptr.2d 903, 893 P.2d 1224, italics added.) Since section 667.7 does not contain language similar to that adopted by the Legislature in subdivision (e) of section 667 or the electorate in subdivision (c) of section 1170.12, namely, " in addition to any other enhancement[s] or punishment provisions which may apply, " the statutes cannot be said to be in pari materia.
DISPOSITION
The judgment is affirmed.
BOREN, P.J., and ZEBROWSKI, J., concur.
" Notwithstanding any other law, the court may strike the additional punishment for the enhancements provided in subdivision (c) of Section 186.10 and Sections 667.15, 667.5, 667.8, 667.83, 667.85, 12022, 12022.1, 12022.2, 12022.4, 12022.6, 12022.7, 12022.75, and 12022.9 of this code, or the enhancements provided in Section 11370.2, 11370.4, or 11379.8 of the Health and Safety Code, if it determines that there are circumstances in mitigation of the additional punishment and states on the record its reasons for striking the additional punishment."
In Coleman, supra, the Supreme Court reversed and remanded a capital case and suggested that a defendant could bring a collateral challenge of an alleged prior conviction in the trial court, on the grounds of ineffective assistance of counsel. In Lucas, supra, also a capital case, the appellate court held that the refusal to consider a collateral attack upon prior convictions, alleged as factors in aggravation in the penalty phase of the case, on the grounds of ineffective assistance of counsel, was error. In Amaya, supra, the court upheld the practice of a bringing a pretrial motion to strike a prior conviction allegation on the grounds of ineffective assistance of counsel based upon the dual representation of husband and wife in the earlier proceeding.