People v. Bechtol ( 2017 )

Filed 4/12/17
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION FIVE
THE PEOPLE,
Plaintiff and Respondent,
A146680
v.
DAVID BECHTOL, JR., (Sonoma County
Super. Ct. No. SCR-663130)
Defendant and Appellant.
In Garcia v. Superior Court (1997) 14 Cal. 4th 953 (Garcia), the California
Supreme Court determined that a criminal defendant could not move to strike a prior
conviction, alleged as an enhancement in a pending proceeding, on the basis of
ineffective assistance of counsel in the earlier case. Appellant David Bechtol, Jr.,
charged with two alcohol-related driving offenses within 10 years of a prior felony
driving under the influence (DUI) conviction, argues Vehicle Code section 414031
permits him to move to strike his earlier felony conviction despite Garcia. We disagree
and conclude that section 41403 does not independently authorize such challenges, but
simply sets forth the procedural rules to be used for those challenges that are otherwise
authorized.
BACKGROUND
In July 2015, appellant was charged with a DUI committed within 10 years of a
prior felony DUI conviction (§§ 23152, subd. (a), 23550.5, subd. (a)), and driving with a
blood alcohol content of more than .08 percent within 10 years of a prior felony DUI
1
All undesignated section references are to the Vehicle Code.
1
conviction (§§ 23152, subd. (b), 23550.5, subd. (a)).2 The information alleged appellant
had been convicted of a felony DUI in 2006.
In August, appellant filed a section 41403 motion to strike his 2006 conviction as
constitutionally invalid on the ground that he received ineffective assistance of counsel.
The trial court denied the motion as unauthorized under section 41403 without making a
finding on the merits of appellant’s ineffective assistance claim. Appellant subsequently
pled guilty. The trial court granted appellant’s request for a certificate of probable cause
on the denial of the section 41403 motion.
DISCUSSION
Section 41403 sets forth detailed procedural rules for “any proceedings to have a
judgment of conviction of a violation of Section 14601, 14601.1, 14601.2, 23152, or
23153, or Section 23103 as specified in Section 23103.5,[3] which was entered in a
separate proceeding, declared invalid on constitutional grounds . . . .” (§ 41403,
subd. (a).) First, “the defendant shall state in writing and with specificity wherein the
defendant was deprived of the defendant’s constitutional rights, which statement shall be
filed with the clerk of the court and a copy served on the court that rendered that
judgment and on the prosecuting attorney in the present proceedings at least five court
days prior to the hearing thereon.” (Ibid.) A hearing shall be held “outside of the
presence of the jury.” (§ 41403, subd. (b).) The statute then sets forth in detail the
burdens of production and proof: “The prosecution shall initially have the burden of
producing evidence of the separate conviction sufficient to justify a finding that the
defendant has suffered that separate conviction”; “the defendant then has the burden of
proof by a preponderance of the evidence that the defendant’s constitutional rights were
infringed in the separate proceeding at issue”; “[i]f the defendant bears this burden
successfully, the prosecution shall have the right to produce evidence in rebuttal”; and the
2
We omit additional allegations and the underlying facts, which are not relevant to this
appeal.
3
The enumerated offenses are for driving with a suspended or revoked license, DUI, and
certain reckless driving convictions.
2
court “shall strike from the accusatory pleading any separate conviction found to be
constitutionally invalid.” (§ 41403, subd. (b)(1)–(4).)4
“ ‘As in any case involving statutory interpretation, our fundamental task here is to
determine the Legislature’s intent so as to effectuate the law’s purpose.’ [Citation.] ‘We
4
In its entirety, section 41403 is as follows: “(a) In any proceedings to have a judgment
of conviction of a violation of Section 14601, 14601.1, 14601.2, 23152, or 23153, or
Section 23103 as specified in Section 23103.5, which was entered in a separate
proceeding, declared invalid on constitutional grounds, the defendant shall state in
writing and with specificity wherein the defendant was deprived of the defendant’s
constitutional rights, which statement shall be filed with the clerk of the court and a copy
served on the court that rendered that judgment and on the prosecuting attorney in the
present proceedings at least five court days prior to the hearing thereon. [¶] (b) Except as
provided in subdivision (c), the court shall, prior to the trial of any pending criminal
action against the defendant wherein the separate conviction is charged as such, hold a
hearing, outside of the presence of the jury, in order to determine the constitutional
validity of the charged separate conviction issue. At the hearing the procedure, the
burden of proof, and the burden of producing evidence shall be as follows: [¶] (1) The
prosecution shall initially have the burden of producing evidence of the separate
conviction sufficient to justify a finding that the defendant has suffered that separate
conviction. [¶] (2) After the production of evidence required by paragraph (1), the
defendant then has the burden of proof by a preponderance of the evidence that the
defendant’s constitutional rights were infringed in the separate proceeding at issue. If the
separate conviction sought to be invalidated is based upon a plea of guilty or nolo
contendere, the defendant shall provide the court with evidence of the prior plea,
including the court docket, written waivers of constitutional rights executed by the
defendant, and transcripts of the relevant court proceedings at the time of the entry of the
defendant’s plea. These records shall be provided to the defendant without cost to him or
her, when the defendant is represented by the public defender or counsel appointed
pursuant to Section 987.2 of the Penal Code. [¶] (3) If the defendant bears this burden
successfully, the prosecution shall have the right to produce evidence in rebuttal. [¶] (4)
The court shall make a finding on the basis of the evidence thus produced and shall strike
from the accusatory pleading any separate conviction found to be constitutionally invalid.
[¶] (c) If the defendant fails to comply with the notice requirement of subdivision (a) or
fails to produce the evidence required by paragraph (2) of subdivision (b), the court shall
hear the motion at the time of sentencing in lieu of continuing the trial, unless good cause
is shown for failure to provide notice pursuant to subdivision (a) or produce the evidence
required by paragraph (2) of subdivision (b), in which case the court shall grant a
continuance of the trial for a reasonable period. The procedure, burden of proof, and
burden of producing evidence as provided in subdivision (b) shall apply regardless of
when the motion is heard.”
3
begin with the plain language of the statute, affording the words of the provision their
ordinary and usual meaning and viewing them in their statutory context, because the
language employed in the Legislature’s enactment generally is the most reliable indicator
of legislative intent.’ [Citations.] The plain meaning controls if there is no ambiguity in
the statutory language. [Citation.] If, however, ‘the statutory language may reasonably
be given more than one interpretation, “ ‘ “courts may consider various extrinsic aids,
including the purpose of the statute, the evils to be remedied, the legislative history,
public policy, and the statutory scheme encompassing the statute.” ’ ” ’ ” (People v.
Cornett (2012) 53 Cal. 4th 1261, 1265.)
As appellant argues, the language of the statute itself does not limit the nature of
the constitutional challenges which can be adjudicated by its procedures. However,
section 41403’s opening phrase—“In any proceedings to have a judgment of conviction
of [certain violations], which was entered in a separate proceeding, declared invalid on
constitutional grounds” (italics added)—suggests the authority to bring such challenges
derives from elsewhere. (Cf. Pen. Code, § 1473, subd. (a) [“A person unlawfully
imprisoned or restrained of his or her liberty, under any pretense, may prosecute a writ of
habeas corpus to inquire into the cause of his or her imprisonment or restraint.”].) We
find the statutory language ambiguous regarding whether it independently authorizes
these challenges, or merely sets forth the procedural framework to be used if they are
otherwise authorized.5
The authority to challenge prior convictions in a subsequent prosecution began
prior to the enactment of section 41403.6 In People v. Coffey (1967) 67 Cal. 2d 204
(Coffey), the defendant moved to strike an allegation that he suffered a prior felony
5
Appellant points to language obligating the trial court to “strike from the accusatory
pleading any separate conviction found to be constitutionally invalid.” (§ 41403, subd.
(b)(4).) However, this provision appears to simply be part of the procedural framework
to be followed in “any proceedings” challenging a prior conviction under this statute, and
therefore does not remove the ambiguity.
6
Section 41403 was initially enacted in 1973 as section 23102.2. (Stats. 1973, ch. 1128,
§ 4, p. 2296.)
4
conviction, arguing the prior conviction was constitutionally invalid because he had not
been represented by counsel and had not waived his right to counsel. (Id. at p. 210.) The
trial court denied the motion as unauthorized under California law. (Id. at p. 211.) The
California Supreme Court reversed, noting “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 pp. 214–215.) The court continued: “Though these
principles were first given application in a series of cases involving collateral attacks on
final judgments [citations], 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, and we are therefore of the view that, if the issue is properly raised
at or prior to trial, it must be determined by the trial court.” (Id. at p. 215.) As explained
in a subsequent California Supreme Court opinion, “Coffey authorized defendants to
institute in their current trial a collateral attack on a prior felony conviction, which
previously had been permissible only by filing a petition for a writ of habeas
corpus. . . . In today’s parlance, we would characterize the rule as a judicially established
rule of criminal procedure.” (People v. Allen (1999) 21 Cal. 4th 424, 430 (Allen).)
After establishing this judicial rule of procedure authorizing challenges to a prior
conviction in a subsequent prosecution, Coffey proceeded to “delineate the nature of the
contemplated hearing . . . for the guidance of courts and counsel who will be called upon
to deal with similar matters in the future.” (Coffey, supra, 67 Cal.2d at p. 217.) The
court set forth in detail the mechanics of the hearings: “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
5
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. 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, fn. omitted.) This description of the
procedural framework governing constitutional challenges to prior convictions in
subsequent prosecutions may sound familiar–it was codified six years later when the
Legislature enacted the predecessor to section 41403.
Following that enactment, subsequent cases clarified or modified the authority,
established in Coffey, to collaterally attack a prior conviction in a subsequent prosecution.
In one such case, Garcia, supra, 14 Cal. 4th 953, the defendant sought to challenge, by a
pretrial motion to strike, an allegation that he had a prior serious felony conviction for
residential burglary on the ground that he had received ineffective assistance of counsel.
(Id. at pp. 956–957.) Garcia discussed a United States Supreme Court case holding “a
defendant has no right under the federal Constitution to challenge the constitutional
validity of a prior conviction in proceedings involving a subsequent offense, except upon
the ground of Gideon[7] error.” (Id. at p. 963 [discussing Custis v. United States (1994)
511 U.S. 485].) Garcia continued, “[n]othing in the language of our state Constitution,
or in our past decisions construing its provisions, presents a ‘cogent reason’ for us to
reach an interpretation of our state constitutional requirements different from that under
the federal Constitution.” (Ibid.) This left the question of “whether, as urged by
petitioner and amici curiae, the interest of efficient judicial administration, or some other
policy consideration, supports a judicially established rule of procedure permitting a
defendant who faces greater punishment for a current offense because of a prior
conviction to challenge the validity of that prior on the ground that he or she was denied
7
Gideon v. Wainwright (1963) 372 U.S. 335.
6
the effective assistance of counsel in the earlier proceeding.” (Id. at p. 964.) The
Supreme Court answered the question in the negative: “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.” (Ibid.)8 Garcia concluded, “a
defendant whose sentence for a noncapital offense is subject to enhancement because of a
prior conviction may not employ the current prosecution as a forum for challenging the
validity of the prior conviction based upon alleged ineffective assistance of counsel in the
prior proceeding.” (Id. at p. 966.)
Garcia did acknowledge section 41403, although the statute was not at issue in
that case. Garcia noted, “the Legislature has not enacted a generally applicable statute
authorizing or prescribing the procedure by which an individual may raise a collateral
challenge to the constitutional validity of a prior conviction,” adding in a footnote that
section 41403 “sets forth a procedure for raising challenges to the constitutional validity
of prior convictions based upon specified provisions of the Vehicle Code.” (Garcia, 14
Cal.4th at p. 960 & fn. 2.) Appellant argues Garcia did not interpret section 41403 or
state its holding applied to challenges brought under that statute. We agree that the
8
As the Supreme Court explained: While Gideon-type error “generally may be readily
determined with minimum disruption of the proceedings involved in the current offense,”
ineffective assistance claims “generally cannot be resolved based upon the appellate
record—because the record alone will not shed light on the existence or nonexistence of a
tactical basis for a defense attorney’s course of conduct—and therefore more
appropriately should be resolved on habeas corpus. [Citations.] Such a claim often will
necessitate a factual investigation with regard to counsel’s actions, omissions, and
strategic decisions, requiring the parties and the court to reconstruct events possibly
remote in time, and to scour potentially voluminous records, substantially delaying the
proceedings related to the current offense. Conducting evidentiary hearings on these
types of claims also would protract substantially the proceedings on the current offense.”
(Garcia, supra, 14 Cal.4th at pp. 964–965.)
7
significance of Garcia’s cursory reference to section 41403 is unclear.9 However, we
find relevant the Supreme Court’s apparent distinction between statutes “authorizing or
prescribing the procedure by which an individual may raise a collateral challenge to the
constitutional validity of a prior conviction.” (Garcia, at p. 960, italics added.) We
construe this statement as a recognition that a statute could authorize a certain
challenge—as Coffey “authorized defendants to institute in their current trial a collateral
attack on a prior felony conviction” (Allen, supra, 21 Cal.4th at p. 430)—or it could
prescribe the procedural rules applicable to such a challenge, such as the burdens of
proof and production—as Coffey later prescribed “the nature of the contemplated hearing
. . . for the guidance of courts and counsel” (Coffey, supra, 67 Cal.2d at p. 217).
(Compare 1 Oxford English Dict. (2d ed. 1989) p. 799 [defining “authorize” as “To give
legal or formal warrant to (a person) to do something; to empower, permit
authoritatively”], with 12 Oxford English Dict. (2d ed. 1989) p. 390 [defining “prescribe”
as “To write or lay down as a rule or direction to be followed”].)
To determine whether section 41403 authorizes collateral attacks or simply
prescribes the procedures to be followed if such attacks are otherwise authorized, we turn
to its legislative history. A digest appearing in the Senate Judiciary bill file identified one
of the bill’s purposes as to “[a]ccomplish more effective enforcement of drunk driving
laws on second and subsequent offenses,” and noted the bill’s proponents contended that
“since April 1969, approximately 25,000 prior convictions of drunk driving have been
invalidated by the courts in cases where the defendant was before the court on a second
or subsequent drunk driving charge.” (Sen. Com on Judiciary, Digest of Sen. Bill No.
9
The People rely on the proposition that “ ‘ “a general provision is controlled by one that
is special, the latter being treated as an exception to the former” ’ ” (Miller v. Superior
Court (1999) 21 Cal. 4th 883, 895), and argue the general provision in section 41403
regarding constitutional challenges is controlled by Garcia’s specific exclusion of
ineffective assistance claims. The principle relied on is one used to reconcile conflicting
statutes, and does not assist our analysis.
8
1268 (1973–1974 Reg. Sess.) as introduced, p. 3.)10 An enrolled bill report prepared for
the Governor by the California Highway Patrol explained that, while the Legislature had
previously imposed increased punishment for repeat DUI offenders, “[t]he courts have
. . . on occasion seen fit to temper the law . . . by setting aside or vacating prior judgments
and convictions. This was, in some instances, done intentionally to circumvent the jail
sentence which would have caused the defendant to lose his job. [¶] This bill, . . .
restrict[s] somewhat the judicial discretion in these matters . . . .” (Cal. Highway Patrol,
Enrolled Bill Rep. on Sen. Bill No. 1268 (1973–1974 Reg. Sess.) Sept. 21, 1973, p. 2.)11
This assessment is consistent with a legislative analysis prepared by the Department of
Motor Vehicles and found in the Senate Judiciary Committee bill file, which stated the
bill’s provisions regarding striking prior convictions “provide[] an urgently needed
remedy to problems attending indiscriminate practices which now thwart the intent of
existing law.” (Bus. & Transportation Agency, DMV, Analysis of Sen. Bill No. 1268
(1973–1974 Reg. Sess.) Jun. 19, 1973.)
These analyses indicate a legislative understanding that courts had been striking
prior DUI convictions without proper cause to avoid imposing enhanced punishments for
repeat offenders. By prescribing clear procedures for “any proceedings” to strike a prior
10
The bill replaced a provision enacted four years after Coffey which provided a “motion
to vacate or set aside a prior judgment of conviction of driving a motor vehicle while
under the influence of intoxicating liquor made in a pending criminal proceeding in
which the defendant is accused of having committed another such offense” shall be in
writing and state “with particularity” its grounds, shall be supported by an affidavit from
the defendant, and shall be served on the prosecutor before the hearing; and that the
hearing shall be continued if the prosecutor shows it necessary to enable the prosecutor to
prepare a response. (Stats. 1971, ch. 1371, § 1, p. 2694.)
11
Appellant dismisses the use of an enrolled bill report as a source of legislative history.
However, our Supreme Court “ ‘ha[s] routinely found enrolled bill reports, prepared by a
responsible agency contemporaneous with passage and before signing, instructive on
matters of legislative intent.’ ” (In re Conservatorship of Whitley (2010) 50 Cal. 4th
1206, 1218, fn. 3.) “Although these reports certainly do not take precedence over more
direct windows into legislative intent such as committee analyses, and cannot be used to
alter the substance of legislation, they may be as here ‘instructive’ in filling out the
picture of the Legislature’s purpose.” (Ibid.)
9
conviction on constitutional grounds, the Legislature intended to ensure that such claims
were rigorously adjudicated and decided on the merits.12 There is no indication,
however, that the Legislature intended the bill to independently authorize such
challenges. (See Legis. Counsel’s Dig., Sen. Bill No. 1268 (1973–1974 Reg. Sess.) Stats.
1973, Summary Dig., pp. 177–178 [bill “[i]mposes specified requirements and provisions
re burden of proof with respect to any proceeding to have a prior judgment of conviction
of such offenses declared invalid on constitutional grounds”].) Coffey already provided
this authority and there is no suggestion of a legislative intent to codify or expand upon it;
instead, the bill was intended to ensure that the authority was exercised properly.13
12
This legislative intent is apparent in another amendment enacted by the same bill,
adding the following provisions to two DUI statutes: “Except in unusual cases where the
interests of justice demand an exception, the court shall not strike a prior conviction of an
offense under this section for purposes of sentencing in order to avoid imposing as part of
the sentence or term of probation the minimum time in confinement in the county jail and
the minimum fine . . . . [¶] When such a prior conviction is stricken by the court for
purposes of sentencing, the court shall specify the reason or reasons for such striking
order. [¶] On appeal by the people from such an order striking such a prior conviction it
shall be conclusively presumed that such order was made only for the reasons specified in
such order and such order shall be reversed if there is no substantial basis in the record
for any of such reasons.” (Stats. 1973, ch. 1128, §§ 2 & 5, pp. 2295–2296, 2298 [former
§§ 23102, subd. (g) & 23105, subd. (h)]; see also Legis. Counsel’s Dig., Sen. Bill No.
1268 (1973–1974 Reg. Sess.) Stats. 1973, Summary Dig., p. 177.)
13
While the Legislature borrowed heavily from Coffey’s language in enacting section
41403’s procedural rules, we note one difference. Coffey provided the defendant has “the
burden of producing evidence that his constitutional right to counsel was infringed in the
prior proceeding at issue” (Coffey, 67 Cal.2d at p. 217, italics added); the Legislature
changed this to “the burden of producing evidence that his constitutional rights were
infringed in the prior proceeding at issue” (Stats. 1973, ch. 1128, § 4, p. 2296, italics
added). We do not construe this alteration as evidencing an intent to authorize collateral
attacks on all constitutional grounds; instead, it ensures the procedural rules can
accommodate any such challenges that are otherwise authorized. For example, when our
Supreme Court later held “that a defendant may move to strike a prior conviction on
Boykin/Tahl grounds [Boykin v. Alabama (1969) 395 U.S. 238; In re Tahl (1969) 1
Cal. 3d 122]” (People v. Sumstine (1984) 36 Cal. 3d 909, 914), the procedural rules of
section 41403 could be applied to this newly authorized challenge.
10
In sum, we conclude section 41403 does not authorize defendants to collaterally
challenge the enumerated prior convictions in a subsequent prosecution. Instead, it
prescribes the procedures to be used for any such challenges that are otherwise
authorized. Because the only authority to bring such challenges is the judicial rule
established in Coffey, which Garcia held did not extend to challenges based on
ineffective assistance of counsel, the procedures set forth in section 41403 may not be
used to collaterally attack a prior conviction on ineffective assistance grounds.
DISPOSITION
The judgment is affirmed.
SIMONS, J.
We concur.
JONES, P.J.
BRUINIERS, J.
11
Superior Court of Sonoma County, No. SCR-663130, Hon. Gary A. Medvigy, Judge.
Paul F. DeMeester, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney
General, Jeffrey M. Laurence, Senior Assistant Attorney General, Eric D. Share and Leif
M. Dautch, Deputy Attorneys General, for Plaintiff and Respondent.
12