Prior convictions of separate offenses

• Pages: 269-310
• Author: Paul Burglin,Barry Simons,Ed Kuwatch

PRIOR CONVICTIONS OF

SEPARATE OFFENSES

4-1

CHAPTER 4

PRIOR CONVICTIONS OF

SEPARATE OFFENSES

§4:10 MOTION TO DECLARE PRIOR CONVICTION UNCONSTITUTIONAL

§4:12 General Information

§4:12.1 Legal Framework

§4:12.2 Procedural Requirements and Limitations

§4:12.3 Burden of Proof on Defendant

§4:12.4 Not a Trial Motion

§4:12.5 Uncharged Convictions

§4:12.6 Three-Strikes Prior Convictions

§4:12.7 Constitutionality of Out-of-State Convictions

§4:13 The Record

§4:13.1 Getting the Record From the Rendering Court

§4:13.2 Checking the Record

§4:14 Allegation in Support

§4:14.1 Serve Five Days Before Hearing

§4:14.2 No Advice, Knowledge or Waiver

§4:14.3 Silent Record Can Show Lack of Actual Waiver

§4:14.4 Prejudice

§4:14.5 Client’s Recollection and Testimony

§4:14.6 Defendant’s Declaration Not Required

§4:14.7 Form for Allegation in Support

§4:14.8 Form for Alternative Allegation in Support

§4:15 Notice; General Points and Authorities

§4:15.1 No Advice, Knowledge or Waiver of Constitutional Rights

§4:15.2 No Verbatim Record

§4:15.3 No Inquiry and Finding That Rights Waiver

Was Knowing, Voluntary and Intelligent

§4:15.4 Constitutional Invalidity Order

§4:16 Other Possible Grounds for Motion

§4:16.1 Judge’s Conflict of Interest

§4:16.2 Failure to Advise of Consequences: Future Use, Punishment and

Suspension/Revocation

§4:16.3 Right to Testify and Present Evidence

§4:16.4 Plea and Sentence Involving Commissioner or Pro-Tem Judge

§4:16.5 Involuntary Plea Induced by Illegal Threats

§4:16.6 Unlicensed Counsel

§4:16.7 Denial of Interpreter

PRIOR CONVICTIONS OF

SEPARATE OFFENSES

California Drunk Driving Law 4-2

§4:16.8 Advice to Aliens

§4:16.9 Double Jeopardy Violations

§4:16.10 Advice of Dangers and Disadvantages of Self-Representation

§4:16.11 Miscellaneous Issues

§4:17 Challenge to Grant or Denial of Motion

§4:17.1 By Defendant

§4:17.2 By Prosecution

§4:20 PRIOR CONVICTION SENTENCE ENHANCEMENT LAW IN GENERAL

§4:21 Right to Jury or Court Trial

§4:21.1 Challenging Out-of-State Priors at Trial

§4:21.2 Authentication of Out-Of-State Records of Prior Convictions

§4:22 Erroneous DMV Record of Prior Conviction

§4:23 Ten Years or Less Between Offense Dates

§4:23.1 Measured From Offense Date to Offense Date

§4:23.2 Prior Convictions and Separate Offenses

§4:23.3 What’s a “Year?”

§4:24 What Can Be Alleged as a Prior Conviction Sentence Enhancement?

§4:24.1 Offense Within Ten Years of Current Offense

§4:24.2 Juvenile “Conviction” (Adjudication)

§4:24.3 Federal Conviction

§4:24.4 Reckless Driving Conviction

§4:24.5 Uncounseled Conviction Alleged to Make Current Offense a Felony

§4:24.6 Drunk Boating Conviction

§4:24.7 Uncharged Prior Convictions and Pending Charges

§4:24.7.1 Amending Complaint To Allege Prior Conviction

§4:24.7.2 Amending Complaint To Allege Other Pending DUI

Charge

§4:24.8 Dismissal Under PC §§1203.4 and 1203.4a

§4:24.9 Constitutionality Previously Determined

§4:24.10 Truth Previously Determined

§4:24.11 Conviction for Offense That Occurred After Current Offense

§4:24.12 Out-of-State Conviction

§4:25 Future Use of Conviction for Enhancement

§4:25.1 Need Not Advise at Time of Guilty Plea

§4:25.2 Increase in Enhancement Severity

§4:25.3 Striking Strike Prior for Sentencing Doesn’t Affect §4019 Credits

§4:30 MOTION TO VACATE JUDGMENT; WRIT OF ERROR CORAM NOBIS

PRIOR CONVICTIONS OF

SEPARATE OFFENSES

4-3 Prior Convictions of Separate Offenses §4:12

This chapter covers motions and general topics concerning sentence enhancement allegations of prior convictions

of separate offenses. See §4:23.2 regarding use of the phrases separate offense and prior conviction.

See §9:100 regarding trial, jury instructions and proof of prior conviction sentence enhancement allegations.

See §10:23 regarding punishment resulting from prior convictions.

See §11:12 and §11:166 regarding Stop ‘n Snatch suspension and revocation consequences resulting from

prior convictions.

§4:10 MOTION TO DECLARE PRIOR CONVICTION UNCONSTITUTIONAL

§4:12 General Information

§4:12.1 Legal Framework

It is helpful to an understanding of the law related to motions to strike prior convictions for unconstitutionality

to know that such law is divided into three categories:

1. Law related to the procedures that must be followed in the taking of guilty pleas;

2. Law related to the type of records that must be kept to indicate that the procedures were followed; and,

3. Law related to the procedures to follow for the motion itself.

§4:12.2 Procedural Requirements and Limitations

People v. Coey (1967) 67 Cal.2d 204, held defendants may collaterally attack a prior conviction in a pending

case without having to le a petition for writ of habeas corpus. The procedure outlined in Coey was codied for

specied oenses six years later with the enactment of VC §41403.

VC §41403 sets forth the procedural requirements for striking a prior conviction for VC §§14601, 14601.1,

14601.2, 23152, 23153, and 23103 per 23103.5 oenses on constitutional grounds.

Garcia v. Superior Court (1997) 14 Cal.4th 953, held defendants may not move to strike a prior conviction

alleged as an enhancement in a noncapital pending case on the basis of ineective assistance of counsel, and VC

§41403 was interpreted by People v. Bechtol (2017) 10 Cal.App.5th 950 to not provide an exception to this rule.

The reasoning of the Garcia Court was that the task of evaluating the eectiveness of counsel in another action is

too burdensome on the trial court. The reasoning of the Bechtol Court was based on an analysis of the legislative

history of the statute (it was enacted to thwart a tendency of trial courts to strike prior convictions just to help

resolve current cases, and, thus, the statute sets forth procedural rules for doing so as opposed to providing new

rights). Notwithstanding Coey, if defense counsel wishes to challenge a prior conviction based on the ineective

assistance of counsel, the procedure for doing so is with a petition for writ of habeas corpus in that action. If it is

on any other constitutional basis, the procedure set forth in VC §41403 controls for the oenses enumerated above.

VC §23624 provides that there is only one constitutional challenge permitted against each conviction, except

that “a subsequent statute or appellate decision having retroactive application aords any new basis to challenge

the constitutionality of the conviction.” It further provides that a conviction found unconstitutional may not be

used in any other judicial or administrative proceeding, and the DMV must strike it from their records.

Trial courts are mandated to report to the DMV any determination upholding or striking a prior conviction

on constitutional grounds. VC §1803.

VC §23624 provides that there is only one constitutional challenge permitted against each conviction, except

that “a subsequent statute or appellate decision having retroactive application aords any new basis to challenge

the constitutionality of the conviction.” It further provides that a conviction found unconstitutional may not be

used in any other judicial or administrative proceeding and the DMV must strike it from their records.

Trial courts are mandated to report to the DMV any determination upholding or striking a prior conviction

on constitutional grounds. VC §1803.

VC §23624 states that it applies only to convictions of §§23152, 23153, 14601 and 14601.2. However, because

of the language of VC §23620, it also applies to convictions under Harb. & Nav. C. §§655(b), (c), (d), (e) and (f)

(drunk boating) and PC §§191.5 and 192(c)(3) (vehicular manslaughter intoxicated).