P. v. Virgil

Filed 4/4/07 P. v. Virgil CA1/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION THREE

Defendant Larry Paul Virgil appeals from his conviction after a plea of no contest to carjacking, possession of a deadly weapon, and evading arrest and certain sentencing enhancements including prior convictions. He challenges only the trial courts denial of his motion to strike one of the prior convictions. The trial court did not abuse its discretion and we shall affirm.

Background

Defendant was charged by indictment with one count of carjacking (Pen. Code,[1]  215, subd. (a)) with an allegation that he had used a firearm in commission of the carjacking ( 12022.53, subd. (b)), one count of being a felon in possession of a firearm ( 12021, subd. (a)(1)), possession of a deadly weapon ( 12020, subd. (a)(1)), and evading a police officer by reckless driving (Veh. Code,  2800.2, subd. (a)). It was also alleged for the purposes of the three strikes law ( 667) that defendant had been convicted of robbery in 1978, and that under section 1203, subdivision (e)(4) he was ineligible for probation, having suffered four prior felony convictions, including the 1978 robbery conviction.

On December 14, 2005, defendant pled no contest to all of the charges and on January 26, 2006, moved to strike the 1978 conviction. The court denied the motion without conducting an evidentiary hearing and sentenced defendant to the three-year low term for the carjacking plus 10 consecutive years for use of a firearm, concurrent terms of two years each for the remaining three counts, and five consecutive years for the prior conviction under section 667, subdivision (a), for a total of 18 years in state prison. Defendant timely appealed.

Discussion

Defendant challenges only the trial courts denial of his motion to strike the 1978 conviction. He argues that the conviction was invalid because it was based on a plea of no contest and he was not properly advised of his constitutional rights before entering that plea, citing Boykin v. Alabama (1969) 395 U.S. 238, and In re Tahl (1969) 1 Cal.3d 122. We review a trial courts ruling on motion to strike a prior conviction for abuse of discretion. (People v. Williams (1998) 17 Cal.4th 148, 152.)

The procedure for collaterally attacking a prior conviction on Boykin/Tahl grounds is explained in several Supreme Court cases including People v. Sumstine [(1984) 36 Cal.3d 909] . . . . When a defendant seeks to collaterally attack the validity of a prior conviction, he or she must first allege facts sufficient to justify a hearing on the motion to strike the prior. That is, defendant must allege actual denial of his constitutional rights, (People v. Sumstine, supra, 36 Cal.3d at p. 922) and, at least in cases involving an imperfect advisement of rights, allege that absent this denial defendant would not have pled guilty to the charge. (People v. Soto (1996) 46 Cal.App.4th 1596, 1605-1606.) When a defendant makes sufficient allegations that his conviction, by plea, in the prior felony proceedings was obtained in violation of his constitutional Boykin-Tahl rights, the trial court must hold an evidentiary hearing. At the hearing, the prosecution bears the initial burden of producing evidence that the defendant did indeed suffer the conviction. The defendant must then produce evidence to demonstrate his Boykin-Tahl rights were infringed. The prosecution then has the right to rebuttal, at which point reliance on a silent record will not be sufficient. [Citations.] . . . [As this is a collateral attack on the conviction], the People need only make a prima facie showing of the existence of the prior conviction [citation], whereupon the burden shifts to the defendant, who bears the burden of proving the constitutional invalidity of the conviction [citation]. In order to rely on the prior conviction in sentencing, of course, the People retain the burden of proving, beyond a reasonable doubt, that the defendant suffered the conviction. (People v. Allen (1999) 21 Cal.4th 424, 435-436, italics and fn. omitted.)

The fact of defendants 1978 conviction is not in doubt. Defendant contends that his allegations were sufficient to have required the court to conduct an evidentiary hearing to determine whether the conviction was obtained without satisfying constitutional requirements. Defendants declaration in support of his motion states, I have no recollection of ever being informed or waiving my constitutional rights in this case, I have no recollection of my attorney ever explaining to me that I was waiving my constitutional rights by executing [the change-of-plea] form, and I do not ever recall explicitly waiving my constitutional rights. He also asserts that he did not personally complete the change-of-plea form, and he presents a hearsay statement of his former attorney to his current attorney that the form was completed by the attorney and that he had no memory of whether he advised Mr. Virgil of his constitutional rights. Defendant also made an offer of proof, through his attorney below, as follows: Let me give you an offer of proof as to what Mr. Virgil testified . . . . He was going to state that one, did you know your constitutional rights in 1978? I believe his answer would be no because I believe that was the first time he became involved in the criminal justice system. Two, at the time you pled guilty, were you aware of how the constitutional rights would interplay with your plea? I believe the answer would be no. And three, if you knew your constitutional rights, would you still plead guilty? And I think his answer would be well, Id have to review the situation because honestlyand I appreciate his honestyhe doesnt know because it hadnt been given to him. Counsel also stated that defendants 1978 attorney was available and would testify that he did not . . . observe the defendant fill in the blanks [on the change-of-plea form] other than his signature. . . . Two, I believe [counsel] will testify he did not give him his constitutional rights, that he expected the court to do that.

These assertions were not sufficient to require an evidentiary hearing. Initially, the record is not silent, as defendant claims, as to whether he received his Boykin-Tahl advisement. The change-of-plea form states that My attorney has explained my constitutional rights to: a trial by jury, confront witnesses against me, the process of the court to compel the attendance of witnesses on my behalf, the right to remain silent or, if I so choose, to testify for myself. I do realize that I give up these rights by pleading guilty or nolo contendere. . . . The plea form is signed by defendant. Although the form does not recite explicitly that defendant waives those rights, the findings and order at the bottom of the form, signed by the trial judge, recite that defendant was advised as to his rights and that [t]he court finds that the defendant made a knowing, intelligent and voluntary waiver of the above rights. The inability of defendant or his attorney to recollect precisely what occurred 27 years in the past is insufficient to establish that the record is erroneous. (People v. Cooper (1992) 7 Cal.App.4th 593, 597 [[T]he evidence presented by the minute order of a silent record and defendants bare declaration of nonwaiver of his right to a jury trial are insufficient to support defendants challenge of the prior conviction . . . . Defendant has not explained the circumstances surrounding the entry of his guilty plea but has presented only the conclusory allegation that he did not waive his right to a jury trial. Conclusory allegations made without any explanation of the basis for the allegations do not warrant relief. . . . ]; People v. Sumstine, supra, 36 Cal.3d at p. 924.)

Moreover, defendant has not alleged that he would not have entered his plea to the earlier conviction had he been advised of his rights. In order to collaterally attack the conviction, as he seeks to do, he must allege both that he was unaware of his constitutional rights and that he would not have pled guilty had he known of the right[s]. (People v. Cooper, supra, 7 Cal.App.4th at p. 601; People v. Soto,supra, 46 Cal.App.4th at pp. 1605-1607.) As indicated above, defendant acknowledged to the trial court that he was unable to make such a statement. Defendant does not address this omission in either his opening brief or, despite the attention directed to the issue in the respondents brief, in his reply.

Defendant has alleged little more than his inability to recall the circumstances surrounding the entry of his 1978 conviction. His showing was inadequate to require an evidentiary hearing and the trial court did not err in denying the motion to strike.

Disposition

The judgment is affirmed.

_________________________

Pollak, J.

We concur:

_________________________

Parrilli, Acting P. J.

_________________________

Siggins, J.

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[1] All statutory references are to the Penal Code, unless otherwise indicated.