Filed 2/11/98

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Sacramento)

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APPEAL from a judgment of the Superior Court of Sacramento County. J. Gunther, Judge. Affirmed.

R. Charles Johnson, under appointment by the Court of Appeal, for Defendant and Appellant.

Daniel E. Lungren, Attorney General, George Williamson, Chief Assistant Attorney General, Robert R. Anderson,

J. Robert Jibson, Janine R. Busch, Deputy Attorneys General, for Plaintiff and Respondent.

Defendant was convicted by jury of first degree burglary (Pen. Code, § 459) and allegations of two prior serious felonies were found true (Pen. Code, §§ 667, subd. (a); 667, subds.

(b)-(i); 1170.12). The trial court struck one prior and sentenced defendant to 18 years in prison. On appeal defendant contends the trial court abused its discretion in allowing him to be impeached with two 20-year-old robbery convictions; the case should be remanded for an evidentiary hearing on the voluntariness of defendant’s plea on his priors; his counsel was ineffective; and the trial court erred in failing to instruct on lesser related offenses. In the published portion of this opinion, we hold that under People v. Garcia (1997) 14 Cal.4th 953, defendant may not challenge the constitutional validity of a prior conviction used to increase his punishment on the ground that his plea in the prior proceeding was not voluntary. We reject his other contentions in the unpublished portion.

FACTS

Georgia and Sherman Brock lived at 6533 Brock Drive. On March 25, 1995, they were away for the weekend. That night a neighbor heard the sound of breaking glass at their residence and called the police.

Sheriff’s deputies arrived and discovered a broken kitchen window. A deputy looked through a bedroom window and saw a man crawling down the hall. The deputy called for backup.

Deputy Brian Isenogle responded and saw a black pickup he assumed was the suspect’s. He saw someone behind a bush and yelled for him to come out. Defendant appeared, wearing gloves. Due to a mix-up in communication, defendant was released. He went to his girlfriend’s next door and sat down on a planter box.

A canine unit also responded to the call. The dog traced the scent and alerted as he came around the corner to where defendant was sitting. Defendant was arrested.

In the bush where defendant had been hiding there was a flashlight, screwdriver and keys to the black truck laying on top of a pillowcase. Inside the pillowcase were jewelry and war medals that belonged to the Brocks.

A detective interviewed defendant. Defendant first told him he went to his girlfriend’s house to meet her; he then said he went there to spy on her. Finally, he said he "did it" with another who ran away. The statement was not tape recorded and defendant was not asked to write it down.

Defendant testified at trial. His girlfriend lived next door to the Brocks. He went to meet her, not to spy on her. A friend drove him to her house because he had a suspended license. The friend took a walk and later came out of the yard of the empty house with a pillowcase and told defendant to hold on to it. The friend put the pillowcase behind a bush. Defendant went to retrieve his keys when he was approached by the deputy.

After the jury found defendant guilty of burglary, there was a jury trial on defendant’s prior convictions. The jury found the second prior true, but could not reach a verdict on the first. The court declared a mistrial. After a court trial on that prior, the court found it true.

The trial court exercised its discretion to strike one "strike" prior. It sentenced defendant to 18 years in prison, consisting of the midterm of four years doubled, plus two 5-year enhancements.

DISCUSSION

I

Defendant had two convictions for robbery, one each in 1974 and 1975. He had been sent to prison and was released in 1978. He had no convictions since, only an arrest for theft where the charges were dismissed in 1994. The defense moved to exclude these priors for impeachment purposes. After engaging in the balancing required by Evidence Code section 352, the court ruled they were admissible. The court agreed to sanitize them as felonies involving theft. During the direct examination of defendant counsel asked if he had pled guilty to robbery; he answered he had twice, in 1974 and 1975. The court then granted the prosecutor the right to refer to the priors as robberies; the defense had no objection.

Defendant contends the trial court abused its discretion in allowing impeachment with 20-year-old robbery convictions. He contends the prejudice was increased by the failure to give a limiting instruction.

In People v. Castro (1985) 38 Cal.3d 301, the California Supreme Court held that after the amendment which added section 28, subdivision (f) to article I of the State Constitution, the use of a prior conviction to impeach a witness was still subject to the discretion of the trial court, applying the balancing test of Evidence Code section 352. In exercising its discretion, the trial court should consider: "(1) Whether the prior conviction reflects adversely on an individual’s honesty or veracity;

(2) the nearness or remoteness in time of a prior conviction;

(3) whether the prior conviction is for the same or substantially similar conduct to the charged offense; and (4) what the effect will be if the defendant does not testify out of fear of being prejudiced because of impeachment by prior convictions." (People v. Muldrow (1988) 202 Cal.App.3d 636, 644.)

Defendant first attacks the use of robbery priors, contending they are only marginally relevant to his credibility. "There can be little doubt robbery also involves elements that are pertinent to witnesses’ veracity and honesty." (People v. Jackson (1985) 174 Cal.App.3d 260, 266.) As a crime of violence, robbery demonstrates moral turpitude or a readiness to do evil. (People v. Martinez (1985) 175 Cal.App.3d 881, 888; People v. Jackson, supra, 174 Cal.App.3d 260, 266; People v. Stewart (1985) 171 Cal.App.3d 59, 64.) A prior conviction for robbery is properly used for impeachment.

Defendant next contends the prior convictions were too remote. While remoteness alone no longer compels exclusion of a prior, it is still a factor to consider. (People v. Burns (1987) 189 Cal.App.3d 734, 737.) Defendant relies on People v. Antick (1975) 15 Cal.3d 79 for exclusion of remote priors. In Castro, however, the court found the electorate intended to reject the rigid, black letter rules of exclusion created by the Antick line of cases. (People v. Castro, supra, 38 Cal.3d at p. 312.)

Here, the trial court properly engaged in the balancing process of Evidence Code section 352 and determined the priors, while remote, were still admissible. "‘A trial court’s exercise of discretion will not be disturbed unless it appears that the resulting injury is sufficiently grave to manifest a miscarriage of justice. In other words, discretion is abused only if the court exceeds the bounds of reason, all of the circumstances being considered.’" (People v. Green (1995) 34 Cal.App.4th 165, 182-183, citations omitted.) We cannot say as a matter of law that these convictions from 1974 and 1975 were so remote as to be inadmissible under Evidence Code section 352. We find no abuse of discretion in admitting the prior convictions for impeachment.

Defendant contends the prejudice was greater because the jury was not given a limiting instruction that it was to use defendant’s priors only to assess his credibility. A trial court

has no duty to give a limiting instruction sua sponte. (People v. Collie (1981) 30 Cal.3d 43, 63; People v. Simms (1970) 10 Cal.App.3d 299, 311; see Evid. Code, § 355.) Defendant did not request such an instruction, so there was no error. We next consider whether defense counsel’s handling of the prior convictions was ineffective assistance of counsel.

II

Defendant contends his counsel was ineffective in failing to adhere to the court’s ruling to refer to his priors as felonies involving theft. Instead, on direct examination counsel asked defendant if he had pled guilty to robbery.

To succeed on a claim of ineffective assistance of counsel defendant must first show his counsel’s performance was deficient, that it fell below an objective standard of reasonableness under prevailing professional norms. (People v. Ledesma (1987) 43 Cal.3d 171, 216.) We exercise deferential scrutiny in reviewing counsel’s performance. (Ibid.) "In general, reviewing courts defer to trial counsel’s tactical decisions in assessing a claim of ineffective assistance, and the burden rests on the defendant to show that counsel’s conduct falls outside the wide range of competent representation. In order to prevail on such a claim on direct appeal, the record must affirmatively disclose the lack of a rational tactical purpose for the challenged act or omission." (People v. Ray (1996) 13 Cal.4th 313, 349, citations omitted.)

The Attorney General suggests that trial counsel’s handling of defendant’s priors, both referring to them as robberies and failing to request a limiting instruction, was part of a tactical decision to alert the jury that this was a three strikes case and to invoke sympathy for the defendant. There is support for this view in the record. Defense counsel sought to voir dire jurors on the three strikes law, but that request was denied. Counsel also wanted to argue to the jury that the sentence was draconian. In closing argument counsel told the jury to "follow your heart" and find defendant not guilty. In arguing at trial on the priors, counsel urged the jurors to be the conscience of the community and find the priors not true. If they had a conflict in finding both priors not true, then to pick one and throw it out.

Counsel was faced with a strong case against his client. We will not second-guess his tactical decision as to how to handle defendant’s priors. (People v. Ledesma, supra, 43 Cal.3d 171, 216.)

III

At sentencing defense counsel noted that defendant wanted him to make a motion for an evidentiary hearing as to the sufficiency of his waiver of rights during his prior convictions. Counsel believed that since defendant was represented by counsel and the record reflected some waiver, the law was against defendant. Counsel then became aware of a case that held an evidentiary hearing was available. That case was currently before the California Supreme Court, so "I don’t think I am in a place to make that motion."

Defendant contends either he adequately moved for an evidentiary hearing or counsel was ineffective in failing to so move. He asserts that in either case the matter must be remanded for an evidentiary hearing on the voluntariness of his pleas in his prior convictions. The Attorney General urges that defendant’s attempted collateral attack on his prior convictions is now precluded by People v. Garcia, supra, 14 Cal.4th 953. We agree.

In People v. Coffey (1967) 67 Cal.2d 204, the California Supreme Court formulated procedures to be followed by trial courts when a defendant collaterally attacks the constitutionality of a prior conviction in state court. Defendant had moved to strike a prior conviction on the ground that he had been denied assistance of counsel in the proceeding leading to the conviction. The trial court denied the motion as "irregular." (Id. at p. 211.) The Supreme Court found "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." (Id. at p. 215.) A motion to strike the prior before trial was the proper method to raise the issue. (Ibid.) Once the issue was properly raised, the trial court was to hold an evidentiary hearing outside the presence of the jury to determine the constitutional validity of the prior conviction. (Id. at pp. 217-218.)

In People v. Sumstine (1984) 36 Cal.3d 909, the court held a defendant is entitled to an evidentiary hearing of the type formulated in Coffey to attack a prior conviction used to enhance his current sentence on the basis that such prior was obtained in violation of his rights under Boykin v. Alabama (1969) 395 U.S. 238 [23 L.Ed.2d 274] and In re Tahl (1969) 1 Cal.3d 122. The court rejected the argument that the Coffey procedure should be limited to claims that assistance of counsel was denied. (People v. Sumstine, supra, at pp. 918-919.) The court also rejected the argument that allowing Boykin/Tahl challenges on a motion to strike would be unnecessarily time-consuming. It noted that the court had permitted defendants to raise inadequate assistance of counsel on a Coffey motion, citing People v. Coleman (1969) 71 Cal.2d 1159, 1169. (Sumstine, supra, at p. 919, fn. 6.)

In Custis v. United States (1994) 511 U.S. 485 [128 L.Ed.2d 517], the United States Supreme Court held a defendant in a federal sentencing proceeding has no right to attack collaterally a prior state conviction used to enhance his sentence, with the sole exception of a conviction obtained in violation of the right to counsel. This distinction between the denial of right to counsel and other constitutional violations was justified because the former was "a unique constitutional defect." (Id. at p. __ [128 L.Ed.2d 517, 528.) The court noted that "[e]ase of administration" also supported this distinction. While failure to appoint counsel can usually be easily determined from the record, "determination of claims of ineffective assistance of counsel, and failure to assure that a guilty plea was voluntary, would require sentencing courts to rummage through frequently nonexistent or difficult to obtain state court transcripts or records that may date from another era, . . ." (Ibid.) Finally, the interest in promoting finality of judgments also supported the court’s decision. The court noted that where the prior convictions was the result of a guilty plea, as in Custis, the principles of finality "bear extra weight . . . because when a guilty plea is at issue, ‘the concern with finality served by the limitation on collateral attack has special force.’" (Id. at p. __ [128 L.Ed.2d 517, 529].)

In People v. Horton (1995) 11 Cal.4th 1068, the California Supreme Court held that Custis did not preclude a collateral attack on a prior conviction in a capital proceeding in California. It expressly reserved the issue of the permissibility of collateral attacks on priors in a noncapital setting. (Id. at p. 1134.)

That issue was addressed in Garcia v. Superior Court, supra, 14 Cal.4th 953. Defendant sought to challenge the constitutional validity of a prior conviction in a current prosecution; the basis of the challenge was ineffective assistance of counsel. The court concluded neither federal nor state constitutional law entitled defendant to make such a challenge. (Id. at p. 964.) The court found it significant that the United States Supreme Court had distinguished denial of the right to counsel from other constitutional violations in part on the basis of the administrative burden in determining errors other than the denial of assistance of counsel in a collateral proceeding during sentencing. (Id. at pp. 961-962.) It rejected a reading of Sumstine, supra, 36 Cal.3d 909 that the motion-to-strike procedure set forth in Coffey, supra, 67 Cal.2d 204 is available to challenge the validity of a prior conviction on any constitutional ground, refusing to read Sumstine to go beyond its facts. (Garcia, supra, at p. 964.)

The Garcia court next considered whether policy considerations, such as the interest in efficient judicial administration, supported a judicially established rule of procedure entitling defendant to make a collateral attack on his prior. "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. Policy considerations similar to those that led the United States Supreme Court in Custis to restrict narrowly the basis for collateral attacks in a federal sentencing proceeding justify precluding a claim of ineffectiveness of counsel in the prior proceeding as a ground that will support a motion to strike. Past decisions have recognized that claims of incompetence of counsel 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, at pp. 964-965.)

Although Garcia addressed only a challenge to a prior conviction based on ineffective assistance of counsel, its reasoning is equally applicable to a claim that the plea was not voluntary due to inadequate waivers. The concerns expressed in Garcia about efficient judicial administration apply to Boykin/Tahl issues as well as to claims of ineffective assistance of counsel. In Custis, the constitutional challenge to the prior conviction included both claims of ineffective assistance and that the guilty plea was not knowing and intelligent. In considering what claims may be raised in a collateral attack on a prior conviction, Custis made the distinction between the right to counsel on one hand and claims of ineffective assistance or involuntary guilty pleas on the other. (Custis v. United States, supra, 511 U.S. 485 at p. ___ [128 L.Ed.2d at p. 528].) Issues relating to the voluntariness of the plea will almost always be intertwined with issues relating to effectiveness of counsel. We see no reason to grant an evidentiary hearing on the former where our state Supreme Court has expressly precluded one on the latter. (Garcia, supra, 14 Cal.4th 953, 956.) Further, as Custis noted, where the prior conviction was obtained as the result of a guilty plea, the interest in finality of judgments is especially strong and precludes a collateral attack. (Custis v. United States, supra, 115 U.S. 485, __ [128 L.Ed.2d 517, 529].)

Since Garcia followed Custis in denying a collateral attack on a prior conviction where the basis is ineffective assistance of counsel, and since we perceive no principled distinction between that constitutional challenge and one based on the denial of Boykin/Tahl rights in the context of the constitutional validity of a prior conviction used in sentencing, we read Garcia to adopt Custis in noncapital cases. To the extent People v. Sumstine, supra, 14 Cal.4th 953 suggests a contrary result, we conclude Garcia implicitly overruled it. Defendant had no right to an evidentiary hearing on the voluntariness of his pleas in his prior convictions.

IV

Defendant contends the trial court erred in failing to instruct on the lesser related offenses of loitering (Pen. Code, § 647) and receiving stolen property (Pen. Code, § 496). He requested an instruction on loitering, which was refused.

In People v. Geiger (1984) 35 Cal.3d 510, the California Supreme Court set forth the circumstances in which an instruction on a lesser related offense must be given. "[T]he first prerequisite to receiving instructions on lesser related offenses must be the existence of some basis, other than an unexplainable rejection of prosecution evidence, on which the jury could find the offense to be less than that charged. [¶] Second, the offense must be one closely related to that charged and shown by the evidence. . . . The right to instructions on related offenses exists only to enable the jury to determine fairly the issues presented by the evidence and in so doing to avoid any incentive to convict the defendant of a greater offense than that which he committed. The issues presented by the evidence are those related first to the defendant’s guilt or innocence of the charged offense. Although some evidence offered by the People or the defendant may indicate that the defendant has committed a crime other than that charged, instructions regarding that crime need not be given unless the evidence is also relevant to and admitted for the purpose of establishing whether the defendant is guilty of the charged offense. [¶] Finally, the instructions must be justified by the defendant’s reliance on a theory of defense that would be consistent with a conviction for the related offense. Thus, the instruction need not be given if the defense theory and evidence reflect a complete denial of culpability as when the defense is alibi, or the only issue is identity, unless the defendant argues that the evidence at most shows guilt only of the related offense." (Id. at pp. 531-532, fn. omitted.)

The court further noted: "In doubtful situations, however, the determinative factor should be whether the option to convict a defendant of a related offense is reasonably necessary to insure that the jury is afforded the opportunity to decide all material issues presented by the evidence in accord with the defendant’s theory of the case, where denial of that opportunity might undermine the reasonable doubt standard." (People v. Geiger, supra, 35 Cal.3d at p. 532, fn. 12.)

There is no duty to instruct on a related offense in the absence of a request by the defendant. (People v. Carrera (1989) 49 Cal.3d 291, 310; People v. Geiger, supra, 35 Cal.3d at p. 530.) Since defendant did not request an instruction on receiving stolen property, there was no error in failing to give the instruction.

Defendant did request an instruction on loitering. He contends the testimony that he told the detective he was at his girlfriend’s house to spy on her is adequate evidence to support giving the instruction. We disagree. There was no evidence to support a jury finding that defendant was only loitering, not a burglar. The People offered the detective’s testimony only to show defendant changed his story, culminating in an admission. Defendant’s defense was that another committed the burglary; he was simply waiting for his girlfriend. He expressly denied that he was there to spy on his girlfriend and denied telling the detective that story. There was no error in failing to instruct on lesser related offenses.

DISPOSITION

The judgment is affirmed. (CERTIFIED FOR PARTIAL

MORRISON , J.

We concur:

NICHOLSON , Acting P.J.

CALLAHAN , J.