Lucas

Petitioner, David Allen Lucas, is charged in a capital case. He seeks to challenge a 1973 rape conviction and accompanying assault conviction which have been alleged as circumstances in aggravation for the penalty phase of his trial. Petitioner brought a Coffey-Sumstine motion (People v. Coffey (1967) 67 Cal.2d 204 [ 60 Cal.Rptr. 457 , 430 P.2d 15 ]; People v. Sumstine (1984) 36 Cal.3d 909 [ 206 Cal.Rptr. 707 , 687 P.2d 904 ]) seeking to have the prior stricken as unconstitutional on the basis of ineffective assistance of counsel. The court, sua sponte, said it questioned whether it had jurisdiction to hear such a motion thinking that the issue should be raised by a petition for writ of habeas corpus. Petitioner briefed the questions raised by the trial court. The People did not respond. At the hearing, the prosecution in effect conceded the court had jurisdiction to hear the motion as filed. The court, however, ruled to the contrary saying that collateral attack on priors based on constitutional claims by way of a Coffey-Sumstine motion is limited to those involving lack of counsel, failure to waive counsel and Boykin-Tahl error. (Boykin v. Alabama (1969) 395 U. S. 238 […