Soto

In this case we hold a defendant in a noncapital case may move to strike a prior conviction on Boykin/Tahl grounds notwithstanding the decision in Custis v. United States abolishing this remedy in the federal courts. However, defendant failed to meet his burden of establishing he did not knowingly and intelligently waive his right to a jury trial before pleading guilty in the prior proceeding. Therefore, we reverse the order striking the allegation of the prior robbery conviction and remand the cause to the superior court for further proceedings.

*1600 Facts and Proceedings Below

The People filed an information charging defendant with one count of possession of cocaine. The information also alleged defendant previously had been convicted of robbery, a “strike” under California’s “three strikes” law. (Pen. Code § 667, subds. (b)-(i).)

Defendant made a pretrial motion to dismiss the prior conviction allegation on the ground, inter alia, the conviction resulted from an invalid waiver of his right to a jury trial. In support of this motion, his attorney filed an unsworn statement which simply stated the transcript of the plea in the prior proceeding reveals “defendant…

(1) In this case we hold a defendant in a noncapital case may move to strike a prior conviction on Boykin/Tahl grounds notwithstanding the decision in Custis v. United States abolishing this remedy in the federal courts. However, defendant failed to meet his burden of establishing he did not knowingly and intelligently waive his right to a jury trial before pleading guilty in the prior proceeding. Therefore, we reverse the order striking the allegation of the prior robbery conviction and remand the cause to the superior court for further proceedings.

The People filed an information charging defendant with one count of possession of cocaine. The information also alleged defendant previously had been convicted of robbery, a "strike" under California's "three strikes" law. (Pen. Code § 667, subds. (b)-(i).) [1]

Defendant made a pretrial motion to dismiss the prior conviction allegation on the ground, inter alia, the conviction resulted from an invalid waiver of his right to a jury trial. In support of this motion, his attorney filed an unsworn statement which simply stated the transcript of the plea in the prior proceeding reveals "defendant was not properly…

I agree with the majority that the defendant did not meet his burden in challenging the validity of his alleged robbery *1608 conviction and therefore the trial court erred in striking it. I also agree with the disposition: reversal and remand, allowing defendant to withdraw his guilty plea if he chooses to do so.

But unlike the majority I would not reach the Custis issue. The question of whether a defendant may collaterally challenge an alleged prior conviction on grounds other than denial of counsel is of far reaching importance. Our Supreme Court, in addressing this question, limited its holding to capital offenses. (People v. Horton (1995) 11 Cal.4th 1068 [ 47 Cal.Rptr.2d 516 , 906 P.2d 478 ].) Because defendant’s motion and proof were both inadequate— requiring a denial of his motion—we need not, and I would not, address the Custis issue.