Allen

We held in People v. Sumstine (1984) 36 Cal.3d 909 [ 206 Cal.Rptr. 707 , 687 P.2d 904 ] (Sumstine) that a criminal defendant, charged with having suffered.a prior felony conviction, may move in the trial court to strike the alleged prior conviction on the ground the trial court in the prior proceeding failed to observe the defendant’s Boykin-Tahl rights. (Boykin v. Alabama (1969) 395 U.S. 238 [ 89 S.Ct. 1709 , 23 L.Ed.2d 274 ] *427 (Boykin); In re Tahl (1969) 1 Cal.3d 122 [ 81 Cal.Rptr. 577 , 460 P.2d 449 ] (Tahl).) Ten years after Sumstine , the United States Supreme Court held the federal Constitution does not authorize a criminal defendant to move in the trial court to strike an alleged prior state felony conviction unless he or she was denied the right to counsel in the prior proceeding. (Custis v. United States (1994) 511 U.S. 485 [ 114 S.Ct. 1732 , 128 L.Ed.2d 517 ] (Custis).) We granted review in this case to address a division in our Courts of Appeal regarding whether, as a result of Custis and subsequent decisions, we should overrule Sumstine . As we explain below, although we find Sumstine survives Custis , the motion to strike procedure is available to…

I concur in the judgment. I agree with the majority’s holding that a noncapital criminal defendant, charged for sentencing purposes with having suffered a prior felony conviction, may not move in the sentencing court to strike the earlier conviction on the ground his or her Boykin-Tahl rights (Boykin v. Alabama (1969) 395 U.S. 238 [ 89 S.Ct. 1709 , 23 L.Ed.2d 274 ] (Boykin); In re Tahl (1969) 1 Cal.3d 122 [ 81 Cal.Rptr. 577 , 460 P.2d 449 ] (Tahl)) were violated in the previous case, if the prior conviction predates our decision in Tahl. As the majority explain, when People v. Sumstine (1984) 36 Cal.3d 909 [ 206 Cal.Rptr. 707 , 687 P.2d 904 ] (Sumstine) authorized such Boykin-Tahl motions, it relied on the premise that disruption of the current proceeding would be minimal, because a Boykin-Tahl violation would usually appear on the face of the plea record in the prior case. However, only after Tahl were courts on notice that “the record [of a guilty plea] must contain on its face” direct evidence of the required pre-plea admonitions and waivers. (Tahl, supra, 1 Cal.3d at p. 132 , italics in original.) Thus, even if motions to strike post -Tahl priors can often be handled with…