I concur in the majority’s conclusion that the constitutional validity of a prior murder conviction may be collaterally attacked through a pretrial motion to strike the special circumstance. I do not agree, however, that a defendant must show by a preponderance of the evidence that the prior conviction was invalid. The prosecutor has this burden of proof and, further, must establish the constitutional validity of the prior conviction beyond a reasonable doubt.
I.
In Boykin v. Alabama (1969) 395 U.S. 238 [23 L.Ed.2d 274, 89 S.Ct. 1709], the United States Supreme Court held that a criminal defendant must comprehend the constitutional rights that he or she waives when pleading guilty. If the defendant does not understand these rights, the waiver is not valid. In In re Tahl (1969) 1 Cal.3d 122 [81 Cal.Rptr. 577, 460 P.2d 449], we applied Boykin to require that the record expressly demonstrate that the defendant was made aware of his or her constitutional rights and waived them. In light of Boykin and Tahl, the presumption of regularity does not attach when the record does not establish that the defendant was advised of each of the constitutional rights that he or she was waiving. (People v. Sumstine (1984) 36 Cal.3d 909, 923 [206 Cal.Rptr. 707, 687 P.2d 904]; In re Smiley (1967) 66 Cal.2d 606, 617 [58 Cal.Rptr. 579, 427 P.2d 179].)
Defendant alleged that he was under the influence of drugs at the time the court took his guilty plea in a prior murder case. The record includes the court’s statement that the plea was “free and voluntary, predicated on a factual basis, with an intelligent waiver of rights and with understanding of the nature of the charges and possible consequences.” The record, however, does not set forth, in express terms, defendant’s personal waiver of each of the individual constitutional rights, as required by Boykin (supra, 395 U.S. 238) and Tahl (supra, 1 Cal.3d 122). Accordingly, the presumption of regularity is not applicable here as the record does not establish the predicate facts.
*1310In People v. Sumstine, supra, 36 Cal.3d 909, we held that a prior conviction could be collaterally attacked by alleging a Boykin-Tahl violation. The challenge, we further held, should be addressed by the court in conformance with the procedure set out in People v. Coffey (1967) 67 Cal.2d 204 [60 Cal.Rptr. 457, 430 P.2d 15].1 Coffey requires that courts treat a defendant’s allegation of constitutional invalidity as a pretrial motion to strike the prior conviction from the accusatory pleading which alleges the conviction.
In accordance with the procedure enunciated in Coffey, the majority hold that the jury’s duty in determining the “truth” of a special circumstance is merely to determine the fact of the conviction rather than the fact and the constitutional validity of the conviction. (Maj. opn., ante, at pp. 1300-1301.) Indeed, several policy reasons support this conclusion, including the economic use of the court’s time and the problem of prejudice affecting a jury which has heard evidence of an unconstitutional prior conviction. Further, to allow other defendants to invoke a pretrial hearing on the constitutional validity of prior convictions while denying this right to defendants in death penalty cases would be a distinction unsupported in logic or statute. Accordingly, I concur in part II of the majority opinion.
II.
In Coffey we held that the state must establish a prima facie case that defendant had suffered a previous conviction; then, the defendant had “the burden of producing evidence that [these] constitutional right[s were] infringed in the prior proceeding . . . .” (People v. Coffey, supra, 67 Cal.2d 204, 217, italics added.) The use of the term of art, “burden of producing evidence,” itself indicates that we intended to give the defendant only the obligation “to introduce evidence sufficient to avoid a ruling against him on the issue.” (Evid. Code, § 110.) Yet, in case there should be any confusion about the burden that was assigned to defendant, we explained: “Though the burden ofproof as to the constitutionality of the charged prior conviction *1311remains with the prosecution, and the burden of producing evidence rests initially with it, the latter burden shifts to the defendant upon proof of the fact of his having ‘suffered’ the prior conviction.” (Coffey, supra, 67 Cal.2d at p. 217, fn. 15, italics added.)
Our pronouncement in Coffey is entirely antithetical to the discussion of Coffey offered by the majority opinion. While reiterating the basic procedure set forth in Coffey, the majority opinion reallocates the burdens under that procedure with its assertion that “[t]he burden of proving the constitutional invalidity of the prior conviction . . . lies with the defendant.” (Maj. opn., ante, at p. 1304, fh. 7, italics in original.) The majority have confused the burden of producing evidence (Evid. Code, § 110) with the burden of proof (Evid. Code, § 115). As a result, the majority’s “explanation” of Coffey does not explain our holding in Coffey, it overrules Coffey.2
Stare decisis is “a fundamental jurisprudential policy that prior applicable precedent usually must be followed even though the case, if considered anew, might be decided differently . . . .” We have held that we should only reconsider precedent where we find “court-created error” or when “subsequent developments indicate an earlier decision was unsound . . . .” (Moradi-Shalal v. Fireman’s Fund Ins. Companies (1988) 46 Cal.3d 287, 296-297 [250 Cal.Rptr. 116, 758 P.2d 58].) The majority opinion never acknowledges that the Coffey decision (supra, 67 Cal. 2d 204) unequivocally placed upon the prosecution the burden of proof in a pretrial hearing on the constitutional validity of a prior conviction. Instead, the majority relegate our mandate in Coffey to a footnote (maj. opn., ante, at p. 1304, fn. 7) and instead rely almost entirely upon a line of United States Supreme Court decisions involving habeas corpus proceedings.3
The majority opinion treats defendant’s motion as if it were a petition for writ of habeas corpus where, standing in the position of a plaintiff in a civil *1312action, defendant would have the burden of proof. In ignoring the distinction between defendant’s motion and a habeas corpus proceeding, the majority take a position that we expressly rejected years ago. In Sumstine, we stated clearly that motions to strike allegations of prior convictions could not be treated as habeas corpus proceedings, and explained the rationale: “The reason for [the] distinction between the rules governing habeas corpus and the rules governing motions to strike can be seen by examining the effects of the two different procedures. When the issuance of a writ of habeas corpus vacates the underlying judgment of conviction, the judgment ceases to exist for all purposes. After the writ has issued, the state can seek in some circumstances to retry the defendant on the underlying charges . . . ; due diligence and timeliness are therefore properly required, because tardy petitions hinder the state’s ability to effectively present its case anew.
“On the other hand, motions to strike do not vacate the underlying conviction: ‘The striking of an allegation of a prior conviction from the complaint in a pending criminal proceeding is not the equivalent of a determination that the defendant did not, in fact, suffer the conviction .... [T]he defendant must continue to fulfill the conditions of the sentence imposed upon him as a result of the prior conviction unless he successfully moves to vacate or set aside the judgment in the original action The purpose of a motion to strike is to challenge only the present effect of the prior conviction. As the state is the party proposing to assert the effect of the prior conviction at the current trial, the state should also be prepared to face challenges to it.” (People v. Sumstine, supra, 36 Cal.3d 920-921, citations omitted, fns. omitted.)
Thus, the majority’s conclusion that the defendant, rather than the prosecution, bears the burden of proof when the validity of a prior conviction is put in issue on a motion to strike is clearly at odds with the Coffey decision (supra, 67 Cal.2d 204) and is not supported by the authority on which the majority rely. Accordingly, I cannot join in part III of the majority opinion.
III.
Furthermore, under California law, not only does the prosecution, rather than the defendant, bear the burden of proof with regard to the validity of a charged prior conviction, but the prosecution is required to prove the validity of the prior conviction beyond a reasonable doubt.
*1313In 1971, four years after the Coffey decision (supra, 67 Cal.2d 204), the Legislature enacted Vehicle Code section 41403.4In that statute, the Legislature adopted the procedure set out in Coffey for drivers challenging the constitutional validity of a prior drunk driving conviction. As in Coffey, that section requires that the prosecution produce evidence of the prior conviction, and thereafter requires that defendant produce evidence that the defendant’s constitutional rights were infringed in connection with that prior conviction. The prosecution then has the opportunity to present evidence in rebuttal. The statute explicitly provides: “The burden of proof remains with the prosecution throughout and is that of beyond a reasonable doubt.” (Veh. Code, § 41403, subd. (b)(1), italics added.)
Thus, under Vehicle Code section 41403, when the state alleges a prior conviction in the context of a recidivist drunk driving charge, the prosecution is required to prove the constitutional validity of the alleged prior beyond a reasonable doubt. Whether or not the Legislature believed it was simply reflecting the mandate of Coffey, supra, 67 Cal.2d 204, when it expressly applied the reasonable doubt standard in this context, it is clearly anomalous, and indeed irrational, for this court to now apply a less stringent standard of proof—and, indeed, to place the burden of proof on the defendant, rather than the prosecution—in a setting in which the state has charged a prior conviction in order to establish the death eligibility of a criminal defendant. Because section Vehicle Code 41403 reflects a clear indication that the Legislature has concluded that the constitutional validity of a prior conviction must be proven by the prosecution beyond a reasonable doubt, there is no justification for invoking the “preponderance of the evidence” standard by “default” pursuant to Evidence Code section 115.
Furthermore, not only is the beyond-a-reasonable-doubt standard called for by analogy to the provisions of Vehicle Code section 41403, but that standard is also the standard that has been applied by federal courts in comparable contexts. As the Fourth Circuit recently explained in U.S. v. Gaylor (4th Cir. 1987) 828 F.2d 253, 255: “In a prosecution brought pursuant to a recidivist statute, the existence of a constitutionally valid prior conviction is an essential jurisdictional element of the offense which the government must prove beyond a reasonable doubt.” (See also Brown v. United States (4th Cir. 1973) 483 F.2d 116, 121-122; United States v. Lufman (7th Cir. 1972) 457 F.2d 165, 166, fn. 2.)
Accordingly, I cannot join in part IV of the majority opinion.
*1314IV.
I would reverse the Court of Appeal decision and direct the Court of Appeal to issue a writ of mandate in accordance with the views expressed above.
Petitioner’s application for a rehearing was denied February 21, 1991. Baxter, J., did not participate therein. Broussard, J., was of the opinion that the application should be granted.
“First, when a defendant, whether by motion to strike the prior conviction or convictions on constitutional grounds, or by denial of such prior conviction or convictions on constitutional grounds at the same time of entering his plea to the same, raises the issue for determination, the court shall, prior to trial, hold a hearing outside the presence of the jury in order to determine the constitutional validity of the charged prior or priors in issue. Second, in the course of such hearing the prosecutor shall first have the burden of producing evidence of the prior conviction sufficient to justify a finding that defendant ‘has suffered such previous conviction.’ (Pen. Code, § 1025.) Third, when this prima facie showing has been made, the defendant shall thereupon have the burden of producing evidence that his constitutional [rights were] infringed in the prior proceeding at issue. Fourth, if defendant bears this burden, the prosecution shall have the right to produce evidence in rebuttal. Fifth, the court shall make a finding on the basis of the evidence thus produced and shall strike from the accusatory pleading any prior conviction found to be constitutionally invalid.” (People v. Coffey, supra, 67 Cal.2d 204, 217-218, fn. omitted, italics in original.)
The majority’s conclusion is also contrary to Sumstine, which also stated that a defendant bears only the burden of producing evidence: “The state at first need prove only the fact of the prior conviction, but once the defendant has produced evidence tending to show his constitutional rights were infringed, it will not be sufficient rebuttal for the state to simply invoke the regularity of the silent record.” (People v. Sumstine, supra, 36 Cal.3d 909, 923.) Once evidence is produced “tending to show” constitutional invalidity, the state must offer “sufficient rebuttal.”
Contrary to the majority’s assertion, the United States Supreme Court did not refer generally to “collateral attacks” in holding that a defendant has the burden of proving the constitutional invalidity of a prior conviction in a habeas corpus proceeding: “Where a defendant . . . seeks release by the extraordinary remedy of habeas corpus, the burden of proof rests upon him to establish that he did not competently and intelligently waive his constitutional right to assistance of counsel.” (Johnson v. Zerbst (1938) 304 U.S. 458, 468-469 [82 L.Ed. 1461, 1468-1469, 58 S.Ct. 1019, 146 A.L.R. 357], italics added; compare maj. opn., ante, at p. 1303 [“on collateral attack ‘the burden of proof rests upon [the defendant] to establish that he did not competently and intelligently waive his constitutional right[s]’ ”].)
Vehicle Code section 41403 was initially enacted as Vehicle Code section 23102.2 by Statutes 1971, chapter 1371, section 1, page 2694.