Ballard v. Municipal Court

• Citation: 84 Cal.App.3d 885,149 Cal.Rptr. 82
• Court: California Court of Appeals
• Decision Date: 18 September 1978
• Parties: Wesley Lee BALLARD, Plaintiff and Appellant, v. MUNICIPAL COURT OF the State of California, COUNTY OF SAN MATEO, SOUTHERN JUDICIAL DISTRICT, DEPARTMENT C, Defendant and Respondent; PEOPLE of the State of California, Real Party in Interest and Respondent. Civ. 42741.

Page 82

149 Cal.Rptr. 82

84 Cal.App.3d 885

Wesley Lee BALLARD, Plaintiff and Appellant, v. MUNICIPAL COURT OF the State of California, COUNTY OF SAN MATEO, SOUTHERN JUDICIAL DISTRICT, DEPARTMENT C, Defendant and Respondent PEOPLE of the State of California, Real Party in Interest and Respondent.

Civ. 42741.

Court of Appeal, First District, Division 2, California.

Sept. 18, 1978.

Hearing Denied Nov. 15, 1978.

Austin F. Stevens, Palo Alto, for plaintiff and appellant.

Evelle J. Younger, Atty. Gen. of the State of California, Jack R. Winkler, Chief Asst. Atty. Gen., Criminal Division, Edward P. O'Brien, Asst. Atty. Gen., Robert R. Granucci, Deputy Atty. Gen., San Francisco, for real party in interest.

TAYLOR, Presiding Justice.

Wesley Lee Ballard appeals from a minute order denying his petition for writ of mandate to compel the municipal court to vacate his August 29, 1975, conviction for misdemeanor drunk driving (Veh.Code, § 23102, subd. (a)) entered on his plea of guilty while in pro per. He argues that since the record clearly indicates that prior to the acceptance of the guilty plea the municipal court made no inquiry as to the factual basis for his plea of guilty, there could be no valid or intelligent waiver of his rights, and, therefore, the 1975 conviction was unconstitutional; he also asserts that the absence of a requirement of such a factual determination constitutes a deprivation of equal protection and due process under the state Constitution and the federal Constitution. For the reasons set forth below, we have concluded that the order should be affirmed.

The record indicates that on August 29, 1975, Ballard appeared before the Municipal Court of San Mateo County. The court said: "You are charged with driving under the influence of liquor on August 9 on Route 1." The court then inquired whether Ballard understood the charge and received an affirmative answer. Next, the court asked whether Ballard was going to get a lawyer to represent him. Ballard said no. The court then inquired whether Ballard had read and understood everything on the form advising him of his rights. ¹ After receiving an affirmative answer, the court then asked Ballard whether he understood that his guilty plea would constitute a waiver of all of the specified rights. Ballard indicated that he understood that he was waiving his rights and indicated that no promises or threats had been made to induce his plea. The court then informed Ballard of the maximum punishment which could be imposed and asked if Ballard still wished to plead guilty. He replied affirmatively. The court made a finding that he had freely, knowingly and intelligently waived his rights.

The court then formally accepted Ballard's plea and asked: "Is there anything you want to tell me about the case?" Ballard said no. The court then inquired whether Ballard had any similar prior convictions. Ballard replied that he had a citation for carrying an open container. Ballard was then fined $315, sentence was imposed, and summary probation granted for a period of nine months, on condition that Ballard obey all laws and pay the fine in specified installments. The court ordered that Ballard's driver's license not be suspended. The court warned Ballard that if he suffered another such conviction within five years, he would lose his license for one year and would have to go to jail.

Ballard did not move to have his plea in the 1975 case set aside nor was there any appeal from the judgment. Thus, the instant proceeding constitutes a collateral attack on his 1975 conviction.

On February 16, 1977, Ballard was again charged with misdemeanor drunk driving; the complaint also alleged the August 1975 prior conviction for the same offense. Ballard unsuccessfully sought to have the allegation concerning his 1975 prior conviction stricken from the complaint and the conviction declared unconstitutional as he was not represented by counsel, and no inquiry into the factual basis for his plea had been made. On September 27, 1977, Ballard petitioned the superior court for a writ of mandate; ² the writ was denied after a hearing.

In Mills v. Municipal Court, 10 Cal.3d 288, 110 Cal.Rptr. 329, 515 P.2d 273, our Supreme Court, on the basis of Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274, and In re Tahl, 1 Cal.3d 122, 81 Cal.Rptr. 577, 460 P.2d 449, held 10 Cal.3d at pages 301 and 302, 110 Cal.Rptr. 329, 515 P.2d 273 that an on-the-record waiver of constitutional rights was required in all felony and misdemeanor cases whether the defendant appears before the court, either in person or by his counsel. Although Ballard emphasizes the fact that he was not represented by counsel in the 1975 proceedings, the record summarized above indicates that he intelligently and knowingly waived all of his constitutional rights before pleading guilty, as required by Mills. Ballard, however, argues that in the absence of a factual inquiry, there could be no knowing and intelligent waiver of his rights.

The question before us, therefore, is whether the court, in accepting a guilty plea for a misdemeanor, must inquire as to whether there was any factual basis for the plea. ³ Mills, supra, did not reach this issue. Since the filing of the briefs in the instant case, the question was discussed and examined by the Fifth District in Ganyo v. Municipal Court, 80 Cal.App.3d 522, 145 Cal.Rptr. 636 (hg. den. June 22, 1978). The court first pointed out (at p. 530, 145 Cal.Rptr. 636) that Penal Code section 1192.5 ⁴ pertaining to plea bargains in felony cases is the only statutory requirement in this state which requires that the court satisfy itself that there is a factual basis for the guilty plea, citing People v. Watts, 67 Cal.App.3d 173, 136 Cal.Rptr. 496, decided by this court (Division Three).

The court then set forth the applicable law in Ganyo, Supra, at page 531, 145 Cal.Rptr. at page 641: "It is not clear that failure to determine that there is a factual basis for a plea, being of nonconstitutional dimensions, can ever support a collateral attack upon a plea of guilty, collateral attacks being normally limited to constitutional defects or a judgment which is void on its face. (19 Cal.Jur.3d, § 1519, pp. 795-799.) In In re Birch, supra, 10 Cal.3d 314, 110 Cal.Rptr. 212, 515 P.2d 12, in an analogous situation, the court further muddied the already murky water in this area by holding that in the absence of an attorney the failure to advise of the consequences of a plea (which, as we have seen, has no constitutional substructure) could at least in part support a collateral attack upon a guilty plea. In Birch, however, the failure to advise of the consequences of the plea was coupled with the failure to advise of the defendant's constitutional right to an attorney.

"We find it unnecessary to finally answer whether the failure to explain the factual basis for a plea of guilty can furnish a basis for a collateral attack on a guilty plea, and for purposes of this opinion assume that such a failure, under proper circumstances, may support such an attack. Not being a Tahl-Mills requirement, a petition launching such an attack at the very least would be subject to the law with respect to motions to set aside guilty pleas on constitutional grounds before Tahl-Mills. (Salazar v. Municipal Court (1975) 44 Cal.App.3d 1024, 119 Cal.Rptr. 98.) As was stated in Salazar : 'The issue of the validity of the prior conviction, however, can be put in issue Only by allegations which, if true, would render it constitutionally invalid. At page 215 in (People v. Coffey, Supra, 67 Cal.2d 204, 60 Cal.Rptr. 457, at 465, 430 P.2d 15 at 23) the court stated: "We emphasize, however, that the issue must be raised by means of allegations which, if true, would render the prior conviction devoid of constitutional support. 'One seeking to challenge prior convictions charged against him may do so only through a clear allegation to the effect that, in the proceedings leading to the prior conviction under attack, he Neither was represented by counsel nor waived the right to be so represented.' " ' (At p. 1027, 119 Cal.Rptr. at p. 100.)

"In mounting a collateral attack upon an otherwise valid judgment on the face of the record appellant cannot under the standard herein applicable simply Rely upon the failure of the record to affirmatively show a lack of determination of a factual basis for the plea but must at least clearly and positively allege and show that the requirement was not in fact met at the time the plea was entered. (Salazar v. Municipal Court, Supra, 44 Cal.App.3d at p. 1028, 119 Cal.Rptr. 98.)" (Emphasis partially added.)

The court then examined Ms. Ganyo's declarations, concluded that these fell "leagues short of meeting the burden," and affirmed the order denying the writ. ⁵

In a letter ⁶ filed with our permission after waiver of oral argument, Ballard points out that here, unlike Ganyo, supra, 80 Cal.App.3d 522, 145 Cal.Rptr. 636, the record affirmatively shows that determination of the factual basis for his plea was not made and he so alleged in his petition seeking the writ. While this is so, it does not follow that Ballard has therefore mounted a sufficient collateral attack on his 1975 conviction.

As to his right to counsel, the record of the August 29 proceeding indicates that in addition to the signed waiver form, ⁷ which dealt with all of his rights in detail, the court questioned Ballard in lay language and received an affirmative answer.

Ballard, however, argues that authority for his position that a factual basis determination is a prerequisite for a valid waiver is demonstrated by People v. Watts, Supra, 67 Cal.App.3d 173, 136 Cal.Rptr. 496. We do not agree. In Watts, this court, at pages 179-180, 136 Cal.Rptr. 496, held that a plea bargaining felony defendant was entitled to an on-the-record inquiry into the factual basis for his guilty plea pursuant to Penal Code section...