Ganyo v. Municipal Court

• Decision Date: 27 April 1978
• Citation: 145 Cal.Rptr. 636,80 Cal.App.3d 522
• Court: California Court of Appeals Court of Appeals
• Parties: Doris Mae GANYO, Plaintiff and Appellant, v. The MUNICIPAL COURT FOR the FRESNO JUDICIAL DISTRICT OF FRESNO COUNTY et al., Defendants and Respondents; The PEOPLE, Real Party in Interest and Respondent. Civ. 3356.

Page 636

145 Cal.Rptr. 636

80 Cal.App.3d 522

Doris Mae GANYO, Plaintiff and Appellant, v. The MUNICIPAL COURT FOR the FRESNO JUDICIAL DISTRICT OF FRESNO COUNTY et al., Defendants and Respondents The PEOPLE, Real Party in Interest and Respondent.

Civ. 3356.

Court of Appeal, Fifth District, California.

April 27, 1978.

Hearing Denied June 22, 1978.

Roger T. Nuttall, Fresno, for plaintiff and appellant.

Evelle J. Younger, Atty. Gen., Jack R. Winkler, Chief Asst. Atty. Gen., Arnold O. Overoye, Asst. Atty. Gen., Robert D. Marshall and Vincent J. Scally, Jr., Deputy Attys. Gen., Sacramento, for defendants and respondents.

GEO. A. BROWN, Presiding Justice.

On August 4, 1975, appellant entered a plea of guilty to a violation of Vehicle Code section 23102, subdivision (a) (driving a vehicle while under the influence of intoxicating liquor) in the Justice Court for the Marysville Judicial District of Yuba County.

On January 29, 1976, she was charged with violating the same code section in the Municipal Court for the Fresno Judicial District, in which proceeding the Marysville conviction was charged as a prior. Appellant moved to strike the Marysville conviction in the Fresno Municipal Court, which motion was denied. She thereupon petitioned the superior court for a writ of mandate directing the municipal court to grant her motion to strike the prior Marysville conviction. The superior court denied the writ, and she has appealed.

Since as a result of the charge in the Municipal Court for the Fresno Judicial District appellant is subject to the enhanced punishment which may be imposed upon a second or subsequent violation under Vehicle Code section 23102 and to the severe sanctions involving lengthy driver's license suspension imposed by the Department of Motor Vehicles pursuant to Vehicle Code section 13352, she may bring a collateral attack upon the constitutional validity of her prior conviction. (Thomas v. Department of Motor Vehicles (1970) 3 Cal.3d 335, 338, 90 Cal.Rptr. 986, 475 P.2d 858; Gonzalez v. Municipal Court (1973) 32 Cal.App.3d 706, 709-713, 108 Cal.Rptr. 612.) While the cases recommend that the motion to strike the prior conviction be brought in the court which rendered that conviction (Fitch v. Justice Court (1972) 24 Cal.App.3d 492, 495-496, 101 Cal.Rptr. 227; People v. Allheim (1975) 48 Cal.App.3d Supp. 1, 5, 121 Cal.Rptr. 448), "(t)he fact that a prior conviction was sustained in another jurisdiction does not preclude . . . (examination of its constitutionality). 'To the extent that any State makes its penal sanctions depend in part on the fact of prior convictions elsewhere, necessarily it must assume the burden of meeting attacks on the constitutionality of such prior convictions.' " (People v. Coffey (1967) 67 Cal.2d 204, 215, 60 Cal.Rptr. 457, 464, 430 P.2d 1522; citing United States v. Jackson (2d Cir. 1957) 250 F.2d 349, 355.)

A judicial determination of the constitutional validity of the prior conviction is binding upon the Department of Motor Vehicles, and where it is determined to be unconstitutional the municipal court is empowered to direct that department not to impose sanctions based upon that conviction. (Mitchell v. Orr (1969) 268 Cal.App.2d 813, 74 Cal.Rptr. 407.) Where the court has held a conviction to be unconstitutional, such conviction cannot be used for the purpose of enhancing punishment. (Gonzalez v. Municipal Court, supra, 32 Cal.App.3d 706, 711-712, 108 Cal.Rptr. 612; see Hasson v. Cozens (1970) 1 Cal.3d 576, 580, 83 Cal.Rptr. 161, 463 P.2d 385; People v. Coffey, supra, 67 Cal.2d 204, 60 Cal.Rptr. 457, 430 P.2d 15.) However, it must be kept in mind that while this court may be empowered to determine the constitutionality of a prior conviction rendered in another jurisdiction, it would not have the power to vacate or set aside a conviction in that court. (Gonzalez v. Municipal Court, supra, 32 Cal.App.3d 706, 712-713, 108 Cal.Rptr. 612.)

Appellant contends that the prior Marysville conviction based on her plea of guilty is constitutionally invalid in that: (1) the justice court record does not reflect that prior to the acceptance of the plea she expressly waived her constitutional rights to a jury trial, to confrontation and cross-examination of witnesses against her, and the privilege against self-incrimination (In re Tahl (1969) 1 Cal.3d 122, 81 Cal.Rptr. 613, 460 P.2d 449 (cert. den., 398 U.S. 911, 90 S.Ct. 1708, 26 L.Ed.2d 72); Mills v. Municipal Court (1973) 10 Cal.3d 288, 110 Cal.Rptr. 329, 515 P.2d 273); and (2) that the record does not reflect that prior to the acceptance of the plea the judge ascertained if there was a factual basis for the guilty plea.

The record of appellant's plea in the Marysville Justice Court includes a form entitled "Arraignment Proceedings." The form comprises a number of questions (apparently addressed to appellant prior to her entry of the guilty plea) and appellant's responses are written in following each question. The responses do not purport to be written by appellant but are recorded in cursive writing by a court clerk. The germane questions and answers are:

"Your constitutional rights are: You are entitled to the service of an attorney of your own choice, and if you cannot afford an attorney the court will appoint the public defender as your attorney. Do you understand this? RESPONSE: Yes.

"Do you understand the nature of the charge against you and that it is a misdemeanor and the maximum sentence is $500.00 and/or 6 months in the County jail . . . .

(x) Your drivers license will be suspended for 1 year yes

RESPONSE: Yes. ¹

"Do you wish an attorney at this time? RESPONSE: No.

"Do you have the funds to hire your own attorney? RESPONSE: Yes.

"Is it your desire to proceed with this arraignment without an attorney? RESPONSE: Yes.

". . .you

"You are entitled to a trial by jury? Do you understand this right? RESPONSE: Yes.

"You have the right to be confronted with all witnesses testifying against you, and you have the right to question those witnesses. Do you understand this right? RESPONSE: Yes.

"You have the right to the compulsory process of the court for obtaining witnesses and evidence in your favor. Do you understand this right? RESPONSE: Yes.

"You have the right to testify in your own behalf, however, you cannot be compelled to be a witness against yourself. Do you understand this right? RESPONSE: Yes.

". . .ve

"Do you have any questions in regard to your constitutional rights? RESPONSE: No.

"Having been informed of your constitutional rights and the possible effect of a guilty plea, do you wish to consult with an attorney and/or be represented by an attorney? RESPONSE: No.

"Is it your desire to waive your constitutional rights as heretofore explained and plead guilty to a violation of section 23102A (23102(a)) Vehicle Code a charge of driving while under the influence of intoxicating liquor. RESPONSE: Yes.

"The court hereby finds and determines that the above defendant has knowingly and intelligently waived his right to an attorney, his right to a jury trial, his right to be confronted by witnesses, his right to testify, and other constitutional rights."

Appellant filed a declaration under penalty of perjury in support of her motion in the municipal court, in which in substance she states that she remembers little of what was said or done at the time of the Marysville plea and does not remember having been advised of her various constitutional rights, having been advised of the consequences of the plea, or having made a statement regarding a factual basis supportive of the plea of guilty in the Marysville court.

In Mills v. Municipal Court, supra, 10 Cal.3d 288, 110 Cal.Rptr. 329, 515 P.2d 273 the court (with some modification with regard to procedural requirements) made the Boykin-Tahl on-the-record requirement of advisement and waiver of the constitutional rights applicable to misdemeanants. The court held that the appellate court may no longer presume from a " 'silent record' that a defendant has voluntarily and intelligently waived the constitutional rights which he implicitly relinquishes by entering a plea of guilty" and the record "must explicitly reveal 'on its face ' that before a defendant entered a plea of guilty, he was aware of the three major constitutional rights he was foregoing by pleading guilty namely, the privilege against self-incrimination, the right to confrontation and the right to a jury trial and that he knowingly and voluntarily waived such rights.'' (Mills, supra, at pp. 291-292, 110 Cal.Rptr. at p. 331, 515 P.2d at p. 275.)

Recognizing the practical record keeping and other problems in the municipal and justice courts, the court further stated:

"In so holding, however, we do not suggest that procedures utilized in our overcrowded municipal and justice courts must be identical to the procedures presently required in felony prosecutions. As this court has recognized in the past, relevant differences in the misdemeanor and felony contexts will frequently justify a difference in procedures." (Mills v. Municipal Court, supra, 10 Cal.3d at p. 302, fn. omitted, 110 Cal.Rptr. at p. 339, 515 P.2d at p. 283.)

The court elaborated:

"(T)hat in evaluating the procedures utilized in inferior courts for advising defendants of their rights and obtaining 'on the record' waivers, the realities of the typical municipal and justice court environment cannot be ignored, and that, so long as the spirit of the constitutional principles are respected, 'the convenience of the parties and the court should be given considerable weight.' (Citations.)" (Mills, supra, at p. 303, 110 Cal.Rptr. at p. 340, 515 P.2d at p. 284.)

The Mills court specifically approved deviations from the Tahl requirements in cases involving misdemeanors, including group advisement of rights and written waivers and entry of written pleas of guilty by defendants who do not appear. Moreover, the court in Mills, as have other cases,...