People v. Salazar

• Decision Date: 29 June 1979
• Docket Number: Cr. A,No. 16701,16701
• Citation: 96 Cal.App.3d Supp. 8,157 Cal.Rptr. 834
• Court: California Superior Court
• Parties: 96 Cal.App.3d Supp. 8 The PEOPLE, Plaintiff and Respondent, v. Luis A. SALAZAR, Defendant and Appellant. Appellate Department, Superior Court, Los Angeles County, California

Page 834

157 Cal.Rptr. 834

96 Cal.App.3d Supp. 8

The PEOPLE, Plaintiff and Respondent, v. Luis A. SALAZAR, Defendant and Appellant.

Cr. A. No. 16701.

Appellate Department, Superior Court, Los Angeles County, California.

June 29, 1979.

As modified July 11, 1979.

Peter R. di Donato, Los Angeles, for defendant and appellant.

Burt Pines, City Atty., Rand Schrader, Mark L. Brown and Mark A. Rosenbaum, Deputy City Attys., Los Angeles, for plaintiff and respondent.

SAETA, Judge.

Defendant was charged in a two-count complaint with violating Vehicle Code sections 23102, subdivision (a), driving under the influence of intoxicating liquor, and 14601, subdivision (a), driving with a suspended or revoked license, both offenses occurring on November 3, 1977. In addition, each count alleged a prior conviction of the same offense as the charged count, the prior section 23102, subdivision (a) conviction having occurred March 24, 1977, and the prior section 14601, subdivision (a) conviction having occurred February 21, 1975. After his motions to declare the prior convictions constitutionally invalid were denied he pleaded guilty, appealed and again asserts the invalidity of the charged priors. We affirm.

The 1975 Prior Conviction

Defendant's first challenge to the 1975 prior conviction is that his waiver of constitutional rights did not occur prior to his plea of guilty. We have been furnished with a reporter's transcript of the proceedings on February 21, 1975. ¹ It indicates that defendant's counsel entered the plea for defendant at the commencement of the proceedings and that defendant never explicitly entered his own plea of guilty. This procedure was proper under Penal Code section 1429. See Mills v. Municipal Court (1973) 10 Cal.3d 288 at page 307, 110 Cal.Rptr. 329, 515 P.2d 273. After counsel stated the plea, the city attorney (Mr. Eaton) engaged in a sufficient colloquy with defendant in advising him of his constitutional rights and obtaining waivers of those rights. In re Tahl (1969) 1 Cal.3d 122, 132-133, 81 Cal.Rptr. 577, 460 P.2d 449, only requires that the waivers be taken prior to the acceptance of the plea. It appears to us that the acceptance of the plea came after the court satisfied itself as to the waivers by the defendant.

Defendant next asserts that it was error for the court not to make findings that the defendant's waivers were freely, voluntarily and intelligently made. While it is true that the court must determine that the defendant "intelligently and understandingly" waives his right to counsel under the mandate of In re Johnson (1965) 62 Cal.2d 325, 334-335, 42 Cal.Rptr. 228, 398 P.2d 420, defendant has not cited, nor has the court found, any case that extends this requirement of recorded findings to the constitutional rights of jury trial, confrontation and self-incrimination. While a careful judge may prefer to state on the record his findings in respect to a defendant's waivers of all of his constitutional rights, the law does not require this at the present time. The reporter's transcript sufficiently shows that the waivers were made freely and voluntarily by the defendant after the city attorney explained to the defendant his constitutional rights. (Mills v. Municipal Court (1973) 10 Cal.3d 288, 291, 110 Cal.Rptr. 329, 515 P.2d 273).

Defendant next claims that the court erred by not advising him of and obtaining a waiver of his rights to the subpoena power of the court. While there is a Constitutional right to the subpoena power of the court, no California appellate case has required the trial courts to advise the defendant of such right or to obtain and record a waiver of that right before taking a guilty plea. We decline to impose such a requirement in light of the fact that the California Supreme Court has many times considered which Constitutional rights must be expressly waived. (See, e. g., In re Tahl (1969) 1 Cal.3d 122, 81 Cal.Rptr. 577, 460 P.2d 449; Mills v. Municipal Court (1973) 10 Cal.3d 288, 110 Cal.Rptr. 329, 515 P.2d 273; In re Mosley (1970) 1 Cal.3d 913, 83 Cal.Rptr. 809, 464 P.2d 473).

On February 21, 1975, the defendant stood charged with Two complaints. In Los Angeles Municipal Court No. V332464 he was charged with violating Vehicle Code sections 23102, subdivision (a), count I; 14601, subdivision (a), count II; 14610, subdivision (a), count III; and 14610, subdivision (d), count IV. On February 21, 1975, he admitted a prior offense and pleaded guilty to count I and the other three counts were dismissed. In the second complaint, Los Angeles Municipal Court No. 982536, he was charged with three counts: Vehicle Code section 14601, subdivision (a), count 1; Vehicle Code section 24008, count II; and Vehicle Code section 12951, subdivision (a), count III. Counts II and III are not involved in this appeal. It is count I, Vehicle Code section 14601, subdivision (a), to which he pleaded guilty on February 21, 1975, and that was the conviction charged as a prior offense to the second count in the present November 1977 complaint. While defendant's argument is well taken that the admission of the prior in No. V332464 is invalid because the defendant was not advised of nor did he waive his constitutional rights before admitting that prior, such argument is not helpful on this appeal. There was no admission of any prior in case No. 982536 and that is the only matter from the proceedings on February 21, 1975, that was charged in the complaint from which defendant appeals here.

Defendant next challenges the 1975 prior conviction on the ground that he was not advised of the direct consequences of his plea. The record shows the prosecutor asked the defendant: "Has Counsel discussed with you the consequences of this guilty plea . . .?" and that defendant answered "Yes." The record does not show that the court advised the defendant of the consequences of the plea nor of what consequences defendant's counsel informed him. The actual consequences imposed were "Sentence is Suspended." Thereupon the court sentenced defendant on the companion case, No. V332464, suspended execution of sentence and placed defendant on three years probation on terms that included 18 days in jail, a fine, an alcohol treatment program and surrender of his driver's license. While it is necessary that the defendant be informed of the consequences of his plea, In re Tahl (1969) 1 Cal.3d 122, 132, 81 Cal.Rptr. 577, 460 P.2d 449, there appears to be no requirement that this advice must come from the court itself. (Id. at p. 133, fn. 6, 81 Cal.Rptr. 577, fn. 6, 460 P.2d 449, fn. 6; Mills v. Municipal Court (1973) 10 Cal.3d 288, 305, fn. 15, 110 Cal.Rptr. 329, fn. 15, 515 P.2d 273, fn. 15.) There does not appear to be any requirement that the record explicitly show what the advice of consequences actually was. The explicit showing required for the rights to jury trial, confrontation and against self-incrimination is not required for the advice of consequences of plea. (In re Ronald E. (1977) 19 Cal.3d 315, 321, 137 Cal.Rptr. 781, 562 P.2d 684). Ronald E. requires either a record of such advice Or other evidence that the defendant was aware of the consequences before pleading. (Id. at p. 325, 137 Cal.Rptr. 781, 562 P.2d 684). Here the record shows that defendant admitted he was advised of the consequences of his plea and that should suffice. But even if the advice given should have been spelled out by the court or counsel (or by the defendant himself in a form such as in Mills, supra, 10 Cal.3d at pages 312-313, 110 Cal.Rptr. 329, 515 P.2d 273), Ronald E. holds that a plea is invalid only if prejudice resulted from a failure to advise of the consequences of the plea. As mentioned above, on the Vehicle Code section 14601, subdivision (a) conviction in 1975, defendant was not sentenced but in effect placed on probation without any terms of probation. This resulted in a probationary term of three years without supervision except that defendant was not to violate the law. (See People v. Municipal Court (Lozano) (1956) 145 Cal.App.2d 767, 771, 303 P.2d 375). At the same hearing, on the Vehicle Code section 23102, subdivision (a) charge defendant received a maximum probationary term of three years and his license was revoked. In fact defendant received nothing more by reason of his plea of guilty to the Vehicle Code section 14601, subdivision (a) count than he received on the Vehicle Code section 23102, subdivision (a) count. Thus it can be said that defendant was not prejudiced by his plea of guilty to the Vehicle Code section 14601, subdivision (a) charge nor can it be said that he would not have pleaded guilty had he been advised that upon his plea he would receive nothing more than what he was to receive on the companion complaint.

Lastly, defendant asserts that he should have been advised that another conviction for Vehicle Code section 14601, subdivision (a) following his 1975 conviction would result in increased consequences of jail, fine and reduced driving privileges. Such an attack has been rejected in Hartman v. Municipal Court (1973) 35 Cal.App.3d 891, 893, 111 Cal.Rptr. 126; and Ganyo v. Municipal Court (1978) 80 Cal.App.3d 522, 527, footnote 1, 145 Cal.Rptr. 636.

The 1977 Prior Conviction

On March 24, 1977, defendant stood charged with violating Vehicle Code section 23102, subdivision (a) for driving under the influence of intoxicating liquor on November 12, 1976. The complaint alleged as a prior offense of the same section the conviction referred to above of February 21, 1975, in Los Angeles Municipal Court No. 332464. His counsel admitted the prior offense and defendant pleaded guilty to the offense occurring on November 12, 1976. In the first of his three attacks on this proceeding being used as a prior conviction to the charges on appeal, defendant asserts he was not advised on March 24, 1977, of his constitutional rights nor did he waive those rights before he admitted (by counsel) the 1...