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Court of Appeal, Fourth District, Division 1, California.

Glenn Allen MILLS, Petitioner, v. MUNICIPAL COURT OF the SAN DIEGO JUDICIAL DISTRICT, COUNTY OF SAN DIEGO, Respondent; PEOPLE of the State of California, etc., Real Party in Interest.

Civ. 11489.

Decided: November 30, 1972

Hinchy, Witte, Wood & Anderson, A Law Corporation, by A. Kendall Wood, San Diego, for petitioner. John W. Witt, City Atty., Stuart H. Swett, Chief Criminal Deputy, City Atty., and Derek J. Simons, Deputy City Atty., for respondent and real party in interest.


On April 27, 1971 Mills, by his counsel and as a result of a plea bargain, entered a plea of nolo contendere in the municipal court to the charge of misdemeanor drunk driving (Veh.Code § 23102 [a]). He was fined $350 ($150 suspended for three years). On May 4, 1972 Mills was convicted a second time of misdemeanor drunk driving, and the Department of Motor Vehicles suspended his driving privilege for one year (Veh.Code § 13352 [c]). Mills moved in municipal court to set aside his first conviction and, after a hearing on June 30, the motion was denied. Mills petitioned the Superior Court of San Diego County for a mandatory writ directing the municipal court to set aside the conviction. That writ was denied on August 18.

Mills contends his first conviction should be set aside because he was neither advised nor aware of the constitutional rights he waived when he entered the guilty plea. The record is silent and, if the BoykinTahl rule (Boykin v. Alabama, 395 U. S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274; In re Tahl, 1 Cal.3d 122, 81 Cal.Rptr. 577, 460 P.2d 449) is applicable, the plea must be invalidated. The question is whether Boykin and Tahl, which both involved felonies, apply to the plea of nolo contendere entered to the misdemeanor drunk driving charge.

Even though Mills could directly appeal the denial of his petition by the superior court, the circumstances justify expediting its solution through the writ process. Mills has at least until the matter is settled, lost his driving privilege and this may not be restored to him while an appeal is pending.

Moreover, the circumstances presented here occur frequently, and when we issued the order to show cause, no appellate decision had dealt directly with the question raised. Consequently, the validity of many convictions resulting from a plea of guilty or nolo contendere entered through counsel in drunk driving cases remained in doubt.

When an accused enters a guilty plea, he waives certain constitutional rights; such a waiver must be voluntarily and intelligently made to be effective, and the record on appeal must disclose the accused “voluntarily and understandingly entered his pleas of guilty” (Boykin v. Alabama, supra, 395 U.S. 238, 244, 89 S.Ct. 1709, 1713, 23 L.Ed.2d 274). The California Supreme Court has interpreted this requirement to mean ‘that each of the three rights mentioned [in Boykin]—self-incrimination, confrontation, and jury trial—must be specifically and expressly enumerated for the benefit of and waived by the accused prior to acceptance of his guilty plea.’ (In re Tahl, supra, 1 Cal.3d 122, 132, 81 Cal.Rptr. 577, 584, 460 P.2d 449, 456.) These requirements apply to a plea of nolo contendere as well as a plea of guilty (In re Gannon, 26 Cal.App.3d 731, 736–737, 103 Cal.Rptr. 224).

Two recent decisions of the Court of Appeal have applied the Boykin-Tahl rules to misdemeanor cases.

In re Gannon, supra, 26 Cal.App.3d 731, 103 Cal.Rptr. 224, came before the court on a petition for a writ of habeas corpus after the petitioner's probation had been revoked and a suspended 180-day sentence imposed. Involved was a plea of nolo contendere to an original charge of disturbing the peace entered upon a record which did not show the petitioner had been made aware of, or had waived, his right to confrontation and against self-incrimination. The court applied the Boykin-Tahl rule and granted the writ, permitting the petitioner to withdraw his plea.

After the order to show cause was granted here, this court applied the Boykin-Tahl rule in Cooper v. Justice Court, 28 Cal.App.3d 286, 104 Cal.Rptr. 543, to a case involving a drunk driving charge.

Both Gannon and Cooper differ from the instant case in an important aspect. In Gannon a jail sentence, originally suspended after entry of the guilty plea, was later imposed; In Cooper a jail sentence was imposed and suspended on conditions of probation. Here, only a fine was levied, and that was partially suspended; the disposition posed no substantial threat Mills would be incarcerated as a punishment. (See In re Antazo, 3 Cal.3d 100, 115–116, 89 Cal.Rptr. 255, 473 P.2d 999.) Respondent and real party in interest contend this distinguishin feature requires a different result from that reached in Gannon and Cooper.

Compliance with Boykin-Tahl rules presents no significant burden upon either the accused or the courts in felony cases. The accused felon must appear personally to enter his plea (Pen.Code § 977 [b]), and the court may then advise him of his constitutional rights and determine ‘he has a full understanding of what the plea connotes and of its consequence.’ (Boykin v. Alabama, supra, 395 U.S. 238, 244, 89 S.Ct. 1709, 1712, 23 L.Ed.2d 274.) However, under California law the accused misdemeanant is permitted to appear by counsel and need not be present when his plea is entered. (Pen.Code $a 977 [a], 1429.) In minor traffic violations the accused, without appearing, may post and forfeit bail (Cal.Rules of Court, No. 850), in effect entering a plea of nolo contendere (Veh.Code § 13103.).

Boykin and Tahl, of course, do not create the fundamental rights with which they are concerned. The rights spring directly from the constitution, and they apply in all criminal cases, misdemeanors as well as felonies. The Boykin-Tahl rule is concerned with the implementation of the rights, or more precisely, with how they may be waived when a plea of guilty is entered. While the rights encompassed by the rule apply in all cases, it does not follow that the same stringent safeguards must accompany their waiver under all circumstances.

When the law designates an offense as a felony, conviction invariably results in serious detrimental consequences. Moreover, an accused who pleads guilty to a felony runs a substantial risk of incarceration and loss of personal liberty by way of punishment. Under these circumstances, the law should and does require the record to reflect that he understands the consequences of his plea and that it entails a waiver of the fights enumerated in Boykin. (In re Tahl, supra, 1 Cal.3d 122, 132, 81 Cal.Rptr. 577, 460 P.2d 449.)

As a practical matter, however, many misdemeanor offenses involve no substantial threat of actual incarceration. In many, a jail sentence is rarely imposed even though permitted by law. To require the appearance of the accused and compliance with Boykin-Tahl rules in all such cases would frequently result in additional expense and hardship to the accused not commensurate with the gravity of the offense charged. Furthermore, imposition of the requirement in all misdemeanor cases would place an overwhelming burden on the lower courts, which must process thousands of misdemeanors on a daily basis.

The words of the Supreme Court expressed in North Carolina v. Alford, 400 U.S 25, at page 39, 91 S.Ct. 160, at p. 168, 27 L.Ed.2d 162 are appropriate:

‘The prohibitions against involuntary or unintelligent pleas should not be relaxed, but neither should an exercise in arid logic render those constitutional guarantees counterproductive . . ..’

These considerations require inquiry as to whether compliance with Boykin-Tahl rules is mandated in all misdemeanor cases and, if not, what circumstances permit the application of a lesser standard.

Reference to decisions which have considered the closely related right of the accused to counsel in misdemeanor cases provide helpful guidelines. The right to counsel, like the fundamental rights the Boykin-Tahl rule seeks to implement, is primarily designed to prevent the criminal accused from suffering an unjust deprivation of his personal liberty.

Many decisions which have dealt with the accused's right to counsel in misdemeanor cases have stressed the defendant's loss of personal liberty resulting from conviction, either by plea or trial, obtained without the aid of counsel. (See In re Johnson, 62 Cal.2d 325, 42 Cal.Rptr. 228, 398 P.2d 420; Lake v. Municipal Court, 242 Cal.App.2d 731, 51 Cal.Rptr. 771; Argersinger v. Hamlin, 407 U.S. 25, 92 S.Ct. 2006, 32 L.Ed.2d 530.) Whenever jail sentences have been imposed for misdemeanor offenses, convictions have been set aside because the defendant was not represented by counsel and the record did not reflect his express waiver of the right. The rule has been strictly applied where a one-day jail sentence was imposed. (Blake v. Municipal Court, supra, 242 Cal.App.2d 731, 735–736, 51 Cal.Rptr. 771.)

In Argersinger v. Hamlin, supra, decided June 12, 1972, the Supreme Court of the United States reversed the decision of the Florida Supreme Court denying a writ of habeas corpus. Without counsel, and upon a record which showed no waiver of counsel, a lower Florida court had convicted the petitioner of a misdemeanor charge. The high court stressed the importance of the right to counsel where the accused had been deprived of his liberty, and stated:

‘Both Powell and Gideon [earlier cases establishing the right to counsel in felonies] involved felonies. But their rationale has relevance to any criminal trial, where an accused is deprived of his liberty. Powell and Gideon suggest that there are certain fundamental rights applicable to all such criminal prosecutions, even those . . . where the penalty is 60 days' imprisonment.’ (Argersinger v. Hamlin, 407 U.S. 25, 32, 92 S.Ct. 2006, 2010, 32 L.Ed.2d 530.)

But the court in Argersinger did not state the constitution mandated the right to the aid of counsel to the accused, or even his express waiver of the right, in all misdemeanor cases. Rather it held:

‘We hold, therefore, that absent a knowing and intelligent waiver, no person may be imprisoned for any offense, whether classified as petty, misdemeanor, or felony, unless he was represented by counsel at his trial.’ (p. 2012)

The court concluded the decision with this paragraph:

‘The run of misdemeanors will not be affected by today's ruling. But in those that end up in the actual deprivation of a person's liberty, the accused will receive the benefit of ‘the guiding hand of counsel’ so necessary when one's liberty is in jeopardy.' (p. 2014)

By analogy, the rule of Argersinger could be applied to uphold many misdemeanor convictions based upon pleas taken without compliance with Boykin-Tahl requirements. But the contention the plea here involved should be upheld because no jail sentence was imposed on Mills ignores the fact California courts have long applied an additional standard under similar circumstances.

Some misdemeanor convictions carry substantial sanctions in addition to a possible jail sentence and require the imposition of more severe sanctions in the event of a second conviction of the same offense. Numerous California decisions have held that a constitutionally invalid plea may not be used for any purpose leading to conviction, or severity of sanctions. (See People v. Coffey, 67 Cal.2d 204, 214–215 60 Cal.Rptr. 457, 430 P.2d 15; Mitchell v. Orr, 268 Cal.App.2d 813, 816, 74 Cal.Rptr. 407; De La Vigne v. Dept. of Notor Vehicles, 272 Cal.App.2d 820, 824, 77 Cal.Rptr. 675; Hasson v. Cozens, 1 Cal.3d 576, 579, 83 Cal.Rptr. 161, 463 P.2d 385.)

A person convicted of misdemeanor drunk driving for the first time may lose his driving privilege, but not if the court recommends against suspension (Veh.Code § 13352 [a]); if he is convicted a second time within a period of seven years, a one-year license suspension is mandatory (Veh.Code § 13352 [c]). While suspension of the driving privilege may not ordinarily be considered penal in nature, it comes within the rule which ‘requires an examination of the constitutional basis of convictions not only when they activate the statutory machinery relating to penal status but also when they activate the statutory machinery relating to severity of sanction.’ (De La Vigne v. Dept. of Motor Vehicles, supra, 272 Cal.App.2d 820, 825, 77 Cal.Rptr. 675, 678.)

A similar conclusion was reached in Hasson v. Cozens, supra, 1 Cal.3d 576, where at page 579, 83 Cal.Rptr. 161 at p. 162, 463 P.2d 385 at p. 386, the Supreme Court stated:

‘Since the sanctions which may be imposed upon a person convicted of drunk driving are increased if he has a prior conviction of the same offense within a specified period of time, a collateral attack may be made on any such prior conviction on constitutional grounds.’

While Mitchell, De La Vigne and Hasson were all cases in which the records were defective because they failed to reveal the defendants' waiver of the right to counsel at the time the pleas were entered, a record which does not reflect a waiver of the fundamental rights enumerated in Boykin and Tahl is also defective on constitutional grounds.

Mills' first drunk driving conviction was based upon a plea of nolo contendere entered by his counsel, and the record does not reflect he was made aware of and waived the constitutional rights enumerated in Boykin and Tahl at the time the plea was entered. Representation by an attorney does not satisfy the requirement, and the procedures followed at the time the plea was taken do no meet constitutional standards (In re Tahl, supra, 1 Cal.3d 122, 132, 81 Cal.Rptr. 577, 460 P.2d 449). The plea was accepted after the decision in Boykin and the enunciated rule was in effect (In re Tahl, supra, p. 135, 81 Cal.Rptr. at p. 577, 460 P.2d at p. 449). Under statutory provisions, the 1971 conviction, if upheld, would require the Department of Motor Vehicles to suspend Mills' driving privilege for one year and to increase the sanctions the law would otherwise impose as a result of his 1972 conviction.

Let a peremptory writ of mandate issue directing the Municipal Court of the San Diego Judicial District to set aside the plea entered April 27, 1971, and to permit Mills to replead to the original charge.

AULT, Acting Presiding Justice.

COLOGNE and COUGHLIN*, JJ., concur.