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

Claude Alfred THOMAS, Petitioner and Respondent, v. DEPARTMENT OF MOTOR VEHICLES of the State of California, Defendant and Appellant.

Civ. 34186.

Decided: February 27, 1970

Thomas C. Lynch, Atty. Gen., George J. Roth, Deputy Atty. Gen., for appellant. Charles F. Legeman, Long Beach, for respondent.

The Department of Motor Vehicles (Department) appeals from a mandate judgment of the superior court directing the Department to set aside its one-year order of suspension of respondent Claude Thomas' driver's license.  (Veh.Code, § 13352(c).)   The mandate was predicated on the finding of the superior court that the first of two convictions for drunk driving (Veh.Code, § 23102) was invalid and void as respondent was not at the time of said conviction represented by counsel and did not knowingly and intelligently waive his right to counsel.

Department, admitting that respondent was not represented by counsel, argued in the mandate proceeding and reiterates here (1) that the evidence showed a knowledgeable and intelligent waiver of counsel and (2) that the prior, since it was not attacked in the municipal court at the time of his second conviction, or at any other time, was res judicata and that the superior court therefore lacked jurisdiction to consider its invalidity.

Respondent's first conviction was after a plea of guilty on October 27, 1966, in the Los Angeles Municipal Court at San Pedro.   On February 26, 1968, represented by counsel, respondent pleaded guilty to a violation of section 23102.

On March 19, 1968, pursuant to Vehicle Code, § 13352(c), Department having before it an abstract of the two convictions within a seven-year period, issued its order suspending respondent's driver's license for one year.

On June 12, 1968, respondent filed a petition in the superior court for a writ of mandate directing Department to vacate its order of suspension.   The petition averred that the 1966 conviction was invalid because he was not represented by counsel and did not waive his right to counsel.

Department concedes that a misdemeanor defendant is entitled to be represented by counsel.  (In re Smiley, 66 Cal.2d 606, 614, 58 Cal.Rptr. 579, 427 P.2d 179;  Blake v. Municipal Court, 242 Cal.App.2d 731, 733, 51 Cal.Rptr. 771.)

In the mandate proceeding it was stipulated that respondent was not represented by counsel in the first action.

To determine the issue of waiver, the court, in the mandate proceeding, received the transcript of the 1966 proceeding in evidence and heard the testimony of respondent.   The transcript showed that at the outset thereof the municipal court judge advised all defendants in the courtroom and recites in pertinent part:  “You are entitled to have an attorney of your own choice at all stages of the proceedings, including the proceedings this morning.   If you wish time to obtain an attorney or if you are without funds to obtain an attorney, pleas so indicate when your name is called.”   After additional explanation about the effect of guilty and not guilty pleas, right to jury trial, right to confront witnesses, etc., and the disposition of other cases, the following exchange took place:  “THE COURT:  Claud Thomas.   Driving while under the influence.   How do you plead?   THE DEFENDANT:  Guilty.   THE COURT:  Are you ready for sentence this morning?   THE DEFENDANT:  Yes, sir.”

 It is settled that a defendant's failure to request counsel even though followed by a plea of guilty does not constitute a knowledgeable and intelligent waiver of the right to counsel.  (In re Smiley;  Blake, at 733, 51 Cal.Rptr. 771;  In re Johnson, 62 Cal.2d 325, 42 Cal.Rptr. 228, 398 P.2d 420.)   Department insists, however, that the testimony of respondent quoted above shows that he intentionally waived his right to counsel.   Respondent testified that when he pleaded guilty he had decided he did not want an attorney because “You see, I think in 1966 or '65, whenever it was that they had just changed the ruling from the 502 to driving under the influence, so I had been drinking beer, but I was not drunk, so I didn't have enough money to pay a fine and pay a lawyer too.   Driving under the influence and a 502 was different, so I just figured on my own that I was going to the court and see what it was.”   Some questions were then addressed to him about not having an attorney by Department's counsel:  “Q Well, then to get back again to what you said before, am I correct in understanding your testimony that at the time you pleaded Guilty you did not want an attorney to represent you?   A I didn't get one because I didn't think it was necessary.”

The superior court in the mandate proceeding correctly found that respondent's 1966 conviction was invalid.1

 Department maintains, however, that the failure of respondent to challenge the validity of the 1966 conviction in the municipal court at the time of the 1968 proceedings has made the prior conviction res judicata and precludes a collateral attack upon the 1966 judgment of conviction by the mandate action in the superior court.

This point has been at large in Court of Appeal decisions.2

However, our Supreme Court in Hasson v. Cozens, 1 Cal.3d 576, 83 Cal.Rptr. 161, 463 P.2d 385, has settled the point contrary to Department's contention.   Hasson holds that the issuance of mandate by the superior court is proper.  “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.”  (Hasson v. Cozens, supra, at page 579, 83 Cal.Rptr. at page 162, 463 P.2d at page 386.)

Although the petitioner in Hasson had in the municipal court attacked the prior conviction at the time of the trial for the second offense, and at bench no such attack was made, Hasson is not bottomed on principles of res judicata.  “The superior court * * * in granting mandate directing reinstatement of plaintiff's driver's license, was supported not only by the Inglewood Municipal Court's finding that the 1965 conviction was invalid, but, being presented with supporting declarations, authorities, and argument to support collateral attack on the ground of deprivation of constitutional rights, did, in effect, determine the merits of the case by an independent hearing de novo.”  (Hasson, supra, page 580, 83 Cal.Rptr. page 163, 463 P.2d page 387.)

Hasson cites with approval De La Vigne v. Dept. of Motor Vehicles, 272 A.C.A. 914, 77 Cal.Rptr. 675.   In that case, the court stated, “The Attorney General seems to argue that had petitioner first gone to the Municipal Court or otherwise and had it determined that the judgment in 1962 was void, then all would have been well.   We think that it was entirely proper to raise the issue as it was raised and we can conceive of no good reason why a defendant should be required to take a circuitous route and be burdened by multiple suits to secure the identical relief which was achieved in this action.”  (De La Vigne v. Dept. of Motor Vehicles, supra, at 920, 77 Cal.Rptr. at 678.) 3

The trial court was therefore correct to grant the writ of mandate after a hearing at which it determined that respondent's 1966 conviction was invalid.

The judgment is affirmed.


1.   “That the court finds from the evidence that the petitioner's conviction in the Municipal Court of San Pedro Judicial District, Case No. 827602 on October 27, 1966, was invalid and void in that it does not appear affirmatively from the docket of said case that petitioner waived his right to the aid and assistance of counsel in that proceeding and it does appear from the evidence and stipulation of counsel herein that petitioner was not in fact represented by counsel.”

2.   (Houlihan v. Dept. of Motor Vehicles, 2 Cal.App.3d 773, 82 Cal.Rptr. 755 (1969);  Williams v. Dept. of Motor Vehicles 2 Cal.App.3d 949, 83 Cal.Rptr. 76 (1969);  Mitchell v. Orr, 268 Cal.App.2d 813, 74 Cal.Rptr. 407;  Stenback v. Municipal Court, 272 A.C.A. 27, 76 Cal.Rptr. 917;  De La Vigne v. Dept. of Motor Vehicles, 272 A.C.A. 914, 77 Cal.Rptr. 675;  Hasson v. Orr, 275 A.C.A. 1083, 80 Cal.Rptr. 329.)

3.   Cf. Socha v. Director of Dept. of Motor Vehicles, Cal.App., 84 Cal.Rptr. 431, filed by this Court on February 19, 1970;  Hasson, Bloniarz v. Roloson, 70 A.C. 150, 74 Cal.Rptr. 285, 449 P.2d 221;  Calif. Const., art. VI, § 5, and Socha, all make it clear that the proper forum in which a municipal court judgment may be vacated is by the superior court after findings made upon substantial evidence.

ROTH, Presiding Justice.

FLEMING and WRIGHT, JJ., concur.