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Court of Appeal, First District, Division 4, California.

Robert James ILLINGWORTH, Plaintiff and Appellant, v. MUNICIPAL COURT, SOUTHERN JUDICIAL DISTRICT, COUNTY OF SAN MATEO, State of California, Defendant, The PEOPLE, Real Party in Interest and Respondent.

Civ. 47801.

Decided: February 11, 1980

Andrew H. Parnes, Redwood City, for plaintiff and appellant. George Deukmejian, Atty. Gen. of Cal., Robert H. Philibosian, Chief Asst. Atty. Gen. Crim. Div., Edward P. O'Brien, Asst. Atty. Gen., Robert R. Granucci, Herbert F. Wilkinson, Deputy Attys. Gen., San Francisco, for real party in interest and respondent.

Robert James Illingworth appeals from a judgment denying a writ of mandate to compel respondent municipal court to exclude from consideration in a pending drunk driving prosecution an alleged prior conviction of the same offense. The municipal court had already denied a motion by appellant to strike the prior conviction on the ground that appellant had not effectively waived the right to counsel.

In misdemeanor as well as felony prosecutions, the record must reflect a knowing waiver of constitutional rights before the court accepts a plea of guilty (Mills v. Municipal Court (1973) 10 Cal.3d 288, 110 Cal.Rptr. 329, 515 P.2d 273). A collective announcement of rights to several defendants being arraigned together is appropriate if there is assurance that the announcement was heard and understood (In re Johnson (1965) 62 Cal.2d 325, 332, 42 Cal.Rptr. 228, 398 P.2d 420; Blake v. Municipal Court (1966) 242 Cal.App.2d 731, 51 Cal.Rptr. 771) and it is appropriate, particularly in misdemeanor courts, to use a written waiver form. In the prior drunk driving prosecution which is under challenge in the present appeal, such procedures were employed. Appellant was furnished with a waiver form detailing his rights, accompanied by a questionnaire.* The court made a general announcement to several defendants in the courtroom. Review of the waiver form and of the general announcement establishes that the information given by the municipal court, concerning the constitutional rights which would be waived by a guilty plea, was accurate and complete. However, neither the waiver form nor the brief colloquy between the court and this appellant contained an explicit waiver of the right to counsel. Appellant appeared without counsel, but the court did not ask whether he wished to waive the right to counsel; the court simply inquired, “Is it now your desire to enter a plea of guilty?” After further brief colloquy a plea of nolo contendere was entered but at no point was there an explicit waiver of the right to counsel. The prior conviction must therefore be stricken (see Stewart v. Justice Court (1977) 74 Cal.App.3d 607, 141 Cal.Rptr. 589).


RIGHTS OF DEFENDANT IN CRIMINAL CASEDefendant's Waiver of Rights by Pleading Guilty or Nolo Contendere


The word WAIVE means to GIVE UP.

In Case Number 131M772 now pending, you have the following rights:

1. You have the right to have the advice of an attorney at all stages of the proceedings and the right to a reasonable continuance to obtain counsel. If the Court finds that you are without any means to hire an attorney, the Court will appoint counsel for you with no cost to you.

2. If you plead, you may plead guilty, not guilty, not guilty because of insanity, or you may plead nolo contendere. Nolo contendere is the same as a guilty plea in legal effect but cannot be used against you as an admission in a civil action.

3. If you plead not guilty, you are entitled to a jury trial, unless you waive it, in which case you are entitled to a trial by the Court.

4. You are entitled to a speedy and public trial. Unless good cause is shown or there is a waiver of this right, you are entitled to a dismissal of the case if trial is not commenced within the specified time. In a misdemeanor case, if you are in custody at the time of arraignment, you are entitled to a trial within 30 days after such arraignment; if you are not in custody at the time of arraignment, you are entitled to a trial within 45 days after such arraignment. In a felony case, you are entitled to have a preliminary hearing in this Court within 10 days if you are in custody OR within a reasonable time if you are not in custody.

5. You have the right to have the power of the Court used to compel the attendance of witnesses and the production of evidence on your behalf by use of a Court Order supplied upon your request; the right to refuse to be witness against yourself; the right to confront witnesses against you; the right to cross examine those witnesses; the right to be admitted to reasonable bail if you are admitted to bail; and the right to have the complaint read to you.

6. In case of a plea of guilty or of nolo contendere or in case of a conviction, you have the right to have sentence delayed for six hours but pronounced within five days.

(If defendant enters a plea of guilty or nolo contendere, the following must be completed and acknowledged by the defendant.)

Answer the following questions YES or NO in the appropriate column on the left:

The judgment is reversed with directions to issue a writ commanding respondent municipal court to strike the challenged prior conviction.


FOOTNOTE.  See Exhibit A, appended.

CHRISTIAN, Associate Justice.

CALDECOTT, P. J., and POCHE, J., concur.

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