PEOPLE v. BYERS (1979)

In this case real parties in interest appeal from the portion of the judgment of the Alameda County Superior Court which grants a writ of mandate. They contend on appeal that if the minute order or docket entry of a prior conviction does not affirmatively show that the requirements of Mills v. Municipal Court (1973) 10 Cal.3d 288, 292, 110 Cal.Rptr. 329, 515 P.2d 273, were satisfied, it is incumbent upon the People to produce evidence demonstrating that the prior convictions were constitutionally valid. We agree. The People appeal from the portion of the judgment denying a writ of prohibition. The People contend on appeal that in a collateral attack on a prior conviction the only issue which a defendant may litigate is whether his right to counsel was infringed. We disagree.

On July 1, 1976, a complaint was filed in the Municipal Court for the Oakland-Piedmont Judicial District charging Joseph Byers with a violation of Vehicle Code section 23102 (driving under the influence of intoxicating liquor). It is alleged in the complaint that in January of 1974, Byers had been convicted on two separate occasions, once in San Francisco and once in South San Francisco, of the same offense. In addition, Byers was also charged with a violation of Vehicle Code section 14601 (driving of a motor vehicle while his driving privilege had been revoked) and having been previously convicted of this offense.

On September 24, 1976, a complaint was filed in the Municipal Court for the Oak-land-Piedmont Judicial District charging Patricia Ethel Prenger with a violation of Vehicle Code section 23102. It was further alleged that Prenger had previously been convicted of the same offense in December of 1974 before the El Monte Municipal Court (Los Angeles County).

Byers and Prenger filed identical motions to strike their alleged prior misdemeanor drunk driving convictions “on the grounds that one or more of the following enumerated defects, appearing on the face of said judgment(s), result in constitutional invalidity.” Each motion contained a signed declaration of counsel. These declarations stated that defense attorneys were “informed and believes” that their clients were entitled to the relief requested. Attached to these declarations were “abstracts of conviction” reflecting the record of the prior convictions. Both motions contained supporting affidavits of the respective defendants. These affidavits, under “penalty of perjury,” declared that they had suffered the prior conviction identified in the motion, but stated further only that the affiant was “informed and believes” that his or her constitutional rights had been violated therein. However, these affidavits were unsigned. Each motion to strike listed defects as appearing on the face of the “judgment.”¹

The minute order of Byers' prior conviction in San Francisco Municipal Court showed that on January 14, 1974, before the Honorable Raymond D. Williamson, Jr., “Defendant advised of constitutional rights[.] Defendant voluntarily and knowingly waives each of his rights as set forth in BOYKIN VS. ALABAMA and is fully cognizant of the consequence of a Guilty Plea[.] Defendant instructed and arraigned (WAIVED)[.] Defendant pled Guilty[.]”

The docket entry of Prenger's prior conviction showed that when she entered a guilty plea on July 26, 1974, in the El Monte Municipal Court, a court reporter was in attendance to “take down the proceedings as provided by law.” The docket entry showed that Prenger “waived counsel and rights.”

A hearing was held on both defendants' motions on May 13, 1977, in the municipal court. At this hearing defense counsel and the district attorney both stated that the issue to be decided was who has the burden of producing the reporter's transcript if the minute order or docket entry do not affirmatively show that the requirements of Mills v. Municipal Court, supra, 10 Cal.3d 288, 110 Cal.Rptr. 329, 515 P.2d 273, have been satisfied. The court ruled that the prosecution had the burden and stated she would continue the matter in order for the prosecution to procure the transcripts. The prosecution chose not to obtain the transcripts but to appeal. The order of the municipal court, dated June 23, 1977, provides: “This court finds that defendant has produced a sufficient court record, the docket entry, to establish that the below identified prior conviction is constitutionally invalid, pursuant to the standards set forth in Mills v. Superior Court, 10 Cal.3d 288 [110 Cal.Rptr. 329, 515 P.2d 273] (1973); and that docket entry purported to be the record of the court and that defendant is not required to produce also the reporter's transcript of the entry of plea. The burden of producing evidence having shifted to the prosecution and the prosecution having chosen not to produce any rebuttal evidence, this court finds that the prosecution has failed to meet its burden of proof and finds that the below identified prior conviction is constitutionally invalid.”²

On August 2, 1977, the People filed a petition for writ of prohibition and mandate in the Superior Court of Alameda County. The People sought a writ of prohibition to restrain the municipal court from entertaining and granting any motion of Byers and Prenger to strike a prior conviction on any ground other than denial of right to counsel or ineffective waiver of the right to counsel. The People sought a writ of mandate to compel the municipal court to set aside its order striking the prior convictions of Byers and Prenger and to require Byers and Prenger to bear their burden of producing evidence. An alternative writ of prohibition and mandate was issued on August 2, 1977.

On October 12, 1977, the People asked the court to take judicial notice of the reporter's transcripts of the proceedings wherein Prenger and Byers pleaded guilty to their prior convictions.³ The transcript of Byers' January 14, 1974 conviction shows that he was represented by counsel and was advised of his right to a jury trial, right to remain silent, right to confront witnesses and that he waived each of these rights. He was also told the consequences of his plea. The reporter's transcript regarding Prenger's prior conviction shows that although she was not represented by counsel, she was advised of her right to counsel (and that counsel would be appointed if she could not afford to retain one), right to a jury trial, right to remain silent, right to confront witnesses and that she waived each of these rights. She was also told the consequences of her plea.

Judgment was entered on October 21, 1977. The trial court denied the People's petition for a writ of prohibition. The trial court granted the People's petition for a writ of mandate and ordered the municipal court to set aside its order granting real parties in interest's motions to strike the prior convictions and to require Byers and Prenger to produce affirmative evidence that their prior convictions were invalid. The People appeal from the part of the judgment which denied the petition for writ of prohibition. Real parties in interest appeal from the portion of the judgment which granted the writ of mandate.

In Boykin v. Alabama (1969) 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274, the United States Supreme Court held that whenever a guilty plea is accepted the trial record must affirmatively show that the defendant was aware of his constitutional rights and that such rights have been freely and intelligently waived; and the court made clear that such a voluntary waiver could not be presumed from a “silent record.” In Boykin, the Supreme Court reversed a felony conviction by a plea of guilty because the record failed to disclose that the accused voluntarily and intelligently waived his constitutional rights against self-incrimination, to trial by jury and confrontation. In In re Tahl (1969) 1 Cal.3d 122, 81 Cal.Rptr. 577, 460 P.2d 449, the California Supreme Court articulated exactly what a trial court record must disclose to demonstrate a valid guilty plea under Boykin; to wit, that the record on its face show that the accused was aware, or made aware, of his right to confrontation, to a jury trial, and against self-incrimination, as well as the nature of the charge and the consequences of his plea. Moreover, the face of the record must show that each constitutional right was explicitly enumerated and expressly waived by the defendant personally. (Id., at p. 132, 81 Cal.Rptr. 577, 460 P.2d 449.) The requirements of Boykin and Tahl were given prospective application. (In re Tahl, supra, at p. 139, 81 Cal. Rptr. 577, 460 P.2d 449.)

In Mills v. Municipal Court, supra, 10 Cal.3d 288, 292, 110 Cal.Rptr. 329 515 P.2d 273, the Supreme Court held that the constitutional principles enunciated in Boykin and Tahl govern the validity of pleas of guilty in all misdemeanor proceedings.⁴

The procedure for attacking a prior conviction for driving under the influence of intoxicating liquor is set out in section 23102.2 of the Vehicle Code⁵ as follows: “(a) In any proceedings to have a prior judgment of conviction of a violation of subdivision (a) or (b) of Section 23102, or of subdivision (a), (b), or (c) of Section 23105, declared invalid on constitutional grounds, the defendant shall state in writing and with specificity wherein he was deprived of his constitutional rights, which statement shall be filed with the clerk of the court and a copy served on the court that rendered such prior judgment and on the prosecuting attorney in the present proceedings at least five court days prior to the hearing thereon.

“(b) The court shall, prior to the trial of any pending criminal action against the defendant wherein such prior conviction is charged as such, hold a hearing, outside of the presence of the jury, in order to determine the constitutional validity of the charged prior conviction issue. At such hearing the procedure, the burden of proof and the burden of producing evidence shall be as follows:

(1) The burden of proof remains with the prosecution throughout and is that of beyond a reasonable doubt.

(2) The prosecution shall initially have the burden of producing evidence of the prior conviction sufficient to justify a finding that the defendant has suffered such prior conviction.

(3) In such event, the defendant then has the burden of producing evidence that his constitutional rights were infringed in the prior proceeding at issue.

(4) If the defendant bears this burden successfully, the prosecution shall have the right to produce evidence in rebuttal.

(5) The court shall make a finding on the basis of the evidence thus produced and shall strike from the accusatory pleading any prior conviction found to be constitutionally invalid.”

The first step in the procedure outlined in section 23102.2 of the Vehicle Code is for the prosecutor to show that a defendant suffered a prior conviction. The state may and usually does prove the prior conviction prima facie by introducing into evidence a certified copy of court minute orders or an abstract of judgment. (People v. Lizarraga (1974) 43 Cal.App.3d 815, 820, 118 Cal.Rptr. 208; People v. Vienne (1973) 30 Cal.App.3d 266, 271, 105 Cal.Rptr. 584.) Herein, the defendants introduced the properly admissible documentary evidence, thereby relieving the People of their burden of producing evidence sufficient to sustain a finding that in fact the defendants suffered a prior conviction. This, a defendant may do, even as the court may, in a proper case, by taking judicial notice of its own records. (See People v. Bowen (1971) 22 Cal.App.3d 267, 286, 99 Cal.Rptr. 498.)

The next step in the outlined procedure requires a defendant to produce evidence that the prior conviction at issue is constitutionally infirm. Real parties in interest argue that they met their burden of producing evidence when they submitted the docket entry and minute order of the prior conviction proceedings which failed to show that each expressly waived each of his or her constitutional rights before the court accepted his or her guilty plea. Further, they assert that it was at this point incumbent upon the People to produce evidence demonstrating that the prior convictions were valid. The People, on the other hand, claim that the minute order and the docket entry provide prima facie evidence of the validity of the prior convictions and that real parties in interest never presented any competent evidence demonstrating that their constitutional rights had been infringed. In our view the real parties in interest's argument is well taken and correct.

The People concede that the documentary evidence (docket entry and minute order) does not satisfy the requirement of the Boykin-Tahl-Mills rule, e. g., they do not recite that the real parties in interest expressly and explicitly waived their constitutional rights.

Notwithstanding, the Attorney General argues that the “silence of those records in this regard [to show ‘on [their] face’ the requisite understandings and personal waivers of their constitutional rights] in no way constitutes evidence that the appellants' rights were infringed.” As we perceive and insofar as we are able to understand the People's argument is that real parties in interest “simply stated a legal conclusion” without any factual proof in support thereof that their constitutional rights had been violated; that because the municipal court was made aware that in each instance there was a reporter's transcript of the entire proceedings available, the court's conclusion that the constitutional rights of real parties in interest were infringed was a “totally unfounded” conclusion, mere speculation from the “silent” record, not based on evidence but upon a “negative inference.” Further, the People contend that because the minute order and docket entry herein are court records which are entitled to the “normal presumptions of regularity and truth,” in Prenger's case “the evidence. . served only to establish the validity of [her] prior conviction, it remained her burden under Vehicle Code section 23102.2(b)(3) to show that her rights had been violated despite the indication to the contrary contained in the court's docket entry. Had [Prenger] obtained the transcript of her guilty plea in the first instance, it seems highly unlikely that the baseless motion to strike her prior conviction would even have been filed. For, it would have immediately [been] apparent that there was no factual foundation for such a motion.” In Byers' case, the People argue to the same effect that a court record showing compliance with Boykin and Byers' cognizance of the consequences of a guilty plea should be sufficient to establish exactly that.

Prior to Boykin-Tahl-Mills, the People's argument would be meritorious. In California, before the “on the face of the record” mandate, People v. Coffey, supra, 67 Cal.2d 204, 215, 60 Cal.Rptr. 457, 430 P.2d 15, taught that the issue of the validity of the prior conviction must be raised by means of allegations which, if true, would render the prior conviction devoid of constitutional support. Further, when it was not required that the record demonstrate on its face compliance with the constitutional requirements, an allegation, as in the instant case, that the record failed to do so came to naught and raised no issue. (Salazar v. Municipal Court (1975) 44 Cal.App.3d 1024, 1026-1028, 119 Cal.Rptr. 98.)

In regard to misdemeanants, Mills brought a change in California law. Now a record that does not affirmatively reveal an explicit and express waiver of constitutional rights is defective and renders the guilty plea invalid. In the recent (November) case of Youkhanna v. Municipal Court (1978) 86 Cal.App.3d 612, 150 Cal.Rptr. 380, a case factually similar to the instant case, the Fifth District states at page 616, 150 Cal.Rptr. at page 383, “Second, one important purpose of the Boykin-Tahl-Mills rule is to simplify the process of ruling on the adequacy of guilty pleas by encouraging the development of complete records.”⁶ Herein there was [is] a “complete record”; the People simply refused to produce it.

We find that the municipal court ruled correctly. The real parties in interest satisfied their burden of producing evidence that their constitutional rights were infringed in the prior proceedings with the introduction of the “defective” records. (Veh.Code, § 23102.2(b)(3).) The trial court then properly offered the People their right to produce evidence in rebuttal (Veh.Code, § 23102.2(b)(4).) When the People declined to acquire and produce the reporters transcripts of the prior proceedings, they failed to satisfy their burden of proving beyond a reasonable doubt that the prior convictions were constitutionally valid. (Veh.Code, § 23102.2(b)(1).) The municipal court properly granted the motions to strike the alleged prior convictions. The superior court erred in granting the writ of mandate setting aside the order striking the alleged prior convictions and requiring Prenger and Byers to produce further affirmative evidence in support of their respective motions.

The People contend in their cross-appeal, as they did in the trial court, that motions to strike prior convictions on grounds of constitutional invalidity are limited to the issue of representation by counsel. Division Two of this district in People v. Vienne has so limited the attack on a prior conviction: “This contention points up the misunderstanding by some members of the bar as to the limited scope of inquiry to which the trial court is restricted in conducting a hearing based upon a ‘clear allegation’ that an alleged prior conviction is invalid. The court in Coffey made it abundantly clear that the only question to be resolved in such a hearing is ‘whether, in the proceedings leading to that [prior] conviction, defendant was accorded his right to counsel in accordance with the Sixth and Fourteenth Amendments.’ (People v. Coffey, 67 Cal.2d at p. 217, 60 Cal.Rptr. 457, 430 P.2d 15.) [[[[¶] It should be obvious that any alleged constitutional infirmity in a prior conviction—other than the right to counsel—is a matter which must be left to proceedings in habeas corpus. Otherwise, the hearing on the alleged infirmity of the prior could involve more issues and more trial time than the substantive case itself․” (People v. Vienne, supra, 30 Cal.App.3d 266, 271-272, 105 Cal.Rptr. 584, 587; see also People v. Superior Court (Gaulden) (1977) 66 Cal.App.3d 773, 776-777, 136 Cal.Rptr. 229.) In both Vienne and Gaulden, the defendants sought to attack their prior convictions which were suffered after they were represented by counsel at trial.

In People v. Lewis (1977) 74 Cal.App.3d 633, 639-640, 141 Cal.Rptr. 614, the court applied the same restriction to an attack on a prior conviction rendered after a defendant pleaded guilty, even though the record did not show on its face that the defendant had been given his Boykin-Tahl rights and waived these rights.⁷ The record in Lewis did show that defendant was represented by counsel. The court in Lewis stated: “Denial of the right to counsel is the only constitutional infirmity in a prior conviction which may be attacked by a motion to strike. [Citations.] Furthermore, the prior was over four years old, and appellant made no showing whatsoever that he had ever attempted to attack or set aside the plea in a timely or appropriate manner, or that he had an excuse for failing to do so. [Citation.] In the absence of such showing, the alleged infirmity in the prior was waived and could not be collaterally attacked.” (Id., at p. 640, 141 Cal.Rptr. at p. 617.) Lewis was decided by the Second District, Division Five, and the Fourth District, Division Two, reached the same result in People v. Malloy (1974) 41 Cal.App.3d 944, 952-953, 116 Cal.Rptr. 592.)

In Salazar v. Municipal Court, supra, 44 Cal.App.3d 1024, 1027, 119 Cal.Rptr. 98, the Fourth District, Division One, stated that a defendant could collaterally attack his prior conviction on constitutional grounds other than the right to counsel. (See also Ganyo v. Municipal Court (1978) 80 Cal.App.3d 522, 530-532, 145 Cal.Rptr. 636, decided by the Fifth District.)

Fortunately this court is not concerned with the proper scope of inquiry for a collateral attack on a prior conviction under case law. This court is concerned with the applicable procedure as stated under Vehicle Code section 23102.2. This statute is not limited to attacks on prior convictions on the ground that a defendant's right to counsel was infringed, but speaks of prior convictions that are challenged “on constitutional grounds.” A basic rule of statutory construction is that the court must first look to the words of the statute to determine legislative intent. (Moyer v. Workmen's Comp. Appeals Bd. (1973) 10 Cal.3d 222, 230, 110 Cal.Rptr. 144, 514 P.2d 1224.) Had it been the intent of the Legislature to limit the procedure to challenges based on the right of counsel, the statute would have been written in language which indicated that the hearing was limited to this single constitutional ground.

Accordingly, the superior court properly denied the People's petition for a writ of prohibition.

We reverse the judgment of the superior court issuing the writ of mandate to the municipal court. We affirm the judgment of the superior court denying the writ of prohibition.

FOOTNOTES

1.  The alleged defects in the convictions were that the defendant: “A. Was not represented by counsel, and: [¶] 1. was not advised of the right to counsel; [¶] 2. did not freely or intelligently waive the right to counsel; [¶] 3. did not personally or intelligently waive his right to a speedy trial; [¶] 4. was not advised of the nature of the charge; [¶] 5. was not advised of the elements of the offense; [¶] 6. was not advised of the plea and defenses available; [¶] 7. was not advised of the possible punishment; [¶] 8. was not advised of the primary and direct consequences of the plea. [¶] B. Did not intelligently waive the following rights (whether or not represented by counsel) [¶] 1. the right against self-incrimination, in that: [¶] (a): (he) (she) was not advised of the right; [ [ [ [¶] (b) (he) (she) did not personally waive the right. [¶] 2. The right to confrontation, in that—[¶] (a): (he) (she) was not advised of the right; [ [¶] (b): (he) (she) did not personally waive the right. [¶] 3. The right to trial by jury, in that—[¶] (a): (he) (she) was not advised of the right; [ [¶] (b): (he) (she) did not personally waive the right.”

2.  The court's written order refers solely to Prenger. However, the Byers and Prenger matters had been consolidated for purposes of the motion to strike their alleged prior convictions. Discussion between the court and counsel also makes it clear that both matters were ruled upon by the court and that the order to strike Prenger's conviction also applied to Byers.

3.  Real parties in interest objected to the People's request that the reporter's transcript be judicially noticed. The People explained that their offer was only by way of “replication.” The trial court ruled that the transcripts would form no basis of its decision on the merits of the petition for writ of mandate.

4.  Justice Tobriner summarized as follows: “To reiterate, we have concluded above that the principles underlying the Boykin-Tahl decisions are applicable to misdemeanor proceedings. We have also indicated that in implementing these principles in the misdemeanor field, the procedure required for felony prosecutions need not be precisely duplicated, but variations may be adopted so long as defendants' fundamental constitutional rights are respected. In particular, we have explained that the application of the Boykin-Tahl rule does not preclude the entry of a guilty plea through counsel, so long as the record explicitly demonstrates the defendant's awareness, and personal waiver, of the constitutional rights relinquished by his plea of guilty. Moreover, we have also recognized that when misdemeanor defendants personally appear in court to enter their pleas, the trial judge may collectively advise such defendants of their constitutional rights so long as adequate evidence of each defendant's personal waiver appears on the record. Finally, we have held that our present decision is to be applied purely prospectively.” (Mills v. Municipal Court, supra, 10 Cal.3d 288, 311, 110 Cal. Rptr. 329, 345, 515 P.2d 273, 289.) Byers' and Prenger's prior convictions post date October 25, 1973, the date of the decision in Mills v. Superior Court.

5.  Vehicle Code section 23102.2 is a codification of the procedure to determine the constitutional validity of prior convictions as set out in People v. Coffey (1967) 67 Cal.2d 204, 217-218, 60 Cal.Rptr. 457, 430 P.2d 15.)

6.  We note that in Youkhanna, at page 616, 150 Cal.Rptr. 98, the Attorney General argued that a defective record only raises a rebuttable presumption that the guilty plea is invalid. The court answered assuming there was a “‘presumption”’ it was deemed conclusive and would not permit evidence extrinsic to the record to prove that the plea was valid. In Youkhanna, the People wanted to go outside the record to establish that the petitioners had waived their constitutional rights. Since the People in the instant case had on-the-record evidence that the prior convictions were valid, the People would not have been precluded from introducing the evidence.

7.  The prior conviction in Lewis was suffered after the Boykin and Tahl decisions were rendered. People v. Bowen, supra, 22 Cal.App.3d 267, 99 Cal.Rptr. 498, decided by Division One of this district, appears to reach the same result as Lewis but defendants' priors were suffered before Boykin and Tahl. Boykin and Tahl were given prospective application.

WHITE, Presiding Justice.

FEINBERG and HALVONIK, JJ., concur.