HART v. PEOPLE (1982)

Appellant Paul Douglas Hart appeals from a judgment of the Santa Barbara Superior Court denying his petition for a writ of mandate to compel the Municipal Court of the Santa Maria Judicial District to vacate two convictions of drunk driving.  (Former Veh.Code, § 23102, now § 23152.)

On May 22, 1979, appellant was convicted upon his plea of guilty to drunk driving in case No. 25814 in the Municipal Court of the Santa Maria Judicial District of Santa Barbara County.   Imposition of sentence was suspended and he was placed on probation for two years on various conditions.

In November 1980 he was charged with a new drunk driving offense in case No. 110096, also in the Santa Maria Municipal Court.   The conviction in No. 25814 was charged as a prior conviction.   Appearing with counsel on December 15, 1980, appellant pleaded guilty to the second offense, No. 110096, and also admitted violation of probation as to the first offense, No. 25814.   The court modified probation in No. 25814, ordering appellant to serve six months in the county jail commencing December 27, 1980.   The court deferred sentencing in No. 110096 to April 30, 1981.

On May 11, 1981, appellant appeared with counsel for sentencing in No. 110096.   He moved to withdraw his plea of guilty in No. 110096 and to vacate the prior conviction in No. 25814, on the ground that the record (docket sheets) of his guilty pleas was insufficient to establish that he had been advised of his constitutional rights or had knowingly, voluntarily and personally waived them.  (See Mills v. Municipal Court, 10 Cal.3d 288, 110 Cal.Rptr. 329, 515 P.2d 273.)   His motions were denied.   The court then suspended imposition of sentence in No. 110096, and granted probation, suspending appellant's driving privileges and taking possession of his driver's license.   The court took no action on No. 25814.

On May 13, 1981, appellant filed a petition for writ of mandate in the Santa Barbara Superior Court to compel the municipal court to vacate appellant's convictions and return his driver's license.   The superior court denied the writ, finding that the docket sheet record was sufficient to show appellant's knowing and intelligent waiver of constitutional rights for the purpose of the pleas of guilty.   This appeal is taken from that judgment.¹

DISCUSSION

Appellant contends that the records (docket sheets) in both No. 25814 and No. 110096 fail to satisfy the requirement of Mills v. Municipal Court, supra, 10 Cal.3d 288, 110 Cal.Rptr. 329, 515 P.2d 273, that the record contain on its face direct evidence that before pleading guilty the accused was aware or made aware of and expressly waived his rights to confrontation, to a jury trial, and against self-incrimination.   In felony cases, a reporter's transcript of the guilty plea proceedings usually establishes the necessary waivers of constitutional rights, but in misdemeanor cases where there may be numerous defendants and no reporter present, the Mills court recognized that “the practicalities of the crowded inferior courts will permit some deviation from the strict felony procedure so long as the constitutional rights of defendants are respected.”  (Id., 10 Cal.3d at p. 307, 110 Cal.Rptr. 329, 515 P.2d 273.)

Subsequent cases have therefore recognized that under appropriate circumstances docket entries may be sufficient to show that the accused knew each specific right and expressly waived it.  (Ganyo v. Municipal Court, 80 Cal.App.3d 522, 529, 145 Cal.Rptr. 636;  Nelson v. Justice Court, 86 Cal.App.3d 64, 67, 150 Cal.Rptr. 39;  Worsley v. Municipal Court, 122 Cal.App.3d 409, 415–416, 176 Cal.Rptr. 324.)   However, “[s]uch entries, of course, must be prepared for the particular case before the court;  the requirement will not be satisfied by the use of minute forms containing printed recitals ․”  (In re Smiley, 66 Cal.2d 606, 617, fn. 8, 58 Cal.Rptr. 579, 427 P.2d 179.)   Where the docket is a preprinted form with no markings or initials or other means of establishing that the entries are a contemporaneous reporting of what was advised and waived by the particular individual defendant, the docket entries have been held insufficient.  (People v. Buller, 101 Cal.App.3d 73, 75–76, 160 Cal.Rptr. 657;  Stewart v. Justice Court, 74 Cal.App.3d 607, 609–610, 141 Cal.Rptr. 589;  Youkhanna v. Municipal Court, 86 Cal.App.3d 612, 615 & fn. 1, 150 Cal.Rptr. 380;  People v. Guevara, 111 Cal.App.3d Supp. 19, 22, 23, 169 Cal.Rptr. 19.)   On the other hand, where the clerk makes docket entries under circumstances showing that the entries were prepared for the particular case before the court, such docket entries satisfy the Mills requirements.   In Ganyo v. Municipal Court, supra, 80 Cal.App.3d at pages 527–529, 145 Cal.Rptr. 636, the clerk hand wrote the defendant's individual responses to questions regarding her constitutional rights.   In Worsley v. Municipal Court, supra, 122 Cal.App.3d at pages 414–416, 176 Cal.Rptr. 324, we held that a combination of rubber stamp entries contemporaneously made, handwritten remarks, and the judge's signature sufficiently memorialized the specific advice and waivers relating to the individual defendant.   We said, “Since this particular docket provides a reviewing court with more than a silent record [citation], the municipal court docket entry is some indication of what occurred.  ‘[T]here [remains] a presumption that in preparing the docket entry official duty [judge's and clerk's] was regularly performed (Evid.Code, § 664) ․’ ” (Id., at p. 415, 176 Cal.Rptr. 324.)   In Nelson v. Justice Court, supra, 86 Cal.App.3d at page 67, 150 Cal.Rptr. 39, the court commented that the minutes are prepared and certified “by the clerk who inferably heard the advice given by the court and appellant's responses thereto.”

With these examples in mind, we examine the record in the instant case.

A. No. 25814.

In No. 25814 appellant's plea of guilty was entered on May 22, 1979, the same date as appellant's initial appearance/arraignment.   Appellant appeared without counsel.   The advisement of appellant's rights at the arraignment is established by printed docket entries which are checked and initialed, apparently by the clerk.   The clerk's initials establish that appellant was advised of all of his rights as follows:

In the “ENTRY OF/CHANGE TO GUILTY PLEA” section of the docket, a check mark and the clerk's initials also establish that appellant waived each of his rights as follows:

 We hold, contrary to appellant's contention, that the docket entries in No. 25814 are sufficient to show that this particular appellant was advised of and expressly waived his constitutional rights.   Based on Worsley v. Municipal Court, supra, 122 Cal.App.3d at page 415, 176 Cal.Rptr. 324, and Ganyo v. Municipal Court, supra, 80 Cal.App.3d at page 529, 145 Cal.Rptr. 636, the handwritten initials of the clerk satisfy the requirement of In re Smiley, supra, 66 Cal.2d at page 617, footnote 8, 58 Cal.Rptr. 579, 427 P.2d 179, that the entries be prepared for the particular case before the court.

At the writ proceedings in superior court it was stipulated by the parties and found by the court that:  The municipal court collectively advises all misdemeanants of their constitutional rights;  the municipal court has no form providing for waiver of constitutional rights by misdemeanants;  the municipal court has no court reporter present at arraignments or when a misdemeanant pleads guilty;  and the municipal court has no system whereby misdemeanants check in with the bailiff, and people continually walk in and out of the courtroom including that time during which the constitutional rights are given.   The stipulated facts do not change the result.   As indicated in Worsley and in Nelson v. Justice Court, supra, 86 Cal.App.3d at page 67, 150 Cal.Rptr. 39, there remains a presumption that in preparing the docket entry the clerk regularly performed his or her duty and the clerk presumably heard the advice given by the court and appellant's responses thereto.

 Naturally, a written waiver of specific constitutional rights signed or initialed by the defendant, or a reporter's transcript of the proceedings would have been a more certain or desirable method of making a record of the necessary waivers.   But in Mills v. Municipal Court, supra, 10 Cal.3d at page 307, 110 Cal.Rptr. 329, 515 P.2d 273, the court said:  “These suggestions, of course, are merely illustrative and do not exhaust the various acceptable means that courts may devise to promote the efficient administration of justice without impairing constitutional rights.”  (Fn. omitted.)   Individually particularized docket entries by the clerk are still an “acceptable” means of establishing the necessary waivers notwithstanding that other means might be more “desirable.”  (Worsley v. Municipal Court, supra, 122 Cal.App.3d at pp. 415–416, 176 Cal.Rptr. 324;  Ganyo v. Municipal Court, supra, 80 Cal.App.3d at pp. 529–530, 145 Cal.Rptr. 636.)

B. No. 110096.

 In No. 110096 appellant appeared with counsel at his arraignment on November 18, 1980.   On the docket sheet for November 18, counsel's name is handwritten, apparently by the clerk.   A check mark and the clerk's initials appear by the printed statement “Defendant waives advisement of constitutional rights.”

Appellant did not plead guilty at his initial appearance, but did so nearly a month later, again represented by counsel.   As in No. 25814, the clerk's initials on the December 15, 1980, docket appear next to each of the rights waived by appellant, including confrontation, jury trial, and self-incrimination.   In addition, there is a handwritten statement that “counsel concurs.”

The clerk's handwritten initials and handwritten statement “counsel concurs,” are sufficient to validate the docket sheet record, as we have already discussed in relation to No. 25814.

The judgment is affirmed.

FOOTNOTES

1.   The superior court could have dismissed the petition for writ of mandate on the ground that appellant had an adequate remedy by way of appeal from the judgment in No. 110096.  (Provencher v. Municipal Court, 83 Cal.App.3d 132, 133–134, 147 Cal.Rptr. 615.   See, e.g., People v. Shannon, 121 Cal.App.3d Supp. 1, 3, 175 Cal.Rptr. 331;  People v. Wright, 96 Cal.App.3d Supp. 17, 19, 158 Cal.Rptr. 275.)   However, the superior court decided the petition on the merits, the issues have been fully briefed and involve questions of law as to the constitutionality of appellant's convictions, and the subject may be of public interest to prosecutors and numerous defendants convicted of drunk driving in municipal courts with similar record keeping systems, therefore we prefer to dispose of the appeal on the merits.  (See Zimmerman v. Municipal Court, 111 Cal.App.3d 174, 178–179, 168 Cal.Rptr. 434;  People v. Vest, 43 Cal.App.3d 728, 731–732, 118 Cal.Rptr. 84.)

ASHBY, Associate Justice.

FEINERMAN, P.J., and STEPHENS, J., concur.