IN RE: Marshall Robert MOSS (1985)

Marshall Robert Moss (petitioner) seeks review by way of a writ of habeas corpus of his convictions of driving under the influence, driving with a suspended license, and his admission to probation violations.

Our review calls to mind that one or more of a defendant's constitutional rights may occasionally fall between the cracks;  here, many of them fell into the Grand Canyon.   Therefore, we must vacate petitioner's convictions and his admission to violations of probation.

FACTS

On April 28, 1983, petitioner appeared in propria persona before the Ventura Municipal Court for arraignment on a misdemeanor complaint charging him in counts I and II with driving under the influence of alcohol (Veh.Code, § 23152, subds. (a), (b)) and count III, driving on a suspended license (Veh.Code, § 14601, subd. (a)).  The complaint also alleged petitioner had been convicted of prior offenses for driving under the influence of alcohol in 1979 and 1982.

Petitioner signed and initialed a form entitled “Ventura County Municipal Court—23152—Waiver of Constitutional Rights,” a copy of which is set out in an appendix to this opinion.¹  Petitioner initialed and signed the form in the appropriate places.   Near the bottom of the front page of the form is a sentence which reads, “[h]aving in mind the rights I will be giving up, and all the possible consequences of my plea, I desire to plead Guilty/No Contest to violation of Section 23152 of the Vehicle Code.”   On the reverse side of the form, under the paragraph entitled “WAIVER OF ATTORNEY,” there appears the following sentence:  “I understand I have a right to have a lawyer defend me at all stages of the proceedings, and that if I cannot afford to hire a lawyer, the court will provide one for me.   I knowingly and intelligently WAIVE (GIVE UP) my right to a LAWYER.”   Petitioner signed his name on the signature line immediately beneath this sentence.

A discussion between the court and petitioner took place.²

[Judge]:  “Okay Mr. Moss.   You're charged with driving a vehicle under the influence of intoxicating liquor and driving on a suspended license.   Do you understand those charges?

[Pet]:  “Yes, Your Honor.

[Judge]:  “Do you wish to be represented by an attorney?

[Pet]:  “No, Your Honor.”

No further advisements or inquiries relating to petitioner's constitutional rights were made by the court.   There was no discussion of the “Waiver of Constitutional Rights” form signed by petitioner.

The following discussion between the judge and petitioner took place concerning the two prior driving under the influence convictions:

[Judge]:  “Do you admit that you were convicted of driving under the influence in Ventura in 1982?

[Pet]:  “Yes, sir.   I think it was about October.

[Judge]:  “October '82?

[Pet]:  “Yes, Your Honor.

[Judge]:  “And March of '79?

[Pet]:  “Uh, I don't know about March '79, Your Honor.   I imagine so.

[Judge]:  “Well it shows that in '79 you were arrested in February and convicted on March 15.

[Pet]:  “This may be so, Your Honor.   I, I don't recollect what date.

[Judge]:  “Okay.   But somewhere in '79 you were convicted of this offense, is that right?

[Pet]:  “As far as I know, yes, sir.

[Judge]:  “Okay.   Two priors are admitted.”

The complaint apparently did not allege a prior violation of Vehicle Code section 14601, subdivision (a).   Nevertheless, the judge accepted an admission to a prior violation of Vehicle Code section 14601, although he shared his dilemma with petitioner.   He said:  “The pink sheet shows a prior 14601 but it's not, I don't have a complaint that alleges it.”   Petitioner tried to help.   He told the court:  “Does that not include one of those other ․”

[Judge]:  “Well, let me see.   Maybe you're right and I'm ․

[Pet]:  “I believe that was sir.

[Judge]:  “It says page 1 of 2, but I don't have page 2 ․  Well in order for me to do something about it someone's going to have to file page 2 ․  And it would be helpful to sign page 2.”

This illuminating dialogue was interrupted when a messenger delivering flowers appeared and addressed the court.   The judge assisted the messenger, and the flowers were presumably delivered to court personnel.³

Perhaps the judge had become sidetracked, since he did not acknowledge there was an admission to the prior violation of Vehicle Code section 14601.   The judge then proceeded as if petitioner had entered pleas of guilty to driving under the influence and driving with a suspended license, counts I and III,⁴ even though there were no pleas of guilty to these counts.

When petitioner admitted his probation violations, insouciance came into full bloom.   The judge said:  “Okay.   And you're also on probation.   I've got you here with three cases that you're presently on probation.   Do you admit that you're in violation of your probation?”

[Pet]:  “Yes, Your Honor.

[Judge]:  “Okay.   Well, Mr. Moss I'm going to have all these matters, refer them to the probation office and set it for a hearing tomorrow at 1:30.   We'll see you tomorrow at 1:30 on all these matters.”

The next day, April 29, 1983, was not any better.   Petitioner was sentenced to five consecutive one-year terms in the county jail.⁵  The judge highlighted the event by commenting:  “Well, Mr. Moss, you win the prize for the day.   You have absolutely no redeeming value in any of these cases.”   The assessment may have been correct, but, as we shall discuss, the method was wrong.

Petitioner sought relief by way of habeas corpus in the superior court, arguing that he was denied due process in the probation revocation hearing.   On April 2, 1984, the superior court denied his petition for writ of habeas corpus.   The court failed to give reasons for the denial of the petition.⁶  Petitioner appealed, claiming only that the imposition of consecutive sentences was improper.   The appellate department of the superior court affirmed the convictions on April 3, 1984.

DISCUSSION

IA. PROCEDURAL OBJECTIONS1. LACHES

 The People contend petitioner is guilty of laches.   Petitioner waited nine months following the ruling of the appellate department before he sought relief from this court.   A party seeking relief by way of a petition for relief by way of an extraordinary writ is required to move expeditiously.   (In re Swain (1949) 34 Cal.2d 300, 304, 209 P.2d 793;  Scott v. Municipal Court (1974) 40 Cal.App.3d 995, 996–997, 115 Cal.Rptr. 620.)

 A review of the municipal court file reveals that petitioner was indigent.   The quality of his performance before the municipal court does not demonstrate a capacity to represent himself.   His prior court experiences alone no more qualify him to be his own lawyer than a case of the gout qualifies one to practice medicine.   Given the paucity of free legal services available to assist indigent misdemeanants with their appeals (see, e.g., Erwin v. Appellate Department (1983) 146 Cal.App.3d 715, 719, 194 Cal.Rptr. 328), the delay was attributable to petitioner's inability to secure appellate counsel.  (See In re Bower (1985) 38 Cal.3d 865, fn. 3, 215 Cal.Rptr. 267, 700 P.2d 1269;  In re Saunders (1970) 2 Cal.3d 1033, 1040–1041, 88 Cal.Rptr. 633, 472 P.2d 921.)   A delay of nine months, under these circumstances, is not a significant delay.  (In re Huddleston (1969) 71 Cal.2d 1031, 1034, 80 Cal.Rptr. 595, 458 P.2d 507 [2–1/212–year delay];  In re Spears (1984) 157 Cal.App.3d 1203, 1208, 204 Cal.Rptr. 333 [18-month delay];  In re Hancock (1977) 67 Cal.App.3d 943, 945, fn. 1, 136 Cal.Rptr. 901 [9-month delay].)

2. HABEAS CORPUS IN THE FIRST INSTANCE

 The People also argue that petitioner raises a number of issues in his petition that were not raised below.   A court of review may refuse to issue a writ of habeas corpus when it appears that the application should have been first made in the lower court.  (In re Hillery (1962) 202 Cal.App.2d 293, 294, 20 Cal.Rptr. 759.)

 Where it “is necessary to establish that a defendant has been denied a fundamental constitutional right, resort to habeas corpus is not only appropriate, but required.  [Citations.].”  (In re Bower, supra, 38 Cal.3d 872, 215 Cal.Rptr. 267, 700 P.2d 1269.)   Here, intervention is proper by this court in the first instance because the issues raised involve fundamental due process rights.   Further, it affords us the opportunity to provide guidance to the trial court.

 The procedure for seeking a writ of habeas corpus is set forth in part 2, title 12 of the Penal Code.   An application for a writ is made by filing a verified petition.  (Pen.Code, § 1474.)   An order to show cause will issue if it appears to the reviewing court that the facts set forth in the petition, if true, establish a prima facie case for relief.  (In re Hochberg (1970) 2 Cal.3d 870, 875, fn. 4, 87 Cal.Rptr. 681, 471 P.2d 1.)   The party upon whom the order to show cause is served is required to file a return which is “responsive to the grounds actually presented in the petition.”  (People v. Green (1980) 27 Cal.3d 1, 43, fn. 28, 164 Cal.Rptr. 1, 609 P.2d 468;  Pen.Code, § 1480.)

 Our Supreme Court has imposed the requirement that the return filed by the respondent in a habeas proceeding “recite the facts upon which the denial of petitioner's allegations is based, and, where appropriate, should provide such documentary evidence, affidavits, or other materials as will enable the court to determine which issues are truly disputed.”  (In re Lewallen (1979) 23 Cal.3d 274, 278, fn. 2, 152 Cal.Rptr. 528, 590 P.2d 383.)   Should the return to the petition for a writ of habeas corpus fail to take issue with the accuracy of the documentary evidence submitted by petitioner, it will be deemed that there are no disputed issues of fact and the reviewing court may rule on the petition without the necessity for an evidentiary hearing.  (In re Lewallen, supra, 23 Cal.3d at p. 278, 152 Cal.Rptr. 528, 590 P.2d 383.)  “By making only general denials of the allegations of the petition, alleging only conclusionary statements of ultimate facts, the People have indicated a willingness to rely on the record of proceedings in the superior court and the documentary evidence submitted by petitioner as exhibits to his petition.   [Citation.].”  (In re Bower, supra, 38 Cal.3d at p. 873, 215 Cal.Rptr. 267, 700 P.2d 1269.)

Here, there is no disagreement concerning the material facts.   The petition contains a transcript purporting to accurately depict the contents of a tape recording of the proceedings held on April 28, 1983, and April 29, 1983.   The return filed by the People generally denied all the allegations contained in the petition.   The People specifically challenged the failure of the transcript to include the court's oral recitation of constitutional rights which it asserted took place at the beginning of the arraignment proceedings.   The People do not take issue with the accuracy of the transcript submitted by petitioner.   In fact, they rely upon portions of the transcript of the tape recording to support their claim that petitioner was duly advised of his constitutional rights.

 Although we have no indication the tape recording complies with California Rules of Court, rule 980.5, we have not been provided with evidence that contradicts the discussion captured on the tape.   Nor have the People raised any evidentiary objection to the transcript of the tape recording.   Under such instances we are permitted to rule upon the petition without the necessity of an evidentiary hearing.  (In re Lawler (1979) 23 Cal.3d 190, 194, 151 Cal.Rptr. 833, 588 P.2d 1257.)

We, therefore, entertain the present matter in the first instance.   (Pen.Code, §§ 1484, 1508;  In re Bower, supra, 38 Cal.3d at p. 873, 215 Cal.Rptr. 267, 700 P.2d 1269;  In re Davis (1979) 25 Cal.3d 384, 389, 158 Cal.Rptr. 384, 599 P.2d 690;  In re Banks (1971) 4 Cal.3d 337, 343, 93 Cal.Rptr. 591, 482 P.2d 215.)

II

A. PETITIONER'S PURPORTED PLEAS OF GUILTY TO COUNTS I and III WERE CONSTITUTIONALLY INFIRM

Petitioner claims the procedures used by the municipal court in taking his plea were deficient under the applicable Boykin-Mills-Tahl test.  (Boykin v. Alabama (1969) 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274;  Mills v. Municipal Court (1973) 10 Cal.3d 288, 110 Cal.Rptr. 329, 515 P.2d 273;  In re Tahl (1969) 1 Cal.3d 122, 81 Cal.Rptr. 577, 460 P.2d 449.)

The People contend that the court gave due regard for petitioner's constitutional rights, because:

1. Petitioner signed a waiver of rights form in which he indicated that he was willing to give up specified constitutional rights and intended to plead guilty to the drunk driving charge.

2. Petitioner answered in the negative when quizzed by the court as to whether he wished to have an attorney appointed to represent him.

3. The trial court collectively advised all defendants appearing in its court for arraignment of their constitutional rights.

4. The trial court entered a finding that petitioner understood and intelligently waived all of his rights.

 Because petitioner seeks relief by way of habeas corpus, he has the burden of establishing that the waivers were not proper.  (In re Bower, supra, 38 Cal.3d at p. 872, 215 Cal.Rptr. 267, 700 P.2d 1269;  People v. Barlow (1980) 103 Cal.App.3d 351, 373, 163 Cal.Rptr. 664.)   The proceedings, captured on tape, reveal that the pleas and many of the waivers were not proper.   Therefore, petitioner has met his burden.

1. PLEAS OF GUILTY—WHERE ARE THEY?

The “Waiver of Constitutional Rights” form does not provide for an express and unequivocal plea of guilty, but merely indicates that petitioner “desires” to plead guilty.   Desire is defined as follows:  “to long or hope for ․ to express a wish for:  REQUEST.”  (Webster's New Collegiate Dict. (1981) p. 305.)   One's desire to perform an act is scarcely the equivalent of actual performance.⁷  This deficiency may have been at least rectified for count I, had petitioner actually pled guilty to count I.

 In most cases, a defendant may enter a plea of guilty without any particular incantation.  (People v. Martin (1964) 230 Cal.App.2d 62, 64, 40 Cal.Rptr. 700;  People v. Niendorf (1961) 197 Cal.App.2d 594, 599, 17 Cal.Rptr. 467.)  “A defendant's expression of guilt, in order to constitute a plea of guilty, must be made in response to a question by the court as to how the defendant pleads and must be couched in language indicating that the defendant is formally making a plea rather than merely making an informal and spontaneous statement as to his guilt.”  (People v. Sturdy (1965) 235 Cal.App.2d 306, 311, 45 Cal.Rptr. 203.)   Here, petitioner's attempt to plead guilty to count I stopped at his desire to so plead.   The court should have taken the final step and asked, for example, “How do you plead?”

The docket sheet also reflects a plea of guilty to count III.  (Veh.Code, § 14601.)   There was also a minor problem concerning petitioner's plea to count III—he did not plead guilty to that count either.   Moreover, there is no indication he “desired” to plead guilty to that count.   The waiver form signed by petitioner contained the following language:  “Having in mind the rights I will be giving up, and all the possible consequences of my plea, I desire to plead Guilty/No Contest to violation of Section 23152 of the Vehicle Code.”  (emphasis added).

 Neither the waiver form nor the discussion between petitioner and the court, as captured on the tape recording, reveal that petitioner pled guilty to either count I or to count III.   A judgment in a criminal case where there is no plea is a nullity.  (People v. Corbett (1865) 28 Cal. 328, 331.)

2. WAIVER OF CONSTITUTIONAL RIGHTS

 The trial court had before it a “Waiver of Constitutional Rights” form.   The court may rely upon such a validly executed waiver form in assessing whether a plea is voluntary and in assessing whether defendant has waived his constitutional rights.  “[A] guilty plea entered through counsel is valid so long as it is accompanied by an adequately documented showing that the defendant was aware of his constitutional rights and knowingly and intelligently waived them․”  (Mills v. Municipal Court, supra, 10 Cal.2d 288, 305, 110 Cal.Rptr. 329, 515 P.2d 273.)⁸  Even with an unrepresented defendant, a waiver form, such as the one here, is sufficient, provided the court is assured that a defendant has signed and understands the form.

 Despite heavy calendars faced by overburdened municipal court judges, proceedings which involve the entry of a guilty plea by an unrepresented defendant require that the trial judge make an effort to see that the accused has been informed of his predicament so as to render him capable of making an intelligent and knowing waiver of his rights.  (Johnson v. Zerbst (1938) 304 U.S. 458, 465, 58 S.Ct. 1019, 1023, 82 L.Ed. 1461;  In re Stocker (1968) 257 Cal.App.2d 613, 619, 65 Cal.Rptr. 240.)

 It has long been held that the determination of whether there has been an intelligent waiver of constitutional rights “must depend, in each case, upon the particular facts and circumstances surrounding that case, including the background, experience, and conduct of the accused.”  (Johnson v. Zerbst, supra, 304 U.S. 458, 464, 58 S.Ct. 1019, 1023, 82 L.Ed. 1461, emphasis added.)

 “[W]aivers of constitutional rights must, of course, be ‘knowing, intelligent acts done with sufficient awareness of the relevant circumstances and likely consequences.’  [Citation.].”  (People v. Mroczko (1983) 35 Cal.3d 86, 110, 197 Cal.Rptr. 52, 672 P.2d 835.)   A reviewing court cannot simply presume such waivers from a silent record;  the record itself, or other evidence, must show an intelligent and knowing act by the defendant.   (Carnley v. Cochran (1962) 369 U.S. 506, 515–516, 82 S.Ct. 884, 889–890, 8 L.Ed.2d 70;  In re Johnson (1965) 62 Cal.2d 325, 334, 42 Cal.Rptr. 228, 398 P.2d 420.)

 The waiver form states that petitioner was advised of and understands his constitutional rights.   We cannot tell if that means petitioner was advised of his constitutional rights prior to signing the form, or that the information contained in the form itself constitutes the advisement and waiver of his constitutional rights.   Nevertheless, had petitioner actually pled guilty to count I, the court had a basis to make a determination that petitioner knowingly and intelligently waived his rights by the plea form itself.   In addition, petitioner makes no claim that he did not sign or understand the plea form.  (People v. Sumstine (1984) 36 Cal.3d 909, 206 Cal.Rptr. 707, 687 P.2d 904.)   It still would have been better practice for the court to have asked petitioner if he signed and initialed the form, and if he understood its contents.   These few words could have been said in the time it takes to blink an eye.

The trial court signed a portion of the plea form under a heading entitled, “Findings and Orders.”   The printed language on the form states:  “The Court finds that:

“1. Defendant and/or his attorney appeared in open court and entered his plea and admission(s).

“2. Defendant has knowingly, intelligently, and understandingly waived his rights as set forth above.

“3. Defendant understands the nature of the charge and the consequences of his plea and admission(s).

“4. There is a factual basis for the plea.

“5. Defendant's waivers of his rights, and his plea and admission(s), are free and voluntary.”

“The so-called Boykin-Tahl-Mills test requires a docket entry and/or minute order to recite that the defendant expressly and explicitly waived his constitutional rights.   These include the rights to counsel, jury trial, confrontation of witnesses/accusers, and against self-incrimination prior to a court's acceptance of a plea of guilty.  [Citations.].”  (Worsely v. Municipal Court (1981) 122 Cal.App.3d 409, 413, 176 Cal.Rptr. 324.)

Although the court had grounds to find a knowing and intelligent waiver of rights as to count I, by virtue of the plea form itself, it had no basis for finding that petitioner entered a plea of guilty.

 Check marks on the docket sheet also indicate petitioner had voluntarily and understandingly waived his constitutional rights to both counts I and III.   A judge is not required to orally articulate his findings that a defendant's waiver of his constitutional rights is voluntarily and intelligently made.  (People v. Garcia (1979) 98 Cal.App.3d Supp. 14, 17–18, 159 Cal.Rptr. 487.)   Nevertheless, a judge's signature below preprinted findings on a waiver form does not create a plea when no plea has been taken, and check marks indicating waivers of constitutional rights on a docket sheet are meaningless in the face of evidence that discloses no support for these findings.⁹

 The waiver form was of no value in informing petitioner of his constitutional rights with respect to count III (driving with a suspended license).   The waiver form contained information concerning the nature of the offense and the consequences of a plea to count I (driving under the influence), but no information concerning count III.   Waivers to count I do not automatically transfer to count III.   Despite there being no plea, or any waivers with respect to count III, the docket sheet reflects that petitioner understands the nature of the charges and consequences of his conviction.

 A waiver of rights must be based upon something more than speculation.  (In re Sutherland (1972) 6 Cal.3d 666, 671, 100 Cal.Rptr. 129, 493 P.2d 857.)   Here, a finding that petitioner waived his rights to count III was based on something less than speculation.   Findings of the trial court will be upheld on appeal, provided that there is evidence which will reasonably support the conclusions reached by the trial court.  (People v. Johnson (1980) 26 Cal.3d 557, 576–578, 162 Cal.Rptr. 431, 606 P.2d 738;  Booth v. Robinson (1983) 147 Cal.App.3d 371, 377, 195 Cal.Rptr. 130.)   Here, no evidence supports the conclusions reached by the trial court as to count III.

 The People claim that the court collectively advised all defendants of their rights at the beginning of the calendar.   This, they suggest, satisfies the requirement of advisement of rights concerning count III.   Although these collective rights were probably given, the People have not supplied us with a record or declaration that they were.   Even assuming the court did collectively advise all defendants of their rights, the court was still required to take either written or oral waivers of petitioner's constitutional rights, to inquire of petitioner whether he was present in court when the collective rights were read, and to inquire whether he understood them.  (In re Johnson, supra, 62 Cal.2d 325, 332–333, 42 Cal.Rptr. 228, 398 P.2d 420.)

 Concerning the specific right to an attorney, petitioner signed the waiver form under the paragraph providing for a waiver of attorney, and the trial court at least asked him if he wished to represent himself.   Had petitioner actually pled guilty to counts I and III, his waiver of the right to counsel would have been effective absent a showing by him that he did not intelligently and understandably waive this right.  (People v. Paradise (1980) 108 Cal.App.3d 364, 366, 166 Cal.Rptr. 484.)

 Under Faretta v. California (1975) 422 U.S. 806, 835, 95 S.Ct. 2525, 2541, 45 L.Ed.2d 562, petitioner has a right to represent himself.   People v. Lopez (1977) 71 Cal.App.3d 568, 138 Cal.Rptr. 36, set out helpful guidelines to aid trial judges in ruling on motions of defendants to represent themselves.   Many subsequent cases held that Lopez warnigs need not be given.  (See Zimmerman v. Municipal Court (1980) 111 Cal.App.3d 174, 179, 168 Cal.Rptr. 434;  Benge v. Superior Court (1980) 110 Cal.App.3d 121, 129, 167 Cal.Rptr. 714;  People v. Paradise, supra, 108 Cal.App.3d 364, 366, 166 Cal.Rptr. 484;  People v. Barlow, supra, 103 Cal.App.3d 351, 364–374, 163 Cal.Rptr. 664.)

 It is good practice for the court to make some effort to assure that a defendant is “․ aware of the dangers and disadvantages of self-representation, so that the record will establish that ‘he knows what he is doing and his choice is made with eyes open.’  [Citation.].”  (Faretta v. California, supra, 422 U.S. 806, 835, 95 S.Ct. 2525, 2541, 45 L.Ed.2d 562.)   “We do not suggest that an express, on-the-record advisement of the dangers and risks of self-representation is not desirable.   It is.  (See People v. Lopez (1977) 71 Cal.App.3d 568 [138 Cal.Rptr. 36].)  Obviously, without an express, on-the-record advisement increased direct and collateral attacks upon pleas of guilty entered without counsel will be inevitable and the predictability of the results uncertain.”  (People v. Paradise, supra, 108 Cal.App.3d 364, 370–371, 166 Cal.Rptr. 484.)

 It is difficult to understand how the waiver of counsel can be knowingly and intelligently made if there is not some attempt to inform a defendant of the dangers of self-representation.   This does not mean that the extensive admonitions suggested by Lopez must be given to unrepresented defendants wishing to plead guilty to misdemeanors.   A sentence or two of warning in a statement of rights read to all defendants at the beginning of the proceedings would be helpful.

 It might be argued that petitioner's waiver of the right to counsel was knowingly and intelligently made because he was no stranger to the courts.   Although prior court experience may be a factor in determining a defendant's familiarity with legal procedures, a prior record alone does not provide assurance of a knowing and intelligent waiver.

 Because petitioner was facing serious charges, and a long sentence, it would have been good practice to heed the words of the Johnson court.  “In view of the multiplicity and potential seriousness of the charges the court should have made a reasonable effort, before accepting petitioner's pleas of guilty, to determine whether he understood his predicament and was capable of representing himself effectively at all stages of the proceedings.”  (In re Johnson, supra, 62 Cal.2d 325, 337, 42 Cal.Rptr. 228, 398 P.2d 420.)

B. ADMISSION OF PRIOR CONVICTIONS

 An admission of a prior offense is deemed tantamount to a “guilty plea for purposes of waiver of an accused's rights․”  (In re Yurko (1974) 10 Cal.3d 857, 862, 112 Cal.Rptr. 513, 519 P.2d 561.)  “Because of the significant rights at stake in obtaining an admission of the truth of allegations of prior convictions, which rights are often of the same magnitude as in the case of a plea of guilty, courts must exercise a comparable solicitude in extracting an admission of the truth of alleged prior convictions.   Although the issue was not before the Supreme Court in Boykin nor before us in Tahl, it is nevertheless manifest that an accused is entitled to be advised of those constitutional rights waived by him in making such an admission.”  (Id., at p. 863, 112 Cal.Rptr. 513, 519 P.2d 561.)   Yurko involved prior felony convictions admitted in a felony proceeding.   People v. Shippey (1985) 168 Cal.App.3d 879, 214 Cal.Rptr. 553, held that Yurko rights apply when misdemeanor priors are admitted in felony proceedings.   We conclude here that Yurko rights apply to prior misdemeanor convictions alleged in misdemeanor proceedings.

 A paragraph in the plea form under the heading “PRIOR(S) (If Applicable)” mentions a defendant's constitutional rights in connection with any prior convictions.   Petitioner's signature at the end of the paragraph constitutes a waiver of those rights.   The plea form, however, did not specifically list petitioner's prior convictions for driving under the influence of alcohol.   Thus, the judge was required to obtain an oral admission for each specific prior offense.

 The judge obtained admissions to prior offenses of driving under the influence of alcohol (Veh.Code, § 23152, subd. (a)) suffered by petitioner in 1982 and 1979, but did not obtain an admission to the prior offense of Vehicle Code section 14601 (driving with a suspended license).   Nevertheless, the docket sheet reflects an admission to a prior offense of 14601, subdivision (a), which was used to impose a sentence of one year on count III.   Even if petitioner had pled guilty to count III, he did not knowingly and intelligently waive his constitutional rights to the prior conviction of Vehicle Code section 14601, subdivision (a), and did not admit that prior conviction either in the waiver form or in open court.

III

THE VIOLATION OF PROBATION HEARING WAS DEFICIENT UNDER THE STANDARDS SET FORTH IN PEOPLE v. VICKERS (1972) 8 Cal.3d 451, 105 Cal.Rptr. 305, 503 P.2d 1313

The California Supreme Court in People v. Vickers (1973) 8 Cal.3d 451, 105 Cal.Rptr. 305, 503 P.2d 1313, held that probationers were entitled to due process prior to the revocation of probation.   The Vickers court found that the minimum requirements of due process at the revocation hearing must include:

(a) Written notice of the claimed violations;

(b) Disclosure to the probationer of the evidence against him;

(c) An opportunity to be heard in person and to present witnesses and documentary evidence;

(d) The right to be represented by counsel;

(e) The right to confront and cross-examine adverse witnesses;

(f) A neutral and detached hearing officer;  and

(g) A written statement of reasons for revocation of probation.  (Id., at pp. 459–462, 105 Cal.Rptr. 305, 503 P.2d 1313.)

It is undisputed that petitioner did not receive any written notice of his probation violation.   The question of the probation violation came up in the following casual manner:

[Judge]:  “Okay.   And you're also on probation.   I've got you here with three cases that you're presently on probation.   Do you admit that you're in violation of your probation?

[Pet]:  “Yes, Your Honor.”

 Despite the People's contention to the contrary, the municipal court proceedings did not even approach compliance with the requirements of Vickers.   The judge neglected to identify the cases by numbers, and neglected to state the charges, and the terms and conditions of probation.   In addition, there was no compliance with Penal Code section 1203.2, subdivision (b), which requires a notice of motion to revoke probation.

 In the middle of section 6(d) of the form entitled “Other consequences” appears the following sentence:  “This plea may also subject me to additional penalties in any other case in which I am on probation.”   This statement, though undeniably true, and especially true in this case, does not comply with the requirements of Vickers.

 Due process calls for such procedural safeguards as the particular circumstances demand.  (Morrissey v. Brewer (1972) 408 U.S. 471, 481, 92 S.Ct. 2593, 2600, 33 L.Ed.2d 484;  see also People v. Coleman (1975) 13 Cal.3d 867, 894–895, 120 Cal.Rptr. 384, 533 P.2d 1024;  In re Law (1973) 10 Cal.3d 21, 27–28, 109 Cal.Rptr. 573, 513 P.2d 621.)   But there are clear-cut limits to flexibility lest it distort due process beyond recognition.¹⁰

 The conviction of a probationer of a new crime does not dispense with the requirement that there be a formal revocation of probation hearing.  (In re Flores (1983) 140 Cal.App.3d 1019, 1024, 190 Cal.Rptr. 388.)   The late Chief Justice Wright admonished the trial bench that they “should bear in mind that even when a probationer has been duly convicted of a new crime, he is entitled to a formal revocation hearing before his probation is revoked․  [T]he trial court which sentences the probationer for the new offense may not, simply because it happens to have jurisdiction over the grant of probation for the prior offense, summarily revoke that probation at the time of its imposition of sentence for the new offense.”  (People v. Coleman, supra, 13 Cal.3d at p. 895, fn. 22, 120 Cal.Rptr. 384, 533 P.2d 1024.)

 A probationer may, of course, waive his Vickers rights.  (In re La Croix (1974) 12 Cal.3d 146, 153, 115 Cal.Rptr. 344, 524 P.2d 816.)   The Waiver of Rights form was inadequate to accomplish such a waiver.   Nor could it serve as a springboard to catapult petitioner into a waiver of his Vickers rights.

CONCLUSION

 We do not suggest that pleas of guilty in municipal court be transcribed by official court reporters or by any other method.   Nor do we imply that those municipal courts that do transcribe their proceedings discontinue the practice.   Rather, we stress:  findings must be adequately supported whether the proceedings are transcribed or not.   Judicial integrity compels strict adherence to this obvious principle.

 We are also mindful that the prosecution did not create the problems presented in this appeal.   We suggest that when it appears that guilty pleas, admissions to prior offenses, and admissions to probation violations taken by the court are constitutionally insufficient, the prosecution should ask the court if it may inquire of defendant concerning the waiver of constitutional rights.   Conceivably, this approach could preserve convictions that would otherwise require reversal, and also save the expense of additional court proceedings.

DISPOSITION

We conclude that petitioner:

1. Did not plead guilty to any of the charges;

2. Was not properly advised of his rights as to count III, his prior conviction of Vehicle Code section 14601, and his probation violations;

3. Did not intelligently waive his rights as to count III, his prior Vehicle Code section 14601 conviction, and his probation violations.

Therefore, all the orders of the municipal court relating to petitioner's plea of guilty, his admission to violations of probation, and his sentencing, are vacated.   The matter is remanded for further proceedings in accordance with the principles stated in this opinion.

The writ is discharged.¹¹

APPENDIX

FOOTNOTES

1.   The form sets forth a statement of charges filed against a defendant.   It also lists the constitutional rights to be waived in order to plead guilty.   A column at the far right of the form provides space for a defendant to initial each item appearing on the form.   In addition, a signature line appears at the bottom of the form.   On the opposite side of the form, among other things, appear signature lines below paragraphs providing for admissions to prior offenses and a waiver of attorney if appropriate.

2.   We have listened to a tape recording of all proceedings and reviewed a transcript of these proceedings.  (See Stewart v. Justice Court (1977) 74 Cal.App.3d 607, 611, 141 Cal.Rptr. 589.)

3.    “The flowers that bloom in the spring,Tra la,Have nothing to do with the case ․”The Mikado, Act II.   Sir William S. Gilbert.

4.   The court granted the district attorney's motion to dismiss count II (Veh.Code, § 23152, subd. (b)).

5.   Petitioner was sentenced to consecutive one-year sentences on each count of the complaint, and consecutive one-year sentences on each of the three probation violations, less credit for time served.

6.   Reticent superior court judges pondering the merits of habeas corpus petitions should keep in mind that a denial without a statement of reasons is contrary to the plain requirements of California Rules of Court, rule 260(e).

7.   As Aristotle pointed out in his Politics, “It is the nature of desire not to be satisfied․”Like the “Streetcar” so named, desire often takes you where you don't really want to go.

8.   The defendant in Mills had an attorney, who attested, both in writing and in open court, that defendant understood and made a knowing, intelligent, and voluntary waiver of his constitutional rights.

9.   Just as a reporter's transcript will generally prevail over the clerk's transcript when the two are in conflict (People v. Smith (1983) 33 Cal.3d 596, 599, 189 Cal.Rptr. 862, 659 P.2d 1152), so here, too, the tape recording of the proceedings prevails over the inconsistent plea form and docket sheet.

10.   An accused's right to notice of pending charges is hardly a new concept in this state.   Even in those rough and tumble days of frontier justice, when expediency required a considerable amount of flexibility in the course of criminal proceedings, it was recognized that a defendant had the right to “be fully apprised of the charges against him, so that he may be prepared for his defense․”  (People v. Wallace (1858) 9 Cal. 30, 32.)   Admittedly, the court in Wallace stretched the concept of fair notice beyond reasonable limits by holding, in effect, that although the indictment read that the defendant did “kill and murder” the victim, it neglected to allege that the victim died.   The Wallace court's insistence of notice of pending charges, nonetheless, remains a viable concept.  (In re Hess (1955) 45 Cal.2d 171, 174–175, 288 P.2d 5.)

11.   In light of our determination that the conviction and the violation of probation orders were invalid, we need not consider the remaining issues raised by petitioner.

GILBERT, Associate Justice.

STONE, P.J., and ABBE, J., concur.