
    Appellate Department, Superior Court, Los Angeles
    [Crim. A. No. 16867.
    Oct. 5, 1979.]
    THE PEOPLE, Plaintiff and Respondent, v. FRANCISCO MEDINA GARCIA, Defendant and Appellant.
    
      Counsel
    Peter R. diDonato for Defendant and Appellant.
    Burt Pines, City Attorney, Rand Schrader and Jane Simkin Smith, Deputy City Attorneys, for Plaintiff and Respondent.
   Opinion

DOWDS, J.

Appellant was charged with violating Vehicle Code section 23102, subdivision (a), driving under the influence of intoxicating liquor and a drug, and with having suffered a prior conviction under the same statute on June 23, 1975 (count I). He was also charged with violating Vehicle Code section 14601, driving with a suspended license, and with having suffered a prior conviction under the statute (count II). After his motion to declare the June 23, 1975, prior conviction unconstitutional was denied, appellant entered a guilty plea to count I and was sentenced. The record does not reflect any disposition as to count II.

Appellant’s sole contention on appeal is that the trial court erred in denying his motion to declare the prior June 23, 1975, conviction unconstitutional. He sets forth five alleged grounds of error: (1) appellant was not advised of nor did he waive his constitutional rights to counsel, to jury trial, to confrontation and to refrain from incriminating himself prior to entering his plea of guilty; (2) he entered his plea without being advised of or waiving his constitutional rights with respect to the prior conviction alleged in connection with the June 23, 1975, charge; (3) he was not advised of nor did he waive his right to utilize the subpoena power of the court to compel the appearance of witnesses on his behalf before entering his plea of guilty; (4) he was not advised of the legal and factual defenses available to him before entering his plea of guilty; and (5) the trial court failed to make a finding that his waiver of constitutional rights was freely, voluntarily and intelligently made.

The first three grounds were recently considered by this court in People v. Salazar (1979) 96 Cal.App.3d Supp. 8 [157 Cal.Rptr. 834] and were there rejected on a record disclosing facts similar to the instant case. We also reject them here. Appellant waived his constitutional rights before his plea was accepted. Any defect in respect of his admission of a prior conviction charged in connection with the prior offense does not affect the conviction of the offense itself. No presently declared rule of law requires that a defendant be advised of and expressly waive his right to use the subpoena power of the court before a plea of guilty may validly be taken.

The record does not support appellant’s claimed fourth ground of error. The docket recites “Deft Advised of the Elements of the Offense and the Defenses Thereto.” It is true that the reporter’s transcript with respect to this particular case does not reflect such advice, but advice of the elements of the offense and the defenses available to rebut such a charge given to a group of defendants in advance of individual arraignments seems to us to be permissible under the more expeditious practice approved as to misdemeanor proceedings in Mills v. Municipal Court (1973) 10 Cal.3d 288 [110 Cal.Rptr. 329, 515 P.24'273], The docket entry is compatible with this common procedure. Defendant has not demonstrated error in this regard.

The fifth alleged ground of error was also disposed of in People v. Salázar, supra, 96 Cal.App.3d Supp. 8, at least in part, but we deem it appropriate to discuss the claim of error in more detail here. It is true that no judge sworn to uphold the Constitution should accept a defendant’s waiver of his right to counsel, jury trial, confrontation of witnesses and freedom from self-incrimination until he has satisfied himself that such waivers have been freely, voluntarily and intelligently made. In re Johnson (1965) 62 Cal.2d 325, 335 [42 Cal.Rptr. 228, 398 P.2d 420], speaking of waiver of right to counsel, holds that the judge must “determine” these facts. The docket in the instant case, after reciting that appellant was advised of and waived his right to counsel, jury trial, confrontation of witnesses and to remain silent, states: “After inquiry by Court, the Court found that such waivers were Knowingly, Intelligently and Understandingly made....” The transcript concerning the proceedings in court at the time the June 23, 1975, plea was taken does not show, however, that the judge orally articulated this determination or informed the defendant that he had found that the waivers of these important constitutional rights were knowingly, intelligently and understandingly made. Appellant has not cited nor has the court found any case that says this finding or determination must be orally articulated, though we have no doubt that the careful judge will prefer to do so. We are reluctant to engrave on the tablets of the law yet another set of “magic words” in the absence of which the conviction of a defendant, perhaps manifestly guilty, must be reversed. On the other hand we cannot blindly assume that the trial judge, because he has accepted a plea of guilty, has necessarily found or determined that the defendant has knowingly, intelligently and understandingly waived his important constitutional rights. In this case we need not and we do not make that blind assumption. Before accepting the defendant’s plea, the court caused a rather detailed interrogation of him to be made, which is recorded in the reporter’s transcript of the proceedings. The depth of this examination, completed before the court accepted the plea, fully supports the docket entry that the court found that the waivers of constitutional rights were knowingly, intelligently and understandingly made. Under these circumstances the failure of the judge to articulate orally such an express finding does not invalidate the conviction. This is a case where actions speak as loudly as words.

The judgment is affirmed.

Cole, P. J., concurred.

SAETA, J., Concurring and Dissenting.

I agree with the majority on the first four points in the opinion of the court. I disagree with the fifth point regarding the scope of the judge’s duty of determining that the waiver of counsel by the defendant is knowingly, intelligently and understandingly made.

Footnote 2 of the majority opinion sets forth in full the colloquy between the defendant and the court and prosecutor. This recorded colloquy was sufficient to show that defendant was adequately advised of his constitutional rights and that he expressly and explicitly waived his rights. It is my opinion, however, that the record does not demonstrate that the judge determined that these waivers were knowingly, intelligently and understandingly made. It is true that the docket recites a finding by the court that the waivers were knowingly, intelligently and understandingly made. However, there is nothing in the reporter’s transcript to indicate any such finding by the judge. The docket entry was the creation of the clerk, not the judge. Where a conflict exists between the transcript and the docket, the controlling document is determined from a consideration of the circumstances under which the proceedings were had. (People v. Shaffer (1960) 182 Cal.App.2d 39, 45 [5 Cal.Rptr. 844]; People v. Ritchie (1971) 17 Cal.App.3d 1098, 1103 [95 Cal.Rptr. 462].) In my opinion, the verbatim transcript of the plea proceedings is the more accurate of the two records. Dockets are made by the clerk at some point in time after the proceedings have concluded as a memorial of proceedings had; the transcript is a contemporaneously created record of the proceedings as they occur. Further, in this case, the reporter’s transcript was expressly made for the occasion. In contrast, the docket, including the crucial findings, is a printed form used in a court for recordation of thousands of pleas. Therefore, I would hold that in this case the judge made no findings concerning defendant’s waivers.

The majority is unpersuaded that “this finding or determination must be orally articulated.” {Ante, p. Supp. 18.) I agree that no “magic words” are necessary. I disagree that the judge can remain silent and have this silence construed by his clerk or this court as a finding or determination. In my view, a judge making a determination or finding must act, not remain passive, especially in the area of protection of constitutional rights.

California constitutional law on the duty of the judge on taking a waiver of counsel is grounded upon the United States Supreme Court’s opinion in Johnson v. Zerbst (1938) 304 U.S. 458 [82 L.Ed. 1461, 58 S.Ct. 1019, 146 A.L.R. 357]. In that case the court said: “The constitutional right of an accused to be represented by Counsel invokes, of itself, the protection of a trial court, in which the accused—whose life or liberty is at stake—is without Counsel. This protecting duty imposes the serious and weighty responsibility upon the trial judge of determining whether there is an intelligent and competent waiver by the accused. While an accused may waive the right to counsel, whether there is a proper waiver should be clearly determined by the trial court, and it would be fitting and appropriate for that determination to appear upon the record.” (304 U.S. at p. 465 [82 L.Ed. at p. 1467], italics added.) I have emphasized the language of the court relating to the trial judge’s duty. It is phrased in the words of “determining,” “clearly determined” and “determination.” It is my understanding of this passage that the trial judge must have an active, as opposed to a passive, role in passing judgment on the acceptability of the defendant’s waiver. My opinion is buttressed by the disposition of the case. The United States Supreme Court ordered the trial court to make findings on whether the defendant competently and intelligently waived his right to counsel.

The above-quoted language of Johnson v. Zerbst was quoted by the California Supreme Court in People v. Chesser (1947) 29 Cal. 2d 815 at pages 821-822 [178 P.2d 761, 170 A.L.R. 246]. The Chesser court italicized the last sentence of the above-quoted passage from Johnson v. Zerbst. The California court continued with the following words: “In order for a trial judge to determine whether there has been a competent and intelligent waiver of counsel, he must first ascertain whether the defendant clearly understands the nature and effect of his waiver.” (29 Cal.2d at p. 822, italics added.) Several years later the California Supreme Court in In re James (1952) 38 Cal.2d 302 [240 P.2d 596], after repeating the “determining” language from People v. Chesser, supra, 29 Cal.2d 815, adds, “There was no attempt to make such a determination in this case. The record shows that defendant was an itinerant farmhand, without formal education, without money, and evidently without previous experience with courts.” (38 Cal.2d at p. 313.) I read James as requiring an act by the judge in its selection of the words “attempt to make such a determination.”

Johnson v. Zerbst, People v. Chesser, and In re James involved felonies. In re Johnson (1965) 62 Cal.2d 325 [42 Cal.Rptr. 228, 398 P.2d 420] drew on those cases to require determinations by the judge concerning counsel waivers in misdemeanor cases as follows: “Moreover, it is settled that ‘The determination of whether there has been an intelligent waiver of the right to counsel must depend, in each case, upon the particular facts and circumstances surrounding that case, including the background, experience, and conduct of the accused.’ (Italics added.) (Johnson v. Zerbst (1938) supra, 304 U.S. 458, 464; accord, People v. Chesser (1947) supra, 29 Cal.2d 815, 822 [4].) Manifestly that determination must be made before any plea—guilty or otherwise—is accepted by the trial court, or the right to counsel loses most of its meaning and effectiveness. The making of this determination in a timely fashion is therefore the ‘serious and weighty responsibility’ of the trial judge. (Johnson v. Zerbst (1938) supra, 304 U.S. 458, 465.) As we said in Chesser (at pp. 821 [l]-822 [5] of 29 Cal.2d), ‘The fact that defendant pleaded guilty is not conclusive... In order for a trial judge to determine whether there has been a competent and intelligent waiver of counsel, he must first ascertain whether the defendant clearly understands the nature and effect of his waiver.’ More particularly, ‘the court cannot accept a waiver of counsel from anyone accused of a serious public offense without first determining that he “understands the nature of the charge, the elements of the offense, the pleas and defenses which may be available, or the punishments which may be exacted.’ (In re James (1952) 38 Cal.2d 302, 313. . ..)” (62 Cal.2d at p. 335, italics added, footnote omitted.) In re Johnson commended the procedure used in In re Sheridan (1964) 230 Cal.App.2d 365, 369 [40 Cal.Rptr. 894]: “. . . [the defendants] were informed by the court that even if they expressly waived counsel ‘the Court will then consider the nature of the charge, the facts and circumstances of the case, and your apparent education, experience, mental competency and conduct to determine whether this is a proper waiver of your right to counsel. If, after consideration of these matters, the Court finds that you are capable of defending yourself, it will permit you to proceed without counsel.’” (62 Cal.2d at p. 337, italics added.) Thus In re Johnson, building on the earlier cases, adds the concept of findings in the context of court determinations. More recently in People v. Siegenthaler (1972) 7 Cal.3d 465 [103 Cal.Rptr. 243, 499 P.2d 499], our Supreme Court in analyzing the trial court’s denial of self-representation to a defendant quoted the trial judge’s finding (“‘I simply find very clearly that you do not have an intelligent conception of the consequences of appearing without an attorney.’”) as the basis for that judge “concluding” that the waiver of counsel was ineffective. (7 Cal.3d, fn. 1 at p. 471.)

I have emphasized what I feel to be the operative words of the above-quoted decisions. Use of “determine,” “ascertain” and “find” all connote a responsibility of the trial judge to decide whether or not the defendant is competent to waive counsel. This decision or determination must be express and articulated, not implied and silent. Johnson v. Zerbst, supra, 304 U.S. 458, sets the standard: “It has been pointed out that ‘courts indulge every reasonable presumption against waiver’ of fundamental constitutional rights and that we ‘do not presume acquiescence in the loss of fundamental rights.’” (304 U.S. at p. 464 [82 L.Ed. at p. 1466] (fn. citations omitted).) The California Supreme Court adopted the above view, stating, in In re Smiley (1967) 66 Cal.2d 606 at p. 624 [58 Cal.Rptr. 579, 427 P.2d 179]: “There is no reason why at this late date we should tolerate silent records on the question of waiver of counsel, or permit the People to undertake belated speculations as to the defendant’s knowledge in an effort to justify a finding of ‘implied’ waiver in such cases.” While the Smiley court was speaking of the advice of rights and the express waiver of those rights, to me the issue is the same as to the judge’s duty in making the determination of the competency of the defendant in waiving his rights. (See also, People v. Cummings (1967) 255 Cal.App.2d 341, 345-346 [62 Cal.Rptr. 859].)

In believing that the trial judge should express out loud his decision concerning competency to waive counsel I do not believe that I am favoring form over substance or imposing an unreasonable burden on trial judges. By expressing himself the judge is showing that he has considered his duty of determining whether or not the defendant knowingly, intelligently and understanding^ is waiving his right to counsel. If the judge remains silent, no one in the courtroom or the reviewing court can tell whether the judge focused on his duty or ignored it. In the almost 15 years since In re Johnson was published, hundreds of judges have articulated thousands of findings on this issue. The printed docket sheet in this case shows that it is expected that the judge “found that such waivers were Knowingly, Intelligently and Understandingly made.”

What reason could there be for printing dockets with such language if the judges routinely failed to make such findings? Further, two widely distributed trial judge benchbooks have indicated for years that findings are required. See California Misdemeanor Procedure Benchbook (revised) section 3.38 (“. . . the defendant is entitled to waive counsel and represent himself. . .provided the court finds that he has an intelligent conception of the consequences of his act. . ..” Los Angeles Superior Court Benchbook, Oral Form, page 92.2 (12/75) (“The Court specifically finds that the defendant has made... a voluntary and intelligent and understanding waiver of his right to be represented by counsel...”).

In sum, the cases require that the trial judge determine, ascertain and find that the defendant is competent to waive counsel. The right to counsel is one of the most fundamental rights a criminal defendant possesses. We are taught that such fundamental rights are not lost easily. A silent “determination” may be no determination at all. An articulated determination would show that the judge actually decided the issue and came to a conclusion. To me, the plain meaning of the word “determination” in a legal context is a decision or a conclusion. As the record presented to us in this case does not demonstrate that the trial judge in 1975 made any conclusion or decision concerning defendant’s purported waiver of counsel, I would hold that the trial court here erred in denying the defendant’s motion to declare his prior conviction of June 23, 1975, unconstitutional. 
      
      We have in mind the rule of In re Smiley (1967) 66 Cal.2d 606, 617 [58 Cal.Rptr. 579, 427 P.2d 179] that the record must specifically list the constitutional rights of which the defendant was advised and that any gap in the record in this respect cannot be filled by circumstantial evidence. We deem this holding not to include a command that in every case the judge’s finding that the waivers of such rights were voluntarily and intelligently waived must be orally articulated.
     
      
      “The COURT: Do you wish to talk to the Public Defender? DEFENDANT GARCIA: No. THE COURT: You are charged that on June 11, 1975 with a violation of Section 23102a of the Vehicle Code, driving under the influence of intoxicating liquor. Do you understand the charge? DEFENDANT GARCIA: Yes. THE COURT: How do you plead? DEFENDANT Garcia: Guilty. THE COURT: Further you are charged with a prior conviction for the same offense on February 24, 1975. Do you admit that prior conviction? DEFENDANT GARCIA: Yes. THE COURT: And you are on probation in that case the number being R334261, probation for three years. How do you plead to the violation of probation? DEFENDANT GARCIA: Guilty. THE COURT: Arraign the defendant. MR. EATON: Sir, do you understand that by pleading guilty that you give up certain constitutional rights? You give up the right to remain silent, your right to a jury trial, your right to confront, cross examine the witnesses against you and the right to counsel or Court appointed counsel if you cannot afford private counsel. Do you understand these constitutional rights? DEFENDANT GARCIA: Yes. MR. EATON: Do you freely and voluntarily give them up? DEFENDANT GARCIA: Yes. MR. EATON: Do you understand that the maximum penalty for this offense is $1,000 and/or one year in the County Jail with a minimum of 48 hours in jail, $250 fine and the Court will revoke and suspend your license for a period of one year? DEFENDANT GARCIA: Yes MR. EATON: Do you understand that by entering your guilty plea in this case the Court is going to find you in violation of your prior conviction and probation. DEFENDANT GARCIA: Yes. MR. EATON: Did you hear the Court advise you of the nature and consequences of your plea previously? DEFENDANT GARCIA: Yes. MR. EATON: Do you understand the nature and consequences of your plea? DEFENDANT GARCIA: Yes. MR. EATON: Did you hear the Court advise you of the terms and conditions of probation? DEFENDANT GARCIA: Yes. MR. Eaton: Do you understand the terms and conditions of probation? DEFENDANT GARCIA: Yes.”
     