Worsley v. Municipal Court for Long Beach Judicial District of Los Angeles County8/10/1981
COURT OF APPEAL OF CALIFORNIA, SECOND APPELLATE DISTRICT, DIVISION FIVE
Civ. No. 60707
1981.CA.40434 ; 176 Cal. Rptr. 324; 122 Cal. App. 3d 409
August 10, 1981
JOHN A. WORSLEY, PLAINTIFF AND RESPONDENT,
v.
THE MUNICIPAL COURT FOR THE LONG BEACH JUDICIAL DISTRICT OF LOS ANGELES COUNTY, DEFENDANT AND RESPONDENT; THE PEOPLE, REAL PARTY IN INTEREST AND APPELLANT
Superior Court of Los Angeles County, No. C-316375, Richard Alfonso Ibanez, Judge.
John A. Vander Lans, City Prosecutor, Robert R. Recknagel, Assistant City Prosecutor, and Gerry L. Ensley, Deputy City Prosecutor, for Real Party in Interest and Appellant.
Gelman & Grosfeld, Gelman, Grosfeld & Termini and Alexander M. Gelman for Plaintiff and Respondent.
No appearance for Defendant and Respondent.
Opinion by Stephens, Acting P. J., with Ashby and Hastings, JJ., concurring.
Stephens
In this matter, the People, as real party in interest, appeal from the judgment of the superior court granting a writ of mandate to strike a prior conviction of defendant John A. Worsley (hereafter respondent). At issue is (1) whether the superior court erred in striking respondent's prior conviction based on the finding that a rubber stamped trial docket was an invalid method of recordation; (2) whether the present review procedure of Vehicle Code section 23102.2 violates the People's "equal protection" and the right to a fair hearing (due process); and (3) whether section 23102.2, as presently construed, fails to correctly allocate both the burden of proof and the initial burden of producing evidence.
We find the superior court did err in its decision to strike respondent's prior conviction, but disagree with the contention that section 23102.2, as presently applied, is unconstitutional.
Facts
On August 13, 1979, respondent was charged with driving under the influence of alcohol in violation of section 23102, subdivision (a). It was further alleged that respondent had suffered a prior conviction of the same offense in 1975.
At the arraignment proceeding, respondent, having expressly waived the right to counsel, entered a plea of not guilty.
On September 6, 1979, respondent, after being informed of his constitutional rights and now represented by counsel, withdrew his plea of not guilty, entered a plea of guilty and admitted the prior conviction.
After waiving time for sentencing, respondent was ordered to serve four days in jail, was placed on probation for one year, was given a fine of $355.50, and his driver's license was suspended for one year.
On February 1, 1980, respondent filed a motion in the municipal court to strike this conviction. This motion was made presumably to prevent its use by the DMV, in its attempt to suspend his license, and to thwart any use of the conviction in a pending section 23102, subdivision (a), action in the Los Angeles Municipal Court. The motion was denied and respondent petitioned for a writ of mandate on March 14, 1980, to the Appellate Department of the Superior Court of Los Angeles. In that petition respondent alleged the 1979 conviction was unconstitutional because "the docket sheet . . . not reflect that the defendant expressly and explicitly [waived] his constitutional rights . . . ." (italics in original.) In his petition, respondent challenge
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