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People v. White5/8/1981
California Appellate Department, Superior Court
Crim. A. No. 18291
174 Cal.Rptr. 676, 1981.CA.40702
May 8, 1981
THE PEOPLE, PLAINTIFF AND APPELLANT,
v.
DAVID ARTHUR WHITE, DEFENDANT AND RESPONDENT
Municipal Court for the Downey Judicial District of Los Angeles County, No. M-47129, F. Lawrence Plotkin, Judge.
John K. Van de Kamp, District Attorney, and Donald J. Kaplan, Deputy District Attorney, for Plaintiff and Appellant.
Joseph E. Di Loreto for Defendant and Respondent.
Opinion by Foster, J., with Fainer, P. J., and Bernstein, J., concurring.
Foster
Defendant was charged with violating Vehicle Code, section 23102, subdivision (a), (driving under the influence of alcohol) with a prior conviction of the same offense. The People appeal from a pretrial order granting defendant's motion to strike the allegation of a prior conviction. We reverse.
Defendant's motion was on the ground that in the prior action, in which he pleaded guilty to the charge, he was denied his constitutional right to the assistance of counsel. In support of the motion he offered as evidence only the docket of the prior action.
The position of the defendant is that a warning of the hazards of self-representation is essential to a knowing waiver of counsel. According to this argument, proof of such warning must appear on the face of the record of the prior proceedings.
Courts of Appeal are divided on the question of whether a warning concerning the hazards of self-representation is essential to a determination of whether a defendant, in pleading guilty to a charge without counsel, has made a knowing waiver of counsel. Cases holding, or by dictum indicating, that such a warning must be given include: People v. Elliott (1977) 70 Cal. App. 3d 984, 990 [139 Cal. Rptr. 205]; People v. Lopez (1977) 71 Cal. App. 3d 568, 572-574 [138 Cal. Rptr. 36]; People v. Dale (1978) 78 Cal. App. 3d 722, 730 [144 Cal. Rptr. 338]; People v. Cervantes (1978) 87 Cal. App. 3d 281, 286-287 [150 Cal. Rptr. 819]; People v. Fabricant (1979) 91 Cal. App. 3d 706, 712 [154 Cal. Rptr. 340]; and People v. Torres (1979) 96 Cal. App. 3d 14, 17 [157 Cal. Rptr. 560]. Contrary holdings appear in People v. Barlow (1980) 103 Cal. App. 3d 351, 372-373 [163 Cal. Rptr. 664]; People v. Paradise (1980) 108 Cal. App. 3d 364, 372 [166 Cal. Rptr. 488]; and Benge v. Superior Court (1980) 110 Cal. App. 3d 121, 129 [167 Cal. Rptr. 714]. The Supreme Court has not yet resolved this conflict. Under the circumstances, we must exercise our judgment in choosing between the conflicting views. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal. 2d 450, 456
[20 Cal. Rptr. 321, 369 P.2d 937].) We believe the Barlow-Paradise-Benge view is the better.
The problem was created by a dictum in Faretta v. California (1975) 422 U.S. 806 [45 L.Ed.2d 562, 95 S.Ct. 2525]: "Although a defendant need not himself have the skill and experience of a lawyer in o
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