Ballard v. Municipal Court for Southern Judicial District of San Mateo County9/18/1978
ffered another such conviction within five years, he would lose his license for one year and would have to go to jail.
Ballard did not move to have his plea in the 1975 case set aside nor was there any appeal from the judgment. Thus, the instant proceeding constitutes a collateral attack on his 1975 conviction.
On February 16, 1977, Ballard was again charged with misdemeanor drunk driving ; the complaint also alleged the August 1975 prior conviction for the same offense. Ballard unsuccessfully sought to have the allegation concerning his 1975 prior conviction stricken from the complaint and the conviction declared unconstitutional as he was not represented by counsel, and no inquiry into the factual basis for his plea had been made. On September 27, 1977, Ballard petitioned the superior court for a writ of mandate; the writ was denied after a hearing.
In Mills v. Municipal Court, 10 Cal. 3d 288 [110 Cal. Rptr. 329, 515 P.2d 273], our Supreme Court, on the basis of Boykin v. Alabama, 395 U.S. 238 [23 L.Ed.2d 274, 89 S.Ct. 1709], and In re Tahl, 1 Cal. 3d 122 [81 Cal. Rptr. 577, 460 P.2d 449], held at pages 301 and 302 that an on-the-record waiver of constitutional rights was required in all felony and misdemeanor cases whether the defendant appears before the court, either in person or by his counsel. Although Ballard emphasizes the fact that he was not represented by counsel in the 1975 proceedings, the record summarized above indicates that he intelligently and knowingly waived all of his constitutional rights before pleading guilty, as required by Mills. Ballard, however, argues that in the absence of a factual inquiry, there could be no knowing and intelligent waiver of his rights.
The question before us, therefore, is whether the court, in accepting a guilty plea for a misdemeanor, must inquire as to whether there was any factual basis for the plea. Mills, supra, did not reach this issue. Since the filing of the briefs in the instant case, the question was discussed and examined by the Fifth District in Ganyo v. Municipal Court, 80 Cal. App. 3d 522 [145 Cal. Rptr. 636] (hg. den., June 22, 1978). The court first pointed out (at p. 530) that Penal Code section 1192.5 pertaining to plea bargains in felony cases is the only statutory requirement in this state which requires that the court satisfy itself that there is a factual basis for
the guilty plea, citing People v. Watts, 67 Cal. App. 3d 173 [136 Cal. Rptr. 496], decided by this court (Division Three).
The court then set forth the applicable law in Ganyo, supra, at page 531: "It is not clear that failure to determine that there is a factual basis for a plea, being of nonconstitutional dimensions, can ever support a collateral attack upon a plea of guilty, collateral attacks being normally limited to constitutional defects or a judgment which is void on its face. (19 Cal.Jur.3d, § 1519, pp. 795-799.) In In re Birch, supra, 10 Cal. 3d 314 [110 Cal. Rptr. 212, 515 P.2d 12], in an analogous situation, the court further muddied the already murky water in this area by holding that in the absence of an attorney the failure to advise of the consequences of a plea (which, as we have seen, has no constitutional substructure) could at least in part support a collateral attack upon a guilty plea. In Birch, however, the failure to advise of the consequences of the plea was coupled with
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