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Ballard v. Municipal Court for Southern Judicial District of San Mateo County9/18/1978
the failure to advise of the defendant's constitutional right to an attorney.
"We find it unnecessary to finally answer whether the failure to explain the factual basis for a plea of guilty can furnish a basis for a collateral attack on a guilty plea, and for purposes of this opinion assume that such a failure, under proper circumstances, may support such an attack. Not being a Tahl-Mills requirement, a petition launching such an attack at the very least would be subject to the law with respect to motions to set aside guilty pleas on constitutional grounds before Tahl-Mills. (Salazar v. Municipal Court (1975) 44 Cal. App. 3d 1024 [119 Cal. Rptr. 98].) As was stated in Salazar : 'The issue of the validity of the prior conviction, however, can be put in issue only by allegations which, if true, would render it constitutionally invalid. At page 215 in [ People v. Coffey, supra, 67 Cal. 2d 204 (60 Cal. Rptr. 457, 430 P.2d 15)] the court stated: "We emphasize, however, that the issue must be raised by means of allegations which, if true, would render the prior conviction devoid of constitutional support. 'One seeking to challenge prior convictions charged against him may do so only through a clear allegation to the effect that, in the proceedings leading to the prior conviction under attack, he neither was represented by counsel nor waived the right to be so represented.'"' (At p. 1027.)
"In mounting a collateral attack upon an otherwise valid judgment on the face of the record appellant cannot under the standard herein applicable simply rely upon the failure of the record to affirmatively show a lack of determination of a factual basis for the plea but must at least clearly
and positively allege and show that the requirement was not in fact met at the time the plea was entered. (Salazar v. Municipal Court, supra, 44 Cal. App. 3d at p. 1028.)" (Italics partially added.)
The court then examined Ms. Ganyo's declarations, concluded that these fell "leagues short of meeting the burden," and affirmed the order denying the writ.
In a letter filed with our permission after waiver of oral argument, Ballard points out that here, unlike Ganyo, supra, 80 Cal. App. 3d 522, the record affirmatively shows that no determination of the factual basis for his plea was made and he so alleged in his petition seeking the writ. While this is so, it does not follow that Ballard has therefore mounted a sufficient collateral attack on his 1975 conviction.
As to his right to counsel, the record of the August 29 proceeding indicates that in addition to the signed waiver form, which dealt with all
of his rights in detail, the court questioned Ballard in lay language and received an affirmative answer.
Ballard, however, argues that authority for his position that a factual basis determination is a prerequisite for a valid waiver is demonstrated by People v. Watts, supra, 67 Cal. App. 3d 173. We do not agree. In Watts, this court, at pages 179-180, held that a plea bargaining felony defendant was entitled to an on-the-record inquiry into the factual basis for his guilty plea pursuant to Penal Code section 1192.5, as amended in 1974. Thus, Watts, does not support defendant's argument that an on-the-record inquiry is also required before a court can enter a guilty plea to a misdemeanor. The rationale underlying Watts was set forth at page 178 as follows: "The purpose of the requirement is to protect against the situation where the defend
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