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Zimmerman v. Municipal Court for Los Angeles Judicial District of Los Angeles County10/15/1980
3d 121, 126, fn. omitted.)
We further determined therein the implications of People v. Lopez (1977) 71 Cal. App. 3d 568 [138 Cal. Rptr. 36], relied upon by the superior
court in the present case. We determined that the Lopez case does not sustain the position of defendant Zimmerman "for the reason that the comments therein regarding self-representation advisements were clearly characterized as suggestive, were obviously dicta and intended as a guide to assist the trial judge in his determination of the competence of a waiver of counsel. Lopez does not stand as authority for the position that a specific warning must be given prior to the taking of a plea of guilty." (Benge v. Superior Court, supra, 110 Cal. App. 3d at p. 129; accord People v. Paradise (1980) 108 Cal. App. 3d 364 [166 Cal. Rptr. 484].)
While the record need not affirmatively show that defendant was advised of the risks of self-representation, the record as a whole must reflect that the court upon inquiry determined and found that defendant at the time of the plea made a knowing, intelligent and understanding waiver of counsel. (Benge v. Superior Court, supra, 110 Cal. App. 3d 121; People v. Barlow (1980) 103 Cal. App. 3d 351 [163 Cal. Rptr. 664]; People v. Paradise, supra, 108 Cal. App. 3d 364.) If so, the burden lies upon defendant as the moving party to establish by a preponderance of the evidence that his waiver was not competently made. (Johnson v. Zerbst (1938) 304 U.S. 458, 469 [82 L.Ed. 1461, 1469, 58 S.Ct. 1019, 146 A.L.R. 357].)
The transcript in the case at bench reflects that defendant was specifically queried and advised with respect to rights to be waived including the right to counsel or court-appointed counsel, and that he voluntarily at the time his guilty plea was entered waived counsel. The docket discloses the finding of the trial court that defendant was also advised of the possible defenses, both the minimum and maximum sentences, the consequences of a plea of guilty or nolo contendere and the consequences of a subsequent conviction of the same offense.
The trial court found that defendant's waiver of counsel was intelligently, knowingly and understandingly waived. Defendant has failed to demonstrate that this finding was unsupported by the record, and has presented no affidavit or declaration disclosing factors which might nullify the trial court's findings. Therefore, his claim that his prior conviction was unconstitutional could not prevail on the merits and the trial court erred in issuing the writ.
The order of the superior court granting the writ of mandamus requested by defendant Zimmerman is reversed.
Disposition
The order of the superior court granting the writ of mandamus requested by defendant Zimmerman is reversed.
Judges Footnotes
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