James v. Municipal Court

Opinion

ROTH, P. J.

On March 23, 1973, appellant pleaded guilty in respondent court to complaint No. P638744 charging him with a violation of Vehicle Code section 23102, subdivision (a). He was fined and placed on probation.

In July 1973, appellant was charged in complaint No. Q028182 with a violation of the same section of the Vehicle Code and with a previous conviction of the same chárge. Appellant requested a jury and the matter was continued for trial.

On August 23, 1973, probation in case No. P638744 was revoked and the hearing was continued until November 21, 1973. On November 20,

[559]

1973, appellant petitioned the superior court for an alternative writ of prohibition and mandamus alleging that the March 23, 1973, conviction pursuant to complaint P638744 was unconstitutional and void and that the municipal court had refused to strike the alleged prior conviction under P638744, charged in the pending No. Q028182 complaint, as null and void. Concurrently with the filing of the petition the superior court issued an order prohibiting the municipal court from proceeding on either the probation revocation hearing, or the trial on No. Q028182 the second complaint. A hearing on the petition followed and the superior court denied appellant’s petition but stayed all proceedings in P638744 pending the determination of an appeal. Appellant’s appeal from the denial of said petition is now before us.

We have been provided with the docket sheet of the municipal court in P638744 and the reporter’s transcript of the tape recording made at the time that appellant entered his guilty plea.

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Appellant argues that the two documents when read together do not show with the specificity required by

In re Smiley

(1967) 66 Cal.2d 606 [58 Cal.Rptr. 579, 427 P.2d 179], and

In re Birch

(1973) 10 Cal.3d 314 [110 Cal.Rptr. 212, 515 P.2d 12], that appellant was advised of his right to appointed counsel if he could not afford one and thus the guilty plea is null and void. The facts do not support appellant’s contention. It should be noted at the outset that the petition at bench does not as it does in