People v. Trout

Opinion

FRANSON, Acting P. J. Appellant stands convicted by jury of first degree burglary and was found by the trial court to have suffered a prior conviction. Appellant was sentenced to state prison for a total term of seven years, comprised of the six-year upper base term for the burglary conviction and a one-year enhancement for the prior conviction.

A statement of the facts is unnecessary because appellant’s contentions of error relate to two procedural matters: (1) appellant was denied his constitutional right to self-representation (Faretta v. California (1975) 422 U.S. 806, 821 [45 L.Ed.2d 562, 574, 95 S.Ct. 2525]); and (2) his prior conviction cannot constitutionally be used to enhance his burglary conviction. [814](Ganyo v. Municipal Court (1978) 80 Cal.App.3d 522, 525 [145 Cal.Rptr. 636].) We accept appellant’s first contention and reverse the judgment. For guidance of the trial court in the event appellant is convicted on a retrial, we also speak to the second contention.

Discussion

I2

II

Although the trial court improperly rejected appellant’s motion to collaterally attack his prior conviction on jurisdictional grounds, i. e., that it was based on grounds other than denial of the right to counsel, the motion was meritless.

Appellant’s motion to strike his prior conviction was based on the assertion he was not adequately informed of certain constitutional rights during his earlier guilty plea, and therefore, he did not expressly waive those rights pursuant to Boykin v. Alabama (1969) 395 U.S. 238 [23 L.Ed.2d 274, 89 S.Ct. 1709] and In re Tahl (1969) 1 Cal.3d 122 [81 Cal.Rptr. 577, 460 P.2d 449]. Appellant’s declaration in support of the motion provided in relevant part:

“That I was the defendant in case number 29841, in the San Diego Superior Court;

“That I do not recall receiving advisement of each individual right to a jury trial, confrontation of witnesses or to remain silent;

“That I do not remember making personal and express waivers to each individual right.”

The change of plea form used in San Diego County has appellant’s initials next to the following statement: “That his attorney has explained and discussed his constitutional rights with him; that he understands his constitutional rights; that his constitutional rights have not been violated; that his attorney has specifically explained to him (1) the right to a jury trial, (2) the right to confront those witnesses who would testify against him and to cross examine those witnesses, (3) the right to testify in his own behalf or not to testify if he desires to remain silent; that defendant knowingly and intelligently gives up these constitutional rights.”