Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Stanislaus County Super. Ct. No. 1098728. Scott T. Steffen, Judge.
Deborah L. Hawkins, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Michael A. Canzoneri and Clifford E. Zall, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
CORNELL, Acting P.J.
Appellant Lonnie Darrell Stacey pled no contest and admitted he suffered three prior convictions. He argued in the trial court and contends here that his waiver of the right to an attorney in one of the prior cases was not knowingly and intelligently made because the trial court in that case failed expressly to advise him of the dangers of self-representation. Consequently, Stacey claims the prior conviction cannot be used to enhance his sentence on the current conviction. We disagree and will affirm the judgment.
FACTUAL AND PROCEDURAL SUMMARY
On August 3, 2006, the district attorney charged Stacey in count I with driving under the influence of alcohol, having three or more separate violations of driving under the influence within the past 10 years, in violation of Vehicle Code sections 23152, subdivision (a) and 23550. Count II charged Stacey with driving with a blood-alcohol level of .08 percent or higher, having three or more separate violations of driving under the influence, in violation of sections 23152, subdivision (b) and 23550. Count III charged Stacey with driving with a suspended license. As to counts I and II, the district attorney alleged that Stacey had a blood-alcohol level of .20 percent or higher within the meaning of section 14601.2. It also was alleged as to counts I and II that Stacey had suffered a prior serious felony conviction within the meaning of Penal Code sections 667, subdivision (d) and 1192.7, subdivision (c).
All further statutory references are to the Vehicle Code unless otherwise specified.
Stacey pled not guilty to all charges and denied the allegations. Thereafter, Stacey challenged his “first DUI conviction in 2002.” Stacey asserted that he did not knowingly and intelligently waive his right to counsel in that prior case. Stacey’s counsel in the current case made “an offer of proof” that Stacey would testify (1) he did not know the prior conviction could be used to enhance subsequent sentences at the time he pled to the earlier offense; (2) he did not have counsel to advise him whether the stop that was the basis of the original DUI was valid or subject to challenge; and (3) he did not have counsel to explore the possibilities of a plea bargain in the 2002 case. Consequently, Stacey argued he did not have three valid prior section 23152 offenses and thus the current offense had to be charged as a misdemeanor.
The People argued that the plea advisement in the first 2002 offense established that Stacey “knowingly and intelligently waived his rights and he was apprised of his right to counsel.” After entering a plea in the first offense in 2002, Stacey was charged in two subsequent cases. In each of those subsequent cases, he admitted the first 2002 offense, which he is now seeking to challenge. The People claimed that Stacey’s current challenge to the first DUI conviction was not made in good faith because he had failed to challenge it on two separate instances and instead admitted the prior conviction.
The trial court found that Stacey had failed to meet his burden of proof of establishing that his prior waiver of the right to counsel was invalid. The trial court also noted that Stacey’s twice admitting the validity of the questioned prior “should be given some weight.”
On May 8, 2007, Stacey entered into a negotiated plea agreement. At the change of plea hearing, the following exchange occurred:
“THE COURT: Mr. Stacey, it’s alleged in Count II of the Information that on or about the 26th of September, 2005, in Stanislaus County, you willfully, unlawfully and feloniously drove a motor vehicle while having a blood alcohol level of point zero eight percent or above and that within ten years of that offense you had been convicted of violation of Section 23152 on three or more occasions. How do you plead to that, sir?
“THE DEFENDANT: No contest.
“THE COURT: And with regard to those priors, it specifically is alleged that on or about March, I think it’s April 17, 2002, in Stanislaus County, November 29, 2002, in San Joaquin County, and June 12, 2003 in Stanislaus County, you had been convicted of violation of Section 23152. Do you admit those priors, sir?
“THE DEFENDANT: Yes.”
In exchange for Stacey’s plea to count II and admitting the three priors, the People dismissed the other counts and the special allegation relating to the blood-alcohol level of .20 percent or higher. Stacey also was told that the indicated sentence under the plea agreement would be two years and the trial court would strike the prior conviction in the interests of justice. Finally, Stacey’s plea to the three prior offenses was “without prejudice” to his right to challenge the trial court’s ruling on the 2002 conviction.
At sentencing, the trial court struck the prior serious felony conviction and imposed the midterm of two years for the current count II felony conviction. Stacey is free on bail pending appeal.
DISCUSSION
In the trial court, Stacey first argued his current offense must be treated as a misdemeanor. He later apparently conceded at one point that he could be charged with a felony violation of Vehicle Code section 23152, but asserted that Penal Code section 667, subdivision (d) did not apply because of the invalidity of the April 2002 conviction. At sentencing, the trial court struck the Penal Code section 667, subdivision (d) prior, treated the Vehicle Code section 23152 conviction as a felony, and imposed the midterm.
Both in the trial court and in this appeal, Stacey contends his April 2002 conviction for violating section 23152 is constitutionally invalid. Thus, Stacey argues that his current section 23152 conviction must be treated as a misdemeanor, not a felony, and that the trial court erred in treating the offense as a felony. Stacey claims the trial court erred when it used his April 2002 conviction to treat the current conviction as a felony because he did not receive an advisement of the dangers of self-representation prior to entry of his plea in the April 2002 case. Stacey acknowledges that his federal constitutional rights were not violated when he entered the plea to the April 2002 offense. He contends, however, failing to inform him of the dangers of self-representation violated his state constitutional rights.
When a defendant seeks to attack a prior conviction collaterally on the grounds that he was unaware of his rights at the time he pled to the prior offense, a defendant must allege affirmatively that at the time of his prior conviction he did not know or did not intelligently waive his rights. (People v. Allen (1999) 21 Cal.4th 424, 439 (Allen).) Once such a motion to strike is made, the trial court must hold an evidentiary hearing. (Ibid.) In deciding a motion to strike a prior conviction on this basis, the trial court must examine the totality of the circumstances surrounding the plea and it necessarily requires presentation of evidence that is outside the record. (Id. at p. 440.)
At the hearing on the motion to strike a prior conviction, the People bear the initial burden of establishing that the defendant did suffer the prior conviction. (Allen, supra, 21 Cal.4th at p. 435.) The defendant then bears the burden of producing evidence that his rights were infringed and that the conviction is constitutionally invalid. (Id. at pp. 435-436.) Even if the defendant can prove he did not waive his rights before pleading guilty, in order to attack the prior conviction collaterally, the defendant also must plead and prove that he was unaware of his rights and, had he known his rights, he would not have pled to the offense. (Id. at p. 436 & fn. 3.)
The waiver of the right to counsel, in order to be effective, must be made with “an intelligent appreciation of its consequences.” (People v. Goodwillie (2007) 147 Cal.App.4th 695, 718-719.) When a defendant is asserting the right to represent himself during a trial, the trial court must inform the defendant of the risks of self-representation. (Faretta v. California (1974) 422 U.S. 806, 835.) In the context of defendants who choose to proceed in propria persona and plead to an offense, the appellate courts differ on whether the Faretta advisement need be given.
In People v. Torres (1979) 96 Cal.App.3d 14 (Torres), Division One of the Second Appellate District held that where an offense is serious and complex, a trial court may not accept a waiver of counsel without first informing the defendant that self-representation is unwise. (Id. at p. 19.) Torres held, however, that where “the misdemeanor charged is simple and the exposure to punishment is slight then the arraigning judge may accept a waiver of counsel without first advising that self-representation is unwise.” (Ibid.) The offense in Torres was punishable by six months in jail and registration as a sex offender, which the appellate court concluded constituted a “serious or complex offense[].” (Ibid.)
In 1980, this court reached a conclusion different from that reached in Torres. In People v. Paradise (1980) 108 Cal.App.3d 364, we held that “the entire record should be examined in determining whether the waiver of counsel was intelligently made.” (Id. at p. 369.) We also stated that a trial court is not required to “engage in a mechanical advisement of the risks of self-representation.” (Ibid.)
The California Supreme Court in People v. Koontz (2002) 27 Cal.4th 1041, 1070 (Koontz) held that in determining the adequacy of admonitions regarding the risks of self-representation, “No particular form of words is required in admonishing a defendant who seeks to waive counsel and elect self-representation; the test is whether the record as a whole demonstrates that the defendant understood the disadvantages of self-representation, including the risks and complexities of the particular case. [Citation.]” On appeal, in assessing whether there has been a valid waiver of the right to counsel, we examine the entire record, not merely a transcript of the Faretta hearing. (Ibid.)
Section 41403 spells out the procedures to be followed by a defendant who seeks to challenge the validity of a prior conviction on constitutional grounds. The record before us demonstrates that Stacey failed to comply with the requirements of section 41403. He failed to produce the evidence required by section 41403, subdivision (b)(2) and failed to comply with the provisions of that code section.
Section 41403, subdivision (a) provides that a defendant “shall state in writing and with specificity wherein the defendant was deprived of the defendant’s constitutional rights” and that the written statement shall be filed with the trial court in the current case and a copy served on the trial court that rendered the challenged judgment. Our review of the record discloses no written statement signed by Stacey and filed with the trial court. Instead, contrary to the provisions of section 41403, subdivision (a), the matter apparently was raised verbally.
Despite the failure to comply with the provisions of section 41403, subdivision (a), the trial court entertained Stacey’s motion. At the hearing to determine the constitutional validity of the April 2002 prior, Stacey’s counsel made an offer of proof. The offer of proof was that Stacey did not have counsel to explore a possible plea bargain; he was not aware of the effect of admitting the offense; and he was not aware of the potential defenses to the charge at the time he pled to the April 2002 offense.
“An offer of proof is not evidence.” (Mundell v. Dept. Alcoholic Bev. Control (1962) 211 Cal.App.2d 231, 239.) Nowhere in the record does it appear that the offer of proof was stipulated to by the People. Nonstipulated offers of proof are not testimony and do not constitute evidence. (Denny H. v. Superior Court (2005) 131 Cal.App.4th 1501, 1513-1514.)
The trial court had before it the docket for that offense. The docket reflects that at arraignment Stacey was informed of the possible pleas and his constitutional rights, including the right to a court-appointed attorney at all stages of the proceedings, the right to subpoena and produce witnesses on his behalf, the right to cross-examine prosecution witnesses, and the right against self-incrimination. Stacey then was asked if he wanted an attorney, and he responded negatively. Stacey was asked if he was waiving the right to an attorney, and he responded affirmatively. The trial court found that Stacey “knowingly, intelligently, voluntarily and expressly waived the right to be represented by an attorney.”
The docket also reflects that, prior to accepting the plea, the trial court made a determination that Stacey “knowingly, intelligently, voluntarily and expressly waived” the right to a jury trial, the right to confront and cross-examine witnesses, the right to subpoena witnesses and present evidence on his behalf, and the right against self-incrimination. The trial court also expressly found that Stacey, “understood the nature of the charge(s), the elements of the offense(s), the plea(s) available thereto, the possible defenses thereto, the possible range of penalties and other ‘direct’ consequences of his plea including the effect of the admission of any prior conviction(s), the required finding of guilt upon a plea of nolo contendre .…”
The docket for the April 2002 offense reveals that Stacey pled in exchange for dismissal of another count, thus belying his claim that he did not understand the availability of a plea bargain. The docket also reveals that Stacey specifically was informed of possible defenses to the charge, contrary to his offer of proof that he did not understand available defenses, such as suppression. The docket also discloses that Stacey was advised of the consequences of his plea and the effects of prior convictions.
Once the People produced evidence that Stacey had suffered the prior conviction, Stacey was required to produce evidence establishing that his constitutional rights were violated in the prior proceeding. Section 41403, subdivision (b)(2) provides, in relevant part, “If the separate conviction sought to be invalidated is based upon a plea of guilty or nolo contendre, the defendant shall provide the court with evidence of the prior plea, including the court docket, written waivers of constitutional rights executed by the defendant, and transcripts of the relevant court proceedings at the time of the entry of the defendant’s plea.” (Italics added.) Section 41403, subdivision (c) provides that if a defendant fails to produce the evidence required in subdivision (b)(2), the defendant’s motion to strike shall be heard at sentencing, but the burden of proof and the burden of producing evidence as set forth in subdivision (b) shall apply.
Although the trial court had before it the docket from the prior proceeding, no transcript of the prior proceeding was submitted in support of Stacey’s motion and the record does not contain the written waiver of constitutional rights that might have been executed by Stacey in the prior proceeding or any evidence that no such waiver was executed. The record before us reflects that Stacey presented no competent evidence in support of his contention that his waiver of the right to counsel was not knowing and intelligent.
Furthermore, we agree with the trial court that Stacey’s prior admissions to the challenged conviction should be given weight. Subsequent to the April 2002 conviction, Stacey admitted the validity of that conviction in two proceedings. Pursuant to Evidence Code section 1220, the admission of a party is admissible evidence against the party making the statement. Under Evidence Code section 623, a party’s own statement or conduct can give rise to estoppel. Stacey was represented by counsel when he acknowledged the validity of the April 2002 conviction at the time he was convicted of the November 2002 and June 2003 offenses.
Although the box on the docket indicating that Stacey was advised of the disadvantages of self-representation is not checked, this is not dispositive. The trial court was not required to use particular words in admonishing Stacey of the risks and complexities of the case. (Koontz, supra, 27 Cal.4th at p. 1070.) The docket does reflect that Stacey knowingly, intelligently, and voluntarily waived the right to counsel and that prior to entry of his plea Stacey was advised of the risks and complexities of the case, including possible defenses, the effect of admission of prior convictions, and pled in exchange for dismissal of another charge.
Even if we apply the holding of Torres, which would require a mechanical advisement of the dangers of self-representation in the case of any serious or complex offense, as Stacey urges, Torres does not support the result desired by Stacey. In the Torres case, the defendant supplied the docket from the prior proceeding, but failed to supply a transcript or any other portion of the record from the earlier proceeding. (Torres, supra, 96 Cal.App.3d at p. 22.) The appellate court in Torres noted that any advisements that were required could appear “at any place in the record of the proceedings” other than the docket. (Ibid.) When a defendant challenging the validity of a waiver of the right to counsel in a prior proceeding has failed to supply a complete record of the prior proceeding, or explain why it could not be provided, the defendant categorically has failed to produce evidence challenging the facially sufficient docket entry that waiver of the right to counsel was knowingly and intelligently made. (Ibid.)
Stacey failed to produce evidence to support his contention that his state constitutional rights were violated. The trial court did not err in factoring Stacey’s April 2002 conviction into his sentence.
DISPOSITION
The judgment is affirmed.
WE CONCUR: VARTABEDIAN, J. KANE, J.