Stewart

*609 Opinion

—The issue raised on this appeal is whether a conviction by a plea of guilty to a charge of violation of Vehicle Code section 23102, subdivision (a) (driving under the influence of intoxicating liquor), should be vacated under the existing constitutional standards for failure of the record to show an express and explicit waiver by the defendant of constitutional rights, We conclude that the guilty plea in this case is invalid because the record does not show on its face an express and explicit waiver of constitutional rights of jury trial, confrontation, privilege against self-incrimination, and counsel.

On March 25, 1975, appellant pleaded guilty in case number 8435-B to a violation of Vehicle Code section 23102, subdivision (a) in the Justice Court of the Avenal Judicial District, County of Kings. On September 14, 1975, the appellant was arrested a second time for a violation of Vehicle Code section 23102, subdivision (a). On February 11, 1976, appellant moved to vacate the judgment of conviction in case number 8435-B on the ground that his plea of guilty was invalid. The motion was denied. Appellant filed a petition for a writ of mandate in the superior court…

The docket shows on its face that appellant was expressly informed of each of the constitutional rights required by In re Tahl (1969) 1 Cal.3d 122 [ 81 Cal.Rptr. 577 , 460 P.2d 449 ] and of his constitutional right to counsel. (See In re Johnson (1965) 62 Cal.2d 325, 334 [ 42 Cal.Rptr. 228 , 398 P.2d 420 ].) The docket then carries the notation “Defendant states he understands rights and has no questions and appears to understand the rights.” On the reverse side of the docket, over the judge’s signature appears the entry “Defendant freely and intelligently waived all constitutional rights and entered a plea of guilty to charge.” As the opinion points out, the Supreme Court has repeatedly instructed that the waiver of In re Tahl rights must be express and explicit. (See In re Sutherland (1972) 6 Cal.3d 666, 671 [ 100 Cal.Rptr. 129 , 493 P.2d 857 ]; People v. Rizer (1971) 5 Cal.3d 35, 38 [ 95 Cal.Rptr. 871 , 353 P.2d 583 ].) The docket herein simply does not contain a notation of the required “express” waiver. If the docket had the word “expressly” before the word “waived” in the above notation, it would, in my opinion, have met the requirements of the Supreme Court’s current…

Evelle J. Younger, Attorney General, Jack R. Winkler, Chief Assistant Attorney General, Arnold O. Overoye, Assistant Attorney General, Robert D. Marshall, Vincent J. Scally, Jr., and Nelson P. Kempsky, Deputy Attorneys General, for Real Party in Interest and Respondent.

OPINION

HOPPER, J.

The issue raised on this appeal is whether a conviction by a plea of guilty to a charge of violation of Vehicle Code section 23102, subdivision (a) (driving under the influence of intoxicating liquor), should be vacated under the existing constitutional standards for failure of the record to show an express and explicit waiver by the defendant of constitutional rights. (1a) We conclude that the guilty plea in this case is invalid because the record does not show on its face an express and explicit waiver of constitutional rights of jury trial, confrontation, privilege against self-incrimination, and counsel.

On March 25, 1975, appellant pleaded guilty in case number 8435-B to a violation of Vehicle Code section 23102, subdivision (a) in the Justice Court of the Avenal Judicial District, County of Kings. On September 14, 1975, the appellant was arrested a second time for a violation of Vehicle…