De Lao v. Municipal Court

We treat this case as a companion to Gonzalez v. Municipal Court (1 Civ. 32757) ante, page 706 [ 108 Cal.Rptr. 612 ].

Petitioner, in a complaint filed on June 14, 1972, in the Municipal Court for the San Jose-Milpitas Judicial District of the County of Santa Clara, was charged with misdemeanor drunk driving on. June 11, 1972, in violation of section 23102 of the Vehicle Code. The complaint also charged petitioner with a prior conviction for violating section 23102, in the same court, on February 1, 1972.

Petitioner was successful on a motion to strike the prior from the complaint on the ground that he had not been fully advised of his constitutional rights prior to the entry of the guilty plea as required in Boykin v. Alabama, 395 U.S. 238 [ 23 L.Ed.2d 274 , 89 S.Ct. 1709 ], and In re Tahl, 1 Cal.3d 122 [ 81 Cal.Rptr. 577 , 460 P.2d 449 ].

Thereafter, the court, on its own motion, set aside the plea of guilty and vacated the judgment of conviction on the prior. When petitioner was re-arraigned upon the identical charge, he entered pleas of once in jeopardy and former conviction, which were denied by the court. Prior to the institution of this petition, petitioner…