In re Birch

In In re Birch (1973) 10 Cal.3d 314, the Supreme Court was confronted with a reporter's transcript of proceedings at the arraignment in which important particulars contradicted the recitals in the clerk's docket entry. The reporter's transcript revealed only that the court had informed the defendant of the charge and asked him how he pled, to which the defendant replied, "'Guilty.'" (In re Birch, supra, 10 Cal.3d at pp. 316-317.) The Supreme Court noted, "The transcript contains nothing which demonstrates that petitioner was advised of his right to counsel or any other constitutional right, nor does it reveal that petitioner ever waived any of such rights. The clerk's docket entry, by contrast, contains hand-checked, rubber-stamped entries which purport to indicate that petitioner 'expressly waived' his right to counsel and various other constitutional rights, and that 'after inquiry by court, the court found such waivers were knowingly, intelligently and understandingly made . . . ." (Id. at p. 317, fn. omitted.) In a declaration filed with the court, a deputy city attorney declared that "it was the regular practice in department 105 for him, the deputy city attorney, to read to all unrepresented defendants a complete statement of their constitutional rights at the commencement of court proceedings each day." (Id. at p. 320, fn. 6.) The deputy city attorney also declared that "the deputy city attorney would thereafter ask the collected group of defendants if they had any questions about their rights, and if there were no questions, he would distribute written waiver forms which defendants could sign to indicate their awareness of their constitutional rights and their desire to waive such rights through a plea of guilty." (Ibid.) The declaration also stated, "however, that after a thorough search of the court files, the deputy city attorney was unable to find any such written waiver form signed by the present petitioner." (Ibid.) The Supreme Court found that because "absolutely nothing" in the reporter's transcript indicated that the defendant had properly been informed of his constitutional right to counsel, the clerk's docket entry "directly contradicted" the reporter's transcript. (In re Birch, supra, 10 Cal.3d at p. 320.) The court also noted that "when confronted by a defendant who wishes to plead guilty without counsel, the trial judge, before accepting the waiver and plea, should first determine that the defendant '"understands the nature of the charge, the elements of the offense, the pleas and defenses which may be available, and the punishments which may be exacted."' ." (Id. at p. 319.) The court further asserted, "In view of the absence of any evidence demonstrating that the present petitioner was afforded the 'benefit' of the described normal procedure, we have no occasion to pass directly on the adequacy of the procedure utilized in department 105. We do note, however . . . that the 'better practice' would be for the trial judge himself to inform defendants of their constitutional rights. ." (Id. at p. 320, fn. 6.)