270 Cal. App. 2d 535 | Cal. Ct. App. | 1969
This proceeding, pursuant to section 23090 et seq. of the Business and Professions Code, reviews a decision and order of the Acloholic Beverage Control Appeals Board of the State of California in which it evidences a decided difference of opinion from the Department of Alcoholic Beverage Control relative to the penalty theretofore ordered against Martha G. Whitfield, doing business as Hal-Mar, in the City of Delano, because of her conviction of failure to report and fully pay her federal income taxes.
The Department of Alcohlic Beverage Control, after a formal hearing, found that the conviction in the United States District Court involved moral turpitude; that the judgment of conviction had become final after appeal in the federal courts (Whitfield v. United States (9th Cir. 1967) 383 F.2d 142); and, that, pursuant to section 24200, subdivision (d) of the Business and Professions Code, her license to conduct a bar should be suspended for the period of one year.
The case came on before a hearing officer in Bakersfield on May 16, 1968. His proposed decision, rendered on May 27, 1968, recommended that the petitioner’s license be suspended for one year on each of counts I and II. The suspensions were to run concurrently, and credit was to be given on each for the three-month period of time during which the premises had been closed by stipulation entered into by her with the Department of Alcoholic Beverage Control. This proposed decision was adopted by the department as its official holding on June 27, 1968. Pursuant to a notice of appeal filed by Mrs. Whitfield, the Alcoholic Beverage Control Appeals Board met and considered an appeal from the decision of the department. On December 6, 1968, the appeals board rendered its holding reversing the decision of the department.
One ground which was taken by the Alcoholic Beverage Control Appeals Board was that the conviction was not final, although the Ninth Circuit Court of Appeals affirmed the action of the district court, because thereafter Mrs. Whitfield made an application pursuant to rule 35 of the Federal Rules of Criminal Procedure to modify the penalty inflicted at the time of conviction of the crime. Since the appeal of the present case, the Ninth Circuit Court of Appeals has affirmed the district court’s refusal to interfere with the penalty already pronounced (Whitfield v. United States (9th Cir. 1968) 401 F.2d 480), and, this being so, the respondent herein and the real party in interest concede that the point which they heretofore raised in this respect is now moot and not to be considered. In any event, the pendency of a proceeding under rule 35 does not change the fact of conviction which was approved by the Ninth Circuit Court of Appeals. Proceedings under rule 35 of the Federal Rules of Criminal Procedure have nothing to do with the fact of conviction. Rule 35 provides as follows:
11 Rule 35. Correction or Reduction of Sentence
1 ‘ The court may correct an illegal sentence at any time and*539 may correct a sentence imposed in an illegal manner within the time provided herein for the reduction of sentence. The court may reduce a sentence within 120 days after the sentence is imposed, or within 120 days after receipt by the court of a mandate issued upon affirmance of the judgment or dismissal of the appeal, or within 120 days after entry of any order or judgment of the Supreme Court denying review of, or having the effect of upholding, a judgment of conviction. The court may also reduce a sentence upon revocation of probation as provided by law. ’ ’
As construed by the federal courts, rule 35 pertains to the sentence only. In Hill v. United States, 368 U.S. 424, 430 [7 L.Ed.2d 417, 422, 82 S.Ct. 468], it is stated: “. . . But, as the Rule’s language and history make clear, the narrow function of Rule 35 is to permit correction at any time of an illegal sentence, not to re-examine errors occurring at the trial or other proceedings prior to the imposition of sentence. ’ ’
As stated by the Court of Appeals in Petro v. United States (6th Cir. 1966) 368 F.2d 807, 808: “Considering this action as a motion to correct an illegal sentence under Rule 35, we find that the sentence was in conformity with the statute and responsive to the indictment. The purpose of Rule 35 is to permit the court at any time to correct a sentence that ‘the judgment of conviction did not authorize. ’ United States v. Morgan, 346 U.S. 502, 506, 74 S.Ct. 247, 250, 98 L.Ed. 248. Its function, which is a narrow one, is to permit the correction of an illegal sentence, and not to permit a reexamination of errors occurring during the trial. Hill v. United States, 368 U.S. 424, 82 S.Ct. 468, 7 L.Ed.2d 417, rehearing denied, 369 U.S. 808, 82 S.Ct. 640, 7 L.Ed.2d 556. It is not contemplated in such a proceeding to go outside the record to entertain a collateral attack upon the sentence. Johnson v. United States, 334 F.2d 880, 883 (C.A. 6), cert. denied, 380 U.S. 935, 85 S.Ct. 942, 13 L.Ed.2d 822.” (See Redfield v. United States (9th Cir. 1963) 315 F.2d 76, 80-81.)
Since a rule 35 attack goes only to the sentence, not to the fact of conviction, it is irrelevant in the present ease. Here, we are concerned with the fact of a conviction involving moral turpitude.
The next attack by the Alcoholic Beverage Control Appeals Board on the decision of the department is that the federal conviction of income tax evasion does not involve moral turpitude, citing In re Hallinan, 43 Cal.2d 243, 250 [272 P.2d 768]. The question to be determined by us is
As stated in In re Mann, 151 W.Va. 644 [154 S.E.2d 860, 865-866]: “In re Alker, 398 Pa. 188 [157 A.2d 749], involved a proceeding to discipline an attorney on the basis. of his conviction of a charge similar to that involved in the instant case [violation of 26 U.S.C.A. § 7201]. In that case the court stated: ‘Although some courts have concluded that moral turpitude is not necessarily an essential element of prosecution for filing fraudulent returns with intent to cheat the Federal Government of taxes, the weight of authority, and in our opinion the better view, holds to the contrary.’ We are of the opinion that, by the clear weight of authority, a conviction such as that involved in the instant case is one involving moral turpitude. In re Tietelbaum, 13 Ill.2d 586 [150 N.E.2d 873]; In re Greenberg, 21 Ill.2d 170 [171 N.E.2d 615]; In re Crane, 23 Ill.2d 398 [178 N.E.2d 349]; In re Foley, 364 S.W.2d 1 (Mo., 1963); In re Seijas, 52 Wn.2d 1 [318 P.2d 961]; In re Bassett, 240 Or. 284 [401 P.2d 33]; Rheb v. Bar Assn. of Baltimore City, 186 Md. 200 [46 A.2d 289]; Tseung Chu v. Cornell (9th Cir. 1957), 247 F.2d 929, cert. denied, 355 U.S. 892 [78 S.Ct. 265, 2 L.Ed.2d 190]; In the Matter of Landon, 319 S.W.2d 553 (Mo., 1959); State v. Brodson, 11 Wis.2d 124 [103 N.W.2d 912]; Chanan Din Khan v. Barber (9th Cir., 1958), 253 F.2d 547, cert. denied 357 U.S. 920 [78 S.Ct. 1361, 2 L.Ed.2d 1364]; In re Crosby, 281 App.Div. 801 [119 N.Y.S.2d 478]; In the Matter of Madden, 184 A.2d 204 (D.C. Mun.App. 1962); People v. Gibbons, 403 P.2d 434 (Colo. 1965); In re Sullivan, 33 Ill.2d 548 [213 N.E.2d 257]; In re Revzan, 33 Ill.2d 197 [210 N.E.2d 519]; DeMoura v. City of Newark, 90 N.J.Super. 225 [217 A.2d 19]; Louisiana State Bar Assn. v. Steiner, 204 La. 1073 [16 So.2d 843]; State ex rel. Nebraska State Bar Assn. v. Fitzgerald, 165 Neb. 212 [85 N.W.2d 323]; State ex rel. Nebraska State Bar Assn. v. Tibbels, 167 Neb. 247, 250 [92 N.W.2d 546, 548]; Costello v. Immigration & Naturalization Service (2d Cir., 1962), 311 F.2d 343. In other cases, courts, though holding that moral turpitude is not implied as a necessary element of a conviction such as that involved in the instant case, have held that moral
The holding in In re Hallinan, supra, 43 Cal.2d 243, at pages 250-251, was based upon what the California Supreme Court took to be federal law as then settled in United States v. Scharton (1932) 285 U.S. 518 [76 L.Ed. 917, 52 S.Ct. 416]. Federal cases subsequent to HalUnan have shown this construction of federal law to be inaccurate as applied to present day federal convictions. (See Armstrong v. United States (1965) 354 F.2d 274, 291 [173 Ct.Cl. 944].)
The affirmance of the criminal conviction by the Ninth Circuit Court of Appeals has long since become final. A petition for a writ of certiorari was denied by the United States Supreme Court (393 U.S. 1026 [21 L.Ed.2d 570, 89 S.Ct. 630]). Under rule 35 of the Federal Rules of Criminal Procedure, the judgment against Mrs. Whitfield was not in any sense prevented in the federal court from becoming final. The decision and order of the Alcoholic Beverage Control Appeals Board, therefore, should be, and it hereby is, annulled, and the appeals board is ordered to affirm the decision of the department as to count I. Pursuant to section 23090.3 of the Business and Professions Code and section 1071 of the Code of Civil Procedure, the decision of the department as to count I is affirmed.
Stone, J., and Gargano, J., concurred.
Respondent’s petition for a hearing by the Supreme Court was denied May 28, 1969. Peters, J., and Mosk, J., were of the opinion that the petition should be granted.