*1 No. 29744. In Bank. Oct. [L.A. 1970.] THOMAS,
CLAUDE ALFRED Plaintiff and Respondent, VEHICLES, DEPARTMENT OF MOTOR Defendant and Appellant. *2 Counsel General, S.
Thomas C. Da J. Lynch, Attorney Anthony Vigo George Roth, General, for Defendant and Deputy Attorneys Appellant. McLees, Jr., (San Gell,
Bertram Counsel County Mary Diego), Deputy Counsel, as Amici County Curiae on behalf of Defendant and Appellant. No for Plaintiff and appearance Respondent.
Opinion “the to as McCOMB, (hereinafter depart referred C. J.Defendant Acting Los Court of ment”) Superior from Angeles appeals set aside an order sus writ of mandate County directing granting referred to as (hereinafter “peti of plaintiff privilege pending tioner”) *3 Code, 13352, (Veh. (c).) subd. for a of year. § one period 27, 26, 1968, 1966, in October and February pleaded petitioner guilty Judicial District to two the Court of the Los separate Municipal Angeles a while under the influence of misdemeanor of vehicle driving charges (Veh. Code, 23102). Petitioner was liquor by represented § intoxicating in but counsel the 1968 not in the No ques- proceeding. proceeding raised tion was the to the in respect proceeding 1966 conviction. 19, 1968, 13352,
March under the of section authority Code, (c), subdivision of the Vehicle issued its order petitioner’s suspending a motor vehicle on the of this state for a operate privilege highways 12, 1968, of one year.1 June a period filed for writ of petition mandate in the court alone to compel set aside its order of that suspension, on the his 1966 conviction ground was void because he was not counsel and did waive represented by his to such at that time. The right representation granted invalid; that petition, the 1966 conviction was a and finding judgment was rendered that a writ mandate issue ordering peremptory directing vacate and set aside its order suspending driving privilege.
Question: proper, Was it in a mandate proceeding against alone, the department to direct to set aside its order suspending petitioner’s driving privilege, ground on invalid, conviction was there prior adjudication where had been no the invalidity thereof?
No. Ordinarily a valid if collaterally at judgment presumed tacked, Davis, unless it is (People void on its v. face. 143 Cal. 1 Section 13352 of provides pertinent the Vehicle Code part: in “The shall immediately suspend or revoke the privilege any person operate a motor showing upon receipt vehicle duly a any certified abstract the record of person has been convicted influ motor vehicle while under the intoxicating ence of liquor. suspension as or revocation shall be follows: “(c) Upon a second years, privilege such conviction within seven shall be suspended year for one gives shall not be person reinstated unless until such
proof ability respond damages in as defined in Section 16430.” in Witkin, (1954) Attack on 651]; Procedure Judgment see 3 Cal. P. However, con 2-6, 2044-2050.) Court, judgment
Trial pp. § § face, time on be attacked at its viction, may valid on though even of such which reason by in grounds constitutional proceeding suffering sanctions conviction increased imposed 161, (2) (Hasson v. 1 Cal.3d it. 457, 385]; People Coffey, v. could him Therefore, proceeding P.2d basis to increase as a which served judgment, have attacked issue in on him; court’s ruling and the municipal sanctions against Cozens, supra, (Hasson thereon. been res judicata would have Hasson, had obtained If, (2, 3).) authority had no would have this ruling respect, favorable attack the however, Petitioner, failed order. to issue present *4 in the 1968 proceeding. showing abstracts received of judgments
The having seven-year a two for drunk within period, convictions of petitioner McCarthy, 54 (Hough was his driving suspend privilege. required 276].) It is no part 279 Cal.Rptr. [2] [5 those validity judgments. on the department’s duty pass is a to review the present proceeding simply petition depart act function, ment’s administrative in and it performing mandatory not which in additional sanctions proceeding imposed of his no exists by reason conviction. basis Accordingly, 1966 petitioner in collateral attack on the of conviction judgment permitting and, this been mandate there having proceeding department; invalid, no 1966 conviction was previous adjudication petitioner’s (See Department Houlihan v. granted court writ. superior improperly Vehicles, 885]; Wil Motor Cal.App.3d Cal.Rptr. [83 Vehicles, Department liams v. Motor Cal.App.3d Cal.Rptr.
Since the attack conviction is upon constitutional upon he could have grounds, to have the sought court set the convic- rendering tion aside at time. If he had succeeded in attack in rendering court, that court would have forwarded to the of its copy aside the judgment setting instead of Alternatively, bringing a mandate court as he superior done, could have court for mandate petitioned against the court. If he had succeeded in rendering his attack on his 1966 such a court directed would have proceeding, conviction, court enter a aside the and setting rendering judgment sent a such would been In either copy event, the would have shown one valid records then only department’s would for drunk and the driving, or, if have made an order driving privilege, previ- suspending petitioner’s made, order would have revoked the ously suspension. Vigne Department De La V. Orr, 675], Mitchell V. each a writ of mandate directing of which granted reinstate the are distinguish driving privilege, plaintiff’s Hasson, There,
able. as in each had raised municipal plaintiff of his in which his last conviction was rendered the issue conviction, and it was that the convic determined in tion was invalid. constitutionally reversed,
Mosk, Burke, J., J., J., Sullivan, Ford, J.,* concurred.
PETERS, J.I dissent. concede was denied his right to counsel in conviction, proceedings leading his 1966 and that the conviction has furnished the for the basis order department’s suspending petitioner’s driving *5 In this to review the privilege. order it is view that the my court could consider the denial of the properly to counsel right was not to bring separate required action to set aside the conviction. to counsel is right of such our American importance system that a must
justice be person collaterally conviction permitted challenge obtained in violation of the whenever the conviction is be right sought to used to or guilt enhance for another It is support offense. ob- punishment vious section 13352 of the Vehicle Code for enhanced provides punish- ment based Thus must be offense. upon prior to attack his in this mandamus permitted collaterally otherwise, In holding from settled proceeding. princi- depart administration an undue the efficient ples, justice, impair impose burden on who in violation of already have once been persons punished their constitutional rights.
The right to assistance of counsel is
fundamental
criminal proceedings.
(Gideon Wainwright
v.
(1963)
799,
792,
*Assigned by Acting Chairman Judicial Council.
340 the entire
defendants, pervade proceeding, denial of counsel presumed with are fair or comply so obtained convictions doubt whether casting upon Gaines, 234, 237 re 63 Cal.2d (In [45 of due process. requirements 865, 473].) retroactively. Thus the 404 P.2d right applied Cal.Rptr. 650, 702].) L.Ed.2d 84 S.Ct. U.S. 202 (1964) v. Maxwell 376 (Doughty [11 with misdemeanors defendants charged extends to California the right In Johnson, 325, 62 Cal.2d 329 (In re felonies. to those charged well as 228, 420].) P.2d 398 Cal.Rptr. [42 counsel is so fundamental right
Because to our notions of due Court has that collateral the United States held attacks process, Supreme convictions obtained in violation of Gideon are in a on prior permissible “To a conviction obtained violation of wide of situations: permit range Wainwright v. to be used either to guilt Gideon support punishment enhance for another offense ... is to erode the or principle since the defect in the conviction was denial of that case. Worse yet, counsel, the accused in effect suffers from the of the anew right depriva U.S. (Burgett (1967) Amendment v. Texas right.” tion of that Sixth 389 319, 324, 258], added.) 109, italics L.Ed.2d 88 S.Ct. [19 this court has been that a conviction obtained in viola settled rule of attacked when Gideon collaterally “statutory machinery tion of severity or sanction is activated by status presence relating penal 204, Coffey, v. 214-215 convictions, (People . . .” Cal.2d of prior Johnson, added; 457, supra, In re italics see Cal.Rptr. [60 Woods, 689, 3, 325, 329; In re Cal.Rptr. [48 913]; v. P.2d Hasson view confirmed only recently compelling
P.2d We Orr, Cal. (Mitchell v. Court of Appeal 407]; Vigne Department La De Rptr. after of driving 675]) privileges suspension of a greater drunk constitutes imposition conviction for
a second Cozens, supra, 1 Cal.3d *6 (Hasson based the first sanction on 576, 579.) his be able attack decisions, should to to our
Pursuant prior statu- conviction activates his whenever collaterally prior conviction prior to be of sanction imposed. related to the severity tory machinery (c), section Vehicle Code subdivision constitutes such statutory this section the Legislature In the machinery. enacting directed department the convicted driving any twice privileges suspend (in state). under the influence of within the last seven years liquor any trial, Petitioner his first conviction at his second might challenged since a serve as the basis second would for his driving suspending it was also to raise this issue at the the But time clearly privileges. proper increased was sanction imposed. from the settled above
The discussed only depart principles retard the administration of justice insisting but also efficient effectively by of one. concede that They that two actions instead bring trial, at that need not the second challenge suggesting (or mandate directly rendering by he attack the conviction court) (Ante, “at time.” against rendering now first 338.) rendering citizen must p. aggrieved proceed it fails to restore his driving court and then if proceed privileges.1 decisions, to our majority, contrary by past procedures imposed
will undue burdens of time and on citizens money impose seeking citizen with a out- vindicate to counsel. The their constitutional rights forced he will now be of-state conviction will bear even heavier burden: an drive state if he wishes to return to that in order attack the conviction Woods, supra, In re California. refused to erect barriers in We 3, 5; Cal.2d there is no here. so justification doing decision be majority’s that, cannot justified on the since theory department’s duty suspend driving ministerial, is privileges the depart- ment no imposes sanction. Such a fiction is Nor is it justifi- unsupportable. able to argue no collateral attack is because the permissible did not act to a made, in which pursuant such an attack could hearing but instead proceed summarily law. Denial of a before required by hearing in these circumstances bemay constitutionally permissible provided courts, ultimately hearing by but permitted surely this cannot be used to action from constitutional exempt department’s challenge in the courts in the authorized to review the depart- ment’s action.2 1 The majority effect rendering hold that indispensable party an an (In Johnson, supra, attack on its 325, 329; Such has never been the re case. Woods, supra, 3, 5; In supra, 1 re Hasson v.
579.) Department Vehicles, 76], 2 Williams v. Motor Department and Houlihan v. 915 [83 by majority, cited held mandate inappro was priate because power duty peti neither nor the to set aside tioner’s sought conviction. Those by decisions misconstrue petitioner. the relief *7 Petitioner does seek to have rule invalid. Rather, he seeks to have and, court hold the invalid on that basis, direct the to set aside its suspension. order of It was to the court, not the that petitioner’s invalidity supe- claim of was directed. The be unable fear seems to be will or The penumbra! these resources to convic- defending validity devote unwilling charged enforcing The fear is unwarranted. tions. General, as he has the Vehicle Code. done Attorney section 13352 of court, can ably court and this represent department. both in will receive the full that the General Attorney It is expected certainly law enforcement officials. of other relevant cooperation Gideon v. enunciated in in this case erode principles The majority Wainwright, burden courts. In busy and further our supra, 372 U.S. the unconstitutional im- difficult to challenge so make more doing they all citizens our motorized is a for very what serious penalty position their livelihood. those who society depend upon particularly would affirm the I J.,
Tobriner, concurred. court, Const., general (Cal. VI, 5), jurisdiction clearly rior a court § art. power to consider the court’s determination jurisdiction given of a matter within its should be effect.