Axness v. Superior Court

• Citation: 206 Cal.App.3d 1489,255 Cal.Rptr. 896
• Decision Date: 30 December 1988
• Docket Number: No. A040921,A040921
• Court: California Court of Appeals
• Parties: Eric V. AXNESS, Petitioner, v. SUPERIOR COURT of Contra Costa County, Respondent; A.A. PIERCE as director, California Department of Motor Vehicles, Real Party in Interest.

Page 896

255 Cal.Rptr. 896

206 Cal.App.3d 1489

Eric V. AXNESS, Petitioner, v. SUPERIOR COURT of Contra Costa County, Respondent;

A.A. PIERCE as director, California Department of Motor Vehicles, Real Party in Interest.

No. A040921.

Court of Appeal, First District, Division 4, California.

Dec. 30, 1988.

Review Denied March 16, 1989.

Larry M. Cowan, Law Offices of Larry M. Cowan, Walnut Creek, for appellant.

John K. Van De Kamp, Atty. Gen., N. Eugene Hill, Asst. Atty. Gen., Mary C. Michel, Supervising Deputy Atty. Gen., and Eleanor Nisperos, Deputy Atty. Gen., San Francisco, for respondent.

PERLEY, Associate Justice.

Petitioner Eric V. Axness (appellant) appeals from an order denying his amended petition for writ of mandate to prevent the California Department of Motor Vehicles (department) from suspending his California driver's license based on two convictions of driving under the influence (Veh.Code, § 23152) ¹ within five years. The petition challenges the suspension on the ground that the second conviction, which occurred in Minnesota, was unconstitutional. We hold that in the circumstances of this case appellant may challenge the constitutionality of the Minnesota conviction by way of mandamus against the department, and we conclude that his petition should have been granted.

On March 5, 1984, in Walnut Creek, California, appellant was convicted of driving under the influence. ( § 23152, subd. (b).) On August 8, 1986, in Saint Cloud, Minnesota, appellant was convicted of driving while intoxicated. Upon being notified of the Minnesota conviction, the department served its order dated September 16, 1986, suspending appellant's California driver's license for a period of 18 months based on the occurrence of the two convictions within a five-year period. ( §§ 13352, subd. (a)(3); 13352, subd. (d); 23165.)

Appellant filed a petition for writ of mandate against the department within 90 days of notice of the order of suspension. ( § 14401, subd. (a).) The petition alleged that the procedures leading to appellant's Minnesota conviction violated his constitutional rights. The department demurred inter alia based on the failure of the petition to allege that appellant had challenged the Minnesota conviction in that state, and the trial court sustained the demurrer with leave to amend "to see what [appellant] could do in Minnesota...." ² Appellant then filed an amended petition for writ of mandate reflecting his initiation of proceedings in Minnesota to vacate the second conviction. Appellant's motion to vacate was rejected by the Minnesota court, and was followed by denial of his amended petition herein.

The department argued below that it is not subject to mandamus because it has neither the duty nor the power to invalidate a judgment of conviction, and that the Minnesota conviction was not obtained in violation of appellant's constitutional rights. ³ The record does not disclose which of these contentions was persuasive to the trial court and we examine each in turn.

A series of cases indicate that the validity of a section 23152 conviction may not be challenged in a mandate proceeding against the department. (Thomas v. Department of Motor Vehicles (1970) 3 Cal.3d 335, 338, 90 Cal.Rptr. 586, 475 P.2d 858; Fitch v. Justice Court (1972) 24 Cal.App.3d 492 495, 101 Cal.Rptr. 227; Houlihan v. Department of Motor Vehicles (1970) 3 Cal.App.3d 915, 919-920, 83 Cal.Rptr. 885; Williams v. Department of Motor Vehicles (1969) 2 Cal.App.3d 949, 952-954, 83 Cal.Rptr. 76.) These cases observe that the department is required by law to suspend the license of a driver with multiple convictions, and reason that a writ of mandate cannot issue to prevent the department from performing this legal duty. (Thomas, supra, 3 Cal.3d at p. 338, 90 Cal.Rptr. 586, 475 P.2d 858; Fitch v. Justice Court, supra, 24 Cal.App.3d at p. 495, 101 Cal.Rptr. 227; Houlihan v. Department of Motor Vehicles, supra, 3 Cal.App.3d at p. 918, 83 Cal.Rptr. 885; Williams v. Department of Motor Vehicles, supra, 2 Cal.App.3d at p. 953, 83 Cal.Rptr. 76.) These decisions also note that the department lacks the judicial power to nullify a conviction. (Fitch, supra, 24 Cal.App.3d at p. 495, 101 Cal.Rptr. 227; Houlihan, supra, 3 Cal.App.3d at p. 919, 83 Cal.Rptr. 885; Williams, supra, 2 Cal.App.3d at pp. 953-954, 83 Cal.Rptr. 76.) They suggest that mandamus would only lie to prevent the department from acting on a conviction that was "void on its face." (Houlihan, supra, 3 Cal.App.3d at p. 919, fn. 4, 83 Cal.Rptr. 885; Williams, supra, 2 Cal.App.3d at p. 954, 83 Cal.Rptr. 76.) Otherwise, mandamus must be directed against the court that rendered the conviction. (Thomas, supra, 3 Cal.3d at p. 338, 90 Cal.Rptr. 586, 475 P.2d 858; Fitch, supra, 24 Cal.App.3d at p. 495, 101 Cal.Rptr. 227; Houlihan, supra, 3 Cal.App.3d at p. 919, 83 Cal.Rptr. 885; Williams, supra, 2 Cal.App.3d at p. 952, 83 Cal.Rptr. 76.) Since the Minnesota conviction is not void on its face, the department contends that it may not be challenged by way of appellant's petition.

However, none of the foregoing cases involved an out-of-state conviction, and the situation in this case is distinguishable because mandamus against the rendering court is unavailable in California. A California court does not have the power to direct the Minnesota court to set aside its judgment. (See Ganyo v. Municipal Court (1978) 80 Cal.App.3d 522, 526, 145 Cal.Rptr. 636; Gonzalez v. Municipal Court (1973) 32 Cal.App.3d 706, 712-713, fn. 11, 108 Cal.Rptr. 612.) Cook v. Department of Motor Vehicles, supra, 33 Cal.App.3d at p. 268, 109 Cal.Rptr. 104, indicates that the department may be subject to mandamus if a foreign conviction has been set aside in the rendering jurisdiction, but we are aware of no case that has considered whether this remedy is available when an out-of-state challenge has not succeeded.

We agree with appellant that before the department may suspend his California driving privileges on the basis of an out-of-state conviction he must be allowed to challenge the constitutionality of that conviction in a California court. "[T]o the extent that statutory machinery relating to penal status or severity of sanction is activated by the presence of prior convictions, it is imperative that the constitutional basis of such convictions be examined if challenged by proper allegations. [Citations.] The fact that a prior conviction was sustained in another jurisdiction does not preclude such examination. 'To the extent that any State makes its penal sanctions depend in part on the fact of prior convictions elsewhere, necessarily it must assume the burden of meeting attacks on the constitutionality of such prior convictions.' " (People v. Coffey (1967) 67 Cal.2d 204, 214-215, 60 Cal.Rptr. 457, 430 P.2d 15.) Suspension of a driver's license is a "sanction" within the meaning of this passage from People v. Coffey. (Ganyo v. Municipal Court, supra, 80 Cal.App.3d at pp. 525-526, 145 Cal.Rptr. 636; Mitchell v. Orr (1969) 268 Cal.App.2d 813, 817, 74 Cal.Rptr. 407.)

"Since the sanctions which may be imposed upon a person convicted of drunk driving are increased if he has a prior conviction of the same offense within a specified period of time, a collateral attack may be made on any such prior conviction on constitutional grounds." (Hasson v. Cozens (1970) 1 Cal.3d 576, 579, 83 Cal.Rptr. 161, 463 P.2d 385; cf. Pollack v. Department of Motor Vehicles (1985) 38 Cal.3d 367, 381, 211 Cal.Rptr. 748, 696 P.2d 141 ["Of course, a driver who wishes to challenge the existence or validity of a prior conviction must be afforded an opportunity to do so"].) There is no basis for distinguishing between California and out-of-state convictions under this language. Therefore, if appellant had first been convicted in Minnesota, he would have had the opportunity to collaterally attack the constitutionality of that conviction in the subsequent California proceeding. To deny appellant that same opportunity in this case would make access to the California courts for those in his position dependent upon the order of their convictions. ⁴ We note also that the statute providing for no more than one collateral attack on the constitutionality of a section 23152 conviction evidently refers to a challenge in a California court. (See § 23209, which directs the court to report its determination to the department.)

In appellant's circumstances, such a challenge may be raised in the context of a petition for writ of mandate against the department, even though the department is under no duty to scrutinize the constitutionality of section 23152 convictions. Code of Civil Procedure section 1085 authorizes mandamus both to compel the performance of duties and to insure the enjoyment of rights, ⁵ and appellant has the right not to be sanctioned on the basis of an unconstitutional conviction. Moreover, a writ of mandate "must be issued in all cases where there is not a plain, speedy, and adequate remedy, in the ordinary course of law." (Code Civ.Proc., § 1086.) ⁶

We do not mean to suggest that a driver in appellant's situation is to be afforded a trial de novo on an out-of-state conviction, or that questions such as the sufficiency of the evidence supporting such a conviction may be relitigated in a mandate proceeding against the department. We hold only that mandamus is available to challenge the constitutionality of an out-of-state conviction if the conviction will result in the suspension of a California driver's license, and the driver is otherwise without a forum in California in which to raise such a challenge because his latest conviction occurred in another jurisdiction.

We use the term "constitutionality" to refer to federal constitutional rights. Drivers on the highways of other states are subject, of course, to the laws of those states, and they may be convicted for violating those laws in accordance with local procedures. Since they cannot...