Gaston v. Department of Motor Vehicles

• Decision Date: 14 May 1991
• Docket Number: No. A046011,A046011
• Citation: 230 Cal.App.3d 74,281 Cal.Rptr. 173
• Court: California Court of Appeals Court of Appeals
• Parties: John Michael GASTON, Plaintiff and Respondent, v. DEPARTMENT OF MOTOR VEHICLES, Defendant and Appellant.

Page 173

281 Cal.Rptr. 173

230 Cal.App.3d 74

John Michael GASTON, Plaintiff and Respondent, v. DEPARTMENT OF MOTOR VEHICLES, Defendant and Appellant.

No. A046011.

Court of Appeal, First District, Division 2, California.

May 14, 1991.

Review Denied July 31, 1991.

Dan Lundgren, Atty. Gen., Patricia C. Esgrow, Deputy Atty. Gen., Dept. of Motor Vehicles Legal Office, Alan Mateer, Chief Counsel, Sacramento, for respondent and appellant.

Larry M. Cowan, Walnut Creek, for petitioner and respondent.

BENSON, Associate Justice.

The Department of Motor Vehicles ("department") appeals from a judgment of the Contra Costa County Superior Court granting a writ of mandate directing the department to set aside an order suspending the driving privilege of John Michael Gaston for 18 months. We shall reverse the judgment issuing the writ and vacate the writ.

FACTUAL AND PROCEDURAL BACKGROUND

On February 28, 1984, Gaston pled guilty to and was convicted of driving while intoxicated by the Paradise Valley Magistrate Court, Maricopa County, Arizona. As a result, by letter dated July 9, 1984, Gaston was informed his California driver's license was suspended by the department for six months pursuant to Vehicle Code section 13352, subdivision (a)(1). ¹ On July 27, 1984, the department informed Gaston the suspension of his license had been set aside under section 13551 ² and that he could keep his license. The suspension was set aside apparently because Gaston had been granted probation by the Arizona court. (See Veh.Code, § 13352, subd. (a)(1).)

On November 3, 1988, Gaston was again convicted for driving under the influence of alcohol, this time by the Walnut Creek-Danville, California Municipal Court. Gaston's prior Arizona conviction was not charged as an enhancement in the subsequent California prosecution. Gaston did not challenge the validity of the Arizona prior in the California proceedings.

Gaston's driver's license was then ordered suspended by the department for 18 months on December 19, 1988. Sections 13352, subdivision (a)(3), and 23165 ³ make such a suspension mandatory where a person suffers two drunk driving convictions in seven years.

On February 21, 1989, Gaston brought this action to review the department's suspension of his driving privilege. The trial court allowed Gaston to collaterally attack his 1984 Arizona conviction by petition for writ of mandate under Code of Civil Procedure section 1085 ⁴ which named the department as respondent. The trial court then found the Arizona conviction was unconstitutional under the Boykin/ Tahl standard for review of convictions obtained by guilty plea. (Boykin v. Alabama (1969) 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274; In re Tahl (1969) 1 Cal.3d 122, 81 Cal.Rptr. 577, 460 P.2d 449.) Granting the petition for writ of mandate, the trial court ordered the department to set aside its suspension order and to refrain from using the 1984 Arizona conviction "for any administrative or judicial purpose and to remove it from their records."

DISCUSSION

The department asserts the trial court erred in ruling that mandate lies against the department to determine the validity of an out-of-state driving conviction. It also challenges the trial court's finding that Gaston's prior Arizona conviction was unlawful for failure to obtain Boykin/ Tahl waivers of rights.

Under our standard of review for traditional mandate, "[j]udicial intervention is warranted when a public entity adopts a rule or makes a policy decision of general application which is shown to be arbitrary, capricious, contrary to public policy, unlawful, or procedurally unfair. Whether the action is tainted by one or more of these factors is a question of law. With respect to these questions the trial and appellate courts perform essentially the same function, and the determinations of the trial court are not conclusive on appeal." (Personnel Com. v. Board of Education (1990) 223 Cal.App.3d 1463, 1466, 273 Cal.Rptr. 288.)

The department argues the trial court erred in following the reasoning in Axness v. Superior Court (1988) 206 Cal.App.3d 1489, 255 Cal.Rptr. 896, review denied March 16, 1989, an opinion of Division Four of this court, which the department argues was wrongly decided. Instead, the department urges us to follow the decisions in Thomas v. Department of Motor Vehicles (1970) 3 Cal.3d 335, 90 Cal.Rptr. 586, 475 P.2d 858 and Cook v. Department of Motor Vehicles (1973) 33 Cal.App.3d 265, 109 Cal.Rptr. 104.

In Thomas v. Department of Motor Vehicles, supra, 3 Cal.3d 335, 90 Cal.Rptr. 586, 475 P.2d 858, the court held Thomas could not bring a mandate proceeding against the department to have his prior drunk driving conviction declared invalid since the department had no duty to pass on the validity of such convictions. Thomas had two convictions for drunk driving, one in 1966 and one in 1968, both in the Municipal Court of the Los Angeles Judicial District. The court held Thomas could have attacked his 1966 conviction in the 1968 proceeding against him because the 1966 proceeding served as a "basis to increase the sanctions against him." The court also held that since the attack on the 1966 conviction was upon constitutional grounds, Thomas could seek to have the rendering court set the conviction aside at any time. (Id. at p. 338, 90 Cal.Rptr. 586, 475 P.2d 858.)

Among the cases relied on by Thomas was Houlihan v. Department of Motor Vehicles (1970) 3 Cal.App.3d 915, 83 Cal.Rptr. 885. In Houlihan, Division One of this court held a petition for writ of mandate could not be brought against the department to compel it to vacate a license suspension because such suspension was mandatory and the department had no legal duty to determine the validity of a drunk driving conviction. The court also held a driver had the right to have the constitutionality of his prior conviction determined in the municipal court trying him for the most recent drunk driving offense. (Id. at p. 918, 83 Cal.Rptr. 885.)

After the Supreme Court decided Thomas, the Court of Appeal for the Fourth District issued its opinion in Cook v. Department of Motor Vehicles, supra, 33 Cal.App.3d 265, 109 Cal.Rptr. 104. Cook's license was suspended because he suffered a drunk driving conviction in Arizona and a second conviction in Florida. Cook, a Californian, argued he should be allowed to bring a mandate action against the department to challenge his out-of-state convictions because it was a denial of due process to deny him a California forum in which to raise these issues. Cook followed Thomas, reasoning that the fact Cook's convictions were out-of-state "does not obviate the Thomas holding" that "mandate does not lie against the department for the purpose of determining the validity of prior convictions as that agency is not empowered to make such a judicial determination." (Id. at p. 267, 109 Cal.Rptr. 104.) Cook found the due process argument unmeritorious since Cook admitted he could challenge his convictions in the rendering courts. (Id. at p. 268, 109 Cal.Rptr. 104.) Among the cases relied on by Cook is Fitch v. Justice Court (1972) 24 Cal.App.3d 492, 101 Cal.Rptr. 227, another opinion of Division One of this court which held a petition for writ of mandate was unavailable against the department to challenge a prior conviction on constitutional grounds.

Gaston, however, urges us to follow Axness v. Superior Court, supra, 206 Cal.App.3d 1489, 255 Cal.Rptr. 896, rather than the cases that preceded it. In Axness, the driver was first convicted of drunk driving in California and later suffered a second conviction in Minnesota. The court allowed Axness to challenge the constitutionality of his Minnesota conviction in mandate proceedings against the department under Code of Civil Procedure section 1085. The court distinguished Thomas, Fitch, Houlihan, and Williams v. Department of Motor Vehicles (1969) 2 Cal.App.3d 949, 83 Cal.Rptr. 76, on the grounds they all involved only California convictions. The Axness court reasoned the driver was entitled to challenge the constitutionality of his Minnesota conviction in a California court since California was using the Minnesota conviction to sanction the driver. (Axness v. Superior Court, supra, 206 Cal.App.3d at pp. 1494-1495, 255 Cal.Rptr. 896.) Axness thus created a limited exception to the rule that mandate proceedings cannot be brought against the department, holding 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." (Id. at p. 1496, 255 Cal.Rptr. 896.)

Gaston asks us to apply the Axness exception in this case. While we have serious questions regarding the soundness of the Axness decision (which invokes Code of Civil Procedure section 1085 to mandate the department to perform a duty which does not exist) we need not address that problem since this case is factually distinguishable from Axness. In Axness, the first conviction was in California and the second conviction in Minnesota. Thus, Axness had no California forum to challenge the Minnesota conviction. Here, on the other hand, Gaston's first conviction was in Arizona and his second conviction was in California. Gaston claims he is in the same position as Axness because the department did not plead his Arizona conviction in the California proceeding. However, Gaston is incorrect that he did not have a California forum. As the Axness court pointed out, "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." (Axness v. Superior Court, supra, 206 Cal.App.3d at p. 1495, 255 Cal.Rptr. 896.)

Gaston's opportunity to challenge the...