Hasson v. Orr

• Decision Date: 28 August 1969
• Citation: Hasson v. Orr, 80 Cal.Rptr. 329 (Cal. App. 1969)
• Court: California Court of Appeals
• Parties: Jerome HASSON, Plaintiff and Respondent, v. Verne ORR, Director of the Department of Motor Vehicles of the State of California, Defendant and Appellant. Civ. 33622.

Page 329

80 Cal.Rptr. 329

Jerome HASSON, Plaintiff and Respondent, v.Verne ORR, Director of the Department of Motor Vehicles of the State of California, Defendant and Appellant.

Civ. 33622.

Court of Appeal, Second District, Division 3, California.

Aug. 28, 1969.

Thomas C. Lynch, Atty. Gen., and Edmond B. Mamer, Deputy Atty. Gen., for defendant and appellant.

Minsky, Garber & Rudof and J. M. Groshan, Los Angeles, for plaintiff and respondent.

FORD, Presiding Justice.

This is an appeal by the Director of the Department of Motor Vehicles from a judgment that a peremptory writ of mandate issue commanding the Director to immediately vacate and set aside an order of January 12, 1968, suspending the driver's license and privilege of the petitioner Hasson to operate a motor vehicle.

Paragraph IV of the findings of fact is as follows: "That the said conviction of violation of Section 23102 of the Vehicle Code ¹ of May 3, 1965 relied upon by respondents in ordering the suspension of petitioner's privilege to operate a motor vehicle upon the highways of the State of California is not valid in that petitioner was not represented by counsel and was not advised or did he intelligently waive his Constitutional rights to counsel.At the time of sentence of the conviction of violation of Vehicle Code Sec. 23102 entered November 15, 1967the Court recommended against suspension of Petitioner's operator's license."Paragraph I of the conclusions of law is as follows: "That respondents acted without right in suspending petitioner's license under Section 13352c of the Vehicle Code² in that petitioner had not suffered two valid convictions of violation of Section 23102a of the Vehicle Code within a seven year period."

Prior to the hearing of the petition for writ of mandate in the superior court, the petitioner Hasson sought to vacate and set aside each conviction by a motion in the municipal court in which the particular conviction had occurred.The ground of each motion was that he had been denied his constitutional right to counsel and that he had not expressly waived that right.(SeeIn re Johnson, 62 Cal.2d 325, 333-336, 42 Cal.Rptr. 228, 398 P.2d 420.)

Some guidance as to the propriety of having such a determination made by the court in which the conviction occurred is found in the reasoning of In re Woods, 64 Cal.2d 3, 48 Cal.Rptr. 689, 409 P.2d 913, wherein the petitioner collaterally attacked prior convictions on the ground that he neither was advised of his right to, nor was provided with, nor expressly waived, the services of counsel before his entry of a guilty plea as to each.In Woodsthe Supreme Court stated (64 Cal.2d at page 11, 48 Cal.Rptr. at page 694, 409 P.2d at page 918): "The fact issue is thus joined, and we therefore find in accordance with the principles above discussed that a hearing should be had in order to determine whether petitioner, by entering a plea of guilty in each of the proceedings at issue after having been advised of his right to counsel in each instance, thereby intelligently and understandingly waived that right relative to either or both of those proceedings.Since the determination of these questions might affect petitioner's present status as an habitual criminal, we return the cause for such hearing to the court wherein judgment establishing that status was rendered."³

In MITCHELL V. ORR, 268 CAL.APP.2D--, 74 CAL.RPTR. 407,^A the sole question presented was whether the municipal court's determination of the invalidity of the respondent's alleged prior conviction was binding upon the Department of Motor Vehicles with respect to the matter of suspending his driving privileges.The superior court granted a writ of mandate commanding the Director to desist from suspending the license.In holding that the determination of the municipal court was binding on the Director the court stated (268 Cal.App.2d at pages --, 74 Cal.Rptr. at 410: ^b"The Director also attacks the merits of the determination of the unconstitutionality of the Florida conviction by the Palo Alto-Mountain View Municipal Court, but the judgment may not be collaterally attacked; there having been no appeal from it, it has become final.* * * It is concluded that respondent had the right to have the constitutionality of his prior convictions determined by a court of law.The municipal court made this determination and its judgment, not having been appealed or otherwise directly attacked, has become final.The prior conviction having been adjudged invalid, the municipal court was empowered under Vehicle Code section 13210 to order the Department of Motor Vehicles not to suspend respondent's license in this first valid conviction for the offense of driving while under the influence of intoxicating liquor.The writ of mandate was properly issued and the judgment is therefore affirmed."

In the case presently before this court, in neither instance did the petitioner Hasson appeal from the order of the municipal court denying his motion to vacate and set aside the conviction.Nor did he, upon such denial, seek the issuance of a writ of mandate to compel the municipal court to set aside his plea entered to the charge of driving while under the influence of intoxicating liquor.(Cf.Blake v. Municipal Court, 242 Cal.App.2d 731, 51 Cal.Rptr. 771.)Consequently, the determination embodied in each order was final and binding on the superior court in the present case under the...