Kelly v. Municipal Court of City and County of San Francisco

• Decision Date: 02 May 1958
• Citation: 160 Cal.App.2d 38,324 P.2d 990
• Court: California Court of Appeals Court of Appeals
• Parties: Ralph T. KELLY, Petitioner, v. The MUNICIPAL COURT OF CITY AND COUNTY OF SAN FRANCISCO, Respondent. Civ. 18048.

Page 990

324 P.2d 990

160 Cal.App.2d 38

Ralph T. KELLY, Petitioner, v. The MUNICIPAL COURT OF CITY AND COUNTY OF SAN FRANCISCO, Respondent.

Civ. 18048.

District Court of Appeal, First District, Division 1, California.

May 2, 1958.

Hearing Denied June 25, 1958.

Kenneth C. Zwerin, San Francisco, for petitioner.

Albert M. Bendich, Staff Counsel American Civil Liberties Union of N. California, San Francisco, amicus curiae in support of petitioner.

Edmund G. Brown, Atty. Gen., Clarence A. Linn, Asst. Atty. Gen., Raymond M. Momboisse, Deputy Atty. Gen., for respondent.

FRED B. WOOD, Justice.

Question: Does the respondent court have jurisdiction to proceed with the trial of petitioner upon a complaint that charges a violation of section 290 of the Penal Code (failure to report a change of address) despite the fact that prior to this alleged failure the conviction (violation of section 288a, Penal Code) upon which the section 290 charge is based was set aside and petitioner 'released from all penalties and disabilities' pursuant to the provisions of section 1203.4 of the Penal Code? ¹

In such a state of facts does such a complaint charge the violation of a public offense? Are the registration requirements of section 290 among the 'all penalties and disabilities' from which the convicted person is thereafter 'released' when, having been granted probation, he fulfills the conditions thereof, as provided in section 1203.4? We think they are, and that the complaint does not charge the violation of a public offense.

A person convicted of any of the offenses mentioned in section 290 is by the provisions of that section required to register with the appropriate law enforcement agency. Registration consists of '(a) a statement in writing signed by such person, giving such informations as may be required by the State Bureau of Criminal Identification, and (b) the fingerprints and photograph of such person.' Three days after the registration; the registering law enforcement agency must forward the statement, the fingerprints and photograph to the State Bureau of Criminal Identification and Investigation.

The duty thus to register must be performed by the convicted person within a limited period of time after discharge or parole from the penal or correctional institution in which incarcerated as a result of the conviction. If committed to a state hospital as a sexual psychopath, he must register upon release from the hospital. The duty to register also rests upon him if and when he is released upon probation or is discharged upon the payment of a fine.

If any such person changes his residence address he must within ten days report his new address to the law enforcement agency with which he last registered. Such agency must within three days forward the information to the state bureau which in turn must forward appropriate registration data to the local law enforcement agency having jurisdiction of the new place of residence. Failure to observe any of these requirements subjects the convicted person to the penalties of a misdemeanor. Also, conviction of a violation of section 290 renders a person liable to inquiry as to whether he is a sexual psychopath. Welf. and Inst.Code, § 5501.

The duty to reregister upon changing one's place of address is a continuing duty, a burden which the convicted person carries with him until his dying day. Being thus severely limited in his freedom of movement and continuously under police surveillance, all stemming from the conviction which has been set aside, the conclusion seems irresistible that this registration requirement is one of the 'penalties and disabilities resulting from the offense or crime of which he has been convicted,' from which as a faithful and successful probationer, he is thereafter 'released' by the mandate of section 1203.4. ²

A persuasive discussion and interpretation of the expression 'penalties and disabilities' as used in this section we find in People v. Mackey, 58 Cal.App. 123, 130, 208 P. 135, 138: 'Webster defines the word 'penalty' in part, as: 'Penal retribution; * * * the suffering in person, rights, or property which is annexed by law or judicial decision to the commission of a crime or public offense; * * * Disadvantage, loss, or hardship due to some action, esp. to a transgression or error.' That lexicographer gives the following definition of 'disability,' quoting it in full: 'State of being disabled; deprivation or want of ability; absence of competent physical, intellecutal, or moral power, means, fitness, or the like; an instance of such want or deprivation. Disabilities to perform what was covenanted.--Milton. Chatham refused to see him, pleading his disability.--Bancroft. Want of legal qualification to do a thing; legal incapacity, incompetency, or disqualification; also, an instance or cause of such incapacity.' * * * The two words are together to be given a broad and far-reaching construction because the Legislature has coupled with their use the mandate that, where a convicted felon who has been admitted to probation has passed the period of probation, 'the court shall thereupon dismiss the accusation or information against such defendant.''

So much for the words 'penalties and disabilities.' We are mindful of the fact that the words 'penal' and 'penalty' have a variety of meanings or shades of meaning, accoridng to the subject dealt with and the context in which the words are used. See 23 Am.Jur. 622, § 27. Here, the context suggests that perhaps the Legislature had criminal penalties and disabilities in mind. Section 1203.4 speaks of 'penalties and disabilities resulting from the offense or crime of which he has been convicted.' (Emphasis added.) Does this expression suggest, perhaps, that section 1203.4 has reference to criminal or quasi-criminal penalties, penalties imposed for punishment or prevention of crime, such as imprisonment, fine, posting of a bond to keep the peace, or registration and continuous and lifelong reregistration with the state and local police? This question is important in the current inquiry because of the legislative and judicial history of section 1203.4.

The Legislature from time to time has enacted statutes expressly narrowing the scope of 'all penalties and disabilities resulting from,' in each case limiting the exclusion to a specific type of situation. Originally, the subject matter of section 1203.4 occurred as a subdivision of section 1203 of the Penal Code. In 1927 the proviso which permits a prosecutor to plead and prove the prior conviction in a subsequent prosecution for any other offense was added to the subdivision. Stats.1927, ch. 770, p. 1493, subd. (4), at p. 1496. In 1935 that subdivision (including the proviso) was lifted out of section 1203 and made into a separate section numbered 1203.4. Stats.1935, ch. 604, p. 1706 at 1709.

The other enactments narrowing the scope and application of section 1203.4 deal with the type of person who after investigation and examination is found and declared duly qualified to practice a given profession or calling or to conduct a certain type of operation that calls for a measurable degree of proficiency; specifically, drivers of motor vehicles, attorneys at law, physicians and surgeons, and public school teachers. The regulatory statutes concerning such persons subject them to disciplinary action (suspension or revocation of license of employment) for various causes including conviction of certain types of crime. Those statutes have been amended to make it clear that the indicated disciplinary action when taken is not affected by an order of release made pursuant to section 1203.4. (§ 309 of the Vehicle Code, added thereto in 1939, relating to the suspension or revocation of a license to drive a motor vehicle; § 6102 of the Bus. and Prof. Code as amended in 1941, concerning the suspension or revocation of a license to practice law; §§ 2383 and 2384 of the Business and Professions Code, as amended in 1951, in respect to the disciplining of a physician and surgeon; and §§ 12011.5, 12011.7, 12107, 12756, 12785, 13001.3 and 14002.3 [particularly § 12011.5] as added to the Education Code in 1952, relating to the suspension and revocation of teachers' credentials and the suspension and discharge of public school teachers.)

Legislation of this type might conceivably reflect a legislative interpretation of section 1203.4 to the effect that, but for the insertion of such exclusionary provisions in these several regulatory statutes, the suspension or revocation of a license or the suspension or discharge of a public school teacher is a 'penalty' or 'disability' within the meaning of those words as used in section 1203.4. Such a view loses much of its logic when we consider these amendments in the light of certain judicial decisions. The 1939 addition of section 309 to the Vehicle Code must be appraised in the light of the fact that there was then pending a case, involving events that occurred in 1938, which culminated in a decision that such was the effect of a section 1203.4 release order upon the conviction of the holder of a driver's license. Sherry v. Ingels, 34 Cal.App.2d 632, 94 P.2d 77, decided in September, 1939. The addition of section 309 was a legislative rejection of the potentially pending judicial interpretation. At the very least it may be said that while this particular legislative act, standing alone, may not be vividly illuminative of the legislative intent, it is not out of line with the clear import of later enactments concerning section 1203.4, particularly in the 1941 amendment of the State Bar Act and the 1951 amendment of the State Medical Practice Act. In respect to each of these amendments the Supreme Court had previously decided that the suspension or revocation of a license to practice law or to practice medicine and surgery was not a 'penalty' or 'disability' within the purview of section 1203.4. In re Phillips, 1941, 17...