Kirby v. Alcoholic Beverage Control Appeals Bd.

• Court: California Court of Appeals
• Writing for the Court: CONLEY
• Citation: 75 Cal.Rptr. 823,270 Cal.App.2d 535
• Parties: Edward J. KIRBY, etc., Petitioner, v. ALCOHOLIC BEVERAGE CONTROL APPEALS BOARD of the State of California, Respondent; Martha G. WHITFIELD, etc., Real Party in interest. Civ. 1113.
• Decision Date: 10 March 1969

Page 823

75 Cal.Rptr. 823 270 Cal.App.2d 535 Edward J. KIRBY, etc., Petitioner,
v.
ALCOHOLIC BEVERAGE CONTROL APPEALS BOARD of the State of California, Respondent;
Martha G. WHITFIELD, etc., Real Party in interest. Civ. 1113. Court of Appeal, Fifth District, California. March 10, 1969.
Hearing Denied May 28, 1969.

Page 824

[270 Cal.App.2d 537] Thomas C. Lynch, Atty. Gen., Nicholas C. Yost, Deputy Atty. Gen., Los Angeles, for petitioner.

Leo K. Gallant, Sacramento, for respondent.

Deadrich, Bates & Lund and Jack E. Lund, Bakersfield, for real party in interest.

CONLEY, Presiding Justice.

This proceeding, pursuant to section 23090 et seq. of the Business and Professions Code, reviews a decision and order of the Alcoholic Beverage Control Appeals Board of the State of California in which it evidences a decided difference of opinion from the Department of Alcoholic Beverage Control relative to the penalty theretofore ordered against Martha G. Whitfield, doing business as Hal-Mar, in the City of Delano, because of her conviction of failure to report and fully pay her federal income taxes.

The Department of Alcoholic Beverage Control, after a formal hearing, found that the conviction in the United States District Court involved moral turpitude; that the judgment of conviction had become final after appeal in the federal courts (Whitfield v. United States, (9th Cir. 1967) 383 F.2d 142); and, that, pursuant to section 24200(d) of the Business and Professions Code, her license to conduct a bar should be suspended for the period of one year.

The case came on before a hearing officer in Bakersfield on May 16, 1968. His proposed decision, rendered on May 27, 1968, recommended that the petitioner's license be suspended for one year on each of Counts I and II. The suspensions were to run concurrently, and credit was to be given on each for the three-month period of time during which the premises had been closed by stipulation entered into by her with the Department of Alcoholic Beverage Control. This proposed decision was adopted by the department as its official holding on June 27, 1968. Pursuant to a notice of appeal filed by Mrs. Whitfield, the Alcoholic Beverage Control Appeals Board met and considered an appeal from the decision of the department. On December 6, 1968, the Appeals Board rendered

Page 825

its holding reversing the decision of the department.

[270 Cal.App.2d 538] Mrs. Whitfield was originally charged with having been convicted of two crimes, each of which allegedly involved moral turpitude. One was a conviction in the Municipal Court of the Bakersfield Judicial District of petty theft when Mrs. Whitfield and her daughter had become so angry with a local store for refusing to take back a purse sold to the daughter, the handle of which had come off, that Mrs. Whitfield stole a piece of merchandise from the store. Unquestionably, this crime involved moral turpitude, but, because there was compliance by Mrs. Whitfield, after conviction, with the provisions of the Penal Code relative to rehabilitation leading, as provided therein, to her release from the consequences of the crime, there is no present contention that this conviction warranted the decision of the department. Reliance is placed by the department on the conviction specified in the first count, a conviction in the federal district court of defrauding the government through the filing of knowingly false income tax returns in the years 1958 and 1959. However, the suspensions as to each of the two convictions were separately imposed, so that the abandonment of Count II does not entitle the petitioner to have the case remanded (Shakin v. Board of Medical Examiners, 254 Cal.App.2d 102, 112, 62 Cal.Rptr. 274).

One ground which was taken by the Alcoholic Beverage Control Appeals Board was that the conviction was not final, although the Ninth Circuit Court of Appeals affirmed the action of the district court, because thereafter Mrs. Whitfield made an application pursuant to rule 35 of the Federal Rules of Criminal Procedure to modify the penalty inflicted at the time of conviction of the crime. Since the appeal of the present case, the Ninth Circuit Court of Appeals has affirmed the district court's refusal to interfere with the penalty already pronounced (Whitfield v. United States, (9th Cir. 1968) 401 F.2d 480), and, this being so, the respondent herein and the real party in interest concede that the point which they heretofore raised in this respect is now moot and not to be considered. In any event, the pendency of a proceeding under rule 35 does not change the fact of conviction which was approved by the Ninth Circuit Court of Appeals. Proceedings under rule 35 of the Federal Rules of Criminal Procedure have nothing to do with the fact of conviction. Rule 35 provides as follows:

'Rule 35. Correction or Reduction of Sentence

'The court may correct an illegal sentence at any time and [270 Cal.App.2d 539] may correct a sentence imposed in an illegal manner within the time provided herein for the reduction of sentence. The court may reduce a sentence within 120 days after the sentence is imposed, or within 120 days after receipt by the court of a mandate issued upon affirmance of the judgment or dismissal of the appeal, or within 120 days after entry of any order or judgment of the Supreme Court denying review of, or having the effect of upholding, a judgment of conviction. The court may also reduce a sentence upon revocation of probation as provided by law.'

As construed by the federal courts, rule 35 pertains to the sentence only. In Hill v. United States, 368 U.S. 424, 430, 82 S.Ct. 468, 472, 7...