Larsen v. Department of Motor Vehicles, No. G013735

CourtCalifornia Court of Appeals
Writing for the CourtCROSBY; SONENSHINE
Citation24 Cal.App.4th 918,29 Cal.Rptr.2d 636
PartiesPreviously published at 24 Cal.App.4th 918, 29 Cal.App.4th 952, 34 Cal.App.4th 799, 39 Cal.App.4th 406 24 Cal.App.4th 918, 29 Cal.App.4th 952, 34 Cal.App.4th 799, 39 Cal.App.4th 406 Charles Hale LARSEN, Appellant, v. DEPARTMENT OF MOTOR VEHICLES, Respondent.
Docket NumberNo. G013735
Decision Date28 April 1994

Page 636

29 Cal.Rptr.2d 636
Previously published at 24 Cal.App.4th 918, 29 Cal.App.4th 952, 34 Cal.App.4th 799, 39 Cal.App.4th 406
24 Cal.App.4th 918, 29 Cal.App.4th 952, 34 Cal.App.4th 799,
39 Cal.App.4th 406
Charles Hale LARSEN, Appellant,
v.
DEPARTMENT OF MOTOR VEHICLES, Respondent.
No. G013735.
Court of Appeal, Fourth District, Division 3, California.
April 28, 1994.
As Modified on Denial of Rehearing
May 12, 1994. *
Review Granted July 18, 1994.

[24 Cal.App.4th 919] [29 Cal.App.4th 953] [34 Cal.App.4th 800] Michael R. McDonnell and David Joseph Macher, La Habra, for appellant.

Daniel E. Lungren, Atty. Gen., Robert L. Mukai, Chief Asst. Atty. Gen., Henry G. Ullerich, Sr. Asst. Atty. Gen., Martin H. Milas

Page 637

and Thomas Scheerer, Deputy Attys. Gen., for respondent.
OPINION

CROSBY, Associate Justice.

The question presented here affects numerous California motorists and has divided the Court of Appeal: May a citizen faced with [29 Cal.App.4th 954] [34 Cal.App.4th 801] suspension of the privilege to drive challenge the constitutionality of an out-of-state conviction via mandamus against the Department of Motor Vehicles (DMV), or are successful challenges to the conviction in a foreign forum or subsequent California prosecution the only available remedies? [24 Cal.App.4th 920] Because a matter of federal constitutional concern is involved, when there is no other California procedure available, we believe the superior court must provide a forum to resolve attacks on invalid convictions and prevent their use by the DMV.

I

Vehicle Code section 13352, subdivision (a) provides the DMV "shall immediately suspend or revoke ... the privilege of any person to operate a motor vehicle upon receipt of a duly certified abstract of the record of any court showing that the person has been convicted of a violation of Section 23152 [driving under the influence]." Subdivision (a)(1) (in combination with sections 23160 and 23161) allows for the substitution of a restricted license for certain first offenders granted probation. Subdivision (d) requires like treatment for persons convicted of similar offenses in other states. Second offenders receive harsher treatment. (Veh.Code, § 23165; cf. § 13352.5, subd. (g).)

Charles Larsen was convicted in New York of driving while impaired, and DMV suspended his license for six months accordingly. 1 He petitioned the superior court in mandamus, alleging the conviction was unconstitutional under Boykin v. Alabama (1969) 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 and In re Tahl (1969) 1 Cal.3d 122, 81 Cal.Rptr. 577, 460 P.2d 449. 2 Following one line of appellate authority, the superior court apparently denied the writ because the DMV is not authorized to assess the constitutionality of out-of-state convictions and administrative suspensions of drivers licenses are not punitive in nature.

29 Cal.App.4th 955
34 Cal.App.4th 802

II

We begin our analysis with Axness v. Superior Court (1988) 206 Cal.App.3d 1489, 255 Cal.Rptr. 896. Axness' license was suspended for [24 Cal.App.4th 921] eighteen months for a second conviction, this one in Minnesota, of driving under the influence. After he unsuccessfully sought relief in that state, the Court of Appeal held he could challenge the constitutionality of the Minnesota conviction by a proceeding in mandamus against the DMV.

As here, the DMV argued mandamus should not lie "because it has neither the duty nor the power to invalidate a judgment of conviction." 3 (Axness v. Superior Court, supra, 206 Cal.App.3d at p. 1493, 255 Cal.Rptr. 896.) The court acknowledged a line of cases supporting that conclusion with respect to California convictions (although not that

Page 638

rationale necessarily). (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.) Generally, mandamus will lie against the DMV only to prevent it from acting on a conviction 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.) In the usual case, mandamus will only lie against the rendering court. 4 (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.)

But, according to Axness, out-of-state convictions are not the usual case for the obvious reason that "mandamus against the rendering court is unavailable in California." (Axness v. Superior Court, supra, 206 Cal.App.3d at p. 1494, 255 Cal.Rptr. 896.) Pointing out that Cook v. Department of Motor Vehicles (1973) 33 Cal.App.3d 265, 268, 109 Cal.Rptr. 104 approved mandamus to enforce an out-of-state order declaring a conviction unconstitutional and that apparently no court had yet tackled the question of whether such a writ could issue when relief had been denied in the foreign form, the Court of Appeal determined, "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." (Axness, supra, 206 Cal.App.3d at pp. 1494-1495, 244 Cal.Rptr. 896.)

The court reasoned from precedent. In People v. Coffey (1967) 67 Cal.2d 204, 214-215, 60 Cal.Rptr. 457, 430 P.2d 15, the Supreme Court held that [29 Cal.App.4th 956] [34 Cal.App.4th 803] where "penal consequences" might be suffered in this state, collateral constitutional challenges to out-of-state convictions must be permitted in California courts even though those convictions may have survived attacks in the [24 Cal.App.4th 922] rendering states. And "[s]uspension of a driver's license is a 'sanction' within the meaning of this passage from People v. Coffey. (Ganyo v. Municipal Court [1978] 80 Cal.App.3d [522, 525-526, 145 Cal.Rptr. 636]; Mitchell v. Orr (1969) 268 Cal.App.2d 813, 817 [74 Cal.Rptr. 407].)" (Axness v. Superior Court, supra, 206 Cal.App.3d at p. 1495, 255 Cal.Rptr. 896.)

Axness noted that while the DMV had no duty to determine the constitutionality of foreign convictions, section 1085 of the Code of Civil Procedure provides mandamus relief "to insure the enjoyment of rights," as well as compel performance of some duty. (Axness v. Superior Court, supra, 206 Cal.App.3d at pp. 1495-1496, 255 Cal.Rptr. 896.) Also, mandamus must issue " 'where there is not a plain, speedy, and adequate remedy, in the ordinary course of law.' (Code Civ.Proc., § 1086.)" (Id. at p. 1496, 255 Cal.Rptr. 896.) The court added, "a driver who leaves California does not leave behind his federal constitutional rights. (Cf. Sterling v. Constantin (1932) 287 U.S. 378, 398 [53 S.Ct. 190, 195, 77 L.Ed. 375, 385] [there is no 'avenue of escape from the paramount authority of the Federal Constitution'].)" (Ibid.)

Axness has been questioned in subsequent decisions in dicta, but this case is the first to present a closely parallel fact pattern. In Romo v. Department [of] Motor Vehicles (1991) 229 Cal.App.3d 251, 280 Cal.Rptr. 33, the out-of-state prior preceded two California convictions. Because it was subject to various procedures to test its constitutionality in this state's courts, the Court of Appeal determined Romo was not entitled to relief via mandamus against the DMV. (Id. at p. 257, 280 Cal.Rptr. 33.) While correctly determining Axness was distinguishable, the court used unnecessarily broad language: "Holding that mandamus against the DMV is not an appropriate way to proceed does not preclude a challenge. It simply reaffirms the basic principle that a writ will not issue against a respondent who does not have the legal authority to perform the requested act." (Ibid.) This conclusion, of course,

Page 639

overlooks the underpinnings of the Axness holding, particularly its federal constitutional ground, and makes the false assumption that an "Axness order" would require the DMV to declare the out-of-state conviction unconstitutional. The court makes that declaration; the order to the DMV is merely to set aside the suspension based on the invalid prior. (Axness v. Superior Court, supra, 206 Cal.App.3d at p. 1498, 255 Cal.Rptr. 896.)

In Gaston v. Department of Motor Vehicles (1991) 230 Cal.App.3d 74, 281 Cal.Rptr. 173, another panel of the Court of Appeal, in distinguishing [29 Cal.App.4th 957] [34 Cal.App.4th 804] Axness, 5 indulged in the same false assumption concerning the Supreme Court's decision in Thomas v. Department of Motor Vehicles (1970) 3 Cal.3d [24 Cal.App.4th 923] 335, 90 Cal.Rptr. 586, 475 P.2d 858: "In Thomas ... 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." (Gaston, supra, 230 Cal.App.3d at p. 78, 281 Cal.Rptr. 173.) The Thomas opinion does say, "It is no part of the department's duty to pass on the validity of those judgments" (Thomas, supra, 3 Cal.3d at p. 338, 90 Cal.Rptr. 586, 475 P.2d 858); but that is not the reason it gives for refusing to permit a collateral attack on the convictions in a mandamus proceeding in the superior court. As we understand the opinion, the court reasoned that Thomas had an adequate remedy because "he could have sought to have the rendering court set the conviction aside at any time." (Ibid.) And this is exactly the basis for the Gaston court's result. Because defendant's second accusation of driving under the influence occurred in this state, he had an adequate remedy in that prosecution to attack his out-of-state prior. (Gaston, supra, 230 Cal.App.3d at p. 79, 281 Cal.Rptr. 173.)

Finally, Division One of this court, in another case of the Romo- Gaston variety...

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