Morris v. Department of Motor Vehicles

• Decision Date: 17 May 1991
• Docket Number: No. D011704,D011704
• Citation: 282 Cal.Rptr. 130,231 Cal.App.3d 151
• Court: California Court of Appeals Court of Appeals
• Parties: Everett W. MORRIS, Appellant, v. DEPARTMENT OF MOTOR VEHICLES, Respondent.

Page 130

282 Cal.Rptr. 130

231 Cal.App.3d 151

Everett W. MORRIS, Appellant, v. DEPARTMENT OF MOTOR VEHICLES, Respondent.

No. D011704.

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

May 17, 1991.

As Modified June 11, 1991.

[231 Cal.App.3d 152] Gerald D. Brody, San Diego, for appellant.

John K. Van de Kamp, Atty. Gen., and Melvin R. Segal, Deputy Atty. Gen., for respondent.

TODD, Associate Justice.

Everett W. Morris appeals a judgment denying his petition for a writ of mandate seeking an order commanding the State Department of Motor Vehicles (DMV) to annul its order made pursuant to Vehicle Code sections 13352, subdivision (a)(5), and 23170 ¹ revoking Morris's driver's license for three years for having had his third drunk-driving conviction within seven years. Morris's writ petition against DMV is based on the assertion that one of his prior drunk-driving convictions, a July 28, 1982, conviction in North Carolina, was invalid because the conviction was in violation of his due process and other constitutional rights.

The trial court denied the petition on the basis it was bound by the holding of Cook v. Department of Motor Vehicles (1973) 33 Cal.App.3d 265, 109 Cal.Rptr. 104, a decision of the Court of Appeal, Fourth District, Division Two, which followed the Supreme Court case of Thomas v. Department of Motor Vehicles (1970) 3 Cal.3d 335, 90 Cal.Rptr. 586, 475 P.2d 858. The holdings of Cook and Thomas are that a petition for a writ of mandate against DMV to review DMV's administrative act in performing its mandatory function of revoking the license is not a proceeding in which additional sanctions may be imposed against the petitioner by reason of a prior conviction; DMV has neither the duty nor the power to pass on the validity of a prior conviction; and mandate does not lie against DMV for the purpose of determining the validity of a prior conviction. (Cook, supra, 33 Cal.App.3d at p. 267, 109 Cal.Rptr. 104; Thomas, supra, 3 Cal.3d at p. 338, 90 Cal.Rptr. 586, 475 P.2d 858.) The trial court did not follow Axness v. Superior Court (1988) 206 Cal.App.3d 1489, 1496, 255 Cal.Rptr. 896, a decision of the Court of Appeal, First District, Division Four, holding contrary to Cook 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.

Based on the principle of stare decisis and our determination Axness misapplied binding precedent in reaching its conclusion, we affirm the judgment denying the petition for a writ of mandate.

FACTS

On September 28, 1988, under section 13352, subdivision (a)(5), DMV revoked Morris's driver's license for three years effective August 23, 1988, upon receiving notice of his 1988 conviction in California in the Municipal Court, El Cajon Judicial District, of a drunk-driving violation (under § 23152 ²) which was punishable under section 23170, prescribing the punishment for persons convicted of a drunk-driving violation and certain others who have two separate similar violations within seven years. ³ One of Morris's prior convictions, the subject of his claim it was an invalid conviction, occurred in North Carolina in 1982. The other prior conviction occurred in 1984 in California in the Municipal Court, South Bay Judicial District.

DISCUSSION

Section 13352, subdivision (a), in part requires DMV to "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...." Subdivision (a)(5) of section 13352, in conjunction with section 23170, among other things, prescribes the three-year revocation for persons with three such convictions within seven years. ⁴ Subdivision (d) of section 13352 provides in pertinent part:

"A conviction of an offense in any state ... of the United States ... which, if committed in this state, would be a violation of Section 23152, is a conviction of Section 23152 for purposes of this section.... The department shall suspend or revoke the privilege to operate a motor vehicle pursuant to this section upon receiving notice of such a conviction."

Thus, the statutes spell out DMV's duty to suspend or revoke driver's licenses in cases of this type where DMV receives abstracts of judgment showing three such convictions within a seven-year period. Thomas, supra, 3 Cal.3d 335, 338, 90 Cal.Rptr. 586, 475 P.2d 858, squarely holds,

"The department, having received abstracts of judgments showing two convictions of petitioner for drunk driving within a seven-year period, was required to suspend his driving privilege.... It is no part of the department's duty to pass on the validity of those judgments." (Emphasis added.)

In Thomas, supra, 3 Cal.3d 335, 90 Cal.Rptr. 586, 475 P.2d 858, the court applied a version of section 13352 containing mandatory language concerning DMV's duty to suspend or revoke the driver's license of persons convicted of multiple drunk-driving offenses essentially identical to the language of the section as it presently reads, and requiring a one-year suspension for two drunk-driving convictions within seven years. ⁵ After the DMV suspended the petitioner's license upon receipt of a second abstract of judgment of his conviction of drunk driving in California courts within seven years, the petitioner filed a petition for a writ of mandate against DMV to compel it to set aside the order of suspension on the ground the first conviction in 1966 was invalid because he was not represented by counsel at the time. The trial court found the first conviction was invalid and granted the petition, ordering DMV to vacate and set aside its suspension order.

The Supreme Court reversed. Thomas pointed out it was the rule that "a judgment of prior conviction, even though valid on its face, may be attacked at any time on constitutional grounds in a proceeding in which by reason of such prior conviction increased sanctions may be imposed against the person suffering it. [Citations.]" (3 Cal.3d at p. 338, 90 Cal.Rptr. 586, 475 P.2d 858, emphasis added.) The court observed the petitioner could have challenged the prior in the second drunk-driving proceeding against him since the first such conviction "served as a basis to increase the sanctions against him" in the second drunk-driving proceeding. (Ibid.) Had petitioner done so and prevailed in the second drunk driving proceeding, the invalidity of the first conviction would have been res judicata and DMV would have had no authority to issue the order of suspension. However, as noted above, Thomas held DMV was required to suspend the petitioner's driver's license upon receiving abstracts of two drunk-driving convictions within seven years and it is no part of DMV's duty to pass on the validity of those judgments.

Thomas explained the mandate proceeding it was considering "is simply a petition to review the department's administrative act in performing a mandatory function.... [I]t is not a proceeding in which additional sanctions may be imposed against petitioner by reason of his 1966 conviction. Accordingly, no basis exists for permitting a collateral attack on the 1966 judgment of conviction in this mandate proceeding against the department; ... [T]he superior court improperly granted the writ. [Citations.]" (3 Cal.3d at p. 338, 90 Cal.Rptr. 586, 475 P.2d 858, emphasis added.) The court went on to explain other remedies that were available to petitioner in the court rendering the prior judgment of conviction or in the superior court which, if successfully asserted, would result in avoidance of his license suspension by the DMV. (Id. at pp. 338-339, 90 Cal.Rptr. 586, 475 P.2d 858.)

In Cook v. Department of Motor Vehicles, supra, 33 Cal.App.3d 265, 109 Cal.Rptr. 104, the second division of this appellate district followed Thomas in a case involving a petition for writ of mandate to compel the DMV to annul its order suspending the petitioner's driver's license. The suspension in Cook was based on two out-of-state drunk-driving convictions. The Court of Appeal affirmed the trial court's dismissal of the petition pursuant to Thomas. Cook specifically held "[t]he fact that petitioner's convictions are out-of-state does not obviate the Thomas holding." (Cook v. Department of Motor Vehicles, supra, 33 Cal.App.3d 265, 267, 109 Cal.Rptr. 104.) Discussing the petitioner's due process challenge to section 13352, Cook went on to state:

"The fact of conviction in another state does not vest the Department of Motor Vehicles with jurisdiction to test the validity of conviction[s] in those other states. Nor is he denied mandamus in California against the Department of Motor Vehicles if one or both of said courts should determine that their judgment was invalid. There is no indication in Thomas that petitioner is denied the privilege of bringing mandamus in the superior court if he has complied with the apparently only prerequisite available to him, attacking the judgments in the rendering courts." (Cook, supra, 33 Cal.App.3d at p. 268, 109 Cal.Rptr. 104.)

Axness v. Superior Court, supra, 206 Cal.App.3d 1489, 255 Cal.Rptr. 896 declined to follow Cook in the situation before it and said of Thomas, "The majority opinion in Thomas, however, did not address out-of-state convictions...." (206 Cal.App.3d at p. 1493, fn. 2, 255 Cal.Rptr. 896.) Axness held relief was available in a mandate proceeding against DMV following its suspension of the petitioner's driver's license for 18 months based on two drunk-driving convictions within a five-year period, the last of which occurred out-of-state. (§§ 13352, subd. (a)(3); 13352, subd. (d); 23165.) The petitioner's last drunk-driving...