People v. Taylor

• Decision Date: 29 February 1960
• Docket Number: Cr. 6879
• Court: California Court of Appeals Court of Appeals
• Parties: PEOPLE of the State of California, Plaintiff and Appellant, v. Dorothy Louise TAYLOR, Defendant and Respondent.

Page 186

3 Cal.Rptr. 186

178 Cal.App.2d 472

PEOPLE of the State of California, Plaintiff and Appellant, v. Dorothy Louise TAYLOR, Defendant and Respondent.

Cr. 6879.

District Court of Appeal, Second District, Division 2, California.

Feb. 29, 1960.

Stanley Mosk, Atty. Gen., William E. James, Asst. Atty. Gen., William B. McKesson, Dist. Atty. Harry Wood, Robert J. Lord, Deputy Dist. Atty., Los Angeles, for appellant.

Arthur Garrett, G. Vernon Brumbaugh, Los Angeles, for respondent.

FOX, Presiding Justice.

The People appeal from an order granting defendant's motion under Penal Code, § 995 to set aside the information.

There is no dispute as to the facts. Defendant, while being interrogated by Los Angeles Police Officers, was found to have a .38 caliber revolver in her possession, which she admitted belonged to her. The weapon was found in a jewelry box beside her bed during a search of her premises. An information was filed charging defendant with a violation of Penal Code, § 12021, which provides, inter alia: 'Any person * * * who has been convicted of a felony under the laws * * * of the State of California * * * who owns or has in his possession or under his custody or control any pistol, revolver, or other firearm capable of being concealed upon the person is guilty of a public offense * * *.' The information also charged defendant with having been previously convicted of the crime of attempted robbery, a felony.

Defendant moved to dismiss the information, pursuant to section 995 of the Penal Code. This motion was made on the ground that defendant, upon the expiration of the probationary period granted her, ¹ following her conviction for attempted robbery, had applied for relief under Penal Code, § 1203.4 and had procured the dismissal of the information and a release from all the 'penalties and disabilities' resulting from the conviction. The motion was granted and the People have appealed.

The sole question presented by this appeal is: Whether a prior felony conviction which pursuant to Penal Code, § 1203.4, has been set aside, the information dismissed and the defendant released from all penalties and disabilities, is nevertheless a prior felony within the meaning and purview of Penal Code, § 12021?

Penal Code, § 1203.4 in the pertinent portions thereof, provides: 'Every defendant who has fulfilled the conditions of his probation for the entire period thereof, or who shall have been discharged from probation prior to the termination of the period thereof, shall at any time thereafter be permitted by the court to withdraw his plea of guilty * * * or if he has been convicted after a plea of not guilty, the court shall set aside the verdict of guilty; and in either case the court shall thereupon dismiss the accusations or information against such defendant, who shall thereafter be released from all penalties and disabilities resulting from the offense or crime of which he has been convicted * * * provided, that in any subsequent prosecution of such defendant for any other offense, such prior conviction may be pleaded and proved and shall have the same effect as if probation has not been granted or the accusation or information dismissed.' (Emphasis added.) The primary problem here presented relates to the meaning of the phrase 'penalties and disabilities' as used in section 1203.4, and whether or not the prohibition of section 12021 of the Penal Code is one of those 'penalties' or 'disabilities.'

There are a number of California cases which consider the exceptions to section 1203.4 relating to release from penalties and disabilities. It has been held that release under section 1203.4 following a successful probation, does not wipe out the conviction for all purposes. It is a prior conviction as to all subsequent convictions. People v. Hainline, 219 Cal. 532, 28 P.2d 16; People v. Barwick, 7 Cal.2d 696, 62 P.2d 590. The prior conviction may be offered for impeachment purposes in a subsequent prosecution. People v. James, 40 Cal.App.2d 740, 105 P.2d 947. It is also available for consideration for the purpose of suspending a driver's license. Ellis v. Department of Motor Vehicles, 51 Cal.App.2d 753, 125 P.2d 521; Section 309, Vehicle Code ^*. Not only the prior conviction but all matters inherent in that conviction, may be pleaded and proved in a second prosecution for failure to provide for a minor child. People v. Majado, 22 Cal.App.2d 323, 70 P.2d 1015. There are several cases holding that the revocation of a professional license may not be disturbed because of the release of the defendant under section 1203.4. In re Phillips, 17 Cal.2d 55, 109 P.2d 344, 132 A.L.R. 644; Meyer v. Board of Medical Examiners, 34 Cal.2d 62, 206 P.2d 1085, 1088. In the Meyer case, the court stated: 'As the release of the 'penalties and disabilities' clause of the probation statute has been so qualified in its application, it does not appear that it was thereby intended to * * * purge him of the guilt inherent therein (cf. Sherry v. Ingels, 34 Cal.App.2d 632, 94 P.2d 77) or to 'wipe out absolutely' and for all purposes the dismissed proceeding as a relevant consideration and 'to place the defendant in the position which he would have occupied in all respects as a citizen if no accusation or information had ever been presented against him.' People v. Mackey, 58 Cal.App. 123, 130, 208 P. 135.' The rulings in the Phillips and Meyer cases stem from the Supreme Court's interpretation that section 1203.4 was not intended by the Legislature to relieve those convicted of crime from the sanctions imposed by the professional licensing statutes; in other words, that the penalties of suspension or revocation of professional licenses are independent of the conviction and are not expunged by a release under the probation section. ² The language quoted above from the Meyer case must be read in that context.

There are other California cases which have considered the question of specific penalties or disabilities which are included within the meaning of section 1203.4. In Truchon v. Toomey, 116 Cal.App.2d 736, 254 P.2d 638, 36 A.L.R.2d 1230 (hearing denied) the court held that release under section 1203.4 restored the right of a convicted felon to vote, where, as in the present case, no judgment of conviction was entered, but the defendant was placed on probation. The court distinguishes between one adjudged guilty of an offense either by verdict or by virtue of a plea of guilty but not sentenced to prison, and one both adjudged guilty and sentenced to a prison term, with sentence being suspended by way of probation. It then holds that for purposes of the California Constitution (Art. II, Sec. 1) which requires that: '* * * no person convicted of any infamous crime * * * shall ever exercise the privileges of an elector in this State * * *', the defendant must be considered as one not convicted of an infamous crime because he had not been sentenced to prison, and was thus eligible to vote. This case was expressly approved by the Supreme Court in the recent case of Stephens v. Toomey, 51 Cal.2d 864, 338 P.2d 182.

Of more direct application to the case at bar is Kelly v. Municipal Court, 160 Cal.App.2d 38, 324 P.2d 990 (hearing denied). In the Kelly case, defendant was convicted of a violation of section 288a of the Penal Code, an offense which carries with it the requirement of registration and re-registration by reason of section 290 of the Penal Code. The defendant was sentenced to the county jail, execution of sentence was suspended and defendant placed on probation. Upon the fulfillment of the period of probation, the defendant was granted release from all penalties and disabilities and the verdict was set aside, pursuant to section 1203.4. Defendant failed thereafter to register and was prosecuted for a violation of section 290 of the Penal Code. The court granted defendant's petition for a writ of prohibition, restraining the trial court from further proceedings in the matter. The court based its decision on the conclusion that the 'penalties and disabilities' from which the defendant was released by virtue of section 1203.4 were 'criminal or quasi-criminal' in nature and that the registration requirement of section 290 was one of those 'penalties' or 'disabilities.' This would seem to be a reasonable interpretation. Section 290 is designed to take effect automatically when a person is convicted of one of the offenses enumerated therein. It imposes a life-long requirement of registration and reregistration as one of the penalties or disabilities incurred by the convicted offender. It has no independent operation, but must depend for its effectiveness upon a prior conviction. It therefore cannot stand alone when the conviction is expunged from the record, for it is one of those 'penalties and disabilities' which are also expunged. Similarly, it seems clear that section 12021 of the Penal Code depends for its effectiveness upon the prior felony conviction of the defendant. Section 12021 requires, as a condition precedent, that there be a prior felony conviction, which must be pleaded and proven by the prosecution. It logically follows, that the prohibitions of 12021 are criminal sanctions imposed upon any convicted felon as an incident of his conviction and that they are thus penalties or disabilities flowing from the conviction. On the authority of the Kelly case, the action of the trial court, setting aside the information, would seem to be correct.

Moreover, the Supreme Court in People v. Banks, 53 Cal.2d 370, 1 Cal.Rptr. 669, apparently assumes that a release under section 1203.4 would relieve the probationer from any further disability under section 12021. In the Banks case, the defendant had failed to secure his release under section 1203.4 and in a subsequent prosecution for a violation of section 12021 he claimed that formal compliance with the requirements of section 1203.4 regarding release should not be...