People v. Vasquez

• Decision Date: 05 July 2001
• Docket Number: No. S085584.,S085584.
• Court: California Supreme Court
• Parties: The PEOPLE, Plaintiff and Respondent, v. Eddie VASQUEZ, Defendant and Appellant.

108 Cal.Rptr.2d 610

25 Cal.4th 1225

25 P.3d 1090

The PEOPLE, Plaintiff and Respondent, v. Eddie VASQUEZ, Defendant and Appellant.

No. S085584.

Supreme Court of California.

July 5, 2001.

Susan S. Bauguess, under appointment by the Supreme Court, Running Springs, for Defendant and Appellant.

Bill Lockyer, Attorney General, David P. Druliner, Chief Assistant Attorney General, Carol Wendelin Pollack, Assistant Attorney General, David C. Cook, Lance E. Winters, Marc E. Turchin and Jason C. Tran, Deputy Attorneys General, for Plaintiff and Respondent.

WERDEGAR, J.

Defendant Eddie Vasquez was civilly committed to the custody of the California Department of Mental Health under the Sexually Violent Predators Act (SVPA) (Welf. & Inst.Code, § 6600 et seq.). One of the criminal convictions qualifying defendant as a sexually violent predator (id, § 6600, subd. (a)) was a Texas conviction for child sexual abuse that had been vacated, and charges dismissed, under a Texas probation statute similar to California Penal Code section 1203.4. The Court of Appeal held the vacated conviction could not be relied upon in an SVPA proceeding. We conclude the Court of Appeal erred in this regard.

Background

The Los Angeles County District Attorney petitioned for defendant's commitment under the SVPA, alleging, inter alia, that defendant had been convicted in 1980 of violating Texas Penal Code former section 21.10, sexual abuse of a child. The prosecutor alleged that the Texas case, together with a 1983 conviction for violation of California Penal Code section 288, subdivision (a), demonstrated convictions for sexually violent offenses within the meaning of Welfare and Institutions Code section 6600, a finding required for defendant to be found a sexually violent predator within the meaning of section 6600, subdivision (a). (See Hubbart v. Superior Court (1999) 19 Cal.4th 1138, 1144-1145, 81 Cal.Rptr.2d 492, 969 P.2d 584.)

The record shows that defendant received a probationary sentence of five years for his 1980 Texas conviction. In 1986, however, the Texas prosecutor, citing defendant's subsequent conviction and 13year state prison sentence in California, moved the District Court of Bell County, Texas, to terminate probation and vacate the conviction, on the grounds that "justice will no longer be served by retaining the Defendant on the roles [sic] of the Adult Probation Office of Bell County, Texas." The Texas court granted the motion to dismiss probation, ordering that defendant's conviction be "set aside, the probation terminated, a new trial granted, and the indictment dismissed."

In this SVPA proceeding, the superior court overruled defendant's objection to use of the vacated Texas conviction, allowing the prosecutor to present evidence of that conviction to the jury. The jury found defendant was a sexually violent predator; the court thereupon sustained the petition and ordered defendant committed to the Department of Mental Health for two years.

The Court of Appeal reversed, holding that the absence in the SVPA of express language concerning vacated convictions mandated a conclusion that convictions dismissed under California Penal Code section 1203.4, or under an analogous foreign statute, could not be used as qualifying prior convictions.

We granted the People's petition for review.

DISCUSSION

Article 42.12 of the Texas Code of Criminal Procedure provides that after a defendant has satisfactorily served a specified portion of a term of supervised release, the trial court may shorten and end the term and discharge the defendant. Under this procedure, the court "may set aside the verdict or permit the defendant to withdraw his plea, and shall dismiss" the accusatory pleading. (Tex.Code Crim. Proc., art. 42.12, § 20, subd. (a) (hereafter article 42.12(20)).) The defendant "shall thereafter be released from all penalties and disabilities resulting from the offense or crime of which he has been convicted," except that the conviction shall be "made known to the judge" if the defendant is later convicted of another criminal offense, and the state may consider the conviction in issuing, denying, renewing or revoking child care facility licenses. (Id., subd. (a)(1).)

A closely analogous California provision, Penal Code section 1203.4, subdivision (a), similarly allows for probationers to have their convictions set aside and the accusations against them dismissed, and similarly provides that, with specified exceptions, such a defendant "shall thereafter be released from all penalties and disabilities resulting from the offense of which he or she has been convicted."

The SVPA provides that a person may be deemed a "sexually violent predator" if the person "has been convicted" of specified offenses against two or more victims and has a "diagnosed mental disorder" making him or her a danger to others in that he or she is likely to engage in sexually violent behavior. (Welf. & Inst. Code, § 6600, subd. (a).)

The question presented is whether a person "has been convicted" of an offense for purposes of Welfare and Institutions Code section 6600, subdivision (a), where the conviction has been set aside under article 42.12(20). That issue can be further analyzed into two questions: first, what change in status and effect does the Texas vacation procedure have on a conviction (a question of Texas law); and, second, does a conviction upon which that change has been worked qualify as a conviction under the SVPA (a question of California law). California Penal Code section 1203.4, and the case law interpreting it, are relevant only indirectly, in that they may be persuasive as to the meaning and effect of section 1203.4's Texas counterpart, article 42.12(20). (See Ops.Tex. Atty.Gen., No. MW-148 (Mar. 17, 1980) pp. 2-3 [relying on California decisions for interpretation of art. 42.12]; see also Comment, Expungement in California: Legislative Neglect and Judicial Abuse of the Statutory Mitigation of Felony Convictions (1977) 12 U.S.F. L.Rev. 155, 161 [Pen.Code, § 1203.4 is "the oldest and most litigated statute of its kind in the United States"].)

Looking first at Texas law, we observe that an order made under article 42.12(20) does not expunge from the record, or otherwise erase or render legally nonexistent, the probationer's criminal conviction. By the terms of article 42.12(20) itself, the conviction may be made known to the judge in future criminal proceedings and may be used in child care facility licensing. Texas courts, moreover, have held that a conviction set aside under article 42.12(20) may be used to deny an application for a concealed handgun license (Tune v. Texas Dept. of Public Safety (Tex.2000) 23 S.W.3d 358, 362-364) and as a disqualification from jury service (R.R.E. v. Glenn (Tex.App. 1994) 884 S.W.2d 189, 192-193).¹ Similarly, the Texas Attorney General has opined that a former probationer whose conviction has been set aside under article 42.12(20) is barred from employment as a peace officer (Ops.Tex.Atty.Gen., No. MW-148, supra) and cannot truthfully state on an application for employment that he or she has never been convicted of a felony (Ops. Tex.Atty.Gen., No. M-640 (May 22, 1970)).

That a conviction has been set aside and charges dismissed under article 42.12(20), then, does not negate the existence of the conviction as a legally cognizable fact. "[S]ection 7² makes clear that its effect is merely to restore the civil rights of a convicted defendant, rather than to remove all evidence of the conviction.... [W]e do not believe that a convicted defendant's release from all penalties and disabilities under section 7 means that he no longer has a `final conviction.'" (Ops.Tex.Atty. Gen., No. MW-148, supra, p. 2.)

In this regard, Texas law is in accord with that of California. "[Penal Code] section 1203.4 does not, properly speaking, 'expunge' the prior conviction. The statute does not purport to render the conviction a legal nullity. Instead, it provides that, except as elsewhere stated, the defendant is `released from all penalties and disabilities resulting from the offense.' The limitations on this relief are numerous and substantial...." (People v. Frawley (2000) 82 Cal.App.4th 784, 791, 98 Cal. Rptr.2d 555.) Thus, in holding that disbarment of an attorney could be based on a conviction set aside under Penal Code section 1203.4, we explained that "action in mitigation of the defendant's punishment should not affect the fact that his guilt has been finally determined according to law." (In re Phillips (1941) 17 Cal.2d 55, 61, 109 P.2d 344.) "That final judgment of conviction is a fact; and its effect cannot be nullified for the purpose here involved, either by the order of probation or by the later order dismissing the action after judgment." (Ibid.)

California decisions have established that the "penalties and disabilities" resulting from conviction, from which a probationer may be released pursuant to Penal Code section 1203.4, do not include nonpenal restrictions or qualifications imposed for public protection, such as licensing of attorneys (In re Phillips, supra, 17 Cal.2d at pp. 59-61, 109 P.2d 344), physicians (Meyer v. Board of Medical Examiners (1949) 34 Cal.2d 62, 64-7, 206 P.2d 1085), and vendors of alcoholic beverages (Copeland v. Dept. of Alcoholic Bev. Control (1966) 241 Cal.App.2d 186, 188, 50 Cal. Rptr. 452); qualification for employment as a peace officer (Adams v. County of Sacramento (1991) 235 Cal.App.3d 872, 877-881, 1 Cal.Rptr.2d 138); and the regulation of participants in parimutuel wagering (Epstein v. California Horse Racing Board (1963) 222 Cal.App.2d 831, 836-841, 35 Cal.Rptr. 642).

Our courts have drawn a distinction between penalties imposed on a felon as further punishment for the crime, as to which vacation under Penal Code section 1203.4 generally affords relief, and nonpenal restrictions adopted for protection of public safety and welfare. "As used in section...