Stephens v. Toomey, S.F. 19968

• Court: United States State Supreme Court (California)
• Writing for the Court: SHENK; GIBSON
• Citation: 51 Cal.2d 864,338 P.2d 182
• Parties: Joseph STEPHENS, Petitioner, v. Thomas A. TOOMEY, as Registrar of Voters, etc., Respondent.
• Docket Number: S.F. 19968
• Decision Date: 21 April 1959

Page 182

338 P.2d 182 51 Cal.2d 864 Joseph STEPHENS, Petitioner,
v.
Thomas A. TOOMEY, as Registrar of Voters, etc., Respondent. S.F. 19968. Supreme Court of California, In Bank. April 21, 1959.

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[51 Cal.2d 868] Kenneth C. Zwerin, San Francisco, for appellant.

Dion R. Holm, City Atty., Lawrence S. Mana, Chief Deputy City Atty., and William J. Braun, Deputy City Atty., San Francisco, for respondent.

Edmund G. Brown, Atty. Gen., Clarence A. Linn, Chief Asst. Atty. Gen., and Richard S. L. Roddis, Deputy Atty. Gen., amici curiae on behalf of respondent.

SHENK, Justice.

This is a petition for a writ of mandate to compel the registrar of voters of the City and County of San Francisco to register the petitioner as an elector. The registrar refused on the ground that he had been convicted of an infamous crime as contemplated by section 1 of article II of the Constitution of the state and was therefore ineligible to vote.

On October 6, 1954, the petitioner entered a plea of guilty to the crime of robbery, found by the court to be robbery of [51 Cal.2d 869] the first degree, a felony (penalty five years to life, Pen.Code, § 213). Judgment was pronounced against him and he was sentenced to state prison for the time prescribed by law. He applied for probation which was granted, sentence was suspended and he was placed on probation on certain conditions for the term of five years. The term has not yet expired.

With the foregoing background the petitioner seeks to enforce his right to vote while confronted with section 1 of article II of the Constitution of the State of California which reads in part: '(N)o person convicted of any infamous crime * * * shall ever exercise the privileges of an elector in this State * * *.'

The contention of the registrar is that, as provided in the foregoing constitutional provision, the petitioner is under conviction of an infamous crime and therefore ineligible to vote. It is the position of the petitioner that the sentence has been suspended under the probation laws of the state and that he is therefore entitled to exercise the right of an elector during probation.

It is first necessary to determine the meaning and application of the words 'convicted of an infamous crime' as used in the above constitutional provision in connection with other laws of the state.

A plea of guilty constitutes a conviction. People v. Williams, 27 Cal.2d 220, 228, 163 P.2d 692; People v. Goldstein, 32 Cal. 432, 433; 14 Cal.Jur.2d 493. Robbery of the first degree is punishable by imprisonment in state prison and is an infamous crime. Matter of Application of Westenberg, 167 Cal. 309, 319, 139 P. 674; 14 Cal.Jur.2d 205. The word conviction, used in this connection, must mean a final judgment of conviction. A judgment is not final if there still remains some legal means of setting it aside. There may be ways to avoid its execution, such as a general pardon, but a judgment in an ordinary criminal case, such as we have here, becomes final when all available means to

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avoid its effect have been exhausted. Certain means to that end have been made available to an accused. The traditional method was by appeal. The probation laws then intervened. Since the enactment of those laws in 1903, the offender has been brought before the court for judgment on a plea or verdict of guilty under differing and varying circumstances affecting the powers of the court and the rights of the accused. They may be classified as follows:

First: Those who are ineligible for probation. Offenders[51 Cal.2d 870] in that class are, for the most part, enumerated in section 1203 of the Penal Code. Undoubtedly they were excluded from the benefits of probation because of the character of the offenses against the social order. With this class of offenders the court has no discretion but to sentence the defendant to an appropriate institution for such punishment or treatment as is provided by law. That judgment is appealable under section 1237 of the Penal Code and the finality of the judgment must await the results of an appeal.

Second: Those who are entitled to apply for probation. In this class are the vast group of offenders against the penal laws of the state, found generally in the Penal Code. Within this group the trial court is given a wide discretion in entertaining and passing upon applications for probation. Included in this group are: (A) Those as to whom the court may, in the absence of an application for probation, pronounce judgment and sentence the defendant as provided by law. This is the judgment. It is appealable (Pen.Code, § 1237) and its finality must await the results of any appeal. (B) Those as to whom the court may pronounce judgment, sentence the defendant, suspend the execution of the sentence, and entertain an application for probation. This application may be denied or be granted on such terms as may be reasonable and for such time as may be authorized by law. The judgment entered on the plea of guilty is not appealable on the merits. The rule is correctly stated with supporting authority in 24 C.J.S. Criminal Law § 1837, pp. 683 and 684: '* * * where judgment has been entered on a plea of guilty, irregularities not going to the jurisdiction or legality of the proceedings will not be reviewed.' The judgment on the verdict is appealable under section 1237 of the Penal Code. If no appeal is taken the judgment becomes final and is effective for all purposes during probation except that incarceration is prevented by reason of the stay order and that compliance with the conditions of the order of probation be observed under the supervision of the probation officer as provided by section 1203.1 of the Penal Code. If the conditions of probation are violated the order of probation may be revoked and the commitment be issued forthwith. Pen.Code, § 1203.2. If the conditions of probation are fulfilled the plea or verdict of guilty may be changed to not...