Truchon v. Toomey

• Decision Date: 18 March 1953
• Docket Number: No. 15692,15692
• Citation: 254 P.2d 638,36 A.L.R.2d 1230,116 Cal.App.2d 736
• Parties: , 36 A.L.R.2d 1230 TRUCHON v. TOOMEY.
• Court: California Court of Appeals Court of Appeals

Page 638

254 P.2d 638

116 Cal.App.2d 736, 36 A.L.R.2d 1230

TRUCHON v. TOOMEY.

No. 15692.

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

March 18, 1953.

Hearing Denied May 14, 1953.

Kenneth C. Zwerin, San Francisco, for petitioner.

Edmund G. Brown, Atty. Gen., Clarence A. Linn, Asst. Atty. Gen., Dion R. Holm, City Atty. of City and County of San Francisco, Lawrence S. Mana, Deputy City Attorney, San Francisco, for respondent.

BRAY, Justice.

Petition for writ of mandate to compel the San Francisco Registrar of Voters to register petitioner to vote.

Question Presented.

Does article II, section 1, California Constitution, disfranchise a person who, having been convicted of a felony, has successfully completed his probation, and, under the provisions of section 1203.4 of the Penal Code, has been released from all penalties and disabilities resulting from the crime of which he was convicted?

Facts.

Petitioner in 1946 pleaded guilty to violation of section 220, Penal Code (assault with intent to commit rape), a felony. He was admitted to probation conditioned upon serving 90 days in the county jail. May 14, 1951, he withdrew his plea of guilty and entered a plea of not guilty. The cause was dismissed and the record was expunged as provided in section 1203.4, Penal Code.

Was Defendant 'Convicted' within the Meaning of the Constitutional Provision?

'* * * no person convicted of any infamous crime, * * * shall ever exercise the privileges of an elector in this State * * *'. Const., art. II, § 1.

'* * * defendant * * * shall thereafter be released from all penalties and disabilities resulting from the offense or crime of which he has been convicted.' Penal Code, § 1203.4.

In Matter of Application of Westenberg, 167 Cal. 309, 139 P. 674, it was held that all felonies are infamous crimes. 'Crimes are infamous either by reason of their punishment or by reason of their nature. In the first class fall all felonies, as the punishment therefor is imprisonment in the state prison.' 167 Cal. at page 319, 139 P. at page 679. Petitioner contends that as to crimes not infamous because of their nature but deemed felonies because punishable by imprisonment in the state prison, such crimes cannot be held infamous unless actually the defendant serves time in such prison, that it is not the possibility of imprisonment that makes the crime infamous but the actuality of it. He contends that the Legislature carried this logic into section 644 of the Penal Code, the habitual criminal act. There a person cannot be declared an habitual criminal, no matter how many previous convictions he has suffered, unless he actually has been confined in a state prison the requisite number of them. We feel, however, that under article II of the Constitution a felony is an 'infamous crime' and that the determination of the matter before us turns on the meaning of the word 'convicted,' as there used.

While the Legislature has provided in section 1203.4 of the Penal Code for release from all disabilities, it there and elsewhere has provided certain exceptions. Thus, in the section itself, it is 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 had not been granted * * *.'

Section 309, Vehicle Code, provides that the termination of probation shall not affect any revocation or suspension of any license of the probationer and his prior conviction shall be considered for the purpose of suspending or revoking any license on the ground of two or more convictions.

Section 12011.5 of the Education Code provides that for the purposes of certain sections of that code, 'A plea or verdict of guilty or a finding of guilt by a court in a trial without a jury is deemed to be a conviction * * *.'

There are a number of cases in California considering the exceptions to the release from disabilities. On the effect of section 1203.4 the California cases have not been uniform. In Meyer v. Board of Medical Examiners, 34 Cal.2d 62, 206 P.2d 1085, the court in a 4 to 3 decision held that even though proceedings under section 1203.4 had been taken, there was a conviction supporting the board's suspension of the physician's license. It pointed out that it has been held that probation does not wipe out the conviction in the following respects: (1) It is a prior conviction as to subsequent convictions. People v. Hainline, 219 Cal. 532, 28 P.2d 16; People v. Barwick, 7 Cal.2d 696, 62 P.2d 590. (2) It may be offered for impeachment purposes in a subsequent prosecution. People v. James, 40 Cal.App.2d 740, 105 P.2d 947. (3) It may be considered for the purpose of suspending a driver's license. Veh.Code, § 309; Ellis v. Department of Motor Vehicles, 51 Cal.App.2d 753, 125 P.2d 521. (4) In a second prosecution for failure to provide for a minor child not only the prior conviction may be raised 'but all matters inherent in such conviction were admissible in evidence * * *.' 34 Cal.2d at page 67, 206 P.2d at page 1088. People v. Majado, 22 Cal.App.2d 323, 70 P.2d 1015.

'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 obliterate the record of conviction against a defendant and purge him of the guilt inherent therein (cf. Sherry v. Ingels, supra, 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, 138. From this standpoint, appellant's theory that the import of the probation statute and the dismissal proceeding is to expunge the record of the crime, Sherry v. Ingels, supra; People v. Mackey, supra, cannot prevail.' Meyer v. Board of Medical Examiners, supra, 34 Cal.2d 62, 67, 206 P.2d 1085, 1088.

It is admissible in evidence in a civil proceeding to show that he pleaded guilty to the offense, as an admission against interest. Vaughn v. Jonas, 31 Cal.2d 586, 191 P.2d 432.

For purposes of impeachment of a witness by proof that he was convicted of a prior crime it has been held that the witness has been 'convicted' even though his case is on appeal from that conviction, People v. Ward, 134 Cal. 301, 66 P. 372; likewise, for purposes of pleading a former conviction, People v. Clapp, 67 Cal.App.2d 197, 153 P.2d 758.

In In re Phillips, 17 Cal.2d 55, 109 P.2d 344, 132 A.L.R. 644, it was held that for purposes of disbarment an attorney was convicted even though the attorney had been released from penalties and disabilities by proceedings under section 1203.4, on the ground that the Legislature could not infringe upon the judicial power of the court to discipline its own officers. The decision in the Meyer case was based upon that of the Phillips case. In those cases the court was dealing with the question of whether the Legislature intended to relieve from the penalties and disabilities imposed, the defendant's right to practice law or medicine, and held that it did not so intend. Moreover, in Suspension of Hickman, 18 Cal.2d 71, 113 P.2d 1, not mentioned in the Meyer case, it was held that suspension of an attorney's license to practice law on conviction of attempted grand theft, a felony, must be terminated because petitioner was given probation and later the charge was dismissed under section 1203.4. It was held, 18 Cal.2d at pages 73, 74, 113 P.2d at page 2: '* * * the criminal proceedings were suspended prior to and without the imposition of judgment and sentence and no judgment of conviction was ever entered. * * * there is now no criminal proceeding pending against the petitioner * * *.'

It thus appears that in California as in New York the word 'conviction' has been used with varying meanings. ¹

The interpretation of 'convicted' in article II has never been made. However, a similar provision in the New York Constitution has. Section 2 of article 2 of the 1894 New York Constitution provided that the Legislature should 'enact laws excluding from the right of suffrage all persons convicted of bribery or any infamous crime.' The Legislature then provided that no person convicted of a felony might vote. In People v. Fabian, 192 N.Y. 443, 85 N.E. 672, 18 L.R.A.,N.S., 684 ² the New York Court of Appeals was required to construe the word 'convicted' as it appeared in the constitutional provision as it applied to Fabian who had been found guilty of burglary in the first degree, a felony, but sentence suspended. The court pointed out that under the common law witnesses who had been convicted of infamous crimes were disqualified from testifying, but were not deemed to have been thus convicted unless the record established the rendition of a judgment upon the verdict. ³ It then stated that the provision in the 1894 Constitution contemplating the disfranchisement of convicts was similar to that in both the preceding 1846 and 1822 Constitutions. Referring to the framing of the original Constitution of 1822 the court said, 192 N.Y. 443, 85 N.E. at page 674, 18 L.R.A.,N.S., at page 686: 'This disqualification of witnesses as a consequence of crime was one with which the courts at that day, and consequently the public, must have been most familiar, and it seems to me quite natural that the members of the constitutional convention should have had it in mind, and that when they spoke of 'persons convicted' they meant persons against whom a judgment of conviction had been rendered. It would hardly be reasonable to authorize the disfranchisement of a voter simply because a verdict had been found against him (upon which judgment might have been or might yet be arrested), and yet require proof that the verdict...