Vary v. Forrest

• Decision Date: 10 June 1988
• Docket Number: No. D005374,D005374
• Citation: 247 Cal.Rptr. 873,201 Cal.App.3d 1506
• Court: California Court of Appeals Court of Appeals
• Parties: Charles Jay VARY, Plaintiff and Respondent, v. Lloyd H. FORREST, Jr., Director, Department of Motor Vehicles, Defendant and Appellant.

Page 873

247 Cal.Rptr. 873

201 Cal.App.3d 1506

Charles Jay VARY, Plaintiff and Respondent, v. Lloyd H. FORREST, Jr., Director, Department of Motor Vehicles, Defendant and Appellant.

No. D005374.

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

June 10, 1988.

As Modified June 15, 1988.

John K. Van de Kamp, Atty. Gen., N. Eugene Hill, Asst. Atty. Gen., Melvin R. Segal and Beth Lori Faber, Deputy Attys. Gen., for defendant and appellant

No appearance for plaintiff and respondent.

BENKE, Associate Justice.

The Department of Motor Vehicles (Department) appeals the issuance of a writ of mandate ordering the reinstatement, after revocation pursuant to VEHICLE CODE SECTION 13352¹, subdivision (a)(5), of the driving privileges of Charles Vary. The Department contends the issuance of the writ was barred by the statute of limitations, the petition was not properly verified and the trial court erred in deciding that the Department was collaterally estopped from asserting the propriety of the revocation. No brief has been filed by Vary. We nonetheless address the issues. We conclude the trial court was incorrect in ruling that the Department was barred by the doctrine of collateral estoppel from arguing the lawfulness of the license revocation. We further conclude the license was properly revoked by the Department. Because we reverse the decision below, we take no position on the additional issues raised.

I PROCEDURAL HISTORY

Within a five-year period, Vary suffered three convictions for driving under the influence of alcohol. The first violation, charged under former Vehicle Code section 23102, subdivision (a) (now § 23152, subd. (a)), occurred on December 22, 1980, and resulted in conviction on February 6, 1981. The later violations, charged under Vehicle Code section 23152, subdivision (a), occurred on December 12, 1982, and March 14, 1983, and resulted in convictions based on pleas of guilty entered April 11, 1984. Vary was granted probation as to the 1982 and 1983 violations. One condition of probation was the suspension of his driver's license for three years.

On June 6, 1984, the Department revoked Vary's driver's license for a period of three years pursuant to Vehicle Code section 13352, subdivision (a)(5). ²

In August 1985 Vary filed a motion for modification of sentence in the municipal court. Essentially he argued that at the time of his sentencing in 1984, the wording of the various Vehicle Code sections dealing with punishment for multiple convictions of driving under the influence required he be sentenced under section 23165 which governs defendants with one prior conviction rather than under section 23170 which governs defendants with two prior convictions. ³ Vary argued while he had clearly been convicted of three separate incidents of driving under the influence, since the last two were based on concurrent pleas, both convictions occurred when he had only one prior conviction for driving under the influence. This, Vary argued, meant that the three-year suspension of his license, stated as a condition of probation, should be reduced to a period of twelve months. Vary was not unmindful his license had independently been revoked by the Department but believed if sentence were modified, the Department would be required to conform to that change by modifying its revocation order.

The Department was not served with Vary's motion and did not appear at the hearing on the motion. Because the motion was to modify sentence, the district attorney was served and opposed the motion.

In response to the motion, the municipal court made the following order:

"The motion to modify the sentence in B82961 and B86647 is granted. The defendant[']s license to drive is suspended for one year in each case from the date of April 11, 1983.

"Therefore, as far as this court is concerned, his license is now no longer suspended on either of the above cases"

On January 30, 1986, Vary filed a petition for writ of mandate directing the Department to set aside its order revoking his drivers license. Vary essentially repeated the claim he had made in the municipal court with regard to the motion for modification of sentence. Vary again noted that at the time of his second and third violations, Vehicle Code section 23170 set out the punishment for an offender who was convicted of a violation of section 23152 and the offense occurred within five years of two prior offenses which resulted in convictions for violations of Section 23152. Since his second two convictions were based on simultaneous pleas, he did not have--at the time of those convictions--two prior convictions for violations of section 23152. Vary noted that section 13352, subdivision (a)(5), requiring the Department to revoke his license for a period of three years was tied to whether he was punishable under section 23170. Since Vary claimed he could not be punished under section 23170, the Department had no basis to revoke his license for a period of three years. Vary claimed his license should be dealt with under the less onerous provisions of sections 23165 and 13352, subdivision (a)(3).

The Department responded by claiming the petition was not properly verified and At the hearing on the petition the trial court indicated its belief the Department's refusal to withdraw the three-year revocation of Vary's license, in light of the municipal court's modification of sentence in the criminal cases, was harmful to the integrity of the judicial system. It concluded the Department was collaterally estopped from raising the issue of the appropriate sentencing scheme because the issue had been addressed in the municipal court. The court further concluded the Department was in privity with the district attorney. The superior court thus concluded the ruling of the municipal court was binding on the Department to the extent it was required to withdraw the three-year revocation of Vary's license.

was also barred by the statute of limitations. In addition the Department argued its revocation of Vary's license was based on the fact he had been convicted of three violations of section 23152 within five years, and not on the fact he had been sentenced in a criminal case under section 23170.

II DISCUSSION

The Department raises several issues concerning the propriety of the order issuing the writ. It is necessary, however, to deal only with the question of whether the Department was collaterally estopped from asserting arguments concerning its independent power to revoke Vary's license in light of his three convictions.

The doctrine of collateral estoppel and the requirements for its application can be easily stated. A judgment in a previous action between the same parties or those in privity with them operates in a later action as a conclusive adjudication as to issues actually and necessarily decided in the first action. (Rohrbasser v. Lederer (1986) 179 Cal.App.3d 290, 297, 224 Cal.Rptr. 791.) In order for the doctrine to apply, the issue in the second action must be identical to the issue adjudicated in the first. (In re Marriage of Modnick (1983) 33 Cal.3d 897, 904, fn. 6, 191 Cal.Rptr. 629, 663 P.2d 187.)

In the present case the issue of whether the Department was in privity with the district attorney such that issues decided at the hearing on the motion for modification of sentence would collaterally estop reconsideration of those issues in the action on the writ is one about which courts disagree. (Compare Lofthouse v. Department of Motor Vehicles (1981) 124 Cal.App.3d 730, 736-738, 177 Cal.Rptr. 601 [no privity]; Shackelton v. Department of Motor Vehicles (1975) 46 Cal.App.3d 327, 331, 119 Cal.Rptr. 921 [privity]; Buttimer v. Alexis (1983) 146 Cal.App.3d 754, 758-761, 194 Cal.Rptr. 603 [privity]; see also People v. Sims (1982) 32 Cal.3d 468, 486-489, 186 Cal.Rptr. 77, 651 P.2d 321.) It is unnecessary in this case to confront this division, however, since the trial court erred in concluding the municipal court had resolved, in the hearing on the motion for modification of sentence, an issue relevant to the Department's revocation of Vary's license.

The sole question before the municipal court was whether the proper sentencing section was used in Vary's criminal cases. The issue before the municipal court did not involve striking or otherwise eliminating a conviction. The municipal court determined only the manner in which Vary would be sentenced. Following the municipal court action, Vary still stood convicted of three separate violations. As we will explain, the ruling of the municipal court was irrelevant, substantively and procedurally, to the question of the Department's independent and legislatively mandated duty pursuant to section 13352, subdivision (a)(5), to revoke Vary's license for three years based on the existence of the three convictions.

While not raising the precise issue before us, the Supreme Court's decision in Pollack v. Department of Motor Vehicles (1985) 38 Cal.3d 367, 211 Cal.Rptr. 748, 696 P.2d 141, is instructive. In Pollack the court noted it was once again called upon to interpret poorly written legislation, specifically certain language in section 13352, subdivision (a)(3), as amended in 1981, involving the Department's power to suspend Pollack's driver's license. Pollack claimed that as amended the section required his prior convictions be pled and proved in the criminal case before they could be used by the Department to suspend his license. The Department responded it was required under section 13352, subdivision (a)(3), to suspend a license after a second conviction whether or not the prior conviction was pled and proved at the second trial. (Id. at pp. 371-372, 211 Cal.Rptr. 748, 696 P.2d 141.)

The court noted that the statutory provisions prohibiting driving while under the influence and the criminal sentencing scheme for violation of those sections is contained in division 11 (Rules of the Road), chapter 12 ...