De La Vigne v. Department of Motor Vehicles

• Citation: 77 Cal.Rptr. 675,272 Cal.App.2d 820
• Court: California Court of Appeals
• Decision Date: 13 May 1969
• Parties: Beatrice Harvey DE LA VIGNE, Plaintiff and Respondent, v. DEPARTMENT OF MOTOR VEHICLES of the State of California, Defendant and Appellant. Civ. 33273.

Page 675

77 Cal.Rptr. 675

272 Cal.App.2d 820

Beatrice Harvey DE LA VIGNE, Plaintiff and Respondent, v. DEPARTMENT OF MOTOR VEHICLES of the State of California, Defendant and Appellant.

Civ. 33273.

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

May 13, 1969.

Thomas C. Lynch, Atty. Gen., and Marvin A. Bauer, Deputy Atty. Gen., for defendant and appellant.

Floyd H. King, Long Beach, for plaintiff and respondent.

FOURT, Acting Presiding Justice.

This is an appeal from a judgment which in effect vacated and set aside an order of suspension of petitioner's driving license.

A resume of some of the background and facts in the matter is as follows: in July of 1962 respondent herein was charged with drunk driving (§ 23102, Veh. Code) in the Municipal Court of Los Angeles Judicial District. She pleaded guilty and was sentenced to pay a fine of $250.00 or suffer certain alternatives. Respondent was not represented by an attorney in that proceeding. The minutes of the court recite among other things that respondent was 'duly arraigned, informed of the charge against him (sic) and of his (sic) legal rights.' Nothing appears in the record with reference as to whether respondent waived any of her rights, such as a right to be represented by an attorney, or to have a jury trial, or to have witnesses brought to court or to a reasonable continuance or otherwise. The court recommended that 'there be no license suspension' and apparently her license to operate a motor vehicle was not suspended by the appellant herein. An abstract of the judgment however was received by appellant.

In July of 1967 respondent was again arrested for drunk driving (§ 23102, Veh. code) in the Long Beach area. A complaint was filed in the Municipal Court of Long Beach Judicial District charging respondent with drunk driving. Respondent on this occasion was represented by an attorney and on September 7, 1967, when the case came on for hearing it was 'Stipulated that Defendant did not waive right to Attorney at prior conviction' and upon motion of the defendant and with no objection apparently upon the part of the prosecutor the prior conviction was 'ordered stricken.' Defendant then pleaded guilty and was fined as a first offender. It was recommended that there be no license suspension by the Department of Motor Vehicles. An abstract of the judgment was received by appellant.

On October 5, 1967, the appellant directed to respondent a copy of an order of suspension of all her driving privileges (for one year) because of her two convictions of driving while under the influence of intoxicating liquor within a period of seven years and directed her to surrender her driver's license to the department. On December 8, 1967, respondent filed her petition for a writ of mandate attached to which were certain points and authorities, a certified copy of the order of suspension, a certified copy of the court's minutes (docket sheet) of the 1962 case and a certified copy of the court's minutes (docket sheet) of the 1967 case. The petitioner alleged among other things that the writ was sought to order the Department to reinstate the driver's license, that the Department acted in excess of its jurisdiction under the circumstances in that in the 1962 cause petitioner 'was not then represented by an attorney and did not waive her right to an attorney,' that she was arrested and charged in the 1962 case with drunk driving and a certified copy of a transcript of the court's docket was attached and that 'at no time during any of the proceedings * * * did petitioner waive her right to the aid and assistance of or right to counsel.' There then followed an allegation with reference to the second drunk driving charge and asserting that 'the People of the State of California and petitioner stipulated that petitioner did not waive her right to counsel at the prior conviction and said allegations concerning said prior were stricken from the criminal complaint and petitioner then withdrew her plea of not guilty' and pleaded guilty and that a certified copy of the transcript of the court's docket was attached. The petition sets forth allegations with reference to the suspension order and declares that 'petitioner has exhausted the available administrative remedies and has no plain, speedy or adequate remedy in the ordinary course of law in that the law provides no other method of compelling proper action of respondent (Department of Motor Vehicles) other than petitioning for a writ of this court.' The Department answered and upon information and belief denied that part of the petition which alleged that petitioner had not waived her rights to an attorney and also upon the same basis denied that there was a stipulation as above indicated in the second cause of 1967 and that the prior was stricken. All other allegations of the petition were admitted by the Department.

After a hearing on the petition the judge found in effect that all of the allegations of the petition were true, that the 1962 cause was invalid and void in that it did not appear from the docket or otherwise that petitioner had waived her rights to the aid and assistance of counsel in that proceeding and concluded therefrom that the should be granted; judgment was entered accordingly. A timely notice of appeal was filed by the Department.

Appellant now asserts that it was error to apply criminal law standards to this, a civil administrative proceeding, and that it was error to vacate the order of suspension without a prior direct judicial nullification of respondent's first conviction. We are persuaded that there is no merit to the contentions.

The Supreme Court in Burgett v. State of Texas, 389 U.S. 109, 88 S.Ct. 258, 19 L.Ed.2d 319 (1967) decided that where certified records of a former conviction did not show that defendant was represented by counsel or that he waived counsel, the records on their face raised a presumption that defendant was denied his right to counsel in violation of the Sixth Amendment and therefore the former conviction should have been deemed void in the subsequent prosecution. The court said, in part at page 261: 'Gideon v. Wainwright (372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799) established the rule that the right to counsel guaranteed by the Sixth Amendment was applicable to the States by virtue of the Fourteenth, making it unconstitutional to try a person for a felony in a state court unless he had a lawyer or had validly waived one. And that ruling was not limited to prospective applications. See Doughty v. Maxwell, 376 U.S. 202, 84 S.Ct. 702, 11 L.Ed.2d 650; Pickelsimer v. Wainwright, 375 U.S. 2, 84 S.Ct. 80, 11 L.Ed.2d 41. In this case the certified records of the Tennessee conviction on their face raise a presumption that petitioner was denied his right to counsel in the Tennessee proceeding, and therefore that his conviction was void. Presuming waiver of counsel, from a silent record is impermissible. Carnley v. Cochran, 369 U.S. 506, 82 S.Ct. 884, 8 L.Ed.2d 70. To permit a conviction obtained in violation of Gideon v. Wainwright to be used against a person either to support guilt or enhance punishment for another offense (see Greer v. Beto, 384 U.S. 269, 86...