Williams v. Department of Motor Vehicles

• Decision Date: 22 December 1969
• Citation: 2 Cal.App.3d 949,83 Cal.Rptr. 76
• Court: California Court of Appeals Court of Appeals
• Parties: Herbert Kyle WILLIAMS, Plaintiff and Respondent, v. DEPARTMENT OF MOTOR VEHICLES of the State of California, Defendant and Appellant. Civ. 33380.

Page 76

83 Cal.Rptr. 76

2 Cal.App.3d 949

Herbert Kyle WILLIAMS, Plaintiff and Respondent, v. DEPARTMENT OF MOTOR VEHICLES of the State of California, Defendant and Appellant.

Civ. 33380.

Court of Appeal, Second District, Division 5, California.

Dec. 22, 1969.

David Holtz, El Monte, for plaintiff and respondent.

Thomas C. Lynch, Atty. Gen., Bruce William Dodds, Deputy Atty. Gen., for defendant and appellant.

STEPHENS, Acting Presiding Justice.

The preliminary facts giving rise to the petition for writ of mandate, the issuance of which is the subject of this appeal are not in dispute.

On or about December 31, 1963, Herbert Williams (hereinafter Williams) was convicted of violating Vehicle Code section 23102(a) (driving a motor vehicle while under the influence of intoxicating liquor) in the Municipal Court of the Pasadena Judicial District, County of Los Angeles, following his plea of guilty at the time of the arraignment. The court recommended no suspension of Williams' driver's license. The abstract of Williams' judgment of conviction states that he was duly arraigned, the complaint was read to him, and he was informed of his constitutional and legal rights. The abstract does not specifically state that Williams was represented by counsel or that he knowingly and intelligently waived his right to counsel.

On October 2, 1967, in the Municipal Court of the Santa Anita Judicial District, County of Los Angeles, after his plea of guilty, Williams was again convicted of a violation of Vehicle Code section 23102(a). At that time he was duly advised of his constitutional and legal rights, and he was represented by counsel. At the time of his plea of guilty, the prosecution made a motion to strike the allegation of a prior conviction. This was granted, and the court did not recommend a suspension of defendant's driver's license.

Williams is the possessor of a valid California Motor Vehicle operator's license number B1094355, issued on October 20, 1965, and expiring October 21, 1970. On November 22, 1967, the Division of Driver's Licenses, Department of Motor Vehicles, State of California, suspended that driving license for one year, effective October 2, 1967, and ordered Williams to surrender it to the department pursuant to Vehicle Code section 13352(c) because he had been twice convicted of driving while under the influence of intoxicating liquor.

On or about December 19, 1967, Williams filed a petition for writ of mandate in the Los Angeles Superior Court to command the Department of Motor Vehicles of the State of California (hereinafter referred to as 'Department') to set aside and revoke its order of suspension of his license to operate a motor vehicle. The court issued an alternative writ of mandate to the Department, returnable on January 5, 1968. The Department filed a return by way of answer to the petition for writ of mandate on December 29, 1967. Williams requested that the hearing on the writ be continued to January 10, 1968.

On January 10, 1968, a hearing was held on the petition for writ of mandate. The verified pleadings and declarations were received in evidence. It was stipulated by the respective counsel that if Williams were called as a witness, he would testify that he was not represented by counsel at the time of his first conviction for driving while under the influence of intoxicating liquor.

The petition for the peremptory writ was granted, and findings and judgment were ordered prepared by Williams' counsel.

The Department filed objections to the Findings of Fact and Conclusions of Law. A hearing was held on the Department's objections, and Amended Findings and Judgment were ordered, prepared and signed.

Judgment granting the writ was entered on March 11, 1968. Notice of Appeal was filed on March 28, 1968.

The Department contends that Williams failed to state a cause of action for writ of mandate under section 1085 of the Code of Civil Procedure in that: (a) the Department acted under a mandatory duty; (b) the suspension of Williams' driving privilege is not penal in nature; and (c) Williams may not collaterally attack his 1963 judgment of conviction.

We treat the contentions collectively. The Department argues that Williams should have either brought an action in habeas corpus, where in a full evidentiary hearing the validity of his 1963 conviction could be litigated, or a writ of error Coram nobis directed to the municipal court, or a writ of mandamus in the superior court directed against the municipal court.

While habeas corpus would be available to challenge the validity of the 1963 conviction if Williams were still in custody (In re Woods, 64 Cal.2d 3, 48 Cal.Rptr. 689, 409 P.2d 913; In re Luce, 64 Cal.2d 11, 48 Cal.Rptr. 694, 409 P.2d 918), since he was neither actually nor constructively restrained, such writ would be inappropriate. (In re Smiley, 66 Cal.2d 606, 612, 58 Cal.Rptr. 579, 427 P.2d 179). A writ of error Coram nobis also appears to be inappropriate for it is properly used when a petitioner has been denied a fair trial on the merits through fraud, coercion, or mistake. (People v. Gatewood, 182 Cal.App.2d 724, 6 Cal.Rptr. 447.) These observations are not determinative of the issue, however, for we hold that the proper remedy was a writ of mandate to the municipal court to vacate the challenged judgment, not a writ of mandate commanding the Department to set aside and revoke its order of suspension. ALTERNATIVELY, AS IN DE LA VIGNE V. DEPT. OF MOTOR VEHICLES, 272 CAL.APP.2D ---, 77 CAL.RPTR. 675,^* the issue as to legality of the charged prior could have been determined by the trial court, and a finding thereon made. 'In De La Vigne, at the trial of the second prosecution for violation of section 23102 of the Vehicle Code in the municipal court, it was '(s)tipulated 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.' The defendant then pleaded guilty and was fined as a first offender. Under such circumstances there was a determination in the second prosecution of the invalidity of the earlier conviction of violation of section 23102 of the Vehicle Code. This effect was recognized in the opinion in De La Vigne in the following statement ^e 272 Cal.App.2d at page ---, 77 Cal.Rptr. at page 678): ¹ 'Had the prosecutor been dissatisfied with the determination made by the judge in the 1967 cause with reference to the alleged prior conviction he could have taken steps which were available to him at that time to correct any error in determination if such there was. At the very least the prosecutor did not need to stipulate, as he did, that defendant had not waived her constitutional rights in the 1962 cause and...