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Court of Appeal, Second District, Division 3, California.

Jerome HASSON, Plaintiff and Respondent, v. Verne ORR, Director of the Department of Motor Vehicles of the State of California, Defendant and Appellant.

Civ. 33622.

Decided: August 28, 1969

Thomas C. Lynch, Atty. Gen., and Edmond B. Mamer, Deputy Atty. Gen., for defendant and appellant. Minsky, Garber & Rudof and J. M. Groshan, Los Angeles, for plaintiff and respondent.

For Opinion on Hearing, see 83 Cal.Rptr. 161, 463 P.2d 385.

This is an appeal by the Director of the Department of Motor Vehicles from a judgment that a peremptory writ of mandate issue commanding the Director to immediately vacate and set aside an order of January 12, 1968, suspending the driver's license and privilege of the petitioner Hasson to operate a motor vehicle.

Paragraph IV of the findings of fact is as follows:  “That the said conviction of violation of Section 23102 of the Vehicle Code 1 of May 3, 1965 relied upon by respondents in ordering the suspension of petitioner's privilege to operate a motor vehicle upon the highways of the State of California is not valid in that petitioner was not represented by counsel and was not advised or did he intelligently waive his Constitutional rights to counsel.   At the time of sentence of the conviction of violation of Vehicle Code Sec. 23102 entered November 15, 1967 the Court recommended against suspension of Petitioner's operator's license.”   Paragraph I of the conclusions of law is as follows:  “That respondents acted without right in suspending petitioner's license under Section 13352c of the Vehicle Code 2 in that petitioner had not suffered two valid convictions of violation of Section 23102a of the Vehicle Code within a seven year period.”

Prior to the hearing of the petition for writ of mandate in the superior court, the petitioner Hasson sought to vacate and set aside each conviction by a motion in the municipal court in which the particular conviction had occurred.   The ground of each motion was that he had been denied his constitutional right to counsel and that he had not expressly waived that right.  (See In re Johnson, 62 Cal.2d 325, 333–336, 42 Cal.Rptr. 228, 398 P.2d 420.)

Some guidance as to the propriety of having such a determination made by the court in which the conviction occurred is found in the reasoning of In re Woods, 64 Cal.2d 3, 48 Cal.Rptr. 689, 409 P.2d 913, wherein the petitioner collaterally attacked prior convictions on the ground that he neither was advised of his right to, nor was provided with, nor expressly waived, the services of counsel before his entry of a guilty plea as to each.   In Woods the Supreme Court stated (64 Cal.2d at page 11, 48 Cal.Rptr. at page 694, 409 P.2d at page 918):  “The fact issue is thus joined, and we therefore find in accordance with the principles above discussed that a hearing should be had in order to determine whether petitioner, by entering a plea of guilty in each of the proceedings at issue after having been advised of his right to counsel in each instance, thereby intelligently and understandingly waived that right relative to either or both of those proceedings.   Since the determination of these questions might affect petitioner's present status as an habitual criminal, we return the cause for such hearing to the court wherein judgment establishing that status was rendered.” 3

In Mitchell v. Orr, 268 Cal.App.2d—,a 74 Cal.Rptr. 407, the sole question presented was whether the municipal court's determination of the invalidity of the respondent's alleged prior conviction was binding upon the Department of Motor Vehicles with respect to the matter of suspending his driving privileges.   The superior court granted a writ of mandate commanding the Director to desist from suspending the license.   In holding that the determination of the municipal court was binding on the Director the court stated (268 Cal.App.2d at pages ––, 74 Cal.Rptr. at 410: b “The Director also attacks the merits of the determination of the unconstitutionality of the Florida conviction by the Palo Alto-Mountain View Municipal Court, but the judgment may not be collaterally attacked;  there having been no appeal from it, it has become final.  * * * It is concluded that respondent had the right to have the constitutionality of his prior convictions determined by a court of law.   The municipal court made this determination and its judgment, not having been appealed or otherwise directly attacked, has become final.   The prior conviction having been adjudged invalid, the municipal court was empowered under Vehicle Code section 13210 to order the Department of Motor Vehicles not to suspend respondent's license in this first valid conviction for the offense of driving while under the influence of intoxicating liquor.   The writ of mandate was properly issued and the judgment is therefore affirmed.”

In the case presently before this court, in neither instance did the petitioner Hasson appeal from the order of the municipal court denying his motion to vacate and set aside the conviction.   Nor did he, upon such denial, seek the issuance of a writ of mandate to compel the municipal court to set aside his plea entered to the charge of driving while under the influence of intoxicating liquor.  (Cf. Blake v. Municipal Court, 242 Cal.App.2d 731, 51 Cal.Rptr. 771.)   Consequently, the determination embodied in each order was final and binding on the superior court in the present case under the doctrine of res judicata.  (See Teitelbaum Furs, Inc. v. Dominion Ins. Co., Ltd., 58 Cal.2d 601, 607, 25 Cal.Rptr. 559, 375 P.2d 439;  cf. Mitchell v. Orr, supra, 268 Cal.App.2d—,c 74 Cal.Rptr. 407.)

In reaching the conclusion hereinabove expressed, this court has not overlooked the reasoning of the recent case of De La Vigne v. Dept. of Motor Vehicles, 272 Cal.App.2d— d, 77 Cal.Rptr. 675.   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 violation of section 23102 of the Vehicle Code.   This effect was recognized in the opinion in De La Vigne in the following statement (272 Cal.App.2d at page –– e, 77 Cal.Rptr. at page 678):  “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 thereby that judgment was in effect void.”   Consequently, the reasoning in the case presently before this court, as hereinabove set forth, is not inconsistent with that of De La Vigne.

The judgment is reversed.


1.   Section 23102 of the Vehicle Code is in part as follows:  “(a) It is unlawful for any person who is under the influence of intoxicating liquor * * * to drive a vehicle upon any highway.”

2.   Section 13352 of the Vehicle Code is in pertinent part as follows:  “The department shall immediately suspend or revoke the privilege of any person to operate a motor vehicle upon receipt of a duly certified abstract of the record of any court showing that the person has been convicted of driving a motor vehicle while under the influence of intoxicating liquor.   The suspension or revocation shall be as follows:  * * * (c) Upon a second such conviction within seven years, such privilege shall be suspended for one year and shall not be reinstated unless and until such person gives proof of ability to respond in damages as defined in Section 16430.”

3.   It was stated in Woods (64 Cal.2d at page 9, 48 Cal.Rptr. at page 693, 409 P.2d at page 917):  “It is clear, however, that the matter of waiver of constitutional rights to be determined on the facts of each particular case (In re Johnson, supra, 62 Cal.2d 325, 335, 42 Cal.Rptr. 228, 398 P.2d 420), and that an inflexible exclusive adherence to the strict record is neither constitutionally required nor in the best interests of effective judicial administration.”

FOOTNOTE.  FNa. Advance Report Citation:  268 A.C.A. 878.

FOOTNOTE.   Advance Report Citation:  268 A.C.A. at pp. 882–883.

FOOTNOTE.  FNc. Advance Report Citation:  268 A.C.A. 878.

FOOTNOTE.  FNd. Advance Report Citation:  272 A.C.A. 914.

FOOTNOTE.  FNe. Advance Report Citation:  272 A.C.A. at p. 920.