MEYER v. BOARD OF MEDICAL EXAMINERS

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District Court of Appeal, Second District, Division 2, California.

MEYER v. BOARD OF MEDICAL EXAMINERS et al.

Civ. 16523.

Decided: December 14, 1948

French & Indovina, of Santa Monica, for appellant. Fred N. Howser, Atty. Gen., and Bayard Rhone, Deputy Atty. Gen., for respondent.

Appeal from a judgment denying a peremptory writ of mandate after an order sustaining a demurrer without leave to amend.

On September 8, 1938, the constituted Board of Medical Examiners issued to appellant a certificate of his authority to practice medicine and surgery. March 15, 1947, after a plea of guilty appellant was convicted of a violation of section 111641 of the Health and Safety Code. August 5, 1947, the board filed an accusation against appellant for his criminal dereliction. The matter was tried on August 22, 1947, before a hearing officer as provided by statute (Government Code, sec. 11512) whose decision on December 4, 1947, was rejected by the board on January 23, 1948.

Upon completion of one-half of the probationary period fixed by the superior court, appellant moved the court pursuant to sections 1203.3 and 1203.42 of the Penal Code to terminate his probation and to dismiss the accusation against him. Such motion having been duly granted, appellant presented a certified copy of the court's order to the Medical Board at its regularly scheduled meeting on March 2, 1948. However, respondent board concluded that the order of the superior court dismissing the information ‘does not in this proceeding remove or wipe out the conviction suffered by respondent,’ and having found that appellant had been convicted of ‘an offense involving moral turpitude’ and by reason of his convicted was ‘guilty of unprofessional conduct,’ ordered his suspension on March 15, 1948. Appellant thereupon applied to the superior court for a writ of mandate to compel the medical board to set aside its order and decision. Having sustained the board's demurrer, the court entered judgment against appellant denying a peremptory writ of mandate. From such judgment comes this appeal.

It is conceded that the board could have found appellant guilty of unprofessional conduct without reference to the criminal action, but it is contended that inasmuch as the board elected to base its decision solely upon appellant's prior conviction its action in suspending his license was an improper imposition of a penalty after appellant had been ‘released from all penalties and disabilities resulting from the offense’. Penal Code, sec 1203.4. In support of this contention appellant cites People v. Mackey, 58 Cal.App. 123, 208 P. 135, and Sherry v. Ingels, 34 Cal.App.2d 632, 94 P.2d 77. The Mackey decision held that a witness who has been found guilty of committing a felony, but who had subsequently caused the information to be dismissed under section 1203.4 after satisfactorily completing the terms of his probation may not be impeached for felony. In the Sherry case, supra, Sherry had been twice convicted of drunk driving and thereby subject to license suspension. But the court held that since the second accusation was dismissed as provided by Penal Code section 1203.4, Sherry was entitled to his probationary license as one who had been but once convicted.

These authorities support the contention of appellant that the suspension of his license to practice medicine is one of the ‘penalties and disabilities' the imposition of which section 1203.4 prohibits. The language of that section is plain and unequivocal, necessitating no resort to judicial construction to ascertain its meaning. French v. Jordan, 28 Cal.2d 765, 767, 172 P.2d 46.

Respondent relies on In re Phillips, 17 Cal.2d 55, 109 P.2d 344, 132 A.L.R. 644, to sustain the action of the medical board. The Supreme Court had disbarred Mr. Phillips after his conviction of a crime involving moral turpitude. The trial court had dismissed the accusation against the attorney after he had fulfilled the conditions of his probation. The Court refused to set aside its order of disbarment. Such decision was based upon the conclusion that ‘penalties and disabilities' contemplated by Penal Code section 1203.4 are only those which it is within the power of the legislature to release. Because the Supreme Court in the exercise of its inherent judicial power may discipline its own officers without interference from the legislature (In re Lavine, 2 Cal.2d 324, 41 P.2d 161, 42 P.2d 311), it does not follow that an administrative agency which is a creature of the legislature is likewise free from legislative restraint. On the contrary, by reason of its legislative origin, the board is subject to any reasonable restrictions its authors may impose.

Since a discharged probationer is by virtue of the Penal Code ‘released from all penalties and disabilities resulting from the offense or crime of which he has been convicted’ the medical board does not have jurisdiction after his discharge to penalize him because of his conviction.

The judgment is reversed.

FOOTNOTES

FN1 ‘No person shall prescribe for or administer, or dispense a narcotic to an addict, or to any person representing himself as such, except as permitted by this division’ of the code..  FN1 ‘No person shall prescribe for or administer, or dispense a narcotic to an addict, or to any person representing himself as such, except as permitted by this division’ of the code.

FN2 1203.4 ‘Every defendant who has fulfilled the conditions of his probation for the entire period thereof, or who shall have been discharged from probation prior to the termination of the period thereof, shall at any time thereafter be permitted by the court to withdraw his plea of guilty and enter a plea of not guilty; or if he has been convicted after a plea of not guilty, the court shall set aside the verdict of guilty; and in either case the court shall thereupon dismiss the accusations or information against such defendant, who shall thereafter be released from all penalties and disabilities resulting from the offense or crime of which he has been convicted. The probationer shall be informed of this right and privilege in his probation papers. The probationer may make such application and change of plea in person or by attorney authorizing [authorized] in writing; provided, that on 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 or the accusation or information dismissed.’.  FN2 1203.4 ‘Every defendant who has fulfilled the conditions of his probation for the entire period thereof, or who shall have been discharged from probation prior to the termination of the period thereof, shall at any time thereafter be permitted by the court to withdraw his plea of guilty and enter a plea of not guilty; or if he has been convicted after a plea of not guilty, the court shall set aside the verdict of guilty; and in either case the court shall thereupon dismiss the accusations or information against such defendant, who shall thereafter be released from all penalties and disabilities resulting from the offense or crime of which he has been convicted. The probationer shall be informed of this right and privilege in his probation papers. The probationer may make such application and change of plea in person or by attorney authorizing [authorized] in writing; provided, that on 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 or the accusation or information dismissed.’

MOORE, Presiding Justice.

McCOMB and WILSON, JJ., concur.