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

Virginia LAMBERT, Plaintiff and Appellant, v. MUNICIPAL COURT of The LOS ANGELES JUDICIAL DISTRICT, COUNTY OF LOS ANGELES, State of California, Defendant and Respondent.*

Civ. 23343.

Decided: January 27, 1959

Samuel C. McMorris, Los Angeles, for appellant. Harold W. Kennedy, County Counsel, Donald K. Byrne, Deputy County Counsel, Los Angeles, for respondent.

In June, 1951 appellant was convicted in the Superior Court of Los Angeles County of the crime of forgery. She was granted conditional probation.

On February 2, 1955 appellant was arrested on suspicion of another offense. Although convicted of the aforesaid charge of forgery, a crime punishable in this state as a felony, she had not at the time of her subsequent arrest on suspicion, registered under the provisions of the Municipal Code of the City of Los Angeles. Section 52.38 (a) of said code defines ‘convicted person’ as follows:

‘Any person who, subsequent to January 1, 1921, has been or hereafter is convicted of an offense punishable as a felony in the State of California, or who has been or who is hereafter convicted of any offense in any place other than the State of California, which offense, if committed in the State of California, would have been punishable as a felony.’

Section 52.39 provides that it shall be unlawful for ‘any convicted person’ to be or remain in Los Angeles for a period of more than five days without registering; it requires any person having a place of abode outside the city to register if he comes into the city on five occasions or more during a 30-day period; and it prescribes the information to be furnished the Chief of Police on registering.

Section 52.43(b) makes the failure to register a continuing offense, each day's failure constituting a separate offense.

After her arrest on the aforesaid charge of suspicion of another offense, appellant was charged in the respondent Municipal Court of the Los Angeles Judicial District with a violation of the aforesaid registration law. She was convicted, her motion for a new trial was denied, and she was granted conditional probation. The conviction was affirmed by the Appellate Department of the Superior Court. On appeal to the Supreme Court of the United States, the conviction was reversed (Lambert v. People of State of California, 355 U.S. 225, 78 S.Ct. 240, 242, 2 L.Ed.2d 228, 231), on the ground as stated by the court, ‘* * * we now hold that the registration provisions of the (Los Angeles Municipal) Code as sought to be applied here violate the Due Process requirement of the Fourteeth Amendment * * * No element of willfulness is by terms included in the ordinance nor read into it by the California court as a condition necessary for a conviction’. In stating the issue presented on appeal, the Supreme Court of the United States said (355 U.S. at page 227, 78 S.Ct. at page 242, 2 L.Ed.2d at page 231, supra), ‘The question is whether a registration act of this character violates Due Process where it is applied to a person who had no actual knowledge of his duty to register, and where no showing is made of the probability of such knowledge’. (Emphasis added.) After noting that registration ordinances are common and that their range is wide, as indicated by cases cited in the opinion, the court (355 U.S. at page 229, 78 S.Ct. at page 243, 2 L.Ed.2d at page 232) went on to say, ‘But the present ordinance is entirely different. Violation of its provisions is unaccompanied by any activity whatever, mere presence in the city being the test. Moreover, circumstances which might move one to inquire as to the necessity of registration are completely lacking. At most the ordinance is but a law enforcement technique designed for the convenience of law enforcement agencies through which a list of names and addresses of felons then residing in a given community is compiled. The disclosure is merely a compilation of former convictions already publicly recorded in the jurisdiction where obtained. Nevertheless this [appellant] on first becoming aware of her duty to register was given no opportunity to comply with the law and avoid its penality, even though her default was entirely innocent. She could but suffer the consequences of the ordinance, namely, conviction with the imposition of heavy criminal penalities thereunder. We believe that actual knowledge of the duty to register or proof of the probability of such knowledge and subsequent failure to comply are necessary before a conviction under the ordinance can stand. As Holmes wrote in The Common Law, ‘A law which punished conduct which would not be blameworthy in the average member of the community would be too severe for that community to bear.’ Id., at 50. Its severity lies in the absence of an opportunity either to avoid the consequences of the law or to defend any prosecution brought under it. Where a person did not know of the duty to register and where there was no proof of the probability of such knowledge, he may not be convicted consistently with Due Process. Were it otherwise, the evil would be as great as it is when the law is written in print too fine to read or in a language foreign to the community.' (Emphasis added.)

When the remittitur of the Supreme Court of the United States was lodged with the Appellate Department of the Superior Court of Los Angeles County, that tribunal vacated the order of respondent municipal court granting probation, ordered that appellant's motion for a new trial be granted, and remanded the cause to the municipal court for a new trial.

When appellant was notified to appear in respondent municipal court, she applied to the Superior Court of Los Angeles County for a writ of prohibition restraining and enjoining respondent municipal court from proceeding with a retrial of the aforesaid cause. The superior court refused to grant an alternative writ as prayed for or to set a date for hearing appellant's petition therefor. It is from the denial of said petition that appellant prosecutes this appeal.

Appellant's main contention on this appeal is that the municipal code provision as it existed at the time she was prosecuted thereunder was invalid and unconstitutional in that it was offensive to the due process clause of the Fourteenth Amendment of the Constitution of the United States.

Respondent however, contends that prohibition will issue only where there is no plain, speedy and adequate remedy at law. That in the instant case appellant ‘has the remedy of a motion in arrest of judgment at any time until judgment. In addition there is the basic remedy of appeal after judgment.’ We cannot agree with respondent where, as here, the ultimate question presented is plainly one of jurisdiction. The rule in criminal cases, sanctioned by right, reason and simple justice, as we conceive it, is stated by the court in Ex parte Hayter, 16 Cal.App. 211, 225, 116 P. 370, 376, as follows:

‘The remedy by appeal is neither speedy nor adequate in a case where a citizen is restrained of his liberty under an illegal process. Where one is unlawfully imprisoned and it may be made so to appear to a court in an appropriate legal proceeding, there can exist no conceivable reason why he should not be restored to his liberty by the shortest cut recognized by the law, and not be compelled to remain in a county prison and thus be made to suffer the inconvenience of such restraint until some more dilatory remedy, which may ultimately be available to him, has been put in operation. See Terrill v. Superior Court, [6 Cal.Unrep. 398], 60 P. 38.’

And again in Arfsten v. Superior Court, 20 Cal.App. 269, 276, 128 P. 949, 951, the following appears: ‘It may be added that the contention of another adequate remedy implies, of course, that the petitioner may be convicted and suffer imprisonment until his case can be reached on appeal. Unless convicted he will have no occasion to invoke the other remedy. If convicted, and required, as he may be, to suffer the whole or a part of the term imposed, the remedy by appeal would at least to the appellant seem quite inadequate.’

We are persuaded that appellant's contention as to the invalidity of the municipal code section under which it is proposed to try her must be sustained.

Respondent contends that the Supreme Court of the United States (Lambert v. People of State of California, supra) impliedly decided that the ordinance itself need not contain a requirement of notice of the duty to register as a convicted person. That the decision of the highest court in the land was merely to the effect that ‘as applied to appellant, there must be a showing in the trial court that appellant had knowledge or probability of knowledge of the requirement to register’. We do not so construe the decision. At her previous trial, appellant offered proof that she had no actual knowledge of the requirement that she register under the municipal code provision, which defense on her part was rejected by the trial court and the ruling was affirmed on appeal to the superior court appellate department. What the United States Supreme Court said was, and we quote (355 U.S. at page 227, 78 S.Ct. at page 242, 2 L.Ed.2d at page 231), ‘No element of willfulness is by terms included in the ordinance nor read into it by the California Court as a condition necessary for a conviction’. (Emphasis added.) To us it seems manifest that the United States Supreme Court holding was that no conviction can legally be predicated upon the ordinance as construed by the California courts because its omission of the requirement of knowledge and consequent willfulness does violence to the due process requirement of the Fourteenth Amendment to the Constitution of the United States.

Because of the foregoing conclusion at which we have arrived, it becomes unnecessary to discuss other questions presented on this appeal.

For the foregoing reasons, the order from which this appeal was taken is reversed and the cause remanded with directions to the court below to issue its peremptory writ of prohibition as prayed.

WHITE, Presiding Justice.

FOURT and LILLIE, JJ., concur.