MACFARLANE v. Bruce Macfarlane, Appellant.* (1958)

Appellant from judgment denying petition for writ of mandate requiring respondents to vacate an order revoking a general onsale liquor license held by appellant Macfarlane and his co-licensee, Fay M. Wine.

The evidence shows that appellant and said Wine were conducting a bar and restaurant known as Bruce's Cafe at 10508 South Prairie Avenue in the town of Lennox, six or seven blocks from the Hollywood Park race track. Many of their customers were connected with the track. On April 12 and 13, 1955, Hollywood Park had no races but the Golden Gate Park track in the San Francisco area was operating. On April 12th Bruce Kiesling, deputy sheriff, visited Bruce's Cafe, the licensed premises, asked appellant Macfarlane to take a bet for him, was told it was too late but that Jim probably would take it; appellant introduced the officer to Jim Platt who, in the presence of appellant, took a two dollar bet on a horse running in the seventh race at Golden Gate Park. On the next day, April 13th, Kiesling placed with Platt on the same premises a bet on a horse in the sixth race at Golden Gate Park. This was before appellant arrived. When he came the officer placed a bet with him on the same horse in the same race. As they left the premises macfarlane was placed under arrest.

All of appellant's arguments upon this appeal come to rest upon the proposition that one who is convicted of a crime which is subject to punishment as a felony or a misdemeanor and who is sentenced to the county jail is convicted of a misdemeanor and not a felony. That this is an erroneous concept will appear from the ensuing discussion.

Appellant was prosecuted in the superior court upon an information charging ‘Violation of Section 337a, Subdivision 3 Penal Code of California, a felony,’ on April 13, 1955. That statute forbids taking bets on horse races and the like, and declares that any person who does so ‘[i]s punishable by imprisonment in the county jail or state prison for a period of not less than thirty days and not exceeding one year.’ After a jury trial verdict was rendered that defendant was ‘guilty of violation of Section 337a, a felony, as charged in the information.’ In due course judgment was rendered reciting that defendant had ‘been duly found guilty in this court of the crime of Violation of Section 337a, Subdivision 3, Penal Code of California, a felony, as charged in the information.’ It adjudged that defendant be punished by imprisonment in the county jail for the term of six months and that he be fined $250; sentence was suspended and probation granted for one year.

The Area Administrator of the Department of Alcoholic Beverage Control filed an accusation against Macfarlane and Wine charging the Macfarlane was convicted on September 26, 1955, in the Superior court, of violation of § 337a, subdivision 3, Penal Code, through ‘taking, holding, and forwarding bets upon horse races' upon licensed premises. Notice of Defense having been filed, hearing was duly had before a hearing officer of the department who filed a proposed decision stating that it was true that on September 26, 1955, Macfarlane was convicted in the superior court ‘of violation of Section 337(a) subsection 3 of the California Penal Code, a felony, as charged in an information filed with said court’; that the judge did sentence him to the county jail for a term of six months, sentence was suspended and said Macfarlane placed on probation for a period of one year and ordered to pay a fine in the amount of $250. Also that Macfarlane was arrested on the licensed premises; that said arrest ‘was on the above charge and the events immediately preceding said arrest constituted the cause for said conviction,’ namely, (a) Macfarlane's referring Kiesling to Platt for the purpose of placing a bet and Platt's taking same upon said licensed premises, (b) Macfarlane's personally taking a bet upon said premises on April 13th. The hearing officer recommended revocation of license. The department adopted the proposed decision and revoked the license. On appeal to the Alcoholic Beverage Control Appeals Board the ruling of the department was affirmed. This was followed by petition for administrative mandamus filed in the superior court under § 1094.5, Code of Civil Procedure. The trial court held that the findings of fact of the hearing officer are supported by substantial evidence and the decision fully supported by the findings. Mandamus was denied and hence this appeal taken by Macfarlane.

Because of the statement in the proposed opinion that appellant was convicted ‘of violation of Section 337(a) subsection 3 of the California Penal Code, a felony, as charged in an information,’ counsel for appellant argues that this is a finding contrary to the record, that this ‘misconception’ prevented the department from exercising a found discretion and led it into imposing an excessive penalty.

The contention that appellant was convicted of a misdemeanor and not a felony is not technically correct, nor is there factual support for the claim that the hearing officer and the department and the appeals board had a mistaken notion with respect to the conviction.

We again quote § 337a, subdivision 3, Penal Code, to the effect that any person who violates any of its provisions ‘[i]s punishable by imprisonment in the county jail or state prison for a period of not less than thirty days and not exceeding one year.’ Section 17, Penal Code, says: ‘A felony is a crime which is punishable with death or by imprisonment in the state prison. Every other crime is a misdemeanor. When a crime, punishable by imprisonment in the state prison, is also punishable by fine or imprisonment in a county jail, in the discretion of the court, it shall be deemed a misdemeanor for all purposes after a judgment other than imprisonment in the state prison, unless the court commits the defendant to the California Youth Authority. * * *’ Its language is carefully chosen and specific,—‘it shall be deemed a misdemeanor for all purposes after a judgment other than imprisonment in the state prison.’ Until the trial judge has converted the crime into a misdemeanor by sentencing defendant on that basis the offense is a felony. That is the reason the information, jury verdict and judgment in this instance described the crime as a felony.

Fricke on California Criminal Law, Fifth Edition, pages 5 and 6: ‘Where an offense is punishable either as a felony by imprisonment in the state prison or as a misdemeanor by fine or by imprisonment in a jail the offense is a felony up to the time the sentence is imposed. * * * If, upon conviction of such an offense, the defendant is placed on probation without any sentence having been pronounced he still stands convicted of a felony. * * * Where in such a case the defendant is sentenced to imprisonment in the state prison the offense is at all times a felony but if he be sentenced to a term in jail or to pay a fine the offense is deemed a misdemeanor for all purposes, after such judgment has been pronounced.’ Doble v. Superior Court, 197 Cal. 556, 576, 241 P. 852, 860: ‘A fair construction of section 17, in order to give effect to every part thereof, requires us to hold, and we do so hold, that in prosecutions within the contemplation of that section the charge stands as a felony for every purpose up to judgment, and if the judgment be felonious in that even it is a felony after as well as before judgment; but if the judgment is for a misdemeanor it is deemed a misdemeanor for all purposes thereafter—the judgment not to have a retroactive effect so far as the statute of limitations in concerned.’ People v. Williams, 27 Cal.2d 220, 228, 163 P.2d 692, 696: ‘Burglary in the second degree is punishable by imprisonment in the state prison (Pen.Code, § 461) and is therefore a felony. (Pen.Code, § 17.) While it is also punishable, in the alternative, by a county jail sentence (Pen.Code, § 461), its status can be changed only by ‘a judgment imposing a punishment other than imprisonment in the state prison.’ (Pen.Code, § 17; In re Miller, 218 Cal. 698, 700–701, 24 P.2d 766; In re Rogers, 20 Cal.App.2d 397, 400, 66 P.2d 1237. This principle is stated in no uncertain terms in the Rogers case as follows, 20 Cal.App.2d at page 400, 66 P.2d at page 1238: ‘The necessary inference to be drawn from the language of section 17 of the Penal Code that ‘when a crime, punishable * * * by fine or imprisonment in a county jail, in the discretion of the court, it shall be deemed a misdemeanor for all purposes after a judgment imposing a punishment other than imprisonment in the state prison,’ is that the offense remains a felony except when the discretion is acually exercised and the prisoner is punished only by a fine or imprisonment in a county jail.'' See, also, People v. Sullivan, 113 Cal.App.2d 510, 527, 248 P.2d 520; 14 Cal.Jur.2d § 19, p. 204. The case of People v. Hamilton, 33 Cal.2d 45, 50, 198 P.2d 873, cited by appellant, is not contrary to the foregoing authorities.

Counsel who then represented appellant recognized this rule in the hearing before the department. Cross-examination of officer Kiesling contains the following: ‘Q. And the arrest that you were attempting to perfect or consumate was what we call a violation of Section 337(a) of the Penal Code, a felony in this state? A. Yes, sir. Q. As a matter of fact, it is a felony in this state, too, not only by one who takes a wager, but also by one who makes a wager, isn't that also your understanding? A. Yes, sir, it is.’

The hearing officer does not appear to have been confused in any manner with respect to this crime or the conviction or the sentence. The paragraph of the proposed decision which refers to conviction of a felony immediately adds the fact of sentence ‘for a term of six months * * * then suspended and said Bruce Macfarlane placed on probation for a period of one year and ordered to pay a fine in the amount of $250.00.’ There is no merit in any of the arguments based upon the assumption that appellant was not convicted of a felony or that the hearing officer, the department or the board of appeals was laboring under any misapprehension with respect to the Macfarlane prosecution or the judgment of the superior court.

It is contended that the law does not sanction arbitrary revocation of a liquor license and the familiar argument is made than an act which is lawful at the race track should not be a crime of any degree when committed elsewhere. The authorities do not recognize any such doctrine; they hold that the distinction thus made in the law is a valid one. See, People v. Maddox, 65 Cal.App.2d 45, 51, 149 P.2d 739; People v. Haughey, 48 Cal.App.2d 506, 511, 120 P.2d 121; In re Goddard, 24 Cal.App.2d 132, 141, 74 P.2d 818; Ex parte Tuttle, 91 Cal. 589, 27 P. 933; People v. Sullivan, 60 Cal.App.2d 539, 141 P.2d 230. The Tuttle case says, 91 Cal. at page 590, 27 P. at page 934: ‘Any practice or business, the tendency of which, as shown by experience, is to weaken or corrupt the morals of those who follow it, or to encourage idleness instead of habits of industry, is a legitimate subject for regulation or prohibition by the state; and that gambling, in the various modes in which it is practiced, is thus demoralizing in its tendencies, and therefore an evil which the law may rightfully suppress without interfering with any of those inherent rights of citizenship which it is the object of government to protect and secure, is no longer an open question.’

That gambling in connection with the sale of liquor falls within the constitutional provision (Art. XX, § 22) seems obvious. The pertinent language of that provision is: ‘The department shall have the power, in its discretion, to deny, suspend or revoke any specific alcoholic license if it shall determine for good cause that the granting or continuance of such license would be contrary to public welfare or morals.’ Appellant's brief is redolent of recognition that good cause was shown at bar. It says: ‘To conclude that conviction of a felony is ‘good cause’ to suspend or revoke appellant's license is a logical determination regardless of what other evidence is in the record to establish that appellant had never been arrested in his life. * * * That the Department was given broad discretion under the Constitution to determine what constitutes good cause for the suspension or revocation of a license is recognized by appellant. * * * Ultimately, it is appellant's position that it, no doubt, is in the power of respondent Department to determine that the conduct of appellant in forwarding a $2 bet for an officer of the Sheriff's department was an act that was of such nature as to make his holding of an on-sale liquor license contrary to public welfare or morals. Accordingly, such conduct may be a basis for a conclusion that ‘good cause’ existed for the Department to exercise its discretion in regard to whether appellant's license should be suspended or revoked.' Appellant testified at the board hearing: ‘Q. You forget—had you been on the jury you say you would have acquitted yourself? A. No. Q. You would have found yourself guilty? A. I would have found myself guilty. Q. Why do you say that? A. Well, there were three stalwart nice big police officers all set to make statements that were not true. Q. In other words, you say the officers lied? A. Yes, definitely.’ The ‘good cause’ mentioned in the constitutional provision may consist of any violation of the Alcoholic Beverage Control Act. Revenue and Taxation Code, § 32001 et seq. ‘The owner of a liquor license has the responsibility to see to it the license is not used in violation of law.’ Maxwell Cafe v. Dept. Alcoholic Control, 142 Cal.App.2d 73, 76, 298 P.2d 64, 67.

Finally, appellant argues that the penalty of revocation of license is excessive punishment for the taking of two bets of two dollars each on the licensed premises. It does seem severe. But it is not our province to interfere. The rule here applicable is thus stated in Thayer v. Board of Osteopathic Examiners, 157 Cal.App.2d 4, 320 P.2d 28, 32: ‘Appellant complains that revocation of his license is a penalty so harsh that it should not stand and the cause should be remanded to the board for reconsideration of the punishment. But the established rule is ‘that the determination of the penalty to be imposed by an administrative agency lies with the agency and not with the court. King v. Board of Medical Examiners, 65 Cal.App.2d 644, 652, 151 P.2d 282; Fuller v. Board of Medical Examiners, 14 Cal.App.2d 734, 737, 59 P.2d 171.’ Black v. State Personnel Board, 136 Cal.App.2d 904, 912, 289 P.2d 863, 867. In Mast v. State Board of Optometry, 139 Cal.App.2d 78, 91, 293 P.2d 148, 156, it is said: ‘It is now fully established that where an agency exercising statewide jurisdiction has imposed a single penalty based on multiple charges of misconduct, and the court holds some of them to be unsupported, the practice normally to be employed is to return the case to the administrative agency with a direction to reconsider the penalty to be imposed.’ But this can be done only when some of the charges are unsupported by the evidence and the court cannot ascertain from the record whether the same penalty would have been imposed had the administrative agency recognized the absence of evidence sufficient to support only a part of the charges upon which the licentiate had been found guilty. See Mast v. State Board of Optometry, supra, 139 Cal.App.2d at page 92, 293 P.2d [148] at page 156. There is no absence of supporting evidence here and hence no occasion to remand.' To the same effect, see, Munro v. Alcoholic etc. Appeals Board, 154 Cal.App.2d 326, 332, 316 P.2d 401; Black v. State Personnel Board, 136 Cal.App.2d 904, 912, 289 P.2d 863; Furnish v. Board of Medical Examiners, 149 Cal.App.2d 326, 332, 308 P.2d 924, 309 P.2d 493; Hansen v. Civil Service Board, 147 Cal.App.2d 732, 739, 305 P.2d 1012.

We find no error in this case.

Judgment affirmed.

ASHBURN, Justice.

FOX, P. J., and HERNDON, J., concur.