CLAUDE ALFRED THOMAS, Plaintiff and Respondent, v. DEPARTMENT OF MOTOR VEHICLES, Defendant and Appellant, 3 Cal. 3d 335

Opinion McCOMB, Acting C. J. Defendant (hereinafter referred to as “the department”) appeals from a judgment of the Superior Court of Los Angeles County granting a writ of mandate directing it to set aside an order suspending the driving privilege of plaintiff (hereinafter referred to as “petitioner”) for a period of one year. (Veh. Code, § 13352, subd. (c).) October 27, 1966, and February 26, 1968, petitioner pleaded guilty in the Municipal Court of the Los Angeles Judicial District to two separate misdemeanor charges of driving a vehicle while under the influence of intoxicating liquor (Veh. Code, § 23102).

Petitioner was represented by counsel in the 1968 proceeding but not in the 1966 proceeding. No question was raised in the 1968 proceeding with respect to the validity of the 1966 conviction. March 19, 1968, the department, under the authority of

section 13352, subdivision (c), of the Vehicle Code, issued its order suspending petitioner’s privilege to operate a motor vehicle on the highways of this state for a period of one year. June 12, 1968, petitioner filed a petition for writ of mandate in the superior court against the department alone to compel it to set aside its order of suspension, on the ground that his 1966 conviction was void because he was not represented by counsel and did not waive his right to such representation at that time.

The superior court granted the petition, finding that the 1966 conviction was invalid; and a judgment was rendered ordering that a peremptory writ of mandate issue directing the department to vacate and set aside its order suspending petitioner’s driving privilege. Question: Was it proper, in a mandate proceeding against the department alone, for the superior court to direct the department to set aside its order suspending petitioner’s driving privilege, on the ground that his 1966 conviction was invalid, where there had been no prior adjudication of the invalidity thereof? No.

Ordinarily a judgment is presumed valid if collaterally attacked, unless it is void on its face. (People v. Davis, 143 Cal. 673, 675 [77 P. 651]; see 3 Witkin, Cal. Procedure

(1954) Attack on Judgment in Trial Court, § § 2-6, pp. 2044-2050.) However, a judgment of prior conviction, even though valid on its face, may be attacked at any time on constitutional grounds in a proceeding in which by reason of such prior conviction increased sanctions may be imposed against the person suffering it. (Hasson v. Cozens, 1 Cal.3d 576, 579 (2) [83 Cal.Rptr. 161, 463 P.2d 385]; People v.

Coffey, 67 Cal.2d 204, 214-215 [60 Cal.Rptr. 457, 430 P.2d 15].) Therefore, petitioner in the 1968 proceeding against him could have attacked the 1966 judgment, which served as a basis to increase the sanctions against him; and the municipal court’s ruling on the issue in that proceeding would have been res judicata thereon. (Hasson v. Cozens, supra, 1 Cal.3d 576, 579-580 (2, 3).) If, as in Hasson, petitioner had obtained a favorable ruling in this respect, the department would have had no authority to issue the present order. Petitioner, however, failed to attack the judgment in the 1968 proceeding.

The department, having received abstracts of judgments showing two convictions of petitioner for drunk driving within a seven-year period, was required to suspend his driving privilege. (Hough v. McCarthy, 54 Cal.2d 273, 279 [2] [5 Cal.Rptr. 668, 353 P.2d 276].) It is no part of the department’s duty to pass on the validity of those judgments. The present proceeding is simply a petition to review the department’s administrative act in performing a mandatory function, and it is not a proceeding in which additional sanctions may be imposed against petitioner by reason of his 1966 conviction.

Accordingly, no basis exists for permitting a collateral attack on the 1966 judgment of conviction in this mandate proceeding against the department; and, there having been no previous adjudication that petitioner’s 1966 conviction was invalid, the superior court improperly granted the writ. (See Houlihan v. Department of Motor Vehicles, 3 Cal.App.3d 915, 918-919 [83 Cal.Rptr. 885]; Williams v.

Department of Motor Vehicles, 2 Cal.App.3d 949, 952-954 [83 Cal.Rptr. 76].) Since the attack upon petitioner’s 1966 conviction is upon constitutional grounds, he could have sought to have the rendering court set the conviction aside at any time. If he had succeeded in his attack in the rendering court, that court would have forwarded to the department a copy of its judgment setting aside the conviction. Alternatively, instead of bringing a mandate proceeding in the superior court against the department as he has done, petitioner could have petitioned the superior court for mandate against the rendering court.

If he had succeeded in his attack on his 1966 conviction in such a proceeding, the superior court would have directed the rendering court to enter a judgment setting aside the conviction, and the department would have been sent a copy of such judgment. In either event, the department’s records would then have shown only one valid conviction of petitioner for drunk driving, and the department would not have made an order suspending petitioner’s driving privilege, or, if previously made, would have revoked the order of suspension. De La Vigne V.

Department of Motor Vehicles, 272 Cal.App.2d 820 [77 Cal.Rptr. 675], and Mitchell V. Orr, 268 Cal.App.2d 813 [74 Cal.Rptr. 407], in each of which the superior court granted a writ of mandate directing the department to reinstate the plaintiff’s driving privilege, are distinguishable. There, as in Hasson, each plaintiff had raised in the municipal court in which his last conviction was rendered the issue of the validity of his prior conviction, and it was determined in such court that the prior conviction was constitutionally invalid.

The judgment is reversed, Mosk, J., Burke, J., Sullivan, J., and Ford, J., concurred. Assigned by the Acting Chairman of the Judicial Council.