ERIC V. AXNESS, Petitioner, v. THE SUPERIOR COURT OF CONTRA COSTA COUNTY, Respondent; A. A. PIERCE, as Director, etc., Real Party in Interest, 206 Cal. App. 3d 1489

Opinion PERLEY, J. Petitioner Eric V. Axness (appellant) appeals from an order denying his amended petition for writ of mandate to prevent the California Department of Motor Vehicles (department) from suspending his California driver’s license based on two convictions of driving under the influence (Veh. Code, § 23152) within five years. The petition challenges the suspension on the ground that the second conviction, which occurred in Minnesota, was unconstitutional.

We hold that in the circumstances of this case appellant may challenge the constitutionality of the Minnesota conviction by way of mandamus against the department, and we conclude that his petition should have been granted. On March 5, 1984, in Walnut Creek, California, appellant was convicted of driving under the influence. (§ 23152, subd. (b).) On August 8, 1986, in Saint Cloud, Minnesota, appellant was convicted of driving while intoxicated.

Upon being notified of the Minnesota conviction, the department served its order dated September 16, 1986, suspending appellant’s California driver’s license for a period of eighteen months based on the occurrence of the two convictions within a five-year period. (§§ 13352, subd. (a)(3); 13352, subd. (d); 23165.) Appellant filed a petition for writ of mandate against the department within 90 days of notice of the order of suspension. (§ 14401, subd. (a).) The petition alleged that the procedures leading to appellant’s Minnesota conviction violated his constitutional rights.

The department demurred inter alia based on the failure of the petition to allege that appellant had challenged the Minnesota conviction in that state, and the trial court sustained the demurrer with leave to amend “to see what [appellant] could do in Minnesota . . . .” Appellant then filed an amended petition for writ of mandate reflecting his initiation of proceedings in Minnesota to vacate the second conviction. Appellant’s motion to vacate was rejected by the Minnesota court, and was followed by denial of his amended petition herein.

The department argued below that it is not subject to mandamus because it has neither the duty nor the power to invalidate a judgment of conviction, and that the Minnesota conviction was not obtained in violation of appellant’s constitutional rights. The record does not disclose which of these contentions was persuasive to the trial court and we examine each in turn. A series of cases indicate that the validity of a

section 23152 conviction may not be challenged in a mandate proceeding against the department. (Thomas v. Department of Motor Vehicles, supra, 3 Cal.3d 335, 338; Fitch v. Justice Court (1972) 24 Cal.App.3d 492, 495 [101 Cal.Rptr. 227]; Houlihan v. Department of Motor Vehicles (1970) 3 Cal.App.3d 915, 919-920 [83 Cal.Rptr. 885]; Williams v.

Department of Motor Vehicles (1969) 2 Cal.App.3d 949, 952-954 [83 Cal.Rptr. 76].) These cases observe that the department is required by law to suspend the license of a driver with multiple convictions, and reason that a writ of mandate cannot issue to prevent the department from performing this legal duty. (Thomas, supra, at p. 338; Fitch v. Justice Court, supra, at p. 495; Houlihan v. Department of Motor Vehicles, supra, at p. 918; Williams v.

Department of Motor Vehicles, supra, at p. 953.) These decisions also note that the department lacks the judicial power to nullify a conviction. (Fitch, supra, at p. 495; Houlihan, supra, at p. 919; Williams, supra, at pp. 953-954.) They suggest that mandamus would only lie to prevent the department from acting on a conviction that was “void on its face.” (Houlihan, supra, at p. 919, fn. 4; Williams, supra, at p. 954.) Otherwise, mandamus must be directed against the court that rendered the conviction. (Thomas, supra, at p. 338; Fitch, supra, at p. 495; Houlihan, supra, at p. 919; Williams, supra, at p. 952.) Since the Minnesota conviction is not void on its face, the department contends that it may not be challenged by way of appellant’s petition.

However, none of the foregoing cases involved an out-of-state conviction, and the situation in this case is distinguishable because mandamus against the rendering court is unavailable in California. A California court does not have the power to direct the Minnesota court to set aside its judgment. (See Ganyo v. Municipal Court (1978) 80 Cal.App.3d 522, 526 [145 Cal.Rptr. 636]; Gonzalez v. Municipal Court (1973) 32 Cal.App.3d 706, 712-713, fn. 11 [108 Cal.Rptr. 612].) Cook v.

Department of Motor Vehicles, supra, 33 Cal.App.3d at page 268, indicates that the department may be subject to mandamus if a foreign conviction has been set aside in the rendering jurisdiction, but we are aware of no case that has considered whether this remedy is available when an out-of-state challenge has not succeeded.

We agree with appellant that before the department may suspend his California driving privileges on the basis of an out-of-state conviction he must be allowed to challenge the constitutionality of that conviction in a California court. “[T]o the extent that statutory machinery relating to penal status or severity of sanction is activated by the presence of prior convictions, it is imperative that the constitutional basis of such convictions be examined if challenged by proper allegations. [Citations.] The fact that a prior conviction was sustained in another jurisdiction does not preclude such examination. ‘To the extent that any State makes its penal sanctions depend in part on the fact of prior convictions elsewhere, necessarily it must assume the burden of meeting attacks on the constitutionality of such prior convictions.’ ” (People v.

Coffey, supra, 67 Cal.2d 204, 214-215.) Suspension of a driver’s license is a “sanction” within the meaning of this passage from People v. Coffey. (Ganyo v. Municipal Court, supra, 80 Cal.App.3d at pp. 525-526; Mitchell v. Orr (1969) 268 Cal.App.2d 813, 817 [74 Cal.Rptr. 407].) “Since the sanctions which may be imposed upon a person convicted of drunk driving are increased if he has a prior conviction of the same offense within a specified period of time, a collateral attack may be made on any such prior conviction on constitutional grounds.” (Hasson v. Cozens (1970) 1 Cal.3d 576, 579 [463 P.2d 385]; cf.

Pollack v. Department of Motor Vehicles (1985) 38 Cal.3d 367, 381 [211 Cal.Rptr. 748, 696 P.2d 141] [“Of course, a driver who wishes to challenge the existence or validity of a prior conviction must be afforded an opportunity to do so”].) There is no basis for distinguishing between California and out-of-state convictions under this language. Therefore, if appellant had first been convicted in Minnesota, he would have had the opportunity to collaterally attack the constitutionality of that conviction in the subsequent California proceeding.

To deny appellant that same opportunity in this case would make access to the California courts for those in his position dependent upon the order of their convictions. We note also that the statute providing for no more than one collateral attack on the constitutionality of a

section 23152 conviction evidently refers to a challenge in a California court. (See § 23209, which directs the court to report its determination to the department.) In appellant’s circumstances, such a challenge may be raised in the context of a petition for writ of mandate against the department, even though the department is under no duty to scrutinize the constitutionality of

section 23152 convictions. Code of Civil Procedure

section 1085 authorizes mandamus both to compel the performance of duties and to insure the enjoyment of rights, and appellant has the right not to be sanctioned on the basis of an unconstitutional conviction. Moreover, a writ of mandate “must be issued in all cases where there is not a plain, speedy, and adequate remedy, in the ordinary course of law.” (Code Civ.

Proc., § 1086.) We do not mean to suggest that a driver in appellant’s situation is to be afforded a trial de novo on an out-of-state conviction, or that questions such as the sufficiency of the evidence supporting such a conviction may be relitigated in a mandate proceeding against the department.

We hold only that mandamus is available to challenge the constitutionality of an out-of-state conviction if the conviction will result in the suspension of a California driver’s license, and the driver is otherwise without a forum in California in which to raise such a challenge because his latest conviction occurred in another jurisdiction. We use the term “constitutionality” to refer to federal constitutional rights. Drivers on the highways of other states are subject, of course, to the laws of those states, and they may be convicted for violating those laws in accordance with local procedures.

Since they cannot invoke the Constitution or laws of California to avoid convictions in other jurisdictions, they cannot avoid the sanctions resulting from such convictions by appealing to California law. But a driver who leaves California does not leave behind his federal constitutional rights. (Cf. Sterling v.

Constantin (1932) 287 U.S. 378, 398 [77 L.Ed. 375, 385, 53 S.Ct. 190] [there is no “avenue of escape from the paramount authority of the Federal Constitution’’].) Although we are bound to follow the decisions of the United States Supreme Court on matters of federal constitutional law (see generally 9 Witkin, Cal. Procedure

(1985) Appeal, § 779, pp. 750-751 and cases cited), we may be guided by California cases interpreting those decisions and we need not defer to out-of-state precedents in this regard (id. at § 778, pp. 749-750). The applicable burden and standard of proof must also be addressed before proceeding to the merits of appellant’s constitutional arguments. The statute indicating that the prosecution must prove the constitutionality of a prior

section 23152 conviction beyond a reasonable doubt applies only in a pending criminal action. (§ 41403, subd. (b); see Gonzalez v. Municipal Court, supra, 32 Cal.App.3d 706, 710-711, fn. 5.) The appropriate evidentiary rules in this case are those ordinarily applied in the context of administrative mandamus. “The burden of proof rests upon the petitioner for writ of mandate to make a showing sufficient to establish administrative error.” (Campbell v. Board of Dental Examiners (1971) 17 Cal.App.3d 872, 876 [95 Cal.Rptr. 351]; see also Evid.

Code, § 664.) If appellant’s license had been suspended after an administrative hearing, he would have been required to demonstrate his entitlement to a writ by a preponderance of the evidence. (See Ettinger v. Board of Medical Quality Assurance (1982) 135 Cal.App.3d 853, 858 [185 Cal.Rptr. 601].) There is no reason to apply a different standard in this case. Accordingly, to prevail on his petition, appellant must prove by a preponderance of the evidence that the Minnesota conviction was obtained in violation of his constitutional rights.

Appellant presented the record of the Minnesota proceedings in support of his amended petition. The record indicates that appellant was not represented by counsel and that his conviction was based on a guilty plea. A plea of guilty cannot be accepted unless it is preceded by an express waiver of the defendant’s constitutional right to confront his accusers. (Boykin v. Alabama (1969) 395 U.S. 238, 243 [23 L.Ed.2d 274, 279, 89 S.Ct. 1709]; Bunnell v. Superior Court (1975) 13 Cal.3d 592, 605 [119 Cal.Rptr. 302, 531 P.2d 1086]; Mills v.

Municipal Court (1973) 10 Cal.3d 288, 301-302 [110 Cal.Rptr. 329, 515 P.2d 273]; In re Tahl (1969) 1 Cal.3d 122, 130 [81 Cal.Rptr. 577, 460 P.2d 449].) Such a waiver will not be presumed from a silent record (Boykin v. Alabama, supra, at p. 243 [23 L.Ed.2d at pp. 279-280]), and the record in Minnesota is silent with respect to any such waiver. Appellant signed a form stating “I understand I have ... [t]he right to confront and cross-examine all witnesses,” but there is no indication that he ever waived that right.

The findings of fact made by the Minnesota court on appellant’s motion to vacate the conviction do not indicate otherwise, and we are not bound to follow a Minnesota precedent suggesting that a waiver may be inferred solely from an acknowledgement of rights followed by a guilty plea. In the absence of a waiver of appellant’s right to confrontation, we cannot regard his guilty plea in Minnesota to have been intelligent and voluntary (Boykin v. Alabama, supra, 395 U.S. at p. 244 [23 L.Ed.2d at p. 280]), and his California license may not be suspended because of a conviction on that plea (Mitchell v.

Orr, supra, 268 Cal.App.2d at p. 817). The order denying the petition is reversed, and the trial court is directed to issue a writ of mandate commanding the department to rescind its order suspending appellant’s driver’s license. Poché, J., concurred. Unless otherwise indicated, all further statutory references are to the Vehicle Code. The trial court apparently relied in this regard on Cook v. Department of Motor Vehicles (1973) 33 Cal.App.3d 265, 276 [109 Cal.Rptr. 104], Cook interprets Thomas v.

Department of Motor Vehicles, (1970) 3 Cal.3d 335 [90 Cal.Rptr. 586, 475 P.2d 858] to preclude mandamus against the department unless the driver has first challenged the constitutionality of an out-of-state conviction in the rendering jurisdiction. The majority opinion in Thomas, however, did not address out-of-state convictions and we would decline to follow Cook in appellant’s situation. Since appellant is entitled to challenge the constitutionality of his Minnesota conviction in California even if that conviction has been upheld in Minnesota (see People v.

Coffey, (1967) 67 Cal.2d 204 [60 Cal.Rptr. 457, 430 P.2d 15]), we do not regard his out-of-state challenge as a prerequisite to the relief sought in this case. The department also suggests that California is bound to give “full faith and credit” to the Minnesota judgment. However, since the full faith and credit clause of the federal Constitution does not require sister states to enforce a foreign penal judgment, California is free to consider what effect, if any, it will give to the Minnesota conviction in terms of appellant’s California driver’s license. (Nelson v.

George (1970) 399 U.S. 224, 229 [26 L.Ed.2d 578, 582-583, 90 S.Ct. 1963].) Although People v. Coffey and Hasson v. Cozens speak only in terms of “prior” convictions, the principle that a penal sanction or a driver’s license suspension may not be imposed on the basis of an unconstitutional conviction applies equally to all convictions. Code of Civil Procedure

section 1085 states in pertinent part that a writ of mandate “. . . may be issued ... to compel the performance of

an act which the law specially enjoins, as a duty resulting from an office, trust, or station; or to compel the admission of a party to the use and enjoyment of a right or office to which he is entitled, and from which he is unlawfully precluded by such inferior tribunal, corporation, board or person.” Although it would appear that appellant could have filed an action for declaratory relief (see generally 5 Witkin, Cal.

Procedure (3d ed. 1985) Pleading, § 800 et seq.) we are aware of no precedent for such an action, and the existence of an equitable remedy of doubtful efficacy does not bar the right to a writ of mandate. (Hershey v. Reclamation District (1912) 162 Cal. 401, 403 [122 P. 1074].) The authorities cited by the dissent do not convince us that the California Supreme Court misinterpreted Boykin in Tahl and its progeny. The findings of fact were as follows: “1. The Defendant, Eric V.

Axness, entered a guilty plea to the offense of Driving Under the Influence of Alcohol on August 8, 1986 for an incident occurring the same day. []]] 2. Prior to appearing in court, the Defendant completed and signed an acknowledgment of rights form. On paragraph 5.d., the Defendant acknowledged that he understood he had the right to confront and cross-examine all witnesses. []]] 3. At his court appearance, the Defendant was advised of a number of constitutional rights. He waived these rights on the record. []]] 4.

The Defendant was not specifically advised of his right to confront and cross-examine all witnesses by the court at the time of his court appearance. []]] 5. The Defendant was not advised of the effect his license revocation and DWI conviction would have on any interstate communications regarding the status of his driver’s license in other states and specifically the Defendant’s home state of California.” The precedent cited by the Minnesota court for its finding that a waiver of the right of confrontation occurred on the foregoing facts is State v. Rau (Minn.App. 1985) 367 N.W.2d 613.

We need not resolve appellant’s other contention that the plea was involuntary because he was not advised that Minnesota would inform other states of his conviction, and that such advice might adversely affect his driving privileges in the other states.