Opinion
Page __
__ Cal.App.2d __323 P.2d 471Joseph STEPHENS, Petitioner,v.Thomas A. TOOMEY, as Registrar of Voters of the City and County of San Francisco, State of California, Respondent.Civ. 18037.California Court of Appeals, First District, First DivisionApril 1, 1958Hearing Granted May 27, 1958.
[323 P.2d 472] Kenneth C. Zwerin, San Francisco, for petitioner.
Dion R. Holm, City Atty. of the City and County of San Francisco, Lawrence S. Mana, Chief Deputy City Atty., William J. Braun, Deputy City Atty., San Francisco, for respondent.
Edmund G. Brown, Atty. Gen. of the State of California, Clarence A. Linn, Asst. Atty. Gen., amici curiae in support of respondent.
PETERS, Presiding Justice.
Petitioner seeks a writ of mandate to compel the respondent, the Registrar of Voters of San Francisco, to register him as an elector. The respondent refused on the sole ground that petitioner had been convicted of an infamous crime and was therefore deprived of the right to vote under Article II, Section 1, of the California Constitution. That section contains the qualifications of electors and also states certain disqualifications. Among other things, it provides that 'no person convicted of any infamous crime * * * shall ever exercise the privileges of an elector in this State.' This section is, of course, self-operating. Once a person has been 'convicted' of an infamous crime he loses the right to vote and the Legislature is powerless to restore such right to him. All felonies are 'infamous crimes.' Truchon v. Toomey, 116 Cal.App.2d 736, 254 P.2d 638, 36 A.L.R.2d 1230; Matter of the Application of Westenberg, 167 Cal. 309, 139 P. 674. Thus, the question presented is whether petitioner has been 'convicted' of a felony within the meaning of that term as used in Article II, Section 1, supra.
The facts are as follows: On August 6, 1954, petitioner was found guilty of robbery in the first degree, a felony. The following judgment was announced:
It is therefore ordered, adjudged and decreed that the defendant, Joseph Stephens, be punished by imprisonment in the State Prison at San Quentin, California, for the term prescribed by law.' Immediately after this pronouncement the court ordered the execution of the sentence suspended upon condition that petitioner remain on probation for a period of five years. The probation thus ordered is still in full force and effect. Petitioner has complied with all terms of the probation. On November 4, 1957, petitioner attempted to register as an elector. The registrar refused to register him for the reason stated. Thus, the precise question is whether or not one who has been found guilty and is sentenced to prison but the execution of the sentence has been suspended and the person placed on probation, has been 'convicted' within the meaning of Article II, Section 1, above quoted.
We do not think that this is an open question in this state. It was necessarily decided in favor of petitioner in the case of Truchon v. Toomey, 116 Cal.App.2d 736, 254 P.2d 638, decided by this court in 1953, and in which a hearing by the Supreme Court was denied without a dissenting vote. In that case Truchon pleaded guilty to the charge of assault with intent to commit rape. He was admitted to probation conditioned upon serving 90 days in the county jail. He successfully completed his probation and then, under the provisions of section 1203.4 of the Penal Code, withdrew his plea of guilty and entered a plea of not guilty. The cause was dismissed and the record expunged. He then applied to register to vote and was refused. This court issued a writ of mandate compelling the registrar to accept his registration. The opinion discusses the applicable principles at some length. The precise holding of the case was that admission to probation and the subsequent dismissal of the prosecution under section 1203.4 of the Penal Code was not a 'conviction' within the meaning of the constitutional [323 P.2d 473] provision under consideration. It is there pointed out that the term 'conviction' has several meanings, and must be construed in its context and in the light of the purpose intended. Running through the opinion is the thought that the term as used in Article II, Section 1, means a 'final' conviction. For example, the opinion refers to, quotes from, and relies upon In re Riccardi, 182 Cal. 675, 189 P. 694, in which it was held that an attorney could not be disbarred on account of a 'conviction' from which an appeal had been taken and which was pending, because 'conviction' as used in the statute referring to disbarment required that the 'conviction' be final. Finality is the key to the Truchon case. When a person is on probation, the judgment of conviction is not final because it is subject to dismissal under Penal Code section 1203.4. The Truchon case, although involving a situation where the probationary period had been completed, necessarily stands for the proposition that while Truchon was on probation, and satisfactorily complying with its terms, he would have been entitled to vote had he applied for that privilege. This is so because it is the Constitution itself that operates to deny the franchise to those 'convicted' of a felony. If Truchon were to be considered so convicted during his period of probation, the Legislature would be without authority, by section 1203.4 of the Penal Code, or by any other statute, to restore the right to vote. The holding that Truchon was entitled to vote after probation had been completed necessarily constituted a holding that those on probation are entitled to vote. This was clearly recognized by the Attorney General and he so argued in his briefs. In disposing of this point, this court stated (116 Cal.App.2d at page 744, 254 P.2d at page 643):
'The attorney general suggests that our interpretation would result in the situation that a person on probation would continue to be entitled to vote and that neither the People nor the Legislature intended this result. Fundamentally, there does not appear anything wrong in not taking away the franchise of a person on probation who is behaving in such manner that on the termination of his probation by proceedings under section 1203.4 he would be entitled to continue to vote. If he fails to fulfill the terms of his probation it can be revoked and then because of sentence, the Constitutional inhibition would apply.'
Thus, the contention that a defendant on probation after being found guilty of a felony cannot vote was passed on in the Truchon case. That case necessarily stands for the proposition that one on probation may vote. (For a discussion of the general problem see notes 27 So.Cal.L.Rev. 327; 22 So.Cal.L.Rev. 476; 2 Stan.L.Rev. 221.)
The Attorney General argues that the instant case differs from the Truchon case in that in the Truchon case no sentence was imposed, the trial court granting probation following the plea of guilty and prior to imposing sentence. This does not clearly appear in the Truchon opinion but it is claimed that the record shows that this was the fact. We will assume that this is so. In the instant case after the verdict of guilty the trial judge pronounced sentence, immediately suspended the execution thereof, and then granted probation. The Attorney General argues that whatever the rule may be where a sentence is not imposed, where it is imposed, although suspended, the person has been 'convicted' within the meaning of Article II, Section 1. It is urged that even under the broadest interpretation of 'conviction,' all that is required is verdict plus judgment, and that once 'judgment' is pronounced the constitutional penalty must be imposed.
The Penal Code confers on trial judges the right to grant probation in either of the two ways mentioned, and makes no distinction between the two methods. Section 1203.1 provides that the court 'may suspend the imposing, or the execution of the sentence * * * upon such terms and conditions as it shall determine.' No statutory criteria is provided for determining [323 P.2d 474] when it is proper to suspend the imposing of sentence and admit to probation, and when it is proper to suspend the execution of the sentence and admit to probation. The determination of what method shall be used is left to the discretion of the trial judge. While there are some differences between the two methods, particularly in the procedure to be followed in case of a violation of probation, it would not seem that a fundamental right such as the right to vote should depend upon the chance of which method is used. Fortunately, such a result is not required.
The argument that, because sentence was here imposed and then suspended, the petitioner was 'convicted' and so deprived of the right to vote, completely disregards the basic holding of the Truchon case. That case, as already pointed out, is predicated on the theory that the term 'conviction' means final conviction, and that when the judgment is subject to being set aside under section 1203.4 of the Penal Code, it is not final. Of course, that section applies whatever method of probation is adopted by the trial court.
The argument also disregards the obvious and fundamental purpose of Article II, Section 1. Quite clearly the people inserted that provision in the Constitution because it was felt that those 'convicted' of a felony constituted a socially undesirable class that should be prohibited from voting. As already pointed out, and as is held in the Truchon case, when probation is granted, a person is not considered to be in that socially undesirable class. In fact, by the granting of probation, whichever method is used, the trial judge has indicated that the person involved is worthy of being given a chance to maintain his place in society. Certainly, Truchon cannot be held to belong to a more socially acceptable class than Stephens simply because in one case probation was granted before sentence and in the other after sentence was imposed. Truchon was required to spend time in the county jail as a condition of his probation, and yet, as already held, he was entitled to vote while on probation. Stephens was not required to serve time in the county jail. From any realistic standard the severe penalty of the deprivation of the right to vote should no more be imposed in one case than in the other. The people in adopting the constitutional provision could not have intended such a result. Obviously, they intended that only those sent to the state prison were to be placed in the excluded class.
Except for the claimed disability it is conceded that petitioner possesses all of the qualifications of an elector. Let a peremptory writ of mandate issue directing the respondent to register petitioner as an elector of the City and County of San Francisco.
BRAY and FRED B. WOOD, JJ., concur.