CARTER, J. I dissent.
The construction placed upon section 1203.4 of the Penal Code by the majority of this court is wholly unwarranted and is, furthermore, directly opposed to the reason for the enactment of the section.
[68]Section 1203.3 of the Penal Code reads, in part: “The court shall have authority at any time during the term of probation to revoke, modify, or change its order of suspension of imposition or execution of sentence. It may at any time when the ends of justice will be subserved thereby, and when the good conduct and reform of the person so held on probation shall warrant it, terminate the period of probation and discharge the person so held . . .” [Emphasis added.]
Section 1203.4 of the Penal Code provides: “Every defendant who has fulfilled the conditions of his probation for the entire period thereof, or who shall have been discharged from probation prior to the termination of the period thereof, shall at any time thereafter be permitted by the court to withdraw his plea of guilty and enter a plea of not guilty, or if he has been convicted after a plea of not guilty, the court shall set aside the verdict of guilty; and in either case the court shall thereupon dismiss the accusations or information against such defendant, who shall thereafter be released from all penalties and disabilities resulting from the offense or crime of which he has been convicted. The probationer shall.be informed of this right and privilege in his probation papers. The probationer may make such application and change of plea in person or by attorney authorizing [authorized] in writing; provided, that in any subsequent prosecution of such defendant for any. other offense, such prior conviction may be pleaded and proved and shall have the same effect as if probation had not been granted or the accusation or information dismissed. ’ ’
The superior court, on February 20, 1948, pursuant to the above provisions, ordered that appellant’s probation be terminated and that he be discharged therefrom, that his plea of guilty be changed to one of “not guilty” and that the cause be dismissed. Thereafter, respondent board, relying solely on the record of conviction, pursuant to section 2383 of the Business and Professions Code, ordered the suspension of appellant’s license for 90 days, and placed him on probation for three years. Section 2383 (Bus. & Prof. Code) provides that: ‘ ‘ The conviction of a felony or of any offense involving moral turpitude constitutes unprofessional conduct within the meaning of this chapter. The record of the conviction is conclusive evidence of such unprofessional conduct.”
The majority rely heavily on the case of In re Phillips, 17 Cal.2d 55 [109 P.2d 344, 132 A.L.R. 644]. I did not agree with the majority in that case, and I most certainly am not in [69]favor of extending the harsh rule there laid down so that it may be applied to a factual situation such as is here presented. In the Phillips case, the order of disbarment was made before the conviction had been set aside. In the instant case, the board made the order of suspension and probation after the conviction had been set aside. Not only that, but the action was based on a judgment of conviction which was no longer in existence except for the exception made in the statute. That exception has no application here. Appellant concedes that the board could have taken disciplinary measures against him because of his prior conduct, but contends that all of the counts of the accusation filed against Mm, with the exception of the one based on the judgment qf conviction, were dismissed.
In the Phillips case, the majority opinion stated; . . action in mitigation of the defendant’s puMshment should not affect the fact that his guilt has been finally determined according to law.” This holding, which is approved by the majority in this case, nullifies the effect of the proceeding had in the superior court under section 1203.4 of the Penal Code, and, in effect, obliterates the section. In the original action, appellant was fined, sentenced and placed on probation for two years. This conviction was set aside under the section providing that he be released from all “penalties and disabilities.” Notwithstanding this action, this court allows the respondent board to impose even greater penalties and disabilities upon appellant than those to which he had been subjected by reason of his conviction.
The “Decision” of respondent board states that it is based upon “the record, including the transcript, without taking additional evidence, and upon written argument presented to the Board.” [Emphasis added.] Since the accusations or information against the defendant had been dismissed by the superior court prior to the decision of the board, how could the record of the original trial be used as the basis for the board’s decision? The statute (Pen. Code, § 1203.4) makes one exception, and only one, where the subsequently dismissed conviction may be used against a defendant. This court has added another.
Mr. Justice Shenk, in Ms dissenting opinion in the Phillips case, pointed out that the majority had deviated from the rule laid down in a number of previous cases. At the present time, the Business and Professions Code, section 6102, is in [70]line with the decision in that case, but the code has not been so amended with respect to physicians and surgeons.
The majority point out that the Legislature could not have intended that the proceeding under section 1203.4 of the Penal Code was to wipe out the defendant’s guilt because (1) of the express proviso contained in the section; (2) because the conviction may be used for impeachment purposes (People v. James, 40 Cal.App.2d 740, 746 [105 P.2d 947]); (3) because it may be used for the purpose of suspending or revoking a driver’s license, (Veh. Code, § 309); (4) because it may be used in a second prosecution for failure to provide for a minor child, and because all matters inherent in the conviction (that is, the adjudication on the issue of parentage) were admissible in evidence, (People v. Majado, 22 Cal.App.2d 323 [70 P.2d 1015]).
I would like to point out, in this connection, that in People v. James, supra, the defendant was charged with the crime of grand theft. The fact that he had been previously convicted and the conviction dismissed pursuant to section 1203.4 of the Penal Code was used to impeach him. This case does not add another exception to the statute, but falls squarely within the one there contained. The court in the James ease said, at page 747 : “It seems highly probable that by the amendment to this section [the exception] after the decision in People v. Mackey, supra, the legislature intended to broaden the section in its application and particularly provided that in any subsequent prosecution of the defendant prior convictions may be pleaded and proved.” [Emphasis that of the court.] It was also said that “We therefore conclude that where a defendant who has been previously convicted of a felony and granted probation and a dismissal obtained as in the instant case, and is subsequently prosecuted for another offense, in becoming a witness in his own behalf, he subjects himself to impeachment upon the ground that he has been convicted of a felony.” [Emphasis that of the court.]
And in People v. Majado, supra, the defendant was found guilty, under section 270 of the Penal Code, of failure to provide for a minor child. The only question raised there was whether the court erred in admitting in evidence the record of a prior conviction which had been subsequently dismissed pursuant to section 1203.4 of the Penal Code. Note that this case, too, falls squarely within the exception to the section and is not additional thereto. Both People v. James, and People v. Majado, supra, cite with approval statements made [71]in the case of People v. Hainline, 219 Cal. 532 [28 P.2d 16]. In that case it was said, at page 534: “If prior to the 1927 amendment, any doubt existed in the minds of lawyers, judges and laymen as to the status of those who committed a second felony, such doubt was removed by said amendment, which strips them of all the privileges and rights which were restored to them by the provisions of the original act upon the completion of their probationary term. . . .
“The concluding portion of the act, which provides that if the probationer commits a second offense he shall forfeit all the rights with which he was clothed at the time the court ordered the information dismissed, constitutes the amendment of 1927 . . . Said amendment simply and justly provides that persons who have refused to profit by the grace extended to them upon the first offense shall, upon conviction of a subsequent felony, suffer the penalty of the law as prescribed for the punishment of all other offenders.” [Emphasis added.]
Section 309 of the Vehicle Code is an express additional statutory exception to the Penal Code section under consideration. It reads as follows: “A termination of probation and dismissal of charges pursuant to section 1203.4 of the Penal Code shall not affect any revocation or suspension of any license of the probationer under the provisions of this chapter. The probationer’s prior conviction shall be considered a conviction for the purpose of revoking or suspending any license issued to him on the ground of two or more convictions.”
If appellant’s suspension and probation is to be based upon the dismissed conviction, it would seem that he had gained no rights and no privileges of which he could be stripped. If the defendant is to be considered guilty for all purposes, despite the fact that there are only two statutory provisions whereby he may be so considered, it would seem that section 1203.4 of the Penal Code makes provision for a useless procedure.
It appears to me to be obvious that the Legislature intended that a person whose conviction has been set aside, and the accusation against him dismissed, should not suffer the stigma usually attached to such a conviction unless he is later prosecuted for another offense. If the Legislature did not so intend, why is the defendant permitted to withdraw his plea of guilty and enter one of not guilty ? The section clearly contemplates giving the offender a second chance to take his place in the community. Inherent in this contemplation is the thought [72]that he shall not he branded a pariah, having paid his debt to the satisfaction of the court. In holding to the contrary, the majority appear to be oblivious to the broad and liberal humanitarian concept embraced within the above quoted sections of our Penal Code.
Shenk, J., and Schauer, J., concurred.
Appellant’s petition for a rehearing'was denied July 14, 1949. Shenk, J., Carter, J., and Schauer, J., voted for a rehearing.