PETERS, J. I dissent.
The majority concede that petitioner was denied his right to counsel in the proceedings leading to his 1966 conviction, and that the conviction has furnished the basis for the department’s order suspending petitioner’s driving privilege. In this proceeding to review the order of the department, it is my view that the superior court could properly consider the denial of the right to counsel and that petitioner was not required to bring a separate action to set aside the conviction.
The right to counsel is of such importance to our American system of justice that a person must be permitted to challenge collaterally a conviction obtained in violation of the right whenever the conviction is sought to be used to support guilt or enhance punishment for another offense. It is obvious that section 13352 of the Vehicle Code provides for enhanced punishment based upon conviction of a prior offense. Thus petitioner must be permitted to attack his prior conviction collaterally in this mandamus proceeding. In holding otherwise, the majority depart from settled principles, impair the efficient administration of justice, and impose an undue burden on persons who have already once been punished in violation of their constitutional rights.
The right to assistance of counsel is fundamental in criminal proceedings. (Gideon v. Wainwright (1963) 372 U.S. 335 [9 L.Ed.2d 799, 83 S.Ct. 792, 93 A.L.R.2d 733].) To a greater extent than with other rights of criminal [340]defendants, denial of counsel is presumed to pervade the entire proceeding, casting doubt upon whether convictions so obtained are fair or comply with the requirements of due process. (In re Gaines, 63 Cal.2d 234, 237 [45 Cal.Rptr. 865, 404 P.2d 473].) Thus the right is applied retroactively. (Doughty v. Maxwell (1964) 376 U.S. 202 [11 L.Ed.2d 650, 84 S.Ct. 702].) In California the right extends to defendants charged with misdemeanors as well as to those charged with felonies. (In re Johnson, 62 Cal.2d 325, 329 [42 Cal.Rptr. 228, 398 P.2d 420].)
Because the right to counsel is so fundamental to our notions of due process, the United States Supreme Court has held that collateral attacks on prior convictions obtained in violation of Gideon are permissible in a wide range of situations: “To permit a conviction obtained in violation of Gideon v. Wainwright to be used against a person either to support guilt or enhance punishment for another offense ... is to erode the principle of that case. Worse yet, since the defect in the prior conviction was denial of the right to counsel, the accused in effect suffers anew from the deprivation of that Sixth Amendment right.” (Burgett v. Texas (1967) 389 U.S. 109, 115 [19 L.Ed.2d 319, 324, 88 S.Ct. 258], italics added.)
The settled rule of this court has been that a conviction obtained in violation of Gideon may be attacked collaterally when any “statutory machinery relating to penal status or severity of sanction is activated by the presence of prior convictions, . . .” (People v. Coffey, 67 Cal.2d 204, 214-215 [60 Cal.Rptr. 457, 430 P.2d 15], italics added; see In re Johnson, supra, 62 Cal.2d 325, 329; In re Woods, 64 Cal.2d 3, 5 [48 Cal.Rptr. 689, 409 P.2d 913]; Hasson v. Cozens, 1 Cal.3d 576, 579 [83 Cal.Rptr. 161, 463 P.2d 385].) We have only recently confirmed the compelling view of the Court of Appeal (Mitchell v. Orr, 268 Cal.App.2d 813, 815-817 [74 Cal. Rptr. 407]; De La Vigne v. Department of Motor Vehicles, 272 Cal.App.2d 820, 822-824 [77 Cal.Rptr. 675]) that suspension of driving privileges after a second conviction for drunk driving constitutes the imposition of a greater sanction based on the first conviction. (Hasson v. Cozens, supra, 1 Cal.3d 576, 579.)
Pursuant to our prior decisions, petitioner should be able to attack his prior conviction collaterally whenever his prior conviction activates statutory machinery related to the severity of sanction to be imposed.
Vehicle Code section 13352, subdivision (c), constitutes such statutory machinery. In enacting this section the Legislature directed the department to suspend the driving privileges of any person twice convicted of driving under the influence of liquor within the last seven years (in any state). Petitioner might have challenged his first conviction at his second trial, since a second conviction would serve as the basis for suspending his driving [341]privileges. But it was also clearly proper to raise this issue at the time the increased sanction was imposed.
The majority not only depart from the settled principles discussed above but also effectively retard the efficient administration of justice by insisting that petitioner bring two actions instead of one. They concede that petitioner need not challenge his prior conviction at the second trial, suggesting that he may attack the conviction directly in the rendering court (or by mandate in the superior court against the rendering court) “at any time.” (Ante, p. 338.) The aggrieved citizen must now first proceed against the rendering court and then proceed against the department if it fails to restore his driving privileges.1
The procedures imposed by the majority, contrary to our past decisions, will impose undue burdens of time and money on citizens seeking to vindicate their constitutional rights to counsel. The citizen with a prior out-of-state conviction will bear an even heavier burden: he will now be forced to return to that state in order to attack the conviction if he wishes to drive in California. We refused to erect such barriers in In re Woods, supra, 64 Cal.2d 3, 5; there is no justification for doing so here.
The majority’s decision cannot be justified on the theory that, since the department’s duty to suspend driving privileges is ministerial, the department imposes no sanction. Such a fiction is unsupportable. Nor is it justifiable to argue that no collateral attack is permissible because the department did not act pursuant to a hearing in which such an attack could be made, but instead proceed summarily as required by law. Denial of a hearing before the department in these circumstances may be constitutionally permissible provided that ultimately a hearing is permitted by the courts, but surely this cannot be used to exempt the department’s action from constitutional challenge in the courts in the proceeding authorized to review the department’s action.2
[342]The penumbra! fear seems to be that the department will be unable or unwilling to devote resources to defending the validity of these convictions. The fear is unwarranted. The department is charged with enforcing section 13352 of the Vehicle Code. The Attorney General, as he has done both in the superior court and this court, can ably represent the department. It is certainly to be expected that the Attorney General will receive the full cooperation of other relevant law enforcement officials.
The majority in this case erode the principles enunciated in Gideon v. Wainwright, supra, 372 U.S. 335, and further burden our busy courts. In doing so they make it more difficult to challenge the unconstitutional imposition of what is a very serious penalty for all citizens in our motorized society and particularly those who depend upon driving for their livelihood.
I would affirm the judgment.
Tobriner, J., concurred.
The majority in effect hold that the rendering court is an indispensable party to an attack on its judgment. Such has never been the case. (In re Johnson, supra, 62 Cal.2d 325, 329; In re Woods, supra, 64 Cal.2d 3, 5; Hasson v. Cozens, supra, 1 Cal.3d 576, 579.)
Williams v. Department of Motor Vehicles, 2 Cal.App.3d 949 [83 Cal.Rptr. 76], and Houlihan v. Department of Motor Vehicles, 3 Cal.App.3d 915 [83 Cal.Rptr. 885], cited by the majority, held that mandate against the department was inappropriate because the department has neither the power nor the duty to set aside petitioner’s conviction. Those decisions misconstrue the relief sought by petitioner. Petitioner does not seek to have the department rule his prior conviction invalid. Rather, he seeks to have the superior court hold the conviction invalid and, on that basis, direct the department to set aside its order of suspension. It was to the superior court, not the department, that petitioner’s claim of invalidity was directed. The supe[342]rior court, as a court of general jurisdiction (Cal. Const., art. VI, § 5), clearly has the power to consider the validity of petitioner’s conviction. The court’s determination of a matter within its jurisdiction should be given effect.