In Re Phillips

109 P.2d 344, 17 Cal. 2d 55, 132 A.L.R. 644, 1941 Cal. LEXIS 245

• Court: California Supreme Court
• Decided: January 17, 1941
• Docket: L. A. 17367
• Status: Published

Opinions

GIBSON, C. J.

Petitioner, an attorney at law, on July 1, 1937, was found guilty in the Municipal Court of the City of Los Angeles of a misdemeanor involving moral turpitude. On July 13, 1937, a certified copy of the record of conviction was filed with this court and an order was made suspending petitioner from the practice of law. On September 7, 1937, the judgment of conviction was reversed on appeal, but no order vacating the suspension appears to have been made.' Petitioner was again placed on trial on the same charge and on December 9, 1937, was found guilty as charged by a jury. He then made application for probation, and the court on December 23, 1937, entered the following judgment: “Whereupon it is ordered and adjudged by the court this December 23, 1937, that for said offense of violation of Section 311, Penal Code, Subd. I, the said Michael G. Phillips be imprisoned in the city jail of Los Angeles City for the term of 180 days and the said defendant be discharged at the expiration of said term; execution suspended for 2 years and respondent placed on probation on condition he serves 175 days in City Jail.” An appeal was taken and the judgment was affirmed on March 1, 1938.

On April 5, 1938, this court made an order of disbarment which recited that a certified copy of the judgment had been filed and that the judgment had become final. Subsequently on October 10, 1939, the petitioner having complied with the terms of the order of probation, the judge of the municipal court made a further order setting aside the verdict of guilty and dismissed the accusation against petitioner in accordance with the provisions of Penal Code, section 1203.4. Petitioner then filed this application in which he asked that the order of disbarment be set aside and that his name be restored to the roll of attorneys authorized to practice law in this state.

The ground upon which petitioner seeks to have the order of disbarment of April 5, 1938, set aside is that there was no such “final judgment of conviction” as would justify an order of disbarment under the provisions of Business and Professions Code, sections 6101, 6102, Deering’s 1939 Supplement, page 521. Section 6101 provides: “Conviction of a felony or misdemeanor, involving moral turpitude, constitutes a cause for disbarment or suspension as provided in section 6102. The record of conviction shall be conclusive evidence. ... A plea or verdict of guilty is deemed to be a conviction within the meaning of this section. ’ ’ Section 6102 provides: “Upon the receipt of the certified copy of the record of conviction of an attorney of a crime involving moral turpitude, the court shall suspend the attorney until judgment in the case becomes final. When a judgment of conviction becomes final, the court shall order the attorney disbarred. ’ ’

The language of section 6102 is mandatory in character and provides for an automatic suspension upon proof of conviction, and for an automatic disbarment when the judgment of conviction becomes final. The sole question presented is whether, under the facts of this case, there was a final judgment of conviction. An appeal from the judgment of conviction was taken and it was affirmed. Thus, the only ground upon which petitioner can rest his argument that no final judgment was rendered is that the trial court granted him probation, and later dismissed the accusation against him upon the satisfactory completion of the probationary period.

The power of the trial court to grant probation after a conviction may be exercised in either of two ways: the court may suspend the imposition of the sentence, in which case no judgment of conviction is rendered, or it may impose the sentence and thereafter suspend its execution. (Pen. Code, secs. 1203.1, 1203.2.) In the latter ease a judgment of conviction has been rendered from which an appeal can be taken, and upon affirmance, it becomes a final judgment. In the former situation, however, where the court suspends the imposition of the sentence, that is, the rendition of a judgment of conviction, there is no judgment from which the defendant can prosecute an appeal (People v. Von Eckartsberg, 133 Cal. App. 1, 3 [23 Pac. (2d) 819]; People v. Noone, 132 Cal. App. 89, 92 [22 Pac. (2d) 284]; People v. De Voe, 123 Cal. App. 233, 236 [11 Pac. (2d) 26]; 8 Cal. Jur. 493), and thus there can be no final judgment of conviction. It has been suggested that this places power in the hands of the trial court to control disbarment orders because the power of this court to enter an order of disbarment under the statute is made to depend upon whether the order of probation suspends the imposition of the judgment or merely its execution. In a sense this is true, but it is merely the result of the statutory scheme, for only in the one case is there a final determination of the defendant’s guilt upon which this court can act in making its order of automatic disbarment. Where the trial court suspends the rendition of its judgment, this court acting under section 6102 (sttpra) can only suspend and cannot disbar the attorney, for there has been no final adjudication of his guilt in a court of law. In such a case, if it is thought that the attorney has been guilty of conduct warranting disbarment, it is incumbent upon the State Bar to proceed upon its own initiative under article 5 of the State Bar Act (Business and Professions Code, secs. 6075-6087, Deering’s 1939 Supp., p. 519). Following the disciplinary procedure therein provided, a recommendation can be made upon which this court may then make an order of disbarment.

But such is not the situation disclosed by this record. In the present case the court “ordered and adjudged . . . that ... the said Michael G. Phillips be imprisoned in the City Jail of Los Angeles City for the term of 180 days . . . ; execution suspended for 2 years and Defendant placed on probation on condition he serves 175 days in City Jail.” It is clear from the language of this order that the court rendered its judgment of conviction and then suspended its execution. Thereafter the defendant appealed, which would have been impossible if no judgment of conviction had been rendered (see cases cited, supra), and the judgment was affirmed. The judgment of conviction in this case was “final” in the sense that it was no longer possible to contest the guilt of the defendant upon the merits of the case. It was therefore a “final judgment of conviction” sufficient to sustain an order of disbarment by this court under section 6102.

In urging a contrary conclusion, petitioner relies upon the fact that the trial court acted under Penal Code, section 1203.4 to “set aside the verdict of guilty,” after compliance with the conditions of his probation. The power of the trial court to place the defendant on probation and to set aside the verdict after a satisfactory completion of the probationary period is established by section 1203.4, which reads as follows: “Every defendant who has fulfilled the conditions of his probation for the entire period thereof . . . shall ... 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 accusation 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 . . . 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. ” A preliminary point may be noticed here. The statutory language purporting to release the defendant ‘ ‘ from all penalties and disabilities resulting from the offense’.’ is not to be interpreted as a legislative mandate that the order of disbarment of an attorney must be revoked where probation is granted. It is established by the decisions of this state that the legislature cannot infringe upon the judicial power of the court to discipline its own officers, and cannot vacate such a judicial order by legislative mandate. (In re Lavine, 2 Cal. (2d) 324 [41 Pac. (2d) 161].) Any language of In re Herron, 217 Cal. 400 [19 Pac. (2d) 4], which might be deemed to support a contrary conclusion is hereby disapproved (see discussion, infra). The “penalties and disabilities” to which the probation statute refers are those which it is within the power of the legislative branch of the government to release.

Petitioner does not, however, rely primarily upon the theory that his order of disbarment is a “disability” which was released under the probation statute. He argues that the action taken under the Penal Code, section 1203.4, operated to set aside the judgment of conviction and that, therefore, there was never a “final judgment” upon which this court could have based its order of disbarment. Under section 6102 “conviction” in the sense of a plea or verdict of guilty (see 12 So. Cal. L. Rev. 201) is followed by an automatic suspension from the practice of law, and a “final judgment of conviction” is followed by disbarment. Was the finality of the judgment of conviction rendered in this case and affirmed on appeal destroyed by the order granting probation and the subsequent order setting aside the verdict of guilty and dismissing the accusation?

It is contended that the order granting probation followed by an order dismissing the action under Penal Code, section 1203.4, is analogous to an order granting a new trial or to the reversal of a judgment of conviction upon appeal, and that a judgment of conviction cannot be final so long as the court can set it aside by any of these methods. But we do not believe that the power granted to the trial court under section 1203.4 can be given this effect. An order granting a new trial or a reversal of the judgment of conviction is based upon the premise that error was committed which renders it uncertain whether the defendant is actually guilty of the crime of which he was convicted. (See 8 Cal. Jur. 414, 489.) So long as such action can be taken, it is clear that the judgment of conviction is not final because it is still possible that an ultimate determination on the merits will find the defendant not guilty. (In re Riccardi, 182 Cal. 675 [189 Pac. 694].) No such considerations are present in the granting of probation to a convicted defendant. Whether the court suspends the rendition of the judgment of conviction or whether it merely suspends the execution of the judgment, the order of probation presupposes that the defendant is guilty. Where probation is granted before the judgment is rendered, it has been said that the defendant waives any right to appeal on the merits. (People v. Von Eckartsberg, supra; and other cases cited supra.) Where probation is granted after a judgment of conviction, an affirmance on appeal is a final adjudication of the fact of his guilt. In either event the order granting probation is based upon the premise of the defendant ’s guilt, while a reversal upon appeal or an order granting a new tiial is based upon the premise that the defendant’s guilt has not been sufficiently proved.

The powers possessed by the trial courts under the probation statutes (Penal Code, secs. 1203, et seq.) are concerned with mitigation of punishment and confer discretion upon the courts in dealing with a convicted defendant. The power of the court to reward a convicted defendant who satisfactorily completes his period of probation by setting aside the verdict and dismissing the action operates to mitigate his punishment by restoring certain rights and removing certain disabilities. But it cannot be assumed that the legislature intended that such action by the trial court under section 1203.4 should be considered as obliterating the fact that the defendant had been finally adjudged guilty of a crime. This is made clear by the provision that the fact of the defendant’s conviction can be used against him in any later prosecution, despite dismissal of the action under section 1203.4. In brief, action in mitigation of the defendant’s punishment should not affect the fact that his guilt has been finally determined according to law. Such a final determination of guilt is the basis for the order of disbarment in this case. That final judgment of conviction is a fact; and its effect cannot be nullified for the purpose here involved, either by the order of probation or by the later order dismissing the action after judgment. Whether the judgment of conviction is final is to be determined from considerations apart from whether the trial court saw fit to mitigate the punishment by granting probation to the convicted defendant.

Counsel have suggested that the procedure to be followed in cases of this sort is uncertain. It is, of course, true that the State Bar may carry on its own independent investigation of the fitness of any one of its members to practice law without regard to criminal prosecutions which may be pending. (Shafer v. State Bar, 215 Cal. 706 [12 Pac. (2d) 957].) That is one of the alternative methods by which an attorney may be disbarred. (Business and Professions Code, secs. 6075 et seq.) The other method, which is intended to relieve the State Bar of the burden of carrying on a separate investigation where the defendant’s unfitness has been finally determined by a court of law, is set forth in Business and Professions Code, sections 6100 et seq., and provides the basis for the order in this case. Upon the presentation to this court of a certified copy of the record of conviction, we will make an order of suspension; and we will make an order of disbarment when the judgment of conviction becomes final on the merits of the cause, without regard to orders of probation in mitigation of punishment which may have been made by the trial court.

Among the cases cited as illustrative of existing confusion in automatic disbarment cases where probation has been granted, only In re Herron, 217 Cal. 400 [19 Pac. (2d) 4], seems inconsistent with the view we have herein set forth. In that case, after the conviction of an attorney of a crime involving moral turpitude, the court “suspended sentence” which was held to be equivalent to granting probation and suspending the execution of the judgment of conviction. Later the trial court set aside the verdict of guilty and dismissed the action, and this court held that the dismissal removed all disabilities and prevented the entering of an order of disbarment. In so far as that decision suggests that disbarment is a disability which can be removed by legislative mandate expressed in the probation statutes, it is contrary to the doctrine of our later case of In re Lavine, supra, and in so far as it suggests that the action of the trial court after a judgment of conviction could prevent the judgment from becoming final, it is erroneous and must be disapproved. In the case of In re Jacobsen, 202 Cal. 289 [260 Pac. 294], the the trial court suspended the imposition of the sentence and granted probation to the defendant attorney who had been convicted of a crime involving moral turpitude. In this case probation wras granted before the imposition of the sentence, that is, before the rendition of the judgment, and no final judgment of conviction was possible, despite contrary suggestions in the opinion on that point. Thus, the order of suspension, rather than disbarment, was proper. In Shafer v. State Bar, 215 Cal. 706 [12 Pac. (2d) 957], the order granting probation was made after the judgment of conviction was rendered, and this court properly made its order suspending the defendant until the judgment became final, in which case he was to be disbarred. In the case of In re Hatch, 10 Cal. (2d) 147 [73 Pac. (2d) 885], this court properly suspended the defendant attorney where only the “record of conviction” was filed and it appeared that probation was granted before any judgment of conviction was rendered. In each of these cases the result properly depended upon whether there was a final judgment of conviction as required by the statute.

In the present case the court properly made its order of disbarment based upon a final judgment of conviction. Any application for reinstatement which petitioner desires to make should be filed with the Board of Governors of the State Bar, and this court should not act until the Board of Governors has completed its investigation and reported thereon. (Business and Professions Code, secs. 6078, 6082; In re Lavine, supra.)

The petition to set aside the order of disbarment and to restore petitioner’s name to the roll of attorneys is denied without prejudice to petitioner’s right to make his application for reinstatement upon such showing of moral rehabilitation as may be deemed satisfactory by the Board of Governors of the State Bar.

Traynor, J., and Edmonds, J., concurred.