Callahan

On 2 July 1965 and on 18 July 1966 defendant was convicted of violating Vehicle Code section 23102, subdivision (a). On 6 October 1973 he again was arrested for the same offense and on 12 November 1973 he pled guilty to it. He was sentenced 5 December 1973. The municipal court judge who sentenced him made no recommendation regarding his driver’s license nor did he order it taken away. The DepartmentofMotor Vehicles (DMV) issued an order, dated21 Februaiy 1975, *706 revoking Callahan’s driver’s license for three years because of his “convictions” in Ventura County Municipal Court on 2 July 1965, 18 July 1966 and 12 November 1973. Callahan thereafter, on 20 May 1975, petitioned for a writ of mandate to compel the Department of Motor Vehicles to annul its order of revocation. The Ventura County Superior Court, on 22 August 1975, ordered that the writ issue as prayed. Judgment was entered 25 November 1975 and the DMV appeals from the judgment. The DMV states that revocation under Vehicle Code section 13352, subdivision (e), is automatic, i.e.: irrespective of action or inaction by the municipal court judge, whereas Callahan argues it is not automatic, in that Vehicle Code…

I regard the case at bench as controlled by In re Estrada (1965) 63 Cal.2d 740 [ 48 Cal.Rptr. 172 , 408 P.2d 948 ]. In Estrada , as here, the defendant had been “convicted” prior to the statutory reduction of *709 penalty, but, as here, that conviction had not yet become “final” until after the amendment had taken effect. It follows from Estrada that the date of “conviction” is not controlling, but the date of finality of that conviction is. As the majority opinion agrees, Callahan’s “conviction” did not become “final” until after the January 1st date on which the amendment of section 13352 of the Vehicle Code became law.

I would affirm the judgment granting the writ of mandate.

Respondent’s petition for a hearing by the Supreme Court was denied’ November 18, 1976. Mosk, J., was of the opinion that the petition should be granted.

On 2 July 1965 and on 18 July 1966 defendant was convicted of violating Vehicle Code section 23102, subdivision (a). On 6 October 1973 he again was arrested for the same offense and on 12 November 1973 he pled guilty to it. He was sentenced 5 December 1973. The municipal court judge who sentenced him made no recommendation regarding his driver's license nor did he order it taken away. The Department of Motor Vehicles (DMV) issued an order, dated 21 February 1975, revoking Callahan's driver's license for three years because of his "convictions" in Ventura County Municipal Court on 2 July 1965, 18 July 1966 and 12 November 1973. Callahan thereafter, on 20 May 1975, petitioned for a writ of mandate to compel the Department of Motor Vehicles to annul its order of revocation. The Ventura County Superior Court, on 22 August 1975, ordered that the writ issue as prayed. Judgment was entered 25 November 1975 and the DMV appeals from the judgment. The DMV states that revocation under Vehicle Code section 13352, subdivision (e), is automatic, i.e.: irrespective of action or inaction by the municipal court judge, whereas Callahan argues it is not automatic, in that Vehicle…