The opinion
MOSK, J.
I dissent.
As is so often the case, when a grave social problem emerges that seems to require severe sanctions, the legislative source—sometimes the people by initiative, sometimes the Legislature—acts with undue haste and the result is a statute that is hardly a model of clarity. That occurred here. The public outcry against repetitive drunk drivers resulted in the adoption of a measure that unfortunately may not always achieve its apparently desired objective.
The majority opinion is difficult to track. It contends that the legislation is ambiguous. It then proceeds to ignore the generally accepted result of statutory ambiguity—i.e., to resolve the ambiguity in favor of a criminal defendant, as the trial court did. Finally, the majority rationalize a result that ignores the text of the statute and plays havoc with a defendant’s elementary due process right to be heard. In my opinion the laudable motive of getting drunk drivers off the streets and highways does not justify suspending the rule of law in California.
The Vehicle Code (§ 13352, subd. (a)(3)) provides that the department shall suspend or revoke a license “upon a conviction or finding of a viola *382 tion of Section 23152 punishable under Section 23165 . . . A person need not be punished under section 23165, but he must be punishable under that section. One is punishable under section 23165 only if his prior offense was pleaded and proved.
The reason for the foregoing is clear. Section 23165 provides not only for license suspension, but for increased punishment up to a year in jail and a fine of $1,000 when there has been a prior offense committed within five years. We have consistently required that whenever prior convictions may be employed to increase penalties, they must be pleaded and proved, with the defendant given an opportunity to be heard in opposition. See, for example, the unanimous opinion of this court in People v. Jenkins (1975) 13 Cal.3d 749, 756 [ 119 Cal.Rptr. 705 , 532 P.2d 857 ]; to the same effect are People v. Lo Cicero (1969) 71 Cal.2d 1186, 1192 [ 80 Cal.Rptr. 913 , 459 P.2d 241 ], and People v. Ford (1964) 60 Cal.2d 772, 794 [ 36 Cal.Rptr. 620 , 388 P.2d 892 ].
The People failed to plead and prove defendant’s prior conviction. Therefore he was not punishable under section 23165, and the prerequisite for suspension under section 13352, subdivision (a)(3), was not met. The trial court’s order was thus compelled.
Since the majority are in error in their statutory interpretation, I need not reach the very grave due process problem that lurks in the background. I do observe, however, that under the traditional American rule of law, one may not be deprived of a right without an opportunity to be heard. On the issue of his prior conviction, this defendant has had no opportunity, in court or before an administrative agency, to be heard and to produce evidence concerning any possible invalidity of the prior. Indeed, he was not even informed, through any pleading, that he was in additional jeopardy because of the purported prior conviction. That does not comport with any recognized concept of due process. As Justice Cardozo wrote in Escoe v. Zerbst (1935) 295 U.S. 490, 493 [ 79 L.Ed. 1566, 1569 , 55 S.Ct. 818 ], “He shall have a chance to say his say before the word of his pursuers is received to his undoing.”
There is no justification for the prosecution to fail to charge a prior drunk driving conviction. Unfortunately, after the majority opinion in this case is filed there will be no incentive for the prosecution to do so. Yet there would be no burden on the state: it has local records available, and for records elsewhere the facilities of state and federal Department of Justice bureaus are as handy as the nearest law enforcement computer terminal. Ineptness of the prosecution in this instance does not justify judicial rewriting of a statute. The next legislative session should do that.
*383 I would affirm the judgment.
Bird, C. J., and Reynoso, J., concurred.