County of Los Angeles v. Civil Service Commission (39 Cal. App. 4th 620, 1995)

Opinion

VOGEL (C. S.), Acting P. J.

Statement of the Case

This appeal arises out of a disciplinary action taken against a deputy sheriff, Craig Calzada. After Calzada pled nolo contendere to the misdemeanor charge of receiving stolen property—a charge based upon his purchase of three items of electronic equipment from a friend of his brother-in-law—the Los Angeles County Sheriff’s Department fired Calzada. Pursuant to Calzada’s request, an administrative hearing was conducted. The hearing officer excluded evidence of Calzada’s nolo contendere plea. After the parties presented evidence on their respective theories as to Calzada’s culpability in buying the equipment, the hearing officer found that Calzada did not know the items were stolen. Nonetheless, the hearing officer recommended a 30-day suspension of Calzada based upon his finding that Calzada should have known, based upon the particular circumstances, that the legality of the transaction was doubtful. The civil service commission adopted this recommendation. Dissatisfied with this result, the county initiated an administrative mandamus action in the superior court, essentially seeking to have its initial decision to fire Calzada upheld. The trial court denied county’s request for relief. This appeal by county followed. County’s primary claim of error is that it should have been permitted to use Calzada’s nolo contendere plea at the disciplinary hearing. Secondarily, county urges that the commission’s decision constitutes an abuse of discretion. We reject all of county’s claims of error.

Factual and Procedural Background

The Crime and Entry of the Nolo Contendere Plea

In October 1990, electronic equipment was stolen from a warehouse in the City of Industry.

In November 1990, one of the suspects in the theft told an investigator that Craig Calzada, a nine-year veteran of the sheriff’s department assigned to the City of Industry station, had bought some of the stolen property. After further investigation, a search warrant was obtained for Calzada’s home. The search revealed a stolen television, “CD” player, and “VCR”.

In July 1991, the People filed a one-count felony complaint against Calzada, charging him with receiving stolen property. (Pen. Code, § 496, subd. (a).)

In Septémber 1991, at a hearing in the municipal court on the criminal matter, the People moved, pursuant to Penal Code section 17, subdivision (b)(4), to reduce the felony charge to a misdemeanor. The court ordered the complaint to be deemed to have been amended to allege a misdémeanor offense. Calzada’s retained counsel stated: “There will be an agreed stipulation in this case” as to sentencing. Calzada indicated he wished to plead “no contest.” In the course of explaining the pertinent constitutional rights, the court stated: “Do you understand a no contest plea has the same effect as a guilty plea, but it just cannot be used against you in any possible civil lawsuit arising out of this case?” Calzada responded: “Yes.” After Calzada waived his rights and pled no contest to the misdemeanor charge of receiving stolen property, the court placed him on one-year summary probation and ordered him to pay a fine or perform community service.

The Administrative Proceedings

In January 1992, after having given Calzada an opportunity to respond, the sheriff’s department (the Department) fired him. The Department relied upon Calzada’s nolo contendere plea as well as false statements he had allegedly made to internal affairs investigators about the purchase of the stolen property.

Calzada appealed the decision to discharge him. Accordingly, a civil service hearing was conducted in June 1992. The hearing officer sustained Calzada’s objection to any use of his “no contest” plea.

The Department presented testimony from several individuals and introduced documentary exhibits about the discovery and investigation of Calzada’s receipt of the stolen property. The thrust of the Department’s position was that Calzada knew the items were stolen. On the other hand, Calzada testified that he bought the items for $700 from a friend of his brother-in-law and that he (Calzada) was told the man was selling the items because he needed to raise money because of an impending divorce. Calzada testified that under these circumstances he had no reason to be suspicious about the status of the goods. Calzada further explained that he understood that a “no contest” plea “was not looked at as guilty in a misdemeanor case, and not the same way that it is in a felony case.”

The hearing officer’s written report explained that because he had concluded that Calzada’s plea of nolo contendere could not be used against him as an admission in the discharge proceeding, he (the hearing officer) had evaluated “the facts presented to him unprejudiced by the plea.” He found that Calzada had purchased stolen property and that “the behavior of the vendors during the selling transaction was suggestive of possible illegal conduct [but that] no independent evidence was adduced to show that [Calzada] had been disobedient to the laws.” Concluding that Calzada “should have known from the circumstances . . . that the legality of the transaction was doubtful” and that Calzada’s actions “were not within the standards of proper peace officer conduct,” the hearing officer recommended a 30-day suspension. The hearing officer noted that Calzada had a “positive record of past performance [and] the absence of a disciplinary history.” The civil service commission adopted the recommendation.

The Proceedings in the Trial Court

County filed a petition for a writ of mandate in the superior court (Code Civ. Proc., § 1094.5), contending that the civil service commission had abused its discretion in reducing Calzada’s discharge to a 30-day suspension. Primarily, county urged that the commission, in adopting the hearing officer’s report, had erred in upholding the exclusion of Calzada’s nolo contendere plea at the administrative hearing. Additionally, county maintained that the commission’s findings were not supported by the evidence.

The superior court denied county’s petition. Its statement of decision reads: “1. A principle [sz'c] controverted issue at trial is whether Respondent failed or refused to proceed in the manner as required by law by not receiving into evidence and/or considering the nolo-contendere charge and plea. [*][] The Court has determined that Respondent did proceed in the manner required by law. The factual and legal basis for this determination is as follows: [f] The nolo-contendere charge and plea should not be received in evidence and/or considered by the hearing officer or this Court; [*]]] Short of a direct statutory proviso, the common law does not allow a plea of nolo-contendere to be a ground for ‘decision or other adverse consequences,’ Cartwright v. Board of Chiropractic Examiners (1976) 16 Cal.3d 762, 773 [129 Cal.Rptr. 462, 548 P.2d 1134]. [¶] 2. A principle [sic] controverted issue at trial was whether Respondent’s decision of December 2, 1992 is supported by the findings and whether the findings are supported by the evidence. The Court has determined the following: [^] The findings of Respondent, Civil Service Commission of the County of Los Angeles, are supported by the evidence and the decision and punishment are supported by the findings and represent no abuse of discretion.” (Italics in original.)

After county filed a notice of appeal from the judgment denying its petition, Calzada asked the trial court to issue an order reinstating him to his position as a deputy sheriff in accord with the commission’s decision. The trial court granted Calzada’s motion. This court denied county’s subsequent requests to stay that postjudgment order pending resolution of the present appeal.

Discussion

Evidence of the Nolo Contendere Plea Was Properly Excluded

County’s primary appellate contention is that it was error to bar the Department from using Calzada’s nolo contendere plea at the administrative hearing. As we shall now explain, Cartwright v. Board of Chiropractic Examiners (1976) 16 Cal.3d 762 [129 Cal.Rptr. 462, 548 P.2d 1134] (Cartwright) supports the exclusion of this evidence.

Cartwright involved an administrative proceeding to revoke the license of a chiropractor who had pled nolo contendere to a charge of keeping a disorderly house. (Pen. Code, § 316.) At that time, the law permitted the state licensing board to suspend or revoke a license for several reasons, including “ ‘the conviction of a crime involving moral turpitude . . . .’”(16 Cal.3d at p. 778.) The issue in the case was whether a conviction based upon a plea of nolo contendere constituted a conviction within the meaning of that particular statutory command. Our Supreme Court, after reviewing earlier California decisions in that area, opted to continue with the following rule which represents the minority viewpoint in this country: neither the nolo contendere plea nor the resulting conviction could be used in a situation where a statute authorizes taking disciplinary action based upon a criminal conviction. (Id. at pp. 770-771.)

The Cartwright court expressed the policy basis of its holding in the following way: “Moreover, the legislative purpose of including the ‘conviction’ of certain crimes as grounds for discipline in section 10 of the Chiropractic Act and similar statutes is not merely to single out persons who have been the subject of certain procedural formalities but to reach those who have actually committed the underlying offenses. The conviction is significant in the statutory scheme only insofar as it is a reliable indicator of actual guilt. When the conviction rests on the verdict or finding of a trier of fact after trial, it means that guilt has been established beyond a reasonable doubt, and when the conviction rests on a plea of guilty, it means that the defendant has voluntarily admitted guilt for all purposes. But when the conviction is based on a nolo contendere plea, its reliability as an indicator of actual guilt is substantially reduced, both because of the defendant’s reservations about admitting guilt for all purposes and because the willingness of the district attorney to agree to and the court to approve the plea tends to indicate weakness in the available proof of guilt. [U Since a conviction after a nolo contendere plea is no more accurate as a reflection of guilt than the plea on which it is based, there appears little if any rational distinction between the basing of administrative discipline on such a conviction and basing it on the plea itself, which is concededly excluded from collateral proceedings. Any inclusion of such convictions as a basis for discipline under section 10 of the Chiropractic Act or similar statutes should be based not on an arbitrary judicial distinction between nolo contendere pleas and the resulting convictions but on a legislative determination that such pleas and convictions are sufficiently reliable indicators of guilt to warrant disciplinary measures for the protection of the public.” (16 Cal.3d at pp. 773-774, fns. omitted, italics added.)

Legislative action has substantially narrowed the practical impact of Cartwright. At the time of the decision, Penal Code section 1016—the statute authorizing a plea of nolo contendere—had provided that “[t]he legal effect of such a plea shall be the same as that of a plea of guilty.” Six years later, the statute was amended so that it now reads: “The legal effect of a [nolo contendere] plea, to a crime punishable as a felony, shall be the same as that of a plea of guilty for all purposes.” (Italics added.) At the same time, the Legislature amended Evidence Code section 1300—the hearsay exception for a judgment of a felony conviction—to provide that the exception applies “when offered in a civil action to prove any fact essential . . . whether or not the judgment was based on a plea of nolo contendere.” (Italics added.) And several licensing statutes, including the one governing chiropractors, have been amended to permit discipline based upon a conviction flowing from a nolo contendere plea. (Kennick v. Commission on Judicial Performance (1990) 50 Cal.3d 297, 320-321 [267 Cal.Rptr. 293, 787 P.2d 591, 87 A.L.R.4th 679]; and Opdyk v. California Horse Racing Bd. (1995) 34 Cal.App.4th 1826, 1828 [41 Cal.Rptr.2d 263].)

Having set forth the Cartwright analysis and holding, as well as the legislative reaction to it, we reach the first issue raised on this appeal: does Cartwright bar use of Calzada’s plea of nolo contendere in his disciplinary proceeding? We believe the answer is yes.

The theoretical underpinning of the Cartwright holding is that a conviction based upon a nolo contendere plea is unreliable because of the myriad reasons which prompt an accused to offer such a plea. (See, e.g., Note, Nolo Contendere Plea (1971) 44 So.Cal.L.Rev. 737, 744-752.) Accordingly, Cartwright barred the “collateral use of convictions based on nolo contendere pleas . . . .” (Cartwright, supra, 16 Cal.3d at p. 773.) Because Cartwright indicated that the nolo contendere plea is no more an accurate reflection of guilt than the ensuing conviction (id. at p. 774), it follows that the ruling excluding use of Calzada’s nolo contendere plea at the administrative hearing was proper.

County advances several arguments to avoid the force of this conclusion, none of which has merit.

County first urges that Cartwright is no longer “binding authority ... in light of subsequent legislative enactments and judicial decisions.” While county is correct that, as we have already noted, legislative action has substantially narrowed Cartwright’s practical impact in many situations, its holding barring use of nolo contendere pleas in administrative proceedings is still the controlling legal principle unless and until the Legislature has acted to the contrary. (See Kennick v. Commission on Judicial Performance, supra, 50 Cal.3d at p. 321.) County has pointed to no contrary provision of law which governs this situation. Thus, absent explicit legislative intervention, Cartwright controls. (Cf. Gov. Code, § 19572, subd. (k), which sets forth as a cause of discipline of a member of the state civil service a “[c]onviction of a felony or a conviction of a misdemeanor involving moral turpitude” and further provides that “. . . a conviction following a plea of nolo contendere, to a charge of a felony or any offense involving moral turpitude is deemed to be a conviction within the meaning of this section.”)

County next relies upon several portions of Penal Code section 1016, subdivision 3 to urge that it should have been allowed to use Calzada’s nolo contendere plea. That section is the statutory authorization for a plea of nolo contendere. It provides: “Nolo contendere, subject to the approval of the court. The court shall ascertain whether the defendant completely understands that a plea of nolo contendere shall be considered the same as a plea of guilty and that, upon a plea of nolo contendere, the court shall find the defendant guilty. The legal effect of such a plea, to a crime punishable as a felony, shall be the same as that of a plea of guilty for all purposes. In cases other than those punishable as felonies, the plea and any admissions required by the court during any inquiry it makes as to the voluntariness of, and factual basis for, the plea may not be used against the defendant as an admission in any civil suit based upon or growing out of the act upon which the criminal prosecution is based.”

County maintains use of Calzada’s plea would have been proper because the statute provides, in part: “The legal effect of such a plea [of nolo contendere], to a crime punishable as a felony, shall be the same as that of a plea for guilty for all purposes.” In so contending, county relies upon the fact that the offense of receiving stolen property is a wobbler—it can be prosecuted as a felony or a misdemeanor (Pen. Code, § 496, subd. (a))—and the fact that the People initially charged Calzada with a felony violation. County’s contention lacks merit because it ignores the fact that, as part of the case disposition, the People agreed to reduce the charge against Calzada to a misdemeanor.

Penal Code section 17, subdivision (b)(4) provides: “When a crime is punishable, in the discretion of the court, by imprisonment in the state prison or by fine or imprisonment in the county jail, it is a misdemeanor for all purposes under the following circumstances: [