Adams v. County of Sacramento

• Decision Date: 29 October 1991
• Docket Number: No. C009467,C009467
• Citation: 235 Cal.App.3d 872,1 Cal.Rptr.2d 138
• Court: California Court of Appeals Court of Appeals
• Parties: Gary ADAMS, Plaintiff and Appellant, v. COUNTY OF SACRAMENTO et al., Defendants and Respondents.

Page 138

1 Cal.Rptr.2d 138

235 Cal.App.3d 872

Gary ADAMS, Plaintiff and Appellant, v. COUNTY OF SACRAMENTO et al., Defendants and Respondents.

No. C009467.

Court of Appeal, Third District, California.

Oct. 29, 1991.

As Modified Oct. 31, 1991.

Review Denied Jan. 30, 1992.

Kevin W. Harris, Mastagni, Holstedt & Chiurazzi, Sacramento, for plaintiff and appellant.

L.B. Elam, County Counsel and Anthony L. Wright, Deputy County Counsel for defendants and respondents.

John K. Van de Kamp, Atty. Gen., Daniel E. Lungren, Atty. Gen., Richard D. Martland, Chief Asst. Atty. Gen., N. Eugene Hill, Senior Asst. Atty. Gen., Cathy A. Neff and Vincent J. Scally, Jr., Supervising Deputy Attys. Gen., for defendants and respondents.

PUGLIA, Presiding Justice.

Gary Adams (plaintiff) appeals from the judgment of the superior court denying his request for declaratory relief concerning his removal from the position of deputy sheriff. A deputy sheriff is a peace officer. (Pen.Code, § 830.1) Anyone convicted of a felony in this or any other state is barred from employment as a peace officer (Gov.Code, § 1029; hereafter § 1029). After serving seven years as a deputy sheriff, plaintiff's employment status was reevaluated in light of a felony conviction he had suffered in the state of Kansas in 1959, and he was reassigned to a nonpeace officer position in the Sheriff's Department. On appeal plaintiff's principal contentions are that (1) section 1029 is not a bar to his employment as a peace officer because the Kansas conviction has been expunged and set aside and in any event would not have been a felony in California, and (2) defendants are estopped to deny him employment as a peace officer because of their representations that expungement of the conviction would remove any bar to such employment. We shall affirm.

Plaintiff filed this declaratory relief action against the County of Sacramento (County), the Sacramento County Sheriff's Department (Sheriff), and the Commission on Peace Officer Standards and Training (COPOST) (collectively "defendants") to obtain reinstatement as a deputy sheriff. The matter was submitted at trial on the following stipulated facts: "On October 9, 1959, Plaintiff in the State of Kansas, plead[ed] guilty to the crime of burglary and larceny, a felony. He was placed on probation ... and on November 10, 1961, was discharged by the Court, having successfully fulfilled the terms of his probation.... On November 16, 1981, Plaintiff ... filed a Petition for Expungement of his conviction in the District Court of Kingman County, State of Kansas. On December 1, 1981, the Court granted the Petition and signed an Order of Expungement. On July 2, 1982, Plaintiff ... filed a Motion to Set Aside Conviction and Withdraw Guilty Plea with the District Court of Kingman County, State of Kansas. On that same date, the court granted the Petition and ordered the conviction of Plaintiff 'set aside' and the Plaintiff's guilty plea was withdrawn.... In the Fall of 1981, Plaintiff entered the Sheriff Basic Recruit Academy with the intent of becoming a Peace Officer with [County]. While Plaintiff was at the Academy he informed [Sheriff] of the aforementioned conviction in Kansas. [Sheriff] asked him to leave the Academy three weeks prior to graduation to get an expungement of the conviction. [Sheriff] informed Plaintiff if he got the expungement he could return to the Academy and become employed by [County] as a Deputy Sheriff. At that time Plaintiff and [County] thought that the Order of Expungement concerning Plaintiff's felony conviction in Kansas would allow him to become a peace officer in California. On April 27, 1982, Plaintiff was dropped from the Academy after [County] determined that the Order of Expungement was not sufficient to permit Plaintiff to be a California Peace Officer. Thereafter, Plaintiff obtained the order setting aside conviction and withdrawal of guilty plea, previously referred to. Plaintiff was allowed to re-enter the Recruit Academy. On November 11, 1982, Plaintiff was hired by [County] as a 'Deputy Sheriff on-call' and until April, 1989, worked in that position. On April 9, 1989, Plaintiff was hired by [County] as a 'Deputy Sheriff permanent part-time.'

"Shortly thereafter [Sheriff] became convinced that, notwithstanding the order setting aside the conviction of Plaintiff by the Kansas Court, Plaintiff was still not legally allowed to be a peace officer in California because of the earlier felony conviction. [Sheriff] placed the Plaintiff in a 'non-sworn' position in his department, that of a Sheriff's Records Officer I....

"The non-sworn position was at a lesser salary than Plaintiff was paid as a Deputy Sheriff Permanent Part-Time. The non-sworn position does not have the same promotional opportunities as Deputy Sheriff Permanent Part-Time position.... The non-sworn position has significantly less opportunities for overtime as a Deputy Sheriff part time position."

The trial court concluded section 1029 barred plaintiff from employment as a peace officer despite expungement and setting aside of the Kansas conviction. The court further held defendants were not estopped to deny such employment because the policy underlying section 1029 outweighs any prejudice to plaintiff.

I

Section 1029, subdivision (a) reads in relevant part: "Except as provided in subdivision (b), (c), or (d), each of the following persons is disqualified from holding office as a peace officer or being employed as a peace officer of the state, county, city, city and county or other political subdivision, whether with or without compensation, and is disqualified from any office or employment by the state, county, city, city and county or other political subdivision, whether with or without compensation, which confers upon the holder or employee the powers and duties of a peace officer: [p] (1) Any person who has been convicted of a felony in this state or any other state...."

Plaintiff contends section 1029 is inapplicable because his Kansas conviction has been rendered "null and void" by virtue of orders of the Kansas court expunging the conviction and setting it aside. The later order reads in relevant part: "... the conviction entered against the defendant ... is hereby set aside and rendered null and void and the sentence imposed upon the defendant is also set aside and rendered null and void; ... [p] ... the charge set forth and the information ... is hereby dismissed with predjudice [sic ]."

In California, expungement of a conviction is governed by Penal Code section 1203.4. When a court orders a conviction set aside under that section, the defendant shall "be released from all penalties and disabilities resulting from the offense of which he or she has been convicted...." However, expungement under Penal Code section 1203.4 does not eradicate a conviction or purge a defendant of the guilt established thereby. (Meyer v. Board of Medical Examiners (1949) 34 Cal.2d 62, 65, 206 P.2d 1085.) That section was never intended to obliterate the fact that defendant has been "finally adjudged guilty of a crime." (In re Phillips (1941) 17 Cal.2d 55, 61, 109 P.2d 344.) It merely frees the convicted felon from certain "penalties and disabilities" of a criminal or like nature. (Copeland v. Dept. of Alcoholic Bev. Control (1966) 241 Cal.App.2d 186, 188, 50 Cal.Rptr. 452; Kelly v. Municipal Court (1958) 160 Cal.App.2d 38, 41-46, 324 P.2d 990.)

Thus, an expunged conviction may be proved as a prior conviction to enhance punishment or as an element in a prosecution for possession of a concealable firearm by a convicted felon. (People v. Wiedersperg (1975) 44 Cal.App.3d 550, 553, 118 Cal.Rptr. 755.) An expunged conviction may be established as a basis for suspending a physician's license (Meyer v. Board of Medical Examiners, supra, 34 Cal.2d 62, 206 P.2d 1085) or disbarring an attorney (In re Phillips, supra, 17 Cal.2d 55, 109 P.2d 344). An expunged conviction for failure to provide (Pen.Code, § 270) is conclusive on the issue of parentage in a subsequent prosecution for the same offense. (People v. Majado (1937) 22 Cal.App.2d 323, 70 P.2d 1015.)

Plaintiff asserts expungement under Kansas law has a more expansive effect than that of Penal Code section 1203.4. Plaintiff contends a conviction expunged in Kansas "no longer exists on the books," is no longer "required to be reported to any public agency," and, pursuant to "Kansas Act 21-4204," does not bar the convicted person from carrying a firearm in that state. According to plaintiff, the effect of expungement in Kansas is as if the conviction had never occurred.

Except for Kansas Statutes Annotated section 21-4204, plaintiff cites no authority for these contentions. Section 21-4204 merely defines the offense of unlawful possession of a firearm to include possession of "a firearm with a barrel less than twelve (12) inches long by a person who, within five (5) years preceding such violation has been convicted of a felony...." Section 21-4204 does not specify whether this includes convictions which have been expunged or set aside.

However, other provisions of the Kansas statutes expressly recognize the disqualifying effect of an expunged conviction on employment as a peace officer. Kansas Statutes Annotated section 74-5607a requires all persons appointed as full-time police or law enforcement officers to complete a training course. Kansas Statutes Annotated section 74-5605 renders ineligible for such a training course anyone convicted of a felony, including felonies which have been expunged. ¹

Yet the relevant inquiry is not whether plaintiff could serve as a peace officer in Kansas but whether section 1029 applies to a felony conviction which has been expunged or set aside. This is a question of legislative intent to resolve which we first look to the language of the statute. (Brown v. Kelly Broadcasting Co. (1989) 48 Cal.3d 711, 724, 257 Cal.Rptr. 708, 771 P.2d 406.) Section...