The opinion
FRIEDMAN, J. ‡
I concur in the result. A statute should be construed, if reasonably possible, to avoid a holding of unconstitutionality. {Palermo v. Stockton Theatres, Inc., 32 Cal.2d 53, 60 [ 195 P.2d 1 ].) The 1976 amendment to Education Code section 13220.16 was the product of inept draftsmanship, not discriminatory design. Reasonably construed, it extends its beneficence to éx-probationers and ex-prisoners, without regard to the grade of the offense. As the majority opinion states: “The Legislature *715 could not possibly or sensibly have concluded that misdemeanants, as opposed to felons, constitute a class of particularly incorrigible offenders who are beyond hope of rehabilitation.” (Majority opn., ante, p. 712.)
Education Code section 13220.16, subdivision (a), subsections (2) and (3) require denial of teaching credentials to persons convicted of designated crimes. These crimes include both felonies and misdemeanors. Subdivision (b), as added by the 1976 Legislature, provides that no person convicted of any one of the designated crimes shall be denied a credential if he fulfills certain conditions. At this point the Legislature’s prime objective becomes apparent—a conviction of one of the enumerated crimes, misdemeanor or felony, is not to be a lifelong barrier; all persons are entitled to absolution if they can produce an authoritative badge of rehabilitation.
The statute goes on to implement this prime objective by describing the requisite badges of rehabilitation. It describes two badges: first, a certificate of rehabilitation under Penal Code section 4852.01, and second, termination of probation and dismissal of the prosecution under section 1203.4. Viewed literally, subdivision (b) voices these demands conjunctively; any one applicant must exhibit both badges of rehabilitation. So construed, the statute is largely unworkable.
The draftsman of this amendment was oblivious to the workings of the criminal justice apparatus. Four kinds of ex-offenders are affected: first, the ex-felon who has served a prison sentence; second, the ex-felon who successfully served probation but no prison time; third, the former misdemeanant who paid the penalty for his offense but without placement on probation; fourth, the former misdemeanant who successfully completed probation.
If section 13220.16, subdivision (b), is viewed literally, the first sort (the ex-felon who served a prison sentence) can’t fulfill its dual demands, because he can obtain a certificate of rehabilitation but—never having been on probation—can’t have his conviction expunged under section 1203.4. The third variety (the misdemeanant who was not placed on probation) is eligible for neither badge; as a misdemeanant he can’t get a certificate of rehabilitation (Pen. Code, § 4852.01, subd. (d)); as a nonprobationer, he can’t proceed under section 1203.4. The fourth variety is eligible for the 1203.4 badge but not the section 4852.01 badge. Only the second variety of ex-offender—the ex-felon who successfully *716 completed probation—can possibly fulfill both statutory demands. (See Pen. Code, § 4852.01, subd. (c).)
Regardless of the grade of the offense and regardless of the individual’s social and moral redemption, the mechanical portions of the statute exclude three of the four varieties of ex-offender who are the presumable beneficiaries of the statute’s beneficent objective.
The majority opinion concedes that the statute doesn’t make sense. One asks whether it need be construed to reach a senseless result which, in turn, infects it with a constitutional vice.
In the statute, the two demands are separated by the word “and,” a conjunctive term if viewed literally. “And” may sometimes be interpreted as “or” to carry out the legislative intent. {Bianco v. Industrial Accident Com., 24 Cal.2d 584, 587 [ 150 P.2d 806 ]; 1-A Sutherland, Statutory Construction (4th ed.) § 21.14, pp. 90-94.) Restoration of teaching eligibility to ex-offenders who receive an authoritative badge of rehabilitation is the undebated and undebatable legislative objective. The badge required of ex-prisoners is that contemplated by Penal Code section 4852.01. The badge for ex-probationers is that described in section 1203.4. The Legislature did not intend that a single ex-offender secure both badges, but only the one appropriate to his case. 1 The statute makes sense only if the word “and” following the phrase “Penal Code” is construed as “or.”
So construed, the statute fulfills and does not frustrate the legislative objective. So construed, it is invulnerable to equal protection attack. So construed, it requires reversal of the superior court judgment.
Assigned by the Acting Chairman of the Judicial Council.
No process of construction can fill the statutory gap created by lack of any provision for the ex-offender who committed a misdemeanor and was not granted probation. The Penal Code does in fact supply him with a court-administered badge of rehabilitation. (See §. 1203.4a.)