The opinion
Filed 3/15/24
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SIXTH APPELLATE DISTRICT
THE PEOPLE, H050653
(Santa Clara County
Plaintiff and Respondent, Super. Ct. No. 21CV391905)
v.
LAURIE SMITH,
Defendant and Appellant.
For nearly 25 years, appellant Laurie Smith was the Santa Clara County Sheriff.
Towards the end of this period, prosecutors began investigating whether members of her
office had committed bribery and other crimes in processing applications for licenses to
carry concealed firearms. Multiple senior Sheriff’s Office officials as well as private
individuals have been prosecuted for these crimes, resulting in several appeals in this
court. (See People v. Moyer (2023) 94 Cal.App.5th 999; Jensen v. Superior Court (2021)
64 Cal.App.5th 1003; Schumb v. Superior Court (2021) 64 Cal.App.5th 973. )
Although Smith has not been criminally charged, in 2021 a civil grand jury
presented an accusation charging her with misconduct in office, and the People sought
her removal under statutory provisions authorizing removal of local officers for willful or
corrupt misconduct in office. (Gov. Code, §§ 3060-3075.) A trial began in
September 2022 and continued for a month. After the jury began deliberating, Smith
abruptly retired and moved to dismiss the removal proceedings on the ground that her
retirement rendered them moot. The trial court denied the motion, the jury found Smith
guilty on six counts, and the court entered a judgment of removal.
Smith now appeals, arguing that this case is moot because removal proceedings
seek a remedy—removal from office—which can no longer be granted because of her
retirement. We disagree. Despite Smith’s retirement, the judgment of removal against
her has at least one collateral consequence: It bars Smith from jury service under
section 203, subdivision (a)(5) of the Code of Civil Procedure (Section 203(a)(5)), which
excludes persons “convicted of malfeasance in office.” In Smith’s removal trial, the jury
found her guilty of perjury, which is a form of malfeasance in office, and the statutes
governing removal procedures term such verdicts a “conviction.” (Gov. Code, § 3072.)
Consequently, under the literal language of the removal and jury eligibility statutes,
Smith was convicted of malfeasance in office and thus is barred from serving as a juror.
Smith argues that the literal language of these statutes should be disregarded
because removal proceedings are not criminal cases and, in her view, a person can be
“convicted” only in a criminal case. In fact, removal proceedings employ many criminal
procedures, and when the key language in Section 203(a)(5) was first enacted, removal
proceedings were considered criminal in nature. Even more important, unlike many
similar statutory provisions, Section 203(a)(5) does not require that a person be convicted
of a felony or other crime involving malfeasance in office; it requires that a person be
“convicted of malfeasance in office” with no mention of a crime, and the word
“convicted” is broad enough to include determinations of guilt in non-criminal
proceedings. Moreover, the wording of Section 203(a)(5), its use of the term
“malfeasance in office,” and legislation contemporaneous to the initial enactment of the
section’s key language all point to the conclusion that Section 203(a)(5) uses the word
“convicted” in a broad sense that includes convictions in removal proceedings.
Accordingly, we conclude that Smith’s retirement did not moot the removal
proceedings against her because the conviction in those proceedings bars her from
serving on a jury. The judgment of removal is affirmed.
2
I. BACKGROUND
A. Removal Proceedings
Since at least 1872, California law has provided a process for removing local
officials for willful or corrupt misconduct in office. (Pen. Code, former §§ 758-772.)
This process, which is now in Government Code section 3060 et seq., borrows many
elements of criminal procedure. It starts with an “accusation” issued by a grand jury
against a district, county, or city officer “for willful or corrupt misconduct in office.”
(Gov. Code, § 3060.) Unless against the district attorney, the accusation is delivered to
the district attorney (id., § 3062), who serves it on the officer charged (id., § 3063), and
the officer is required to appear in court to answer the accusation (id., § 3064). If the
officer pleads guilty or refuses to answer, the trial court renders a “judgment of
conviction” against the officer. (Id, § 3069.) If the officer denies the charges, there is a
“trial . . . by a jury,” which is “conducted in all respects in the same manner as the trial of
an indictment.” (Id., § 3070.) Finally, “[u]pon a conviction” by the jury, the court
pronounces judgment that the officer be removed from office. (Id., § 3072.)
B. The Accusation
In December 2021, a grand jury presented an accusation charging Smith with
seven counts of misconduct in office. The first three counts concerned the Santa Clara
County Sheriff’s Office’s handling of applications for licenses to carry concealed
weapons. These counts allege, among other things, that Smith implemented a policy or
practice of granting licenses only to “VIPs” such as campaign donors, members of the
Sheriff’s Advisory Board, prominent individuals in the community, and individuals with
a personal connection to Smith. Smith also was charged with unlawfully accepting a gift
of tickets to a suite at the SAP Center, failing to report the gift, and then failing to
cooperate with an investigation by Santa Clara County officials.
Finally, and most pertinently here, Smith was charged with “willful and corrupt
misconduct in office by committing the crime of Perjury, in violation of Penal Code
3
section 118.” (Boldface omitted.) Specifically, the accusation charged that Smith
certified under penalty of perjury that her 2019 Statement of Economic Interests
disclosure (Form 700) was “true and complete” when she knew that this representation
was false.
C. The Trial
Smith denied the charges against her, and after the trial court dismissed one count,
the remaining six were tried to a jury. The trial began on September 30, 2020, and it
continued for nearly a month, with testimony from more than 40 witnesses. Because the
facts are immaterial to our legal analysis, we do not discuss the evidence. 1 Closing
arguments were made, and final jury instructions given, on October 27, 2022. The jury
began deliberations the next day, which was a Friday. The following Tuesday,
November 1, 2022, the jury returned verdicts finding Smith guilty on all six remaining
counts, including the perjury charge.
D. Smith’s Retirement
On the morning of October 31, 2022, the Monday after the jury began
deliberating, Smith retired. That same day, Smith orally moved to dismiss the removal
proceedings on the ground that her retirement mooted the proceedings. The trial court
ordered briefing and, after a hearing three days later, denied the motion.
Smith subsequently moved for a new trial, arguing again that the removal
proceedings were moot and that the trial court had erred in denying her motion to
dismiss. At oral argument, the court asked defense counsel whether the motion for a new
trial, if granted on grounds of mootness, would entail another motion to dismiss for
mootness. Defense counsel responded that the court’s description was “a fair high-level
summary.” The trial court denied Smith’s new trial motion and entered a judgment
ordering her “forthwith removed” from the office of Santa Clara County Sheriff.
1
For similar reasons, the People’s request for judicial notice filed on
August 7, 2023 is denied as moot.
4
Smith timely appealed.
II. DISCUSSION
Smith argues that her retirement mooted the removal proceedings and therefore
the judgment of removal against her should be reversed. 2 In particular, she contends that
removal from office is the sole remedy available in removal proceedings, and therefore
after retirement no effectual relief can be provided. Reviewing this issue de novo (K.G.
v. Meredith (2012) 204 Cal.App.4th 164, 174), we reach a different conclusion.
Although the judgment of removal here did not force Smith to relinquish office, it has at
least one collateral consequence—it disqualifies her from serving on a trial jury—and
therefore was not mooted by her retirement.
A. The Collateral Consequences Doctrine
“A case is considered moot when ‘the question addressed was at one time a live
issue in the case,’ but has been deprived of life ‘because of events occurring after the
judicial process was initiated.’ [Citation.]” (Wilson & Wilson v. City Council of
Redwood City (2011) 191 Cal.App.4th 1559, 1574.) Consequently, a case becomes moot,
and should not proceed to formal judgment, if “ ‘ “an event occurs which renders it
impossible for [the] court . . . to grant [the plaintiff] any effectual relief . . . .” ’ ”
(Ibid.) However, a case does not become moot simply because it becomes impossible to
grant the relief originally sought because a judgment may have “ ‘collateral
consequences.’ [Citation.]” (People v. Ellison (2003) 111 Cal.App.4th 1360, 1368-1369
(Ellison).)
For example, a criminal conviction does not become moot when the sentence
imposed is completed if that sentence has collateral consequences such as exposing the
2
Although Smith’s opening brief treats the denial of her motions to dismiss and
for a new trial as two separate errors, her mootness argument applies equally to each, and
she does not distinguish the legal principles applicable to the motions. Accordingly, we
treat them together.
5
defendant to future enhancements (Ellison, supra, 111 Cal.App.4th at p. 1369) or
disabling the defendant from voting or serving as a juror (Carafas v. LaVallee (1968) 391
U.S. 234, 237-238). The same principle applies in civil cases. For example, expiration
of a restraining order does not render the order moot if issuance of the order threatens the
defendant’s license to practice law. (San Diego Police Department v. Geoffrey S. (2022)
86 Cal.App.5th 550, 564.)
Indeed, the Supreme Court has applied the collateral consequences doctrine in a
case similar to this one. In Kennick v. Commission on Judicial Performance (1990) 50
Cal.3d 297, 309-313 (Kennick), disapproved on another ground in Doan v. Commission
on Judicial Performance (1995) 11 Cal.4th 294, the Commission on Judicial
Performance recommended removal of a judge based, among other things, on willful
misconduct in office. (Id. at p. 307.) After the judge retired, he moved to dismiss,
arguing that “his retirement has made this proceeding moot because [the Court] no longer
can grant the relief sought by the commission, i.e., his removal from office.” (Id. at
p. 309.) The Supreme Court disagreed because removal from judicial office has
collateral consequences such as rendering the judge ineligible for judicial office and
suspending him from the practice of law. (Ibid. [discussing Cal. Const., art. VI, § 18,
subd. (d)].) Although the judge offered to stipulate to his ineligibility for judicial office
and to suspension from practice (id. at p. 311), the court concluded that the removal
proceedings were not moot because, absent the judgment of removal, the judge could
apply for reinstatement to practice law in the future, and the proceedings before the court
would create a record of the reasons for suspension that could be used to evaluate such an
application. (Id. at p. 312.)
B. Jury Eligibility
The People argue that, just as the judge’s retirement in Kennick did not moot the
removal proceedings in that case because of removal’s collateral consequences, Smith’s
retirement did not moot the removal proceedings here because her conviction for perjury
6
has collateral consequences. In particular, the People argue that this conviction bars her
from serving as a trial juror, serving on a grand jury, holding public office, or running for
elective office. We need consider only the first contention—that Smith’s conviction for
jury bars her from serving as a trial juror—which is supported by the literal language of
Section 203(a)(5) and the removal proceeding statutes.
Code of Civil Procedure section 203 makes all persons presumptively eligible to
serve as jurors. (See Code Civ. Proc., § 203, subd. (a) [“All persons are eligible and
qualified to be prospective trial jurors . . . .”]; see also id., § 203, subd. (b) [“No person
shall be excluded from eligibility for jury service in the State of California, for any reason
other than those reasons provided in this section.”].) 3 However, the section excludes
eleven categories of individuals from jury eligibility. (Id., § 203, subds. (a)(1)-(a)(11).)
Section 203(a)(5) contains one of these categories: “[p]ersons who have been convicted
of malfeasance in office and whose civil rights have not been restored.”
3
Code of Civil Procedure section 203, subdivision (a) provides in full: “All
persons are eligible and qualified to be prospective trial jurors, except the following:
[¶] (1) Persons who are not citizens of the United States. [¶] (2) Persons who are less
than 18 years of age. [¶] (3) Persons who are not domiciliaries of the State of California,
as determined pursuant to Article 2 (commencing with Section 2020) of Chapter 1 of
Division 2 of the Elections Code. [¶] (4) Persons who are not residents of the jurisdiction
wherein they are summoned to serve. [¶] (5) Persons who have been convicted of
malfeasance in office and whose civil rights have not been restored. [¶] (6) Persons who
are not possessed of sufficient knowledge of the English language, provided that no
person shall be deemed incompetent solely because of the loss of sight or hearing in any
degree or other disability which impedes the person’s ability to communicate or which
impairs or interferes with the person’s mobility. [¶] (7) Persons who are serving as grand
or trial jurors in any court of this state. [¶] (8) Persons who are the subject of
conservatorship. [¶] (9) Persons while they are incarcerated in any prison or jail.
[¶] (10) Persons who have been convicted of a felony and are currently on parole,
postrelease community supervision, felony probation, or mandated supervision for the
conviction of a felony. [¶] (11) Persons who are currently required to register as a sex
offender pursuant to Section 290 of the Penal Code based on a felony conviction.”
7
(Section 203(a)(5).) Smith falls within the literal language of this category because she
was convicted of perjury in connection with her official duties.
First, Smith was convicted in the removal proceedings. In such proceedings,
findings of willful or corrupt misconduct are termed “convictions.” If an officer accused
of willful or corrupt misconduct in office pleads guilty to an accusation or refuses to
answer it, the trial court renders a “judgment of conviction” against the officer. (Gov.
Code, § 3069, italics added.) Even more important, if the officer pleads not guilty, a jury
trial is conducted “in the same manner as the trial of an indictment”—including proof
beyond a reasonable doubt—and a judgment of removal is rendered “[u]pon conviction”
by the jury. (Id., §§ 3070, 3072, italics added.) Accordingly, the judgment of removal
rendered in this case begins by noting that Smith “ha[s] been convicted by jury.” (Italics
added.)
Second, Smith’s conviction was for “malfeasance in office.” The term
“malfeasance in office” is not defined in any California statute. (People ex rel. City of
Commerce v. Argumedo (2018) 28 Cal.App.5th 274, 281 (Argumedo).) However,
“malfeasance” typically means “[m]isconduct or wrongdoing.” (American Heritage Dict.
(5th ed. 2011) p. 1062, col. 1 [“Misconduct or wrongdoing, especially by a public
official.”]; Webster’s 3d New Internat. Dict. (1993) p. 1367, col. 1 [“WRONGDOING,
MISCONDUCT, MISBEHAVIOR”]; Black’s Law Dict. (11th ed. 2019) p. 1145, col. 2
[“A wrongful or unlawful act; esp., wrongdoing or misconduct by a public official.”].)
As a consequence, the term “malfeasance in office” is naturally understood to mean
misconduct or wrongdoing by a public official while in office, at least where the conduct
“evidences moral corruption and dishonesty.” (Argumedo, supra, 28 Cal.App.5th at
p. 281.)
Smith’s conviction evidences moral corruption and dishonesty. She was accused
and convicted, among other things, of “committing the crime of Perjury” by certifying
that her annual ethical disclosures were true and complete when she knew that they were
8
not. Accordingly, the trial court instructed the jury on the elements of perjury under
Penal Code section 118, including whether Smith knowingly and willfully stated under
penalty of perjury that her annual disclosures were true and complete even though she
knew that they were not. The jury also was instructed to presume Smith innocent and
that the People had the burden of proving her guilty beyond a reasonable doubt.
Nevertheless, the jury unanimously found Smith guilty of perjury, thereby determining
that she had engaged in conduct evidencing moral corruption and dishonesty.
Consequently, under the literal language of Section 203(a)(5) and the removal
statutes, Smith was convicted of malfeasance in office and therefore is barred from jury
duty.
C. The Nature of Removal Proceedings
Smith does not dispute that she was found guilty of malfeasance in office in the
removal proceedings or that in making this finding the jury rendered what the removal
proceeding statutes term a “conviction.” Nonetheless, Smith denies that she was
“convicted” for purposes of Section 203(a)(5) because, she asserts, removal proceedings
are not criminal cases or prosecutions.
Removal proceedings employ many criminal procedures. They are commenced
by a grand jury, albeit by “accusation” rather than indictment. (Gov. Code, § 3060).
These accusations are prosecuted by district attorneys. (Id., § 3063.) And trials in
removal proceedings are conducted “by a jury . . . in all respects in the same manner as
the trial of an indictment,” including the presumption of innocence and the requirement
of proof beyond a reasonable doubt. (Id., § 3070.) In addition, the Penal Code identifies
the relief provided in a removal proceeding—removal from office (id., § 3072)—as a
criminal punishment. (Pen. Code, § 15 [“A crime or public offense is an act committed
or omitted in violation of a law forbidding or commanding it, and to which is annexed
upon conviction, either of following punishments: [¶] . . . [¶] (4) Removal from
office . . . .”].) Indeed, though the removal statutes are now found in Government Code
9
section 3060 et seq., they were originally placed in the 1872 Penal Code. However,
unlike in a criminal case, no warrant is issued or bail posted after the grand jury presents
an accusation in a removal proceeding. Instead, the accusation is served on the defendant
(Gov. Code, § 3063), and the defendant submits an “answer” in response (id., §§ 3064-
3065). In addition, the misconduct alleged in an accusation need not be criminal, and if it
is criminal, the resulting judgment does not bar subsequent prosecution for that crime.
(Stark v. Superior Court (2011) 52 Cal.4th 368, 411 (Stark); In re Burleigh (1904) 145
Cal. 35, 37 (Burleigh).)
Focusing on the criminal aspects of removal proceedings, Supreme Court
decisions in the late nineteenth and early twentieth century repeatedly described removal
proceedings as “criminal in nature.” (Coffey v. Superior Court of Sacramento County
(1905) 147 Cal. 525, 533 (Coffey); see also People ex rel. Dorris v. McKamy (1914) 168
Cal. 531, 533 [“That the proceeding is criminal can hardly be questioned.”]; Wheeler v.
Donnell (1896) 110 Cal. 655, 656 (Wheeler) [“That this proceeding is a criminal one, and
in its nature a prosecution for a crime, is evident by every section of the Penal Code
found in the chapter where this accusation is authorized.”]; Kilburn v. Lewis (1896) 111
Cal. 237, 240 [describing removal proceedings as “a proceeding for the punishment of an
offense in its nature criminal.”].) Moreover, in one early case, the Supreme Court held
that the dismissal of an accusation in a removal proceeding was not appealable under
statutes governing appeals in civil case because “the proceeding is a criminal one.”
(Wheeler, supra, 110 Cal. at p. 656.) In another case, the Court held that a defendant
could not be compelled to testify in a removal proceeding because a removal proceeding
is not conducted to “establish, recover, or redress private and civil rights,” but rather “to
try and punish persons charged with the commission of public offense” and therefore is
“a criminal case.” (Thurston v. Clark (1895) 107 Cal. 285, 288.)
However, as Smith points out, more recent decisions have characterized removal
proceedings differently. For example, a 1980 Court of Appeal decision ruled that, for
10
equal protection purposes, removal proceedings are “unlike felony criminal proceedings
in that they protect a different public interest, are governed by separate and distinct
procedures, and do not subject the accused to a fine or potential loss of liberty.” (People
v. Superior Court (1980) 110 Cal.App.3d 396, 400 (Hanson).) Similarly, a 1997 Court of
Appeal decision stated that “prosecution of an accusation under section 3060 et seq. is
not a criminal proceeding.” (Bradley v. Lacy (1997) 53 Cal.App.4th 883, 890 (Bradley).)
And in 2011, the Supreme Court stated that a removal proceeding “ ‘is not a criminal
prosecution’ ” because “ ‘its object is not to convict the defendant of a crime, but merely
to remove him or her from office,’ ” and “acts which can be punished” by removal “are
broader than behavior subject to criminal charges.” (Stark, supra, 52 Cal.4th at p. 410,
quoting 2 Witkin & Epstein, Cal. Criminal Law (3d ed. 2000) Crimes Against
Governmental Authority, § 109, p. 1201.)
It is not clear that we must choose between the earlier and more recent views
concerning whether removal proceedings are criminal in nature—though it should be
noted that statutory interpretation seeks “ ‘the true intent existing at the time the
legislation.’ ” (People ex rel. Lockyer v. R.J. Reynolds Tobacco Co. (2005) 37 Cal.4th
707, 724.) Many statutes refer to persons convicted of a felony, misdemeanor, or just a
crime. (See, e.g., Code Civ. Proc., § 203, subd. (a)(10) [“Persons who have been
convicted of a felony” (italics added)]; id., § 203, subd. (a)(11) [“Persons . . . required to
register as a sex offender . . . based on a felony conviction” (italics added)]; Bus. & Prof.
Code, § 6101, subd. (a) [“Conviction of a felony or misdemeanor, involving moral
turpitude . . . .” (italics added)]; Elec. Code, § 20, subd. (a) [persons “convicted of a
felony involving . . . any bribe, the embezzlement of public money, extortion, or theft of
public money, [or] perjury” (italics added)]; Gov. Code, § 1021 [“conviction of
designated crimes” (italics added)].) Section 203(a)(5) does not. It refers to persons
“convicted of malfeasance in office” (Section 203(a)(5)), with no mention of a felony,
misdemeanor, or crime. This omission suggests that Section 203(a)(5) may extend to
11
convictions for malfeasance in office whether or not that malfeasance is criminal and,
thus, in proceedings that are not criminal. As a consequence, we need to consider
whether removal proceedings are criminal in nature only if Section 203(a)(5) requires
that a person be convicted of a crime. We now turn to that question.
D. The Term “Convicted”
In interpreting statutes such as Section 203(a)(5), our primary objective is to
“ ‘ascertain the intent of the lawmakers so as to effectuate the purpose of the statute.’ ”
(Carmack v. Reynolds (2017) 2 Cal.5th 844, 849, quoting Day v. City of Fontana (2001)
25 Cal.4th 268, 272.) “We look first to ‘ “the language of the statute, affording the words
their ordinary and usual meaning and viewing them in their statutory context.” ’ ”
(People v. Jimenez (2020) 9 Cal.5th 53, 61.) Because “words used in a statute are not
considered in isolation,” we construe the language of a statute “in context” (Busker v.
Wabtec Corp. (2021) 11 Cal.5th 1147, 1158), which includes surrounding language and
the statutory structure. (See, e.g., Weatherford v. City of San Rafael (2017) 2 Cal.5th
1241, 1246-1247 (Weatherford).) If after applying these tools the language of a statute
remains “ ‘ “ambiguous or subject to more than one interpretation,” ’ ” courts “ ‘ “may
look to extrinsic aids, including legislative history or purpose.” ’ ” (Pulliam v. HNL
Automotive Inc. (2022) 13 Cal.5th 127, 137.) Finally, if after considering these additional
matters uncertainty still remains, courts may consider “ ‘legislation upon the same
subject, public policy, and contemporaneous construction.’ ” (Jackpot Harvesting Co.,
Inc. v. Superior Court (2018) 26 Cal.App.5th 125, 141.)
Applying these considerations, we conclude that in Section 203(a)(5) the word
“convicted” includes convictions for malfeasance of office in removal proceedings. The
word “convicted” may be used in a broad sense that includes findings that an individual
is guilty of an offense even if that offense is not criminal and the finding was not made in
a criminal prosecution. In addition, the wording of Section 203(a)(5), its use of the term
“malfeasance in office,” and legislation contemporaneous to the initial adoption of the
12
section’s key language all point to the conclusion that Section 203(a)(5) uses the word
“convicted” in this broad sense and therefore covers convictions in removal proceedings.
1 Potential Meanings
Citing Black’s Law Dictionary, the online Cambridge Dictionary, and two other
sources, Smith notes that “the word ‘convicted’ commonly refers only to criminal cases.”
We agree that this is the ordinary way in which the word is now used. However,
“convicted” also can be used in a broader sense. Leading American dictionaries define
“convict” to mean “to find or declare guilty of an offense or a crime by the verdict or
decision of a court or other authority.” (Webster’s 3d New Internat. Dict., supra, p. 1367,
col. 1, italics added; see also American Heritage Dict., supra, p. 402, col. 1 [“To find or
prove [someone] guilty of an offense or crime, especially by the verdict of a court”
(italics added).].) In addition, the word “offense” is not limited to crimes: It
encompasses any “infraction of the law” and even a “breach of moral or social conduct.”
(Webster’s 3d New Internat. Dict., supra, p. 1566, col. 2; see also American Heritage
Dict., supra, p. 1222, col. 2 [defining “offense” to mean, among other things, “[a]
violation or infraction of a moral or social code” as well as “[a] transgression of law”]).
As a consequence, the word “convict” may be used in a broad sense to refer to a finding
that an individual is guilty of an offense. whether criminal or not.
For example, it is perfectly natural to say that a student found guilty of plagiarism
or other violation of a university honor code was “convicted of Honor Code violations.”
(Henson v. Honor Committee of U. Va. (4th Cir. 1983) 719 F.2d 69, 71; see also Atria v.
Vanderbilt University (6th Cir. 2005) 142 Fed. Appx. 246, 256 [“students convicted of
Honor Code violations”]; Cobb v. Rector and Visitors of the University of Virginia (W.D.
Va. 1999) 69 F.Supp.2d 815, 830 [“a disproportionate number of minority students are
charged and convicted of honor violations”]; Jansen v. Emory University (N.D. Ga. 1977)
440 F.Supp. 1060, 1063 [“During Jansen’s first and second years of dental school, he was
charged and convicted of violations of the Emory Honor Code”]; McAdoo v. University
13
of North Carolina at Chapel Hill (N.C. App. 2013) 736 S.E.2d 811, 819 [“UNC later
described how Plaintiff had only been convicted of one Honor Code violation”]; Law v.
William Marsh Rice University (Tex. Ct. App. 2003) 123 S.W.3d 786, 789, fn. 3
[suspensions included in transcript if student is “convicted of two honor code
violations”].)
The Legislature has used the word conviction in this broad sense. As mentioned
above, the statutes governing removal proceedings state that, when a defendant pleads
guilty to an accusation, “the court shall render judgment of conviction.” (Gov. Code,
§ 3069, italics added.) The removal proceeding statutes also state that the trial court shall
pronounce a judgment of removal “[u]pon a conviction” at trial. (Id., § 3072, italics
added.) The statutes governing impeachment use conviction in this sense as well. They
state that a defendant may be “convicted on impeachment” by a two-thirds vote of the
Senate (id., § 3032, italics added), and require pronouncement of judgment “[a]fter
conviction” (id., § 3033, italics added; see also id., § 3040 [“If the offense for which the
defendant is convicted on impeachment is also the subject of an indictment or
information, the indictment or information is not barred thereby.” (italics added)].)
Thus, the term “convicted” can be—and in connection with removal proceedings
has been—used in a broad sense that extends to findings that a party is guilty of an
offense even if that offense is not criminal and, thus, the finding of guilt was not made in
a criminal case or prosecution. Accordingly, consistent with the statutory language in
Government Code section 3060 et seq., modern courts have continued to use
“conviction” in describing a judgment of removal. (See, e.g., Stark, supra, 52 Cal.4th at
p. 410; Bradley, supra, 53 Cal.App.4th at p. 888; People v. Hawes (1982) 129
Cal.App.3d 930, 938.)
2. The Wording of Section 203(a)(5)
When a word in a statute may be used in more than one sense, courts frequently
look to the language accompanying the words to determine the sense intended by the
14
Legislature. (See, e.g., Grafton Partners v. Superior Court (2005) 36 Cal.4th 944, 960
[“ ‘the meaning of a word may be ascertained by reference to the meaning of other terms
which Legislature has associated with it in the statute’ ”].) In Section 203(a)(5), the word
“convicted” is part of a phrase, “convicted of malfeasance in office,” which suggests that
the Legislature intended to use the word in a broad sense not restricted to criminal
offenses.
Section 203(a)(5) is worded differently than most statutes that contain the word
“convicted.” Most statutes containing the word “convicted” expressly restrict its
application to convictions for crimes. The jury eligibility statute itself does this in two
places. First, it bars from jury service persons “convicted of a felony” and currently on
parole, postrelease supervision, probation, or mandated supervision “for the conviction of
a felony.” (Code Civ. Proc., § 203, subd. (a)(10), italics added.) Second, it bars persons
required to register as sex offenders “based on a felony conviction.” (Id., § 203,
subd. (a)(11), italics.) Section 203(a)(5) is worded differently. It is not expressly limited
to convictions for crimes. Instead, it bars persons “convicted of malfeasance in office”
with no mention of a felony or other crime.
This different wording cannot be explained by a desire to focus on convictions for
malfeasance in office. Other statutes refer to individuals convicted of crimes involving
specific types of misconduct. For example, the Election Code bars individuals from
running or holding office if they have been “convicted of a felony involving . . .
embezzlement of public money, extortion or theft of public money, perjury, or conspiracy
to commit any of those crimes.” (Elec. Code, § 20, subd. (a), italics added.) Similarly,
the Government Code states that “[c]onviction of a felony or misdemeanor, involving
moral turpitude, constitutes a cause of disbarment of suspension” of an attorney (Bus. &
Prof. Code, § 6101, subd. (a), italics added), and it requires officers “convicted of a crime
involving an abuse of his or her position” to reimburse any funds provided for their legal
15
defense (Gov. Code, § 53243.1, italics added). 4 Consequently, if the Legislature had
intended to restrict Section 203(a)(5) to persons convicted of crimes, it could have done
so easily and clearly by using the wording in other statutes and referring to persons
convicted of a felony, misdemeanor, or crime involving malfeasance in office.
The Legislature’s decision to word Section 203(a)(5) differently and to omit any
reference to felonies, misdemeanors or crimes presumably was deliberate and intended to
convey a different meaning. “ ‘Ordinarily, where the Legislature uses a different word or
phrase in one part of a statute than it does in other sections or in a similar statute
concerning a related subject, it must be presumed that the Legislature intended a different
meaning.’ ” (Roy v. Superior Court (2011) 198 Cal.App.4th 1337, 1352.) Moreover,
“ ‘[i]t is a well recognized principle of statutory construction that when the Legislature
has carefully employed a term in one place and has excluded it another, it should not be
implied where excluded.’ ” (Brown v. Kelly Broadcasting Co. (1989) 48 Cal.3d 711,
725.) As a consequence, it cannot be assumed that, even though Section 203(a)(5) does
not explicitly require a conviction of a felony or other crime, the Legislature implicitly
limited the section to persons convicted of crimes. To the contrary, it must be presumed
that, by omitting any reference to crimes, the Legislature intended to use the word
4
See also Financial Code section 6525.5, subdivision (a) (barring any person
“convicted of any criminal offense involving dishonesty or breach of trust” from
participating in conducting the affairs of a savings association (italics added));
Government Code section 53243 (requiring reimbursement of paid leave for officers
“convicted of a crime involving an abuse of his or her office” (italics added)); Health and
Safety Code section 11714, subdivision (b) (tolling statute of limitations when a potential
defendant is “convicted of a criminal offense involving an illegal controlled substance”
(italics added)); Welfare and Institutions Code section 4648.12, subdivision (b) (referring
to individuals “convicted of any felony or misdemeanor involving fraud or abuse in any
government program” (italics added)); Vehicle Code section 11110.7, subdivision (a)
(authorizing denial of license to applicants “convicted of a crime involving moral
turpitude which is substantially relating to the qualifications, functions, or duties of the
licensed activity” (italics added)).
16
“convicted” in its broad sense and to extend Section 203(a)(5) to persons convicted of
offenses that are not criminal.
3. The Term “Malfeasance in Office”
The conclusion that Section 203(a)(5) uses the word “convicted” in its broad sense
and extends to offenses that are not criminal is supported by the section’s use of the term
“malfeasance in office,” which is not limited to criminal conduct.
As noted earlier, “malfeasance” is ordinarily understood to mean “[m]isconduct or
wrongdoing” in general, not just wrongdoing that rises to the level of a crime. (American
Heritage Dict., supra, p. 1062, col. 1; Webster’s 3d New Internat. Dict., supra, p. 1367,
col. 1.) Indeed, the Legislature frequently uses the term “malfeasance in office” to refer
to wrongdoing that that may not be criminal. For example, Revenue and Tax Code
section 1365, which prohibits county assessors and assessor office employees from
engaging in any business activity “incompatible or involves a conflict of interest with
their duties,” states that a violation of these requirements “shall constitute malfeasance in
office on the part of the assessor.” (Rev. & Tax. Code, § 1365, subd. (a), (b).) As
engaging in “incompatible” business activities does not always rise to the level of a
crime, this provision uses the term malfeasance in office to refer to misconduct that may
not be criminal. Other statutes grant the Governor and other executive branch officials
power to remove appointees for malfeasance in office 5 or make contracting officers
5
See, e.g., Food and Agricultural Code section 62307 (“The director may remove
any member from a local or regional advisory board if he finds, after a hearing, that such
a member is guilty of nonfeasance or malfeasance in office.”); Government Code
section 3541, subdivision (a) (“A member of the [Public Employment Relationship
Board] may be removed by the Governor upon notice and hearing for neglect of duty or
malfeasance in office, but for no other cause.”); Labor Code section 1141, subdivision (b)
(“Any member of the [Agricultural Labor Relations Board] may be removed by the
Governor, upon notice and hearing, for neglect of duty or malfeasance in office, but for
no other cause.”).
17
personally liable for money paid as a result of malfeasance in office. 6 Presumably, these
statutes are not limited to criminal conduct either.
In addition, decisions from other states recognize that the term “malfeasance in
office” includes misconduct that is not criminal. For example, the Utah Supreme Court
has held that the “ ‘commonly understood’ ” meaning of malfeasance in office includes
not only intentional conduct that “amounts to a crime,” but also conduct that “ ‘involves a
substantial breach of the trust imposed upon the official by the nature of his office,
and. . . is of such a character as to offend against the commonly accepted standards of
honesty and morality.’ ” (Madsen v. Brown (Utah 1985) 701 P.2d 1086, 1090, quoting
State v. Geurts (1961) 11 Utah 2d 345, 348.) Decisions from other states similarly
recognize that “malfeasance in office” does not require a showing “that the act is criminal
or corrupt in nature.” (Daugherty v. Ellis (1956) 142 W.Va. 340, 357-358; see Warren v.
Commonwealth (1923) 136 Va. 573, 586 [removal for malfeasance in office does not
require any corrupt or evil intention]; State ex rel. Attorney General v. Lazarus (1887) 39
La.Ann. 142, 160 [removal for malfeasance in office does not require proof that the
misconduct charged was criminal].)
Especially absent the express references to crimes in other statutory provisions
using the word “convicted,” Section 203(a)(5)’s use of a term (“malfeasance in office”)
that encompasses noncriminal misconduct supports the conclusion that the section uses
the word “convicted” in a broad sense and therefore is not limited to convictions for
offenses that are criminal.
6
See, e.g., Education Code, section 17605 (“In the event of malfeasance in office,
the district officer or employee invested by the governing power with the power to
contract shall be personally liable for any and all moneys of the district paid out as a
result of the malfeasance.”); id., section 81656 (In the event of malfeasance in office, the
community college district officer or employee invested by the governing board with the
power to contract shall be personally liable for any and all moneys of the district paid out
as a result of the malfeasance.”).
18
4. Contemporaneous Legislation
This conclusion is also supported by legislation contemporaneous to the adoption
of the language of Section 203(a)(5), which used the word “convicted” in a broad sense
to refer to non-criminal matters and, indeed, to findings of malfeasance in office in
removal proceedings.
The original removal and impeachment statutes were enacted in 1872, less than
ten years before former Code of Civil Procedure section 199 (Former Section 199), which
first enacted the language barring from jury service persons “convicted of malfeasance in
office.” (Former Code Civ. Proc., § 199, subd. (b); Stats. 1880, Code Amends. 1880,
ch. 35, § 1, p. 45.) Like the current removal proceedings statutes, the 1872 removal
proceedings statutes provided for a “judgment of conviction” if the defendant pleaded
guilty or refused to answer an accusation (Pen. Code, former § 766) or, where the
defendant went to trial, for a judgment of removal “[u]pon a conviction.” (Pen. Code,
former § 769.) Similarly, the 1872 impeachment statutes provided for a “judgment of
conviction” if the defendant plead guilty (Pen. Code, former § 744) or, where the
defendant went to trial, for a judgment “[a]fter conviction.” (Pen. Code, former § 747.)
As neither removal nor impeachment proceedings are criminal proceedings in the
conventional manner, these statutes show that less than a decade before the language
currently in Section 203(a)(5) was first adopted in 1880, the Legislature used the word
“conviction” in a broad sense that extended beyond such criminal proceedings and
applied to removal proceedings—which makes it reasonable to infer that the Legislature
used the word “convicted” in the same sense in Former Section 199 and, by extension,
Section 203(a)(5). (See Code Civ. Proc., § 5 [“The provisions of this Code, so far as they
are substantially the same as existing statutes, must be construed as continuations thereof,
and not as new enactments.”].)
Even more pertinent, in 1881, only a year after Former Section 199 was enacted,
the Legislature used the word “conviction” to refer to a finding of malfeasance in office
19
in a removal proceeding. In that year, the Legislature enacted legislation concerning
water rates, imposing an “official duty” upon municipalities to fix water rates, which
were “equal and uniform” and with “no discriminations,” (Stats. 1881, ch. 52, § 1, p. 55;
id., § 6, p. 56), and to require statements from water suppliers concerning the water they
provided. (Stats. 1881, ch. 52, § 2, p. 55; id., § 5, pp. 55-56.) This legislation deemed
failure to perform these duties “malfeasance in office” and provided for removal from
office “upon conviction” of such malfeasance: “Any Board Of Supervisors or other
legislative body of any city and county, city, or town, which shall fail or refuse to
perform any of the duties prescribed by this Act at the time and in the manner
hereinbefore specified, shall be deemed guilty of malfeasance in office, and, upon
conviction thereof at the suit of any interested party in any court of competent
jurisdiction, shall be removed from office.” (Stats. 1881, ch. 52, § 8, p. 56, italics added;
see also Morton v. Broderick (1897) 118 Cal. 474, 482 [observing that the legislation
“designates the failure to fix rates as ‘malfeasance’” and provides for removal from office
“upon ‘conviction’”].) As the failure or refusal to fix water rates or to require disclosures
is not criminal, this legislation plainly used the word conviction in its broad sense and
applied that sense to findings of malfeasance in office that is not criminal in a removal
proceeding.
It is likely that in 1880, when the Legislature enacted Former Section 199 barring
individuals “convicted of malfeasance in office” from serving on juries, it used the term
“convicted” in the same sense and likewise intended to include determinations of both
criminal and noncriminal malfeasance in office in removal proceedings. Thus, like the
wording of Section 203(a)(5) and the use of the term of “malfeasance in office,”
legislation contemporaneous to the adoption of the language now in Section 203(a)(5)
supports the conclusion that the section uses the term “convicted” in a broad sense that
includes determinations of both criminal and noncriminal malfeasance in office.
20
5. Smith’s arguments
Smith fails to offer any persuasive reason to adopt a contrary interpretation of
Section 203(a)(5).
a. Restoration of Civil Rights
Other than noting the ordinary definition of “convicted,” Smith makes only one
argument concerning the language of Section 203(a)(5): Pointing to the exception now at
the end of the section for persons “ ‘whose civil rights have not been restored,’ ” Smith
asserts that Section 203(a)(5) should be interpreted to apply “only to a felony
conviction.” We are not persuaded.
Smith assumes that only felons may have their civil rights restored. That is
incorrect. As Smith points out, only “a person convicted of a felony” may petition for a
certificate of rehabilitation and pardon (Pen. Code, § 4852.01., subd. (a)) and thereby
seek clemency through the courts (id., §§ 4852.1-4852.14). There is, however, another
way to restore civil rights: An individual may seek a pardon or other clemency directly
from the Governor, and this avenue is not restricted to felons. (Id., §§ 4800-4813.)
Even more fundamentally, there is no reason to restrict Section 203(a)(5) to the
scope of its exception. The provision in Section 203(a)(5) for persons whose civil rights
have been restored effectively creates an exception to the section’s general rule barring
person convicted of malfeasance in office from serving on juries. Smith fails to explain
why this general rule should extend only to individuals who potentially fall within the
exception, and we see none. The Legislature simply may have decided to create an
exception that potentially benefits only some of those covered by Section 203(a)(5)’s
general rule.
Moreover, the civil rights restoration exception was not added to the jury
eligibility statute until 1988, when Code of Civil Procedure section 203 was enacted.
(Stats. 1988, ch. 1245, § 2, p. 4144.) As a consequence, the exception could not have
restricted the scope of the jury eligibility statute before then, and it is unlikely that the
21
Legislature would have restricted the general rule in Section 203(a)(5) implicitly and
without any express statement by adding an exception. As the Supreme Court repeatedly
has observed, “ ‘ “[t]he Legislature ‘does not . . . hide elephants in mouseholes.’ ” ’ ”
(Mendoza v. Fonseca McElroy Grinding Co., Inc. (2021) 11 Cal.5th 1118, 1135, quoting
Jones v. Lodge at Torrey Pines Partnership (2008) 42 Cal.4th 1158, 1171.)
b. The Purpose of Removal Proceedings
Smith points out that removal proceedings have a different purpose than criminal
proceedings. That is true: Unlike a criminal case, the purpose of a removal proceeding is
not to impose a sentence or fine; instead, the purpose of a removal proceeding is “to
remove unworthy and unfaithful officials during their current term in office.” (Hanson,
supra, 110 Cal.App.3d at p. 401.) But Smith fails to explain how this distinction makes a
difference. The Penal Code identifies removal from office, as well as imprisonment and
fines, as criminal punishment: Under section 15 of the Penal Code, “[a] crime or public
office is an act committed or omitted in violation of a law forbidding or commanding it,
and to which is annexed, upon conviction, either of the following punishments:
[¶] 1. Death; [¶] 2. Imprisonment; [¶] 3.Fine; [¶] Removal from office; or, [¶]
Disqualification to hold and enjoy any office of honor, trust, or profit in this State.”
(Italics added.)
Even more important, convictions in removal proceedings are just as reliable as
convictions in criminal prosecutions because removal proceedings employ largely the
same procedures as criminal prosecutions. Removal proceedings are commenced by a
grand jury. (Gov. Code, § 3060.) In addition, if an accused official pleads not guilty in a
removal proceeding, the official receives a “trial . . . by a jury,” which is “conducted in
all respects in the same manner as the trial of an indictment” (id., § 3070)—including the
presumption of innocence and the requirement of proof beyond a reasonable doubt. We
see no reason to treat a jury verdict of guilty in a removal proceeding with any less
respect than a jury verdict in a felony prosecution.
22
This is not to say that there are no differences between removal proceedings and
criminal prosecutions. As Smith points out, a defendant in a removal proceeding has no
right to a preliminary hearing. (See Hanson, supra, 110 Cal.App.3d at p. 401.) But since
a 1990 initiative measure, a criminal defendant who is the subject of a grand jury
indictment does not have the right to a preliminary hearing either. (See Bowens v.
Superior Court (1991) 1 Cal.4th 36, 39 [“a defendant indicted in California is no longer
entitled to, and indeed may not be afforded, a postindictment preliminary hearing or any
other similar procedure”].) There are, of course, other differences between removal
proceedings and criminal prosecutions. As mentioned above, the “acts which can be
punished under [removal proceedings] are broader than the behavior subject to criminal
charges” (Stark, supra, 52 Cal.4th at p. 411), and judgments in removal proceedings may
not bar subsequent criminal prosecutions. (Burleigh, supra, 145 Cal.35, 37.) But these
differences do not impact the reliability of jury verdicts in removal proceedings, and we
see no reason to treat verdicts in such proceedings differently from verdicts in criminal
cases.
c. The Right to Serve on Juries
Smith also contends that any doubts concerning the application of
Section 203(a)(5) to removal proceedings should be “resolved in favor of the right to
serve on juries,” which Smith asserted at oral argument is “sacrosanct.” Here again,
Smith’s contention is based on a faulty premise. “Serving as a juror is not a fundamental
right . . . .” (Doe v. Finke (2022) 86 Cal.App.5th 913, 922; see also United States v.
Conant (E.D. Wis. 2000) 116 F.Supp.2d 1015, 1020 [“No court that has considered the
question of whether being eligible for jury service is a constitutional right has answered
in the affirmative.”].) As the California Supreme Court observed a half century ago,
“[w]hile trial by jury is constitutionally implanted in our system of justice, an individual’s
interest in serving on a jury cannot be held a fundamental right.” (Adams v. Superior
Court (1974) 12 Cal.3d 55, 61; see also Rubio v. Superior Court (1979) 24 Cal.3d 93,
23
101 [“the exclusion [from a jury] does not violate equal protection if it has any rational
relationship to some legitimate state objective”].)
In addition, Smith’s suggestion that doubts should be resolved in favor of
eligibility to serve ignores the important interests served by excluding individuals
convicted of malfeasance in office from juries. To protect the integrity and fairness of
jury trials, we decline to place a thumb on the scale in favor of public officials whom a
jury has found beyond a reasonable doubt to have committed malfeasance in office.
d. Impact on Removal
Smith’s final argument is that Section 203(a)(5) should not be interpreted to
include convictions in removal proceedings because doing so would undermine the
efficacy of removal proceedings. According to Smith, juries in removal proceedings
would be less willing to convict public officials of misconduct if they knew that the
officials would suffer collateral consequences such as disqualification from jury service.
Smith offers no evidence or other support for this assertion, and the People—who are
responsible for trying removal cases—do not share her concern. This comes as no
surprise. It is “fundamental law in California that the trier of fact is not to consider the
subject of penalty or punishment in arriving at its decision of guilt or innocence.”
(People v. Moore (1985) 166 Cal.App.3d 540, 549; see also ibid. [“The issue of
punishment being a question of law is exclusive to the court and therefore extraneous to
the jury.”].) As a consequence, any danger that juries in removal proceedings may
consider the collateral consequences of a conviction can be dealt with easily and
effectively by instructing the jury not to do so. Indeed, in Smith’s trial the jury was
instructed that “[y]ou must reach your verdict without any consideration of punishment.”
6. Conclusion
Although the word “convicted” is ordinarily used to refer to determinations in
criminal cases, Section 203(a)(5) uses it in a broader sense that encompasses
determinations of any offense, whether criminal or not. The wording of Section
24
203(a)(5), which, unlike many other provisions dealing with convictions, does not refer
to convictions of felonies, misdemeanors, or other crimes; the use of a term—
“malfeasance in office”—that includes both criminal and noncriminal misconduct;
legislation contemporaneous to the enactment of the initial jury eligibility statute; and the
subsequent history of the statute all support the conclusion that Section 203(a)(5) uses the
term “convicted” in this broader sense. Moreover, Smith has failed to offer any
persuasive argument for adopting a contrary interpretation. We therefore conclude that
Section 203(a)(5) applies to Smith’s perjury conviction in this case, which means that the
judgment against her has at least one collateral consequence and is not moot.
III. DISPOSITION
The judgment is affirmed.
25
_________________________
BROMBERG, J.
WE CONCUR:
_________________________
GROVER, ACTING P. J.
_________________________
LIE, J.
H050653
People v. Smith
Trial Court: Santa Clara County
Superior Court No.: 21CV391905
Trial Judge: The Honorable Nancy Fineman
Attorney for Defendant and Appellant Moskovitz Appellate Team
Laurie Smith: Myron Moskovitz
David A. Kaiser
Attorneys for Plaintiff and Respondent Brooke Jenkins,
The People: District Attorney
Matthew L. McCarthy,
Assistant Chief District Attorney
Daniel Amador,
Managing Attorney
Erin Loback,
Assistant District Attorney
H050653
People v. Smith