Under the new Business & Professions Code § 480, expungement of a conviction under Penal Code § 1203.4 (of a misdemeanor or felony), 1203.4a (of misdemeanors without probation or an infraction) or 1203.41 (of a felony conviction after serving time for it in county jail) may not be used to deny a person a professional license after January 1, 2015.
This new provision, however, does not help those professions that are governed outside the Business & Professions Code such as teachers, insurance brokers and childcare providers.
Section 480, it also should be emphasized, does not relieve a license applicant or renewal candidate from disclosing expunged convictions on an application. Indeed, failure to disclose is a ground for license denial even if the license could not have been denied based on the conviction itself. Business & Professions Code §§ 475(a)(1) and 480(d).
Moreover, the signed order of dismissal on an expungement provides under Penal Code § 1203.4(a) that the “order does not relieve him or her of the obligation to disclose the conviction in response to any direct question contained in any questionnaire or application for public office, for licensure by any state or local agency, or for contracting with the California State Lottery Commission.”
It should be noted that 1203.4(a) is distinguishable from 1203.4a, which provides for expungement of misdemeanor convictions not resulting in probation and infractions, does not require disclosure on applications for public office, for licensure by any state or local agency, or for contracting with the California State Lottery Commission.
Convictions suffered outside California that were expunged in that state are not addressed by 1203.4(a). Therefore, disclosure of an out-of-state conviction that may have been expunged would be controlled by the law in the state of the conviction. However, if the other state states that one need not disclose it, we suggest that the more prudent route is to disclose it because failure to disclose, even if permitted by another state, may be seen as the candidate being less than forthcoming or displaying a lack of candor.
For example, the Medical Board of California’s license application form states that convictions set aside under 1203.4 “or the equivalent non-California law” must still be disclosed for the Board’s consideration. Such non-California, out-of-state convictions, in the context of a person applying to be a peace officer in California, may be disqualifying here. See Adams v. County of Sacramento (1991) 235 Cal.App.3d 872, 880 (Kansas conviction and expungement did not restore the right to be a police officer because California Government Code § 1029 bars ex-felons from police officer status).
For attorneys, physicians and schoolteachers, there are further limits on the benefits of an expungement or even a reduction of a felony to a misdemeanor. If the conviction is one that is “substantially related” to the duties, qualifications or functions of such professions, expungement of the conviction does not prevent disciplinary action. Under Business & Professions Code § 6102, concerning attorneys, even if a felony “substantially related” to the duties, qualifications and functions of practicing law is reduced to a misdemeanor under Penal Code § 17(b)(1) or (3) (post-conviction), it remains a felony for disciplinary purposes. Business & Professions Code § 2236.1(d), dealing with professional discipline for physicians, and Education Code §§ 44008 – 44009, dealing with professional discipline for elementary and secondary school teachers) adopt the same approach as 6102 for expunged convictions that are qualifying offenses for discipline and those that are wobblers, when reduced to a misdemeanor.
Generally speaking, however, a reduction of a felony to a misdemeanor under Penal Code § 17(b) is extremely attractive for avoiding the consequences of a felony conviction. When a felony is reduced or reclassified as a misdemeanor under § 17(b), “it is a misdemeanor for all purposes,” including licensing purposes unless (as mentioned above) there is a specific statute providing otherwise, as for attorneys, physicians and primary or secondary school teachers. For example, in Gebremicael v. California Comm’n on Teacher Credentialing (2004) 118 Cal.App.4th 1477, an applicant for a teaching credential could not be denied such a credential based on having been convicted of a felony when the felony was reduced to a misdemeanor under 17(b).
Lastly, it merits mention that a motion to set aside a plea and conviction nun pro tunc is also effective in avoiding the licensing consequences of having a qualifying offense that is “substantially related” to the duties, qualifications and functions of a certain profession. In Ryan-Lanigan v. Bureau of Real Estate (2013) 222 Cal.App.4th 72, a real estate salesman entered a no contest plea to hit and run without being advised of the consequences on her real estate license. She then hired new counsel who successfully moved to set aside the plea nun pro tunc and plea bargained the case to an infraction. Nonetheless, the Bureau of Real Estate revoked the woman’s real estate license on the theory that the dismissal of the conviction was analogous to a dismissal under 1203.4. The appellate court disagreed and overturned the license revocation because there was no misdemeanor or felony conviction for disciplinary action on her license.
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