Opinion
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.
*624 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. 1 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. 2
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 *625 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.” 3
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” 4 and that Calzada’s actions “were not within the standards of proper peace officer conduct,” the hearing officer recommended *626 a 30-day suspension. 5 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)
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 *627 requests to stay that postjudgment order pending resolution of the present appeal. 6
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)
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 . . . .’”(
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 *628 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,
7
have been amended to permit discipline based upon a conviction flowing from a nolo contendere plea.
(Kennick
v.
Commission on Judicial Performance
(1990)
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 *629 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,
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,
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
*631
prison or by fine or imprisonment in the county jail,
it is a misdemeanor for all purposes
under the following circumstances: [<JD When the prosecuting attorney files in a court having jurisdiction over misdemeanor offenses a complaint specifying that the offense is a misdemeanor . . . .” The purpose of this provision is “to permit the selection of offenders who merit more lenient treatment, to encourage guilty pleas by limiting the potential penalty and to save court time and expense.”
(Malone
v.
Superior Court
(1975)
The docket of the proceeding in which Calzada pled nolo contendere recites that the court deemed the complaint to have been amended to charge a misdemeanor—the functional equivalent of the filing of a misdemeanor complaint from the outset—and that “[t]he court determines that the offense is a misdemeanor and this case shall proceed as if the defendant had been arraigned on a misdemeanor complaint.” These statements are consistent with the statutory language found in Penal Code section 17, subdivision (b)(4) that the prosecutor’s election to proceed upon a misdemeanor complaint renders the offense a misdemeanor for all purposes.
We therefore reject county’s argument that the mere fact that the crime could have been and, in fact, was initially prosecuted as a felony brings it within the ambit of Penal Code section 1016’s provision that it was “a crime punishable as a felony” so that Calzada’s nolo contendere plea should be treated as “a plea of guilty for all purposes.” Acceptance of that argument would effectively negate the clear statutory command found in Penal Code section 17, subdivision (b)(4) and amplified in the trial court’s docket that the matter was considered a misdemeanor.
Anticipating the conclusion that the crime to which Calzada pled nolo contendere was not one punishable as a felony, county next advances an alternative argument in which it relies upon that portion of Penal Code section 1016, subdivision 3 which recites: “In cases other than those punishable as felonies, ... the [nolo contendere] 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.”
10
(Italics added.) County argues that an administrative disciplinary proceeding is
not
a “civil suit”
*632
within the meaning of this statute so that by implication use of a nolo contendere plea to a misdemeanor in the administrative proceeding is permissible. That is, county urges that the statutory bar on use of a nolo contendere plea would apply only if the victim of the theft were to sue Calzada for conversion and attempt to use Calzada’s plea to establish his civil liability. This argument is clever but must fail. County ignores the fact that this analysis of what is and is not a “civil suit” within the meaning of Penal Code section 1016 was the position taken by
the dissenting opinion
in
Cartwright,
16 Cal.3d at pages 779-780 (dis. opn. of Richardson, J.) and the opinion in
Christensen
v.
Orr
(1969)
Lastly, county relies upon Evidence Code section 1300 to urge that evidence of Calzada’s plea should have been admitted at the disciplinary hearing. The reliance is misplaced. That provision merely creates an exception to the hearsay rule of exclusion for a judgment of conviction punishable as a felony. The exception applies even if the judgment was based upon a plea of nolo contendere. This provision of the Evidence Code is of no help to county because it only addresses the issue of overcoming a hearsay objection to the use of the judgment of conviction—it does not address the threshold issue of relevancy, the point at which precedent compels exclusion of evidence of Calzada’s plea.
The Trial Court Did Not Err in Upholding the Commission’s Decision
County filed a petition in the trial court pursuant to section 1094.5 of the Code of Civil Procedure to overturn the decision of the commission. The issue was whether the commission had abused its discretion in deciding to *633 limit Calzada’s punishment to a 30-day suspension. “Abuse of discretion is established if the [administrative agency] has not proceeded in the manner required by law, the order or decision is not supported by the findings, or the findings are not supported by the evidence.” (Code Civ. Proc., § 1094.5, subd. (b).)
The first issue is the standard of review to be applied by the trial court in evaluating the commission’s decision. In that regard, the key fact is that the administrative mandamus proceeding was initiated by county in an effort to reinstate the Department’s earlier decision to fire Calzada. “It is well-established that an employer’s right to discipline or manage its employees ... is
not
a fundamental vested right entitling the employer to have a trial court exercise its independent judgment on the evidence. [Citations.]”
(Los Angeles County Dept. of Parks & Recreation
v.
Civil Service Com.
(1992)
County contends that substantial evidence does not support the commission’s findings and that its decision to impose a 30-day suspension was an abuse of discretion. We disagree.
In particular, county disputes the commission’s finding, upheld by the trial court, that the circumstances were only such as to put Calzada on notice “that the legality of the transaction was doubtful.” County urges that the commission should have found that Calzada
knew
the items were stolen.
12
County claims that the evidence “clearly give[s] rise to [that] inference.” This argument is unpersuasive because the evidence, particularly Calzada’s testimony which the hearing officer chose to credit to a certain extent, also gave rise to a contrary inference. In essence, county’s contention is nothing more than a request that we reweigh the evidence and the credibility of the witnesses. We are not empowered to do that. Our task begins and ends with the inquiry of whether there was substantial evidence to support the
*634
commission’s findings.
(Lowe
v.
Civil Service Com.
(1985)
In a similar vein, we find no abuse of discretion in the penalty imposed by the commission. An appellate court is not free to substitute its discretion for that of the administrative agency. “If reasonable minds may differ with regard to the appropriate disciplinary action, there is no abuse of discretion.”
(Lowe
v.
Civil Service Com., supra,
Disposition
The judgment is affirmed.
Hastings, J., and Klein (Brett), J., * concurred.
Appellant’s petition for review by the Supreme Court was denied February 22, 1996.
Notes
The court’s docket recites: “Pursuant to section 17B4 with the consent of the prosecuting attorney and the defendant, the court determines that the offense is a misdemeanor and this case shall proceed as if the defendant had been arraigned on a misdemeanor complaint.”
Calzada subsequently paid the fine.
The internal affairs report recited that Calzada gave the investigators the following explanation for entering his plea of nolo contendere. “Subject Calzada said that his reasons for his plea of ‘no contest’ were formulated by himself. However he did say that he discussed his reasons with this attorney prior to entering his plea. [*]Q Subject Calzada said his felling [sic] were that it was bad enough that ‘Daddy’ got in trouble, let alone do any jail time. He said for his children’s sake, he could not disappear for six or eight months. He said his main concern about this ‘whole mess’ was that he did not want to do any jail time, no matter what. [1 Subject Calzada said his feeling is that truth has no place in Court. He said in Court it is an examination of your evidence. He said he felt that they could put on a ‘great show’ and still get shot down, or put on a ‘great show’ and win. He said due to the ‘atmosphere of law enforcement’ and the public right now, he did not think that he could get a fair trail [m'c] regardless of what kind of jury was picked. He said if the jury ever found out that he was a cop, they would think that he should have known better. He said the jury would have formed that opinion ‘right out of the gate.’ He said that with a misdemeanor conviction, along with ‘no jail’ he felt that a ‘no contest’ plea was best for him and his family.”
The hearing officer’s report explains: “A purchase transaction such as that occurring at [Calzada’s] home should cause a person of normal intelligence and maturity to be suspicious of the nature of the enterprise and, even more so when the recipient of the goods is a competent and experienced police officer. The elements of the exchange are indeed surreptitious in that the goods were in their original containers with components in plastic bags, the value of the items was obviously underpriced, no warranty or bill of sale was produced, no explanation was made why the goods had not been returned to the seller for redemption, no identification of the supposed principal party was undertaken, and no reason was articulated to show why such a costly transaction was conducted for cash without issuance of a receipt to establish ownership. All of these factors would certainly lead to the conclusion that such was not a bona fide sale of personal property by an agent of an undisclosed principal.”
The hearing officer found that the Department had failed to prove that Calzada had made false statements to the investigators.
One year after Calzada filed his respondent’s brief in this court, county filed a formal motion to strike certain portions of that brief. County asserted that Calzada had failed to furnish the appropriate citations to the record for his factual assertions (Cal. Rules of Court, rule 15(a)) and/or had misstated the record. “Although we may strike a brief that fails to comply with the rules of court (Cal. Rules of Court, rule 18), we conclude that no useful purpose would be served by doing so in this case.”
(Tsakos Shipping & Trading, S.A.
v.
Juniper Garden Town Homes, Ltd.
(1993)
In 1978, two years after
Cartwright
was decided, the pertinent statutory scheme was amended to permit revocation of a chiropractic license because of “ ‘a plea or verdict of guilty
or a conviction following a plea of nolo contendere
made to a charge of a felony or of any offense substantially related to the practice of chiropractic.’ [Citation.]”
(Kennick
v.
Commission on Judicial Performance, supra,
We note that even in those civil actions in which a nolo contendere plea is admissible, the party is traditionally permitted to contest the truth of the matters admitted by the plea, to present all facts surrounding the nature of the charge and the plea, and to explain why the plea was entered.
(People
v.
Goodrum
(1991)
The only time a party can be barred from relitigating the issues ostensibly resolved by the nolo contendere plea is if the Legislature has specifically provided for an adverse consequence (e.g., license revocation) upon the conviction of a crime flowing from a nolo contendere plea and the crime bears a substantial relationship to the qualifications, duties, or functions of a licensed business or profession.
(Arenson
v.
Fox
(1980)
The failure of the Legislature to act in this area has created an anomalous situation. A conviction based upon a nolo contendere plea can lead to the revocation of a chiropractor’s license or the disciplining of a state employee but such a conviction cannot be used to discipline a deputy sheriff. Since a public safety officer occupies a position of public trust and is therefore held to a higher standard than other employees (see, e.g.,
Nicolini
v.
County of Tuolumne
(1987)
Penal Code section 1016 had originally prohibited use of a nolo contendere plea in a subsequent civil suit whether the plea was to a felony or to a misdemeanor. In 1982, the Legislature amended the section to permit use of a nolo contendere plea to a felony in a subsequent civil suit but to bar use of a nolo contendere plea to a misdemeanor in a subsequent civil suit. The Legislature did so in order to assist victims of felonies to recover money damages for injuries sustained during the crime in the circumstance in which the defendant elected to enter a plea of nolo contendere. (See Historical Note, 50A West’s Ann. Pen. Code (1985 ed.) § 1016, p. 486.)
In light of this analysis, county’s reliance upon the civil service rule permitting the admission into evidence at the administrative hearing of “[a]ny relevant evidence . . . regardless of the existence of any common law or statutory rule which might make improper the admission of such evidence or objection in civil actions” is misplaced. This rule does not override the governing public policy, set forth in decisional and statutory law, against the use of a nolo contendere plea or conviction.
To a certain extent, county appears to misapprehend the elements of the crime of receiving stolen property. While it is true that circumstantial evidence can be used to show the accused knew the property was stolen (see, e.g.,
People
v.
McFarland
(1962)
Judge of the Municipal Court for the Los Angeles Judicial District sitting under assignment by the Chairperson of the Judicial Council.