Sandoval v. State Personnel Board

Opinion

BEST, P. J. These consolidated appeals present the novel issue whether petitioners are entitled to the protection of Penal Code1 section 1000.5 when appealing their terminations as correctional officers. We conclude they are not and affirm the judgments.

Facts and Procedural History

Darroll Williams and Joseph Sandoval (petitioners) were correctional officers at the Tehachapi Correctional Institution. They were arrested in separate incidents after small amounts of drugs and drug paraphernalia were found in their homes. Pursuant to section 1000, both completed pretrial diversion programs, and the criminal charges were dismissed under section 1000.3.2 While the criminal charges were pending and before either man entered diversion, they were charged with a violation of Government Code section 19572, subdivision (t), failure of good behavior outside of duty hours which causes discredit to the appointing authority or the person’s employment, and were dismissed from their positions. The charges were based on the same facts which formed the basis of the criminal charges.

Williams and Sandoval appealed their dismissals and, at the administrative hearing, moved to suppress evidence relating to their arrests under section 1000.5. The administrative law judge (ALJ) denied the motion and sustained the dismissals. The California State Personnel Board adopted the proposed decision of the ALJ and upheld the dismissals. The trial court denied petitioners’ request for a writ of mandate and this appeal followed.

Discussion

Section 1000.5 provides:

“Any record filed with the Department of Justice shall indicate the disposition in those cases diverted pursuant to this chapter. Upon successful [1501]completion of a diversion program the arrest upon which the diversion was based shall be deemed to have never occurred. The divertee may indicate in response to any question concerning his prior criminal record that he was not arrested or diverted for such offense. A record pertaining to an arrest resulting in successful completion of a diversion program shall not, without the divertee’s consent, be used in any way which could result in the denial of any employment, benefit, license, or certificate.”

Only one case has construed section 1000.5 to date, B. W. v. Board of Medical Quality Assurance (1985) 169 Cal.App.3d 219 [215 Cal.Rptr. 130]. B. W., a licensed physician, was arrested for possession of cocaine. He successfully completed a diversion program at which time the criminal case against him was dismissed and his arrest record was expunged. (Id. at p. 225.) Later that year, the board placed B. W. on three years’ probation based on his illegal possession of cocaine. A year later, B. W. filed a petition for termination of probation on the ground the board used information from his record of arrest as the sole basis to institute disciplinary proceedings against him in violation of section 1000.5. The board denied his request and the trial court upheld the denial, finding section 1000.5 did not apply to protect licensees from disciplinary action. (B. W, supra, at pp. 226-228.) The Court of Appeal reversed.