Filed 3/10/22 Ni v. Board of Registered Nursing CA1/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION THREE

WENSHI NI,

Plaintiff and Appellant,

v.

BOARD OF REGISTERED 

NURSING,

Defendant and Respondent.

 A163171

 (Alameda County

 Super. Ct. No. RG20063543)

As a result of proceedings before the Board of Registered Nursing 

(the Board), Wenshi Ni’s (Ni) license as a registered nurse was revoked, 

the revocation was stayed, and Ni’s license was placed on probation for 

five years subject to certain terms and conditions. Ni challenged the 

Board’s decision by way of petition for writ of administrative mandate, 

which was denied. Ni now appeals that denial, and we affirm.

FACTS

A. Background

On August 23, 2006, the Board issued a registered nurse license 

to Ni. She worked at a hospital from March 2007 until March 2015, 

when her license was temporarily suspended pending the investigation 

and prosecution of alleged criminal conduct associated with her

ownership and management of five massage parlors. 

Between October 2013 and April 2014, the Alameda County 

Sheriff’s Office conducted an undercover operation targeting suspected 
2

prostitution activity at Ni’s massage parlors. As a result of the police 

operation, Ni was arrested and the Alameda County District Attorney 

filed an information charging her with 32 counts, including the several 

felony offenses for pimping and pandering (Pen. Code, §§ 266j, 266i), 

and several tax-related offenses including failing to file a return or 

report with the intent to evade unemployment insurance taxes for 

massage therapists working in her establishments with the intent to 

evade taxes (Unemp. Ins. Code, § 2117.51).

On June 9, 2015, pursuant to a plea agreement, Ni pleaded no 

contest to violating Unemployment Insurance Code section 2117.5, as a 

felony offense; in exchange, the remaining charges were dismissed. 

The trial court suspended imposition of sentence and placed Ni on 

formal criminal probation for five years under specified terms and 

conditions, including that she was not to own or manage any 

establishment that provided massage services.

According to Ni, in August 2015, she submitted to the Board 

documentation regarding her felony conviction. Thereafter, the Board 

ended the temporary suspension and reinstated Ni’s nursing license. 

Eighteen months later, on January 6, 2017, Ni was arrested for 

violating her criminal probation based on an allegation that she was 

1 Unemployment Insurance Code section 2117.5 reads: “Any 

person who, within the time required by this code, willfully fails to file 

any return or report, or to supply any information with intent to evade 

any tax imposed by this code, or who, willfully and with like intent, 

makes, renders, signs, or verifies any false or fraudulent return, report, 

or statement or supplies any false or fraudulent information, is 

punishable by imprisonment in the county jail not to exceed one year, 

or in the state prison, or by a fine of not more than twenty thousand 

dollars ($20,000), or both the fine and imprisonment, at the discretion 

of the court.” The section defines a wobbler offense. 
3

providing massage therapy services at a location that previously 

housed one of her massage parlors. On March 1, the trial court found 

Ni had violated her criminal probation, and she was sentenced to 112 

days in county jail with credit for time served of 112 days. Her 

criminal probation was reinstated with additional conditions, including 

that she not obtain a massage license and not provide “any sort of 

massage”.

2

1. June 1, 2017 Accusation and April 2018 Board 

Decision to Revoke License

On June 1, 2017, the Board served and filed an accusation, later 

amended, seeking revocation of Ni’s license. The accusation was based 

on allegations that Ni “is subject to disciplinary action under sections 

2761, subdivision (f) and 490” of the Business and Professions Code3, 

“in that she was convicted of a felony substantially related to the 

qualifications, functions, and duties of a registered nurse” (first cause 

for discipline), and she “is subject to disciplinary action under section 

2761, subdivision (a), in that she engaged in unprofessional conduct” 

based on her ownership and operation of massage parlors where she 

and her employees were engaged in prostitution-related activity 

(second cause for discipline) (§ 2761, subd. (a)). Ni filed a notice of 

defense and requested a hearing before an administrative law judge 

(ALJ). 

2 After reinstatement of criminal probation, as of April 2017 Ni 

was working at a skilled nursing facility providing care for elderly 

clients. Her license was set to expire on October 31, 2019, unless 

renewed. 

3 All undesignated statutory references are to the Business & 

Professions Code. 
4

At the December 6, 2017 hearing, the ALJ considered various 

documents submitted by the Board, as well as the testimony of Ni and 

the Board’s expert witness on the qualification, functions, and duties of 

a nurse. 

On April 19, 2018, the Board, having adopted the ALJ’s proposed 

decision and recommendation, revoked Ni’s license based on her felony 

conviction and violation of criminal probation, and for unprofessional 

conduct. The revocation was made effective as of May 18, 2018. 

The ALJ’s proposed decision recites the following factual findings 

and legal conclusions based on the first cause for discipline – Ni’s 

criminal conviction and violation of criminal probation.

a. Factual Findings

Ni testified that the massage therapists were independent 

contractors (not employees) that leased space in her establishments to 

provide massage services. Based on advice from her tax 

preparer/accountant that the massage therapists were not her 

employees, she did not collect and/or pay unemployment insurance 

taxes. She pleaded no contest to a violation of Unemployment 

Insurance Code section 2117.5 because prosecutors agreed to dismiss 

all other charges against her and to dismiss the case against her 

parents, who were owners of some of the buildings where the five 

massage parlors were located. Ni also offered the December 11, 2017

decision by the California Employment Development Department 

(EDD) of the Unemployment Insurance Appeals Board (“EDD decision”)

to establish she did not violate the law or for mitigation purposes. As 

set forth in that decision, the EDD determined Ni was not an employer 

of the massage therapists who worked in her massage parlors; rather, 
5

the massage therapists were independent contractors for whom Ni was 

not responsible for paying unemployment insurance taxes.4

The ALJ found that, despite the EDD’s decision, Ni’s contention 

that she did not employ the massage therapists working at her 

massage parlors “is simply not credible and not supported by the 

evidence. Although [Ni] asserted the therapists were independent 

contractors leasing space at her massage parlors, she admitted she filed 

4 On June 27, 2016, Ni filed a petition for reassessment of an EDD 

assessment issued under Unemployment Insurance Code section 1126 

for the period January 2006 through March 2014, raising the issues of 

whether “workers were employees of [Ni] and if so, whether [she] is 

liable for unemployment, employment training, and disability

contributions, personal income tax withholdings, penalties, and 

interest.” In its 2017 ruling in Ni’s favor, the Unemployment Insurance 

Appeals Bureau explained: “In the present case [Ni] was credible in her 

testimony which was corroborated by documentation in the file that 

[she] had no employees and that she had no intent not to pay employer 

payroll taxes. The therapists were not [her] employees and [she] 

invested in real estate with the help of family, and collected rent as a 

landlord. [She] is a licensed certified massage therapist and subleased 

space to other licensed massage therapists, who set their own working 

time, price, and brought their own equipment and materials to the 

space leased to them by [Ni]. [Ni] did not train or supervise the 

therapists, did not control their hours or rates or any aspect of their 

work, and received a fixed amount of rent. [She] maintained her own 

practice and leased space to other therapists. She was not and has 

never been an employer of other massage therapists.” The “notice of 

assessment for the period beginning January 1, 2006 and ending March 

31, 2014” was cancelled, and it was ordered that Ni “is not liable” for 

any payment pursuant to Insurance Code section 1126. 

The disciplinary matter was originally submitted for the ALJ’s 

decision on December 6, 2017. Thereafter, Ni filed a motion to reopen 

the record to admit the EDD decision. Over the Board’s objection, the 

ALJ admitted the EDD decision into evidence and the case was again 

submitted for the ALJ’s decision on January 5, 2018. By our order 

dated October 27, 2021, we granted Ni’s unopposed motion to augment 

the record on appeal to include the EDD decision. 
6

Internal Revenue Service (IRS) Form 1099 reports for the massage 

therapists reporting income she paid to the therapists. [Ni] would not 

report income paid to therapists in a Form 1099 if she was only leasing 

space to these therapists; to the contrary they would be paying [Ni] for 

the leased space. [Ni’s] payments to the therapists that worked in her 

establishments minimally established an agency relationship between 

[Ni] and the therapist. . . .”

The ALJ did not find credible Ni’s explanation regarding her 

criminal probation. Ni “testified that she did not intentionally violate 

the terms and conditions of her probation on January 6, 2017. [She] 

claimed that she resided [at a specified building address] . . . she only 

performed individual massages . . . and was not operating a business 

after her June 2015 conviction. She asserted she thought she was 

allowed to perform personal massages as long [as] she did not operate a 

massage parlor or employ massage therapists. [She] testified that the 

signage in front of the building was never removed after [her] massage 

parlor was closed in June 2015, and that she was not operating a 

massage parlor . . . on January 6, 2017. [Her] testimony, however, is 

not credible in light of the deputies’ observations that a full service 

massage business was still operating at that location.” 

b. Legal Conclusions

The ALJ determined that Ni incurred a felony conviction on June 

9, 2015, for failing to pay and/or withhold unemployment insurance 

taxes with the intent to evade payment of taxes for the massage 

therapists working in her five massage parlors. “Pursuant to section 

2761, subdivision (f), . . . [t]he felony conviction itself provides a basis 

for . . . disciplinary action. However, the conduct underlying this 
7

conviction, intentionally evading the payment of unemployment 

insurance taxes, evidences dishonesty which also renders the conviction 

substantially related to the practice of nursing. (See Windham v. 

Board of Medical Quality Assurance (1980) 104 Cal.App.3d 461 

(holding a tax evasion conviction was substantially related to the 

qualifications, functions, or duties of a physician).)”

The ALJ also determined that “the Unemployment Insurance 

Appeals Board decision is not binding in this proceeding,” commenting 

that Ni “failed to offer any evidence, other than her own conflicting 

testimony, to support her contention that she did not employ the 

massage therapist[s] working in her establishments,” and that Ni had 

knowingly pleaded no contest to the felony conviction in her criminal 

case. In any event, the ALJ concluded that Ni could not use the 

underlying facts and circumstances surrounding the crime to impeach 

or collaterally attack the conviction during the license discipline 

proceeding as the record of the conviction constituted “conclusive 

evidence that [she] violated Unemployment Insurance Code section 

2117.5, which necessarily establishes that [she] was an employer for 

purposes of the Unemployment Insurance Code and that she employed 

the massage therapists providing massages in her establishments.” 

The ALJ acknowledged that “[a]t best [Ni] may present the 

Unemployment Insurance Appeals Bureau [decision] for purposes of 

mitigation for any discipline imposed.”

Following the Board’s revocation of her license, Ni filed for relief 

from her felony conviction. On June 15, 2018, the trial court granted 

Ni’s application to reduce her felony conviction to a misdemeanor (Pen. 

Code, § 17, subd. (b)) and for early termination of her criminal 
8

probation (Pen. Code, § 1203.3). On August 18, 2018, the trial court 

granted Ni’s request for dismissal of the conviction (Pen. Code, § 

1203.4).

5

2. March 11, 2019 Trial Court Order and Issuance 

of Writ Directing Board to Vacate Revocation and 

Conduct Further Proceedings 

Following the dismissal of her felony conviction, Ni sought 

judicial review of the Board’s order revoking her license. On March 11, 

2019, the trial court granted Ni’s petition for a writ of administrative 

mandate and remanded the matter to the Board for further 

proceedings. 

The trial court initially rejected Ni’s challenges to the Board’s 

decision to impose discipline based on Ni’s felony conviction. In so 

concluding, the court stated:

“The Board acted properly in imposing discipline based on [Ni’s] 

no contest plea to the felony of failing to pay or withhold[ing]

unemployment insurance taxes. The question of whether a conviction 

is ‘substantially related’ to professional qualifications is a question of 

law. (Krain v. Medical Board [(1999)] 71 Cal.App.4th 1416, 1424 

[whether a conviction is ‘substantially related’ to professional 

qualifications is question of law].) The crime for which [Ni] was 

convicted involves ‘[t]heft, dishonesty, fraud, or deceit’ and therefore 

was a proper basis for discipline. [

6] [¶] Windham v. [Board of Medical] 

5 On October 27, 2021, we granted Ni’s unopposed motion to 

augment the record on appeal to include the trial court’s June 15, 2018 

and August 30, 2018 orders regarding Ni’s felony conviction, which 

documents were attached to Ni’s first writ petition and are part of the 

administrative record filed in this case. 

6 The court noted in its decision that the ALJ found “the criminal 

conviction for failing to pay or withhold unemployment insurances 

taxes ‘evidences dishonesty which . . . renders the conviction 

substantially related to the practice of nursing.’ ” The court further 

stated, “A felony conviction based on a no contest plea, standing alone, 
9

Quality Assurance [(1980)] 104 Cal.App.3d 461, relied upon by the ALJ, 

is persuasive if not strictly controlling. . . . [¶] In this respect, the court 

notes, but does not rely upon, the growing trend to rely on nurses for 

primary care. [Citations.] . . .

“[T]he ALJ did consider the [decision of the Unemployment 

Insurance Appeals Board (EDD)], and correctly held that the decision 

was not binding; could not be used to collaterally attack [the] felony 

conviction; but was relevant – though not necessarily dispositive – on 

the issue of the appropriateness of revocation in light of any mitigating 

factors. [Citation.]

“Considering the EDD decision solely as it relates to mitigation 

was correct. A person who pleads no contest to a crime may not, in an 

administrative proceeding, seek to re-litigate his or her guilt or 

innocence. (Arneson v. Fox (1980) 28 Cal.3d 440, 449.) Rather, he or 

she may offer evidence of extenuating circumstances as relevant to 

mitigating the level of the penalty, which will be considered with other 

relevant factors. (Id.) . . . 

“Relatedly, [Ni] also asks this court to consider the dismissal of 

her conviction on August 30, 2018 pursuant to her application for relief 

under Penal Code section 1203.4. While the post-hearing dismissal 

potentially may be raised in this court in the first instance . . . , it too is 

relevant solely to mitigation. A felony conviction that is later reduced 

or dismissed remains a proper basis for disciplinary action, including 

revocation. (Bus. & Prof. Code, § 490 (c) . . . [defining ‘conviction’ and 

providing that [the] Board may take action ‘irrespective of a subsequent 

order under Section 1203.4 of the Penal Code’]; cf. Danser v. Public 

Employees’ Retirement System [(2015)] [ ] [240] Cal.App.4th 885, 892 

[affirming disciplinary action (forfeiture of retirement benefits) based 

on felony conviction that was later reduced by trial court to a

misdemeanor and expunged pursuant to Penal Code [section] 1203.4].)” 

may not be a basis for revocation unless it bears a substantial 

relationship to the profession at issue. (See Arneson v. Fox (1980) 28 

Cal.3[d] 440, 448–449 [‘So long as there exists the requisite substantial 

relationship mandated by section 490, due process principles are 

satisfied.’].) Here there was no error because a substantial relationship 

existed.” 
10

The trial court went on to find, however, that the Board had 

failed to establish, by clear and convincing evidence, a second and 

independent basis for discipline on the unprofessional conduct charge. 

In so concluding, the court stated: “The evidence of unprofessional 

conduct consisted exclusively of unsworn police reports. That a few 

reports contained party admissions – in the form of alleged damaging 

admissions by [Ni] – does not satisfy the clear and convincing standard 

applicable here given that (1) none of the deputies testified; (2) none of 

the physical evidence (recordings, receipts) was offered; and (3) [Ni] 

disputed the contents of the reports in her own live, sworn testimony 

before [the ALJ]. Particularly in the face of [Ni’s] denials, the 

statements in the unsworn police reports are not sufficient to satisfy 

the high burden of proof that governs in a proceeding to impose 

discipline on a licensee.” The court went on to note that the ALJ, 

having determined the police reports had the necessary indicia of 

trustworthiness, properly admitted them under Evidence Code section 

1280 and Lake v. Reed (1997) 16 Cal.4th 448, and “consider[ed] any 

party admissions therein, with the remainder of the reports coming in 

to supplement as administrative hearsay.” However, unlike the DMV 

proceeding in Lake v. Reed, the standard of proof at this disciplinary 

proceeding was higher; “where no officer testified at the hearing, and 

where no physical evidence was introduced; where [Ni’s] sworn 

testimony disputed the contents of the police reports; and where the 

ALJ’s credibility determinations were generally directed to other parts 

of [Ni’s] testimony, the standard was not met.” 

As to the appropriateness of revocation, the trial court remanded 

the matter to the Board to reconsider the level of discipline based on 
11

Ni’s felony conviction, directing the use of the criteria outlined in the 

Board’s “ ‘Recommended Guidelines for Disciplinary Orders and 

Conditions of Probation,’ (10/02).” 

The trial court issued an administrative writ commanding the 

Board: (1) to set aside and vacate its June 25, 2018 decision, revoking 

Ni’s license; and (2) to hold further proceedings consistent with the 

court’s March 11, 2019 order. The superior court clerk served a filestamped copy of the March 11, 2019 order on both parties, and neither 

party filed a notice of appeal.

In its supplemental return to the administrative writ, the Board 

informed the trial court that, at a closed session meeting on April 10,

2019, the Board elected not to appeal the court’s judgment granting 

Ni’s writ petition. Five days later, on April 15, the Board vacated the

license revocation, and Ni’s license status was restored to active status. 

The next day, on April 16, the Board issued a “Briefing Order and 

Stay,” directing both parties to submit written arguments limited to the 

facts presented at the administrative hearing for the Board’s 

consideration before rendering its new decision on the appropriate level 

of discipline.

B. April 15, 2020 Board Decision on Reconsideration

On April 15, 2020, the Board issued its “decision after 

reconsideration,” again revoking Ni’s license, but staying the revocation 

and placing the license on probation for five years subject to certain 

terms and conditions.

The Board began its decision by setting forth the underlying facts 

of the accusation as previously set forth in the ALJ’s proposed decision, 

which included a recitation of the information in the police incident 
12

reports that lead to Ni’s arrest. The Board noted that the “incident 

reports were part of the . . . evidence in support of the Unprofessional 

Conduct cause for discipline. Because the trial court found that the 

unsworn police reports were properly admitted at the administrative 

hearing, those facts are restated here. When the trial court determined 

that the Unprofessional Conduct cause for discipline was unfounded, it 

concluded only that the unsworn statements – without more – were 

insufficient to meet [the Board’s] burden of proof.”

The Board then restated its earlier decision explaining why it 

had found Ni’s felony conviction established a cause for discipline, 

specifically noting the felony conviction constituted “conclusive 

evidence” that Ni violated Unemployment Insurance Code section 

2117.5, which established that she “was an employer for purposes of 

the Unemployment Insurance Code and that she employed the massage 

therapists providing massages in her establishments.”

The Board went on to explain its reasons for deciding that an 

appropriate level of discipline was a stay of revocation and probation 

for five years. It began by quoting its then-applicable regulations (Cal. 

Code Regs., tit. 16, § 1445, subd. (b), as amended Sep. 27, 1985) setting 

forth the criteria for evaluating the rehabilitation of a registered nurse 

who had been convicted of a crime, which included the following 

factors: (1) nature and severity of the acts or offenses; (2) total criminal 

record; (3) the time that has elapsed since commission of the acts or 

offenses; (4) whether the licensee has complied with any terms of 

parole, probation, restitution or any other sanctions lawfully imposed 

against the licensee; (5) if applicable, evidence of “expungement” 

proceedings pursuant to Section 1203.4 of the Penal Code; and (6) 
13

evidence, if any, of rehabilitation submitted by the licensee. The Board 

then stated:

“The above criteria [has] been considered in this case. The 

nature and severity of [Ni’s] conduct was extremely serious. [She] 

engaged in an extensive business enterprise of providing unlawful 

prostitution services in massage parlors she owned and operated. [She] 

enlisted the services of numerous females to accomplish this unlawful 

enterprise, negotiated payment for their prostitution services, and 

evaded paying unemployment insurance taxes for her employees. 

Although [her] conduct did not involve patients, the evidence 

established that the communities in which [she] operated the massage 

parlors were concerned and impacted by her conduct. In determining 

the appropriate level of discipline, ‘protection of the public shall be the 

highest priority for the Board of Registered Nursing in exercising its 

licensing, regulatory, and disciplinary functions.’ (Bus. & Prof. Code, 

§ 2708.1.)

“There has been a relatively short period of time, approximately 

six years, since [she] committed the conduct, and she remains on 

probation until June 2020. [She] also has failed to comply with the 

terms and conditions of her criminal probation. She violated probation 

in January 2017, when a probation search revealed that [she] was 

continuing to provide massage therapy services, even though she was 

prohibited to do so under the terms of her probation. The sheriff 

deputies’ probation search revealed that [she] continued to operate a 

full massage therapy service at her [specified] location. [Her] 

explanation for her probation violation simply was not credible.

“Finally, [she] denied in every respect the unlawful conduct 

alleged in the Accusation. She has not accepted any responsibility for 

her actions and did not present as a forthright and honest witness at 

hearing. [She] showed no contrition, offered no character references on 

her behalf, and essentially provided no evidence of rehabilitation from 

her criminal conduct. [She] offered the December 11, 2017 

Unemployment Appeals Board decision for purpose of mitigation. 

However, this decision is not binding in this proceeding, and in light of 

the sparsity of rehabilitation evidence offered by [Ni] in this

proceeding, the decision is afforded little weight.
14

“Based on the totality of the evidence, [she] failed to establish 

that she has been sufficiently rehabilitated, such that her continued 

licensure as a registered nurse should be restricted by probation terms 

and conditions for a period of five years. Such restrictions would 

protect the public’s health, safety, and welfare from significant risk of 

harm. Accordingly, [her] registered nursing license must be revoked, 

the revocation stayed, and her license subject to probationary terms 

and conditions for five years.”

The Board’s decision became effective on May 15, 2020.

C. Trial Court Proceeding 

On May 11, 2020, Ni again petitioned for judicial review of the 

Board’s decision after reconsideration, seeking a writ of administrative 

mandamus requiring the Board to vacate its decision to impose

discipline for her felony conviction. Following briefing and oral 

argument, the trial court denied the petition, stating as follows: 

“The petitioner was charged with some 32 felonies arising from 

her operation of several massage parlors. Petitioner entered into a plea 

bargain with the district attorney where she plead no contest and was 

then found guilty of the felony of [violating] Unemployment Insurance 

Code, [section] 2117.5, the willful failure ‘to file any return or report, or 

to supply any information with intent to evade any tax. . . . [Record 

Citation]. [¶] In exchange for the plea to the single felony, petitioner 

received the dismissal of the 31 other felony charges. [¶] The sentence 

imposed by the court included an Order stating, ‘do not own or manage 

any establishment that provides massages’ during the term of her five 

years of probation. [Record Citation.] 

“The plea of no contest by the petitioner to a violation of 

Unemployment Insurance Code [section] 2117.5 is unquestionably an 

admission of a felony crime involving moral turpitude. [¶] The 

admission and conviction of a felony crime involving dishonesty such as 

the crime of which petitioner admitted in exchange for the dismissal of 

31 other felony charges, many related to prostitution, is substantially 

related to the qualifications and functions and duties of a nursing 

license holder, and evidences to [a] substantial degree the petitioner’s 
15

present and potential unfitness to hold a nursing license. [(Cal. Code 

Regs., tit. 16, § 1444.)] 

“The argument that an administrative hearing officer from a 

different administrative agency (the EDD) can trump the admission of 

commission of a felony in a plea bargain arrangement in the criminal 

court is an argument that is without merit. As stated by the Supreme 

Court in Arneson v. Fox (1980) 28 Cal.3d 440 at [page] 449[:] 

‘Regardless of the various motives which may have impelled the plea, 

the conviction which was based thereon stands as conclusive evidence 

of appellant’s guilt of the offense charge.’

“The Board’s decision for the determination of culpability and for 

the sentence imposed are all supported in the record with substantial 

evidence and after application of the independent judgment test by the 

court, are determined to be supported by the weight of the evidence.”

On July 13, 2021, the trial court entered a judgment denying the 

petition from which Ni timely appeals. 

DISCUSSION

I. Applicable Law

The Nursing Practice Act (§ 2700 et seq.) is the chapter within 

the Business and Professions Code concerning the practice of nursing. 

The Legislature has vested the Board with the discretion to take 

disciplinary action against a licensed nurse and to determine the 

suitable penalty to be imposed where a cause for discipline exists based 

on a “[c]onviction of a felony or for any offense substantially related to 

the qualifications, functions, and duties of a registered nurse, in which 

event the record of the conviction shall be conclusive evidence thereof.” 

(§§ 2715, subd. (a), 2761, subd. (f).) The Legislature has also provided 

that “[a] plea or verdict of guilty or a conviction following a plea of nolo 

contendere made to a charge substantially related to the qualifications, 

functions and duties of a registered nurse is deemed to be a conviction 
16

within the meaning of this article. The board may order the license or 

certificate suspended or revoked . . . when the time for appeal has 

elapsed, or the judgment of conviction has been affirmed on appeal or 

when an order granting probation is made suspending the imposition of 

sentence, irrespective of a subsequent order under the provisions of 

Section 1203.4 of the Penal Code allowing such person to withdraw his 

or her plea of guilty and to enter a plea of not guilty, or setting aside 

the verdict of guilty, or dismissing the accusation, information or 

indictment.” (§ 2765.) 

Once the Board has found a basis to impose discipline, the 

Legislature has directed that the Board “shall discipline the holder of 

any license, whose default has been entered or who has been heard by 

the board and found guilty, by any of the following methods: [¶] (a) 

Suspending judgment. [¶] (b) Placing [the licensee] upon probation. [¶] 

(c) Suspending [the licensee’s] right to practice nursing for a period not 

exceeding one year. [¶] (d) Revoking [the] license. [¶] (e) Taking other 

action in relation to discipling [the licensee] as the board in its 

discretion may deem proper.” (§ 2759.) 

The Board’s regulations (at the time of its April 2020 decision

(and currently) require that when deciding the level of discipline it

shall consider its “ ‘Recommended Guidelines for Disciplinary Orders 

and Conditions of Probation’ (10/02) [(“the Guidelines”)], which are 

hereby incorporated by reference. Deviation from these guidelines and 

orders, including the standard terms of probation, is appropriate where 

the board in its sole discretion, determines that the facts of the 

particular case warrant such a deviation – for example: the presence of 

mitigating factors; the age of the case; evidentiary problems.” (Cal. 
17

Code Regs., tit. 16, § 1444.5, amended Jul. 23, 20147.) The Guidelines 

state the recommended discipline for conviction for a felony or any 

offense substantially related to the qualifications, functions, and duties 

of a registered nurse is “Revocation,” and “[o]ffenses that the Board 

deems to be substantially related include, but are not limited to . . . 

theft crimes . . . .” (Italics in original.)

The Guidelines also provide that in determining the appropriate

level of discipline, the Board should consider such factors as: the nature 

and severity of the acts, offenses, or crimes under consideration;

mitigation and rehabilitation evidence; compliance with conditions of 

court-ordered criminal probation; the licensee’s overall criminal record;

the time passed since the acts or offenses occurred; and evidence of the 

dismissal of criminal proceedings under Penal Code section 1203.4.

Similarly, the Board’s regulations (at the time of the April 2020

decision) required it to consider the following criteria when evaluating 

whether a registered nurse, who was convicted of crime, has been 

rehabilitated: (1) “Nature and severity of the act(s) or offense(s)”; (2) 

“Total criminal record”; (3) “The time that has elapsed since 

commission of the act(s) or offense”; (4) “Whether the licensee has 

complied with any terms of parole, probation, restitution or any other 

sanctions lawfully imposed against the licensee”; (5) “If applicable, 

evidence of expungement proceedings pursuant to Section 1203.4 of the 

Penal Code”; and (6) “Evidence, if any, of rehabilitation submitted by 

7 On May 20, 2021, California Code of Regulations, title 16, section 

1444.5 was amended to make a nonsubstantive change.
18

the licensee.” (Cal. Code Regs., tit. 16, § 1445, subd. (b), amended Sep. 

27, 1985.8) 

II. The Board Did Not Err In Deciding that Ni’s Felony 

Conviction is Cause for Discipline Under Section 490

8 On May 20, 2021, California Code of Regulations, title 16, section 

1445, subdivision (b), was amended to read, in pertinent part, as 

follows:

“(b) Suspension or revocation of a license or certificate.

“[¶]. . . [¶] 

“(2) If the licensee or certificate holder has not completed the 

criminal sentence at issue without a violation of probation or parole, . . . 

, or the suspension or revocation is based on one or more of the grounds

specified in Sections 2761 or 2762 of the [Business and Professions 

Code], the board shall apply the following criteria in evaluating a 

licensee or certificate holder’s rehabilitation:

(A) the nature and gravity of the act(s), disciplinary action(s), or 

crime(s).

(B) The total criminal record.

(C) The time that has elapsed since commission of the act(s), 

disciplinary action(s), or crime(s).

(D) Whether the licensee or certificate holder has complied with any 

terms of parole, probation, restitution, or any other sanctions lawfully 

imposed against such person.

(E) The criteria in subdivisions (b)(1)(A) through (E), as applicable. 

[i.e., “[t]he reason for granting probation and the length(s) of the 

applicable parole or probation period(s),” “[t]he extent to which the 

applicable parole or probation period was shortened or lengthened, and 

the reason(s) the period was modified,” “[t]he terms or conditions of 

parole or probation and the extent to which they bear on the licensee or 

certificate holder’s rehabilitation,” and “[t]he extent to which the terms 

or conditions of parole or probation were modified, and the reason(s) for 

the modification”]. 

(F) If applicable, evidence of dismissal proceedings pursuant to section 

1203.4 of the Penal Code. 

(G) Evidence, if any, of rehabilitation submitted by the licensee or 

certificate holder.” 
19

Ni challenges the Board’s decision to impose discipline based on 

section 490, which we find unavailing.

9 “When a trial court rules on a 

petition for writ of mandate” challenging a Board’s finding of a cause to 

impose discipline on a registered nurse, “it must examine the record for 

errors of law, and exercise its independent judgment to determine 

9 In the trial court, the Board argued that in resolving Ni’s second 

writ petition the trial court should not consider her substantive 

arguments challenging the use of her felony conviction as a cause for 

discipline because her failure to appeal from the March 11, 2019 order 

“arguably barred” her from relitigating that issue. The trial court 

impliedly rejected that argument as it considered Ni’s substantive 

arguments in its order denying the second writ petition. In doing so, 

the court may have reasonably decided that Ni’s failure to appeal after 

the decision on her first writ petition was justified as she was not 

aggrieved until such time as she was “adversely affected by a ‘new’ final 

decision by the Board,” imposing some level of discipline for which she 

sought judicial review a second time. (Kumar v. National Medical 

Enterprises, Inc. (1990) 218 Cal.App.3d 1050, 1054–1057 [appellate 

court dismissed appeal from trial court order setting aside agency’s 

decision and remanding matter for further proceedings as appellant 

had to fully exhaust administrative remedies by again proceeding to a 

final administrative decision before seeking redress in the courts by 

filing a second petition]; see also Dhillon v. John Muir Health (2017) 2 

Cal.5th 1109, 1116 & fn. 2 [the Supreme Court did not undertake to 

answer “ ‘the broad question whether remands to administrative 

agencies are always immediately appealable’ ”].)

The Board’s reliance on Pollak v. State Personnel Bd. (2001) 88 

Cal.App.4th 1394, is misplaced as in that case the appellate court 

upheld the trial court’s refusal to consider Pollak’s renewed arguments 

challenging certain disciplinary charges that had been rejected in a 

previous writ proceeding, on the basis that Pollak had failed to file a 

motion for a new trial challenging the court’s earlier ruling. (Id. at p. 

1405.) Here, unlike the situation in Pollak, the trial court did not 

refuse to consider Ni’s arguments challenging the use of her felony 

conviction to impose discipline, but rather addressed those issues on 

their merits. Under these circumstances, we deem it appropriate to 

address her arguments on the merits as well.
20

whether the weight of the evidence supported the administrative 

decision. [Citation.] After the trial court has exercised its independent 

judgment upon the weight of the evidence, an appellate court’s function 

‘is solely to decide whether credible, competent evidence supports [the 

trial] court’s judgment.’ [Citation.] The trial court’s legal conclusions, 

however, are open to appellate review for errors of law.” (Robbins v. 

Davi (2009) 175 Cal.App.4th 118, 124.)

Section 490, “which applies broadly to professionals licensed 

under the Business and Professions Code . . . provides in relevant part: 

‘(a) in addition to any other action that a board is permitted to take 

against a licensee, a board may suspend or revoke a license on the 

ground that the licensee has been convicted of a crime, if the crime is 

substantially related to the qualifications, functions, or duties of the 

business or profession for which the license was issued. [¶] (b) 

Notwithstanding any other provision of law, a board may exercise any 

authority to discipline a licensee for a conviction of a crime that is 

independent of the authority granted in subdivision (a) only if the crime 

is substantially related to the qualifications, functions, or duties of the 

business or profession for which the licensee’s license was issued.’ ” 

(Sulla v. Board of Registered Nursing (2012) 205 Cal.App.4th 1195, 

1205, italics in original.)

 Section 481 requires each licensing agency to “develop criteria to 

aid it . . . to determine whether a crime or act is substantially related to 

the qualifications, functions, or duties of the business or profession it 

regulates.” Here, the Board adopted section 1444, subdivision (a) of 

Title 16 of the California Code of Regulations, which, as amended in 

2001 and in effect at the time of Ni’s 2015 conviction, provided in 
21

pertinent part, that: “A conviction or act shall be considered to be 

substantially related to the qualifications, functions or duties of a 

registered nurse if to a substantial degree it evidences the present or 

potential unfitness of a registered nurse to practice in a manner 

consistent with the public health, safety, or welfare. Such convictions

or acts shall include but not be limited to the following: [ ] . . . [ ](c) 

Theft, dishonesty, fraud, or deceit.” 10 The courts have held that 

whether a crime is “substantially related” to the qualifications, 

functions, or duties of a profession for which the license is issued “is a 

question of law” for the independent determination of this court. 

(Krain v. Medical Board (1999) 71 Cal.App.4th 1416, 1424; see Gromis 

v. Medical Board (1992) 8 Cal.App.4th 589, 598.)

10 After the Board’s April 2020 decision after reconsideration, 

California Code of Regulations, title 16, section 1444, subdivision (a) 

was amended May 20, 2021 to read in pertinent part:

“(a) For the purposes of . . . suspension, or revocation of a license . 

. . pursuant to . . . Section[] 2761 . . . of the [Business and Professions 

Code], a crime, . . . or act shall be considered to be substantially related 

to the qualifications, functions or duties of a person holding a license . . 

. under the Nursing Practice Act (Chapter 6 of Division 2 of the 

[Business and Professions Code]), if to a substantial degree it evidences 

the present or potential unfitness of a person holding a license or 

certificate to perform . . . in a manner consistent with the public health, 

safety or welfare. 

“(b) In making the substantial relationship determination 

required under subdivision (a) for a crime, the board shall consider the 

following criteria: [¶](1) The nature and gravity of the offense; [¶] (2) 

The number of years elapsed since the date of the offense; and [¶] (3) 

The nature and duties of a registered nurse . . . .

“(c) For purposes of subdivision (a), substantially related crimes, . 

. . or acts shall include, but are not limited to the following: [¶] . . . [¶] 

(2) Theft, dishonesty, fraud, deceit . . . .” 
22

Based on our independent review, we conclude that Ni’s felony 

conviction for violation of Unemployment Insurance Code section 

2117.5 was “substantially related” to her fitness as a registered nurse 

under section 490. In so ruling, we agree with the trial court (in 

addressing Ni’s first writ petition) that Windham v. Board of Medical

Quality Assurance, supra, 104 Cal.App.3d 461 (Windham), “relied upon 

by the ALJ, is persuasive if not strictly controlling. In Windham, the 

court held that a physician’s felony conviction for tax evasion was 

substantially related to his ability to practice medicine such that it 

could support disciplinary action – there, license revocation stayed 

during a period of probation.” While Ni posits Windham should not be 

followed because it concerns a physician, and not nurse, we agree with 

the trial court that such a factual distinction is not significant as “the 

most compelling and applicable aspect of Windham’s holding” is that 

“[d]octors and nurses . . . share a need to perform their work with 

utmost integrity so as to support and not violate the patient trust that 

is at the heart of their professional relationships. . . . ‘Above all, [as 

explained by the Windham court,]. . . is the relation between doctor and 

patient. It is unnecessary to described the extent to which that 

particular relationship is based on utmost trust and confidence in the 

doctor’s honesty and integrity.’ (Windham, supra, 104 Cal.App.3d at p. 

470.) The relation between a nurse and patient similarly depends on 

the utmost confidence of the patient in the honesty and integrity of the 

nurse.” The trial court resolving Ni’s second writ petition, similarly 

found that her “plea of no contest by petitioner to a violation of 

Unemployment Insurance Code § 2117.5 is unquestionably an 

admission of a felony crime involving moral turpitude. [¶] The 
23

admission and conviction of a felony crime involving dishonesty such as 

the crime of which petitioner admitted in exchange for the dismissal of 

31 other felony charges, many related to prostitution, is substantially 

related to the qualifications[,] functions and duties of a nursing license 

holder, and evidences to [a] substantial degree the petitioner’s present 

and potential unfitness to hold a nursing license.”

To the extent Ni challenges the trial court’s factual finding 

upholding the Board’s decision that there was a substantial 

relationship between her conviction and the practice of nursing, our 

review is limited to whether there is substantial evidence in the 

administrative record to support the trial court’s finding. In 

challenging the evidence in that record, Ni appears to argue that the 

ALJ’s credibility findings adverse to her must be set aside in favor of 

those credibility findings made in her favor in the EDD decision. 

However, in making our review, our authority “begins and ends with 

the determination as to whether, on the entire record, there is 

substantial evidence, contradicted or uncontradicted, which will 

support the [trial court’s] determination, and when two or more 

inferences can reasonably be deduced from the facts, a reviewing court 

is without power to substitute its deductions for those of the trial 

court.” (Bowers v. Bernards (1984) 150 Cal.App.3d 870, 873–874; italics 

in original.) Hence, “[w]hen there is substantial evidence, although 

conflicting, that sustains the judgment an appellate court will not 

substitute its evaluation of the evidence or its opinion as to the 

credibility of the witnesses for that of the trial court. [Citations.] This 

rule will obtain even though to some triers of fact the evidence in the 

instant case would have seemed so improbable, impossible and 
24

unbelievable that a judgment contrary to that now on appeal would 

have inevitably followed. [Citations.]” (Romero v. Eustace (1950) 101 

Cal.App.2d 253, 254.) Thus, we must reject Ni’s reliance on the EDD 

decision vis-á-vis the ALJ’s factual findings. Because there is evidence 

in the administrative record supporting the trial court’s ruling 

upholding the Board’s decision that Ni’s conviction was substantially 

related to the practice of nursing, we must uphold that ruling. 

In light of our determination that the Board could impose 

discipline based on section 490, we do not need to address Ni’s 

argument challenging the imposition of discipline based on section 

2671.

III. The Board Did Not Err in Deciding the Penalty

“[T]he propriety of a penalty imposed by an administrative 

agency is a matter vested in the discretion of the agency and its 

decision may not be disturbed unless there has been a manifest abuse 

of discretion. [Citations.]” (Cadilla v. Board of Medical Examiners

(1972) 26 Cal.App.3d 961, 966; see Id. at p. 967 [“[t]he choice of 

sanctions is a discretion legally vested in the administrative agency 

within the meaning of section 1094.5, subdivision (e), of the Code of 

Civil Procedure”].) Hence, “in a mandamus proceeding, an appellate 

court vis-à-vis the trial court, conducts a de novo review concerning 

possible abuse of discretion by the administrative agency. [Citation.] 

[¶] Conversely, . . . in a mandamus proceeding an appellate court vis-àvis the administrative agency, does not independently or ‘de novo’ 

determine penalty. ‘[A] court cannot substitute its discretion for that of 

the administrative agency on the degree of punishment to be 

imposed.’ ” (Cummings v. Civil Service Com. (1995) 40 Cal.App.4th 
25

1643, 1652, italics in original, quoting in part Talmo v. Civil Service 

Com. (1991) 231 Cal.App.3d 210, 228.) 

Section 490 states that “[a]n action that a board is permitted to 

take following the establishment of a conviction may be taken when the 

time to appeal has elapsed, or the judgment of conviction has been 

affirmed on appeal, or when an order granting probation is made 

suspending the imposition of sentence, irrespective of a subsequent 

order under Section 1203.4 of the Penal Code.” Penal Code section 

1203.4 provides, as relevant here: “In any case in which a defendant . . . 

has been discharged prior to the termination of the period of probation, 

. . . , the defendant shall, at any time after the termination of the period 

of probation, . . . , be permitted by the court to withdraw their plea of . . 

. nolo contendere and enter a plea of not guilty, . . . and . . . the court 

shall thereupon dismiss the . . . information against the defendant and . 

. . the defendant shall thereafter be released from all penalties and 

disabilities resulting from the offense of which they have been 

convicted.” (Italics added.) 

Here, Ni posits that the Board had no authority to impose 

discipline on the basis of her conviction because, although the 

disciplinary action against her was pending for some time, the Board 

did not make its disciplinary order until after she had secured the 

dismissal of her conviction under Penal Code section 1203.4. While 

neither party cites to the case, Meyer v. Board of Medical Examiners

(1949) 34 Cal.2d 62 (Meyer), is dispositive. 

In Meyer, supra, 34 Cal.2d 62, the Board of Medical Examiners 

imposed an order suspending the appellant’s medical license and placed

him on probation for three years based solely on his conviction for 
26

violating a narcotics provision of the Health and Safety Code. (Id. at 

pp. 62–63.) The discipline was imposed as of March 15, 1948, even 

though the Board of Medical Examiners had received a copy of a court 

order dismissing the conviction under Penal Code section 1203.4 at its 

March 2, 1948 hearing. (Ibid.) In upholding the discipline, the 

Supreme Court specifically rejected the appellant’s argument that 

discipline was barred because the “respondent board, though having 

had the disciplinary action against appellant pending before it for some 

time, did not make its order of suspension against him until after he 

had been accorded the statutory relief in question.” (Id. at p. 66, italics 

in original.) The court explained as follows: “[The] variant course in 

the chronology of the proceedings is an immaterial consideration, for 

whether the discharge from [criminal] probation and the accompanying

relief granted by the trial court precede or follow the disciplinary order, 

its propriety stems from the adjudication of guilt constituting the basis 

of the ‘conviction’ and, as such, it is not a ‘penalty’ or ‘disability’ within 

the contemplated release of the probation statute.” (Ibid., italics 

added.) After noting the limitations on the effect of a dismissal after 

conviction under Penal Code section 1203.4, the Meyer court went on to 

state that “it does not appear that [the statute] was . . . intended to 

obliterate the record of conviction against a defendant and purge him of 

the guilt inherent therein (citation) or to ‘wipe out absolutely’ and for 

all purposes the dismissed proceeding as a relevant consideration and 

‘to place the defendant in the position where he would have occupied in 

all respects as a citizen if no accusation or information had ever been 

presented against him’ (citation). From this standpoint, [the] 

appellant’s theory that the import of the probation statute and the 
27

dismissal proceeding is to expunge the record of the crime (citation) 

cannot prevail.” (Meyer, supra, at p. 67.) Accordingly, we conclude Ni’s 

reliance on the fact that the Board’s April 2020 discipline was imposed 

after she had secured dismissal of her conviction under Penal Code 

section 1203.4 in August 2018 “is of no avail.” (Meyer, supra, at p. 66.) 

Finally, Ni argues, without citation to authority, that the matter 

should be remanded for further proceedings concerning the level of 

discipline as the Board relied, in part, on Ni’s denial “in every respect

[of] the unlawful conduct alleged in the Accusation,” along with her 

failure to accept “any responsibility for her actions” and lack of 

contrition. We are not persuaded. As detailed above, the Board’s 

regulations and Guidelines permitted consideration of the nature of the 

circumstances that lead to Ni’s arrest, that the felony conviction was 

the result of a plea bargain in which prostitution-related felony charges 

were dismissed, that Ni pleaded guilty to one felony count for violating 

Unemployment Insurance Code section 2117.5, and that she had 

violated her criminal probation. Simply put, there was a large body of 

evidence properly considered by the Board of which lack of contrition 

regarding the tax-related offenses was but one element. 11

11 The case before us is readily distinguishable from Hall v. 

Committee of Bar Examiners (1979) 25 Cal.3d 730). In Hall, the

Committee of Bar Examiners "relied heavily" on Hall's failure to 

demonstrate adequate remorse. (Id. at p. 732.) The Committee did not 

attempt to argue that Hall's prior conduct, by itself, was sufficient to 

justify denial of certification, and the Supreme Court found that the 

prior conduct, by itself, would not compel denial of certification. (Id. at 

p. 742.)
28

DISPOSITION

The judgment is affirmed. Each party is to bear their own costs 

on appeal. 
29

_________________________

Petrou, J.

WE CONCUR:

_________________________

Tucher, P.J.

_________________________

Rodríguez, J.

A163171/Ni v. Board of Registered Nursing