Filed 3/15/24 CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

T HE PEOPLE , Plaintiff and Respondent,

v.
LAURIE SMITH , Defendant and Appellant. H0 50653 (Santa C lara County Super. Ct. No

. 21CV391905 )

For nearly 25 years, a ppellant Laurie Smith was the Santa Clara County Sheriff

. Towards the end of this period , prosecutors began investigati ng whether members of her
office had committed bribery and other crimes in pro cessing app lications for licenses to carry concealed firearms

. Multiple senior S heriff’s O ffice officials as well as private
individ uals 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 mis conduct in office, and the People sought
her remov al 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 . A fter the jury began deliberating, Smith abruptly retired and moved to dismiss the removal proceeding s on the ground that her
retirement rendered them moot. T he trial court denied the motion , the jury found Smith guilty on six counts , and the court entered a judgment of removal.2 Smith now appeals, arguing that this case is moot because removal proceeding s seek a remedy

— removal from office

— which can no longer be grant ed because of her
retirement

. We disagree

. Despite Smith’s retirement , the j udgment of removal against
her has at least one collateral consequence : I t 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 .” I n 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 t he re m oval 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 the se statute s 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) w as 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 offi ce ; i t 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 determination s of guilt in non

- criminal proceedings. Moreover, t he 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 p roceedings. Accordingly, we conclude that Smith’s r etirement 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.3 I. B ACKGROUND A. Removal Proceedings
Since at least 18 72 , California law has provided a proc ess for removing local
officials for willful or corrupt mis conduct in office. (Pen

. Code , former §§ 758

- 772.)
Th is proce ss , 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 ., § 30 63), 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 render s a “ judgment of
conviction ” against the officer . ( Id , § 3069.) If the officer denies the charges, the re 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

pronounce s judgment that the officer be r emoved 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 “VIP s ” such as campaign donor s , member s of the Sheriff’s Advisory Board , prominent individual s in the community, and individuals with a personal connection to Smith. Smith also was charged with unlawfully accept ing 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 Code4 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 a fter the trial court dismissed one c ount, the remaining six were tried to a jury

. T he trial began o n 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 give n , on October 27, 2022

. T he jury began deliberations the next day , which was a Friday

. The following Tuesday, November 1, 2022, t he jury returned verdicts finding Smith guilt y 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

summar y.” T he trial court denied Smith’s new trial motion and entered a judgment ordering her “forthwith removed” f rom the o ffice of Santa Clara County S heriff

.

1 For similar reasons, the People’s request for judicial notice filed on August 7, 2023 is denied as moot.5 Smith timely appealed.
II. D ISCUSSION Smith argues that her retirement mooted the removal proceeding s 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) , w e reach a different conclusion

. Although the judgment of removal here did not force Smith to relinquish office, it ha s 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 depriv ed 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 become s moot, and should not proceed to formal judgment , if “ ‘ “ an event occurs which renders it impossible for [the] court

. . . to grant [the plaintiff ] a ny effectual relief . . . .” ’ ” ( Ibid .) However, a case do es not become moot simply because it become s impossible to grant the relief or iginally sought because a judgment may have “ ‘collateral

consequ ences.’ [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 th at sentence has collateral consequences such as exposing the

2 Although Smith’s opening brief trea ts the denial of her motion s to dismiss and for a new trial as two separate errors, her mootness argument appl ies equally to each, and she does not distinguish the legal principles applicable to the m otions. Accordingly, we treat them together

.6 defendant to future enhancements ( Ellison , supra , 111 Cal.App.4th at p. 1369 ) or disabling the defendant from voting or serving as a juro r ( Carafas v. LaVallee (1968) 39 1
U.S. 2 34, 237

- 238 )

. The same principle applies in civil cases . For example, e xpiration 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, t he Supreme Court has applied the collateral consequences doctrine in a

case similar to this one. In Kennick v. Commission o n 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 reti red, 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 offer ed 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 pra ctice 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 a n application . ( Id. at p. 312 .)
B. Jury Eligib i lity
T he 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 perjury7 has collateral conse quences. 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 presumptive ly eligible to serve as jurors. (See C ode 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

ot her than those reasons provided in this section.”].) 3 However, the section excludes eleven categories of individuals from jury eligibility . ( Id ., § 203, subd s

. (a)(1)

- (a) (11).) Section 203(a)(5) contains one of th e se categories : “[p] ersons who have been convicted of malfeasance in office and whose civil rights have not been restored. ”

3 Code of Civil Procedure s ection 203, subd ivision (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 n ot 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 so lely 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 cou rt 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 supervis ion, 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. ”8 ( 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

. ” I f 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, i f the officer pleads not guilty, a jury
trial is conducted “in the same manner as the trial of an indictment”

— inc luding 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 convicte d 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 mean s “[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. (1 1 th ed. 201 9 ) 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 were9 not. Accordingly, the trial court instructed the jur y on the elements of perjury under
Penal Code section 118 , including wh e ther Smith knowingly and willfully stated under penalty of perjury that her annual disclosures were true and complete even though she
knew tha t they were not

. The jury also was instru cted to presume Smith innocent and
that the People had the burden of proving her gui lty beyond a reasonable doubt. Nevertheless, the jury unanimously found Smith guilty of perjury , thereby determining that she had engaged in conduct evidencing moral corru ption 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 disp ute that she was found guilty of mal feasance 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).
T hese accusations are prosecuted by district attorneys

. ( I

d. , § 3063

. ) A nd 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 inno cence and the requirement of proof beyond a reasonable doubt

. ( I

d ., § 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 cri me 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 statu tes are now found in Government Code10 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 . In stead, the accusation is served on the defendant (Gov. Code, § 3063), and the defendant submits an “answer” in response ( id ., §§ 3064

- 3065 ). In addition, th e misconduct alleged in an accusation need not be criminal, and if it
is criminal, the resulting ju dgment does not bar subsequent prosecution for th at 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, 65 6 ( 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 cas e because “the proceeding is a criminal one

. ” ( Wheeler , supra , 110 Cal. at p. 65 6

. ) 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 c ivil 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 re moval proceedings differently . For example, a 1980 Court of Appeal decision ruled that, for11 equal protection purposes, removal proceedings are “unlike felony criminal proceedings in that they protect a different public interest, are governed by separate a nd 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
A ppeal 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 t he 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 (3 d 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
crim e. ( See, e.g., Code Civ. Proc., § 203, subd. (a)(10) [“Persons who have been
convicted of a felon y ” ( italics added ) ]; id ., § 203, subd. (a)(11) [“Persons . . . required to register as a sex offender . . . based on a felony conviction” ( italics added )]; Bu s. & Prof. Code, § 6101, subd. (a) [“Conviction of a felony or misdemeanor , involving moral turpitude . . . .” (italics added) ]; Elec. Code, § 20, subd. (a) [ p ersons “ convicted of a felony involving . . . any bribe, the embezzlement of public money, extort ion , 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 per sons “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 to12 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 “ Convict ed ” 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 (200 1) 25 Cal.4th 268, 272.) “ W e 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 Raf ael (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, 13 7. ) Finally, if after considering these additional

matters uncertainty still remains, courts may consider “ ‘legislation upon the same subject, public policy, and contemporaneous cons truction.’ ” (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 proceeding s . 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 th e13 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
d ecision 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 “convi ct” 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 w as “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. Recto r 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. University14 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 [suspension s included in transcript if student is “convicted of two honor code violations”] .)
T he 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, § 306 9, 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 wel l. They state that a defendant may be “ convicted on impeachment” by a two

- third s 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 wi th removal proceedings
has been

— used in a broad sense that extends to findings that a party is guilty of an offense even if th at offense is n ot criminal and , thus, the finding of guilt was not made i n a criminal case or pro secution

. Accordingly, c onsisten t 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 the15 Legisla ture. (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), th e 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
offense s

. Section 203(a)(5) is worded differently than most statutes tha t contain the word “convicted.” Most statutes containing the word “convicted” expressly restrict its application to convictions for crime s . 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

. I nstead, it bars persons “convicted of malfeasance in of fice”
with no mention of a felony or other crime.
Th is 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. Fo r 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 legal16 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 crim e 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 p ersons 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 Fin ancial Code se ction 6525.5, subd ivision (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 ) ) ; Gov ernment 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 Saf ety Code section 11714, subd ivision (b) ( tolling statute of limitations when a potential defendant is “convict ed of a criminal offense involving an illegal controlled substance” ( italics added ) ) ; Wel f are and Inst itut ions Code section 4648.12, subd ivision (b) ( referring to individuals “convicted of any felony or misdemeanor involving fraud or abuse in any governmen t program” (italics added) ) ; Veh icle Code section 11110.7 , subd ivision (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 licen sed activity” (italics added) )

.17 “convicted” in its broad sense and to extend Section 203(a)(5) to persons convicted of
offenses that are n ot criminal.
3. The Term “Malfeasance in Office”
Th e conclusion tha t Section 203(a)(5) uses the word “convicted” in its broad sense
and extend s to offenses that are not criminal is supported by the section’s use of the term
“malfeasance in office , ” whic h is not limited to criminal conduct.
A s noted earl ier , “malfeasance” is ordinarily understood to mean “[m]isconduct or wrongdoing” in general , not j ust wrongdoing that rises to the level of a crim e

. (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 coun ty assessors and assessor office employees from engaging in any business activi ty “incompatible or involves a conflict of interest with
their duties , ” states that a violation of th e se requirements “ shall constitute malfeasance in office on the part of the assessor

. ” (Rev. & Tax. Code, § 1365, subd. (a), (b)

. ) As

e ngaging in “incompatible” business activities does no t always rise to the level of a crime , this provision uses the term m alfeasance in office to refer to misconduct that may
not be criminal

. O ther statutes grant the Governor and other executive branch officials power to remove appointees for m al feasance in office 5 or make contracting officers

5 See, e.g., Food and Agric ultural 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.” ) ; Gov ernment Code section 3541 , subd ivision (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.” ) ; Lab or Code section 1141, subd ivision (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.” )

.18 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, d ecisions 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

recog nize that “malfe asance 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 ].)
E specially absent the express reference s to crime s 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 t hat the section uses th e word “convict ed ” in a broad sense and therefore is not limited to convictions for
offenses that are criminal

.

6 See, e.g., Ed ucation 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 malfeasan ce.” ) ; id ., section 81656 ( In the event of malfeasance in office, the community college district officer or employee invested by the governing board with the pow e r to contract shall be personally liable for any and all moneys of the district paid out
as a result of the malfeasance.” )

.19 4

. Contemporaneous Legis l ation
Th is 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

te n years before former Code of Civil Procedure s ection 199 ( F ormer 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. 1 880,
ch. 35, § 1, p. 45.) Like the current removal proceeding s statutes, the 1872 removal proceeding s statutes provided for a “judgment of conviction” if the defendant plead ed guilty or refused to answer an accusation (Pen. Code, former § 766) or , where t he 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 ne ither removal nor impeachment proceedings are criminal proceedings in the
conventional manner , these statutes show that l ess 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 F ormer 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 continuat ions thereof, and not as new enactments.”].) Even more pertinent, in 1881, only a year after F ormer Section 199 was enacted , the Legislature used the word “conviction” to refer t o a finding of malfeasance in office20 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 discrimina t io n s , ” (Stats. 1881, ch. 52, § 1, p. 5 5 ; id ., § 6, p. 56 ) , and to require statements from water supplie r s 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 provi ded for removal from office “upon conviction” of such malfeasance : “ A ny 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 A ct 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. 5 6 , 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 t he failure or refusal to fix water rates or to require disclosures
is not criminal , this legislation p lainly 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 proceedin g. It is l ikely that in 1880, when the Legislature enacted F ormer S ection 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, l ike 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

.21 5

. Smith’s arguments Smith fails to offer any persuasive reason to adopt a c ontrary 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 th at 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: A n individual may seek a pardon or other clemency directly
from the Governor, and this avenue is not restricted to felon s

. ( 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 ba rring 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 th e exception, and we see none. The Legislature simply may have decided to create an exception that potentially benefits only some of th ose 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 the22 Legislature would have restricted the general rule in Se ction 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, t he purpose of a removal proceeding is “ to

remove unwort hy and unfaith ful 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. T h e Penal Code identifies removal from office , as well as imprisonment and
f

ines, as criminal punishment : Under s ection 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.” ( I talics 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. R emoval 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 receive s a “trial . .

. by a jury,” which is “conducted in all respects in the same manner as the trial of an indictment” ( id ., § 30 70 )

— inc luding 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 tha n a jury verdict in a felony prosecution.23 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 pre liminary hearing. (See Hanson , supra , 110 Cal.App.3d at p. 401.) But since
a 1990 initiat ive 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, a nd 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
d ifferences do not impact the reliability of jury verdicts in removal proceeding s , 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 doub t s 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. “ S erving as a juror is not a fundamental right . . . .” ( Doe v. Finke (20 2 2) 86 Cal.App. 5 th 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.”].) A s the California Supreme Court observed a half century ago, “[w]hile trial by jury is constitutionally implant ed 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 93,24 101 [“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 doubt s should be resolved in favor of eligibility to serve ignores the important interests served by excluding individu als
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 who m a jury has found beyond a reasonable doubt to have committed malfeasance in office.
d. Impact on Removal Smith’s final argumen t is that Section 203(a)(5) should not be interpreted to
include c onvictions in removal proceedings because doing so would undermine the efficacy o f removal proceedings

. According to Smith, j uries 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 offer s no evidence or other support for this assertion, and t he People

— who are responsible for trying remov al cases

— do not share her concern. This comes as no surprise . I t 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 j uries in removal proceedings may conside r the collateral con sequences 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, S ection 203(a)(5) uses it in a broader sense that encompasses determinations of any offense, whether criminal or not

. The wording of S ection25 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 contemp oraneous 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

persuas ive 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. D ISPOSITION The judgment is affirmed._________________________ BROMBERG, J.

WE CONCUR:

_________________________ GROVER, ACTING P. J.

_________________________ LIE, J.

H050653 People v. SmithTrial 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 Ch ief District Attorney
Daniel Amador, Managing Attorney
Erin Loback, Assistant District Attorney

H050653 People v. Smith