Case library / Applying with a record
A 1985 murder conviction, and a 2024 registration on probation
In short
The application was granted. The registration issues on completion of all requirements, is immediately revoked, the revo
five yrs probationThe judge found cause to deny and granted the application anyway: nearly 40 years, a clean parole, and a master’s degree in counseling.
It is the case that answers whether the door is open at all for an applicant with the most serious kind of record, and shows exactly what the Board weighed to open it.
What happened
On November 1, 1985, the respondent, then 22, argued with a parking attendant in the lot next to the building where he worked nights cleaning a bank. He drove home, retrieved his gun, returned to the lot, and shot the attendant, who died. He then went inside and called the police to report what he had done. He later told police he shot the victim because he was angry over the argument and because the victim had called him a name, and he admitted that the victim had not threatened him verbally or physically. The Statement of Issues alleged six shots; the Proposed Decision says he shot the victim several times.
On November 14, 1986, an Orange County jury convicted him of second degree murder under Penal Code section 187 and found that he had personally used a firearm in the commission of a felony under Penal Code section 12022.5. He was sentenced to 17 years to life in state prison. He was released to parole on March 31, 2011 and was successfully discharged from parole on April 1, 2016, with no parole violations.
He applied on April 19, 2023 for registration as an associate professional clinical counselor. The Board denied the application by letter on July 25, 2023 and told him he could appeal. He requested a hearing on August 12, 2023; the Executive Officer signed a Statement of Issues on September 21, 2023; an administrative law judge heard the matter by videoconference on April 23, 2024. He represented himself.
The rehabilitation record he put in: two associate degrees earned in prison, in welding and computer repair; Alcoholics Anonymous from the early 2000s while still incarcerated, plus group and individual therapy; no alcohol since about 1998 and no unprescribed controlled substances; help in founding a support group, modeled on AA, for people released after life terms, and continued attendance at its monthly meetings; steady employment since release, including construction; a marriage, and becoming a father and a grandfather; a bachelor’s degree in May 2018, magna cum laude; a master’s degree in counseling in December 2022; work as a substance abuse counselor at the pre-license level and as an employment coach for adults with autism spectrum disorder and Down syndrome; and monthly therapy since 2020. He submitted letters from his parole agent, two employers, his own therapist, a clinical supervisor who had overseen his student-intern field work, and friends. He has no other arrests or convictions.
He expressed remorse, said he wanted to counsel people leaving prison, and described his crime as his driver for change. The judge found he testified in an open and forthright manner, consistent with one who is being truthful.
What it was charged as
A board may deny an application for a substantially related conviction; the ordinary seven-year lookback does not apply where the conviction was for a serious felony as defined in Penal Code section 1192.7.
Conviction of a substantially related crime is unprofessional conduct for a professional clinical counselor applicant, registrant, or licensee, and a ground to refuse a registration.
Every board must publish criteria for evaluating rehabilitation and must consider whether the applicant completed the criminal sentence without a parole or probation violation.
The record of conviction proves only that the conviction occurred; substantial relationship turns on the nature and gravity of the offense, the years elapsed, and the duties of the profession, and a board may not categorically bar an applicant by conviction type without considering rehabilitation.
A crime is substantially related if to a substantial degree it evidences present or potential unfitness to perform the licensed functions consistent with public health, safety, or welfare.
The rehabilitation criteria a board must apply to an applicant: nature and gravity of the crime, later acts, time elapsed, compliance with the terms of probation or parole, and the applicant’s own evidence of rehabilitation.
Murder.
Added prison time for personally using a firearm in the commission of a felony.
The outcome
The application was granted. The registration issues on completion of all requirements, is immediately revoked, the revocation is stayed, and the respondent is on five years of probation. Adopting the Proposed Decision, the Board reduced the penalty by deleting one condition, the clinical diagnostic evaluation, which would have carried an automatic one-month suspension and twice-weekly random drug testing.
OAH No. 2023100840
No cost recovery stated in the orderWhat the rule actually says
When a board denies an application, the applicant carries the burden of proving entitlement to the license by a preponderance of the evidence. Establishing cause to deny is the easy half for the board: a conviction is substantially related if it evidences present or potential unfitness, judged on the nature and gravity of the offense, the years elapsed, and the duties of the profession. The real case is the second half, rehabilitation, decided on the criteria in title 16, section 1813: what the crime was, what has happened since, how much time has passed, whether probation or parole was completed without violation, and whatever evidence the applicant chooses to put in. The governing purpose is protection of the public rather than punishment, so a board that can be satisfied by conditions is expected to impose conditions instead of refusing outright. Sustained good conduct over a long period is the strongest single indicator, and a full acknowledgment of wrongfulness is treated as a precondition to any finding of rehabilitation.
Discussion
Analysis, not part of the decision
The decision does two separate things, and readers who stop at the first will misread it. First, cause. Applying title 16, section 1812, the judge held the conviction substantially related, writing that the respondent committed the most serious crime of all, and found cause to deny the application. Nothing in the rehabilitation record disturbed that conclusion, and nothing was supposed to. Then the second question, which is the one the case is actually about: whether the applicant had shown enough rehabilitation that issuing a registration would protect the public. The purpose of a licensing proceeding is not to punish, and once the analysis reached that question the conviction stopped being the whole answer.
Time did a lot of work, but not alone. Almost 40 years had passed since the crime, 13 since release, and 8 since discharge from parole, and the authorities the judge relied on treat the evidentiary significance of misconduct as greatly diminished by the passage of time and by the absence of similar, more recent misconduct, with sustained good conduct over an extended period the most crucial indicator. What made the time count was what filled it. The judge specifically noted that rehabilitation started inside: two degrees, AA, group and individual therapy, and giving up alcohol around 1998, more than a decade before release. Then a parole term completed without a single violation, a support group he helped start for others coming off life sentences, a marriage, two more degrees, ongoing therapy, and continuous work. On top of that, an unqualified acknowledgment of wrongfulness — he had told police at the time that the victim never threatened him, and he did not walk that back — which the case law treats as an essential step toward rehabilitation rather than a nicety.
The outcome is not an unrestricted registration, and the conditions are the honest part of the story. Five years of probation, a psychological or psychiatric evaluation within 90 days at his own cost with a duty to follow the evaluator’s recommendations, weekly Board-approved psychotherapy with quarterly reports from the therapist, quarterly self-reports under penalty of perjury, notice to every employer and to clients whose therapy is affected, a bar on supervising anyone, in-person interviews on request, and reimbursement of the Board’s monitoring costs. Those terms follow him if he later becomes a licensed professional clinical counselor.
The Board’s one edit is worth as much as the rest. It adopted the Proposed Decision but struck condition 3, the clinical diagnostic evaluation, which would have automatically suspended the registration for at least a month and required random drug testing twice a week. Nothing in the record connected this applicant to current substance use; he had not had a drink since about 1998. Removing a boilerplate condition that the facts did not support is the Board matching the order to the file rather than to the headline — and it is a reminder to anyone negotiating or contesting a proposed order that individual conditions can be argued separately from the penalty as a whole. The other procedural lesson is the plainest one in the file: he was denied on paper in July 2023 and had the right to appeal that denial; the registration exists because he asked for a hearing. The age of the conviction did not shield him — the seven-year lookback in section 480 does not apply to a serious felony — so the years were an argument to be made, not a bar the Board could not cross.
Where insurance reaches, and where it does not
Insurance is beside the point for the underlying conduct: a criminal act is excluded from every professional liability policy, and no policy existed. The coverage that matters at this stage is license-defense expense, sold as part of most professional liability policies to registrants and pre-licensed associates, which pays counsel to represent you before the Board and at an Office of Administrative Hearings hearing. An applicant who has not yet been issued a registration usually has no such policy in force, which is one reason applicants so often appear without counsel. The respondent here represented himself at a hearing where the burden of proof was on him.
What would have changed it
- If you have a conviction, disclose it fully on the application and put the whole rehabilitation record in front of the Board before it decides; the applicant carries the burden and the Board rules on what it is given.
- Assemble evidence that maps onto the regulation: proof the sentence and parole were completed without violation, the dates, documented treatment, sustained employment, and letters from people who supervised your clinical work, not only from friends.
- State plainly what you did and that it was wrong; minimizing is treated in the case law as the absence of rehabilitation, not as advocacy.
Questions
For a law and ethics seminar, or for yourself
- The decision holds both that the crime evidences present or potential unfitness and that the applicant is rehabilitated enough to register. Explain how those findings coexist, and identify precisely what the second one measures that the first does not.
- The rehabilitation authorities weigh elapsed time heavily. If this same evidence and this same testimony were offered 15 years after the offense rather than 39, which specific criteria in title 16, section 1813 would come out differently, and would the outcome change?
- The Board deleted the clinical diagnostic evaluation condition, with its automatic suspension and twice-weekly drug testing, from an otherwise standard order. Make the argument that a probation condition unsupported by the record is not merely unnecessary but affirmatively harmful, and propose a test for which standard conditions a board should apply.
Source. This write-up is drawn from the signed public decision in the case number above. Names, cities and employers have been removed — why. To pull the original, open the Board's quarterly newsletter archive, find the issue covering August 15, 2024, and match the case number in the Formal Disciplinary Actions section. Not legal advice.
