Cortina v. Cal. State Personnel Bd. CA6 ( 2016 )

Filed 1/5/16 Cortina v. Cal. State Personnel Bd. CA6
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SIXTH APPELLATE DISTRICT
SALVADOR CORTINA, H039531
(Monterey County
Plaintiff and Appellant, Super. Ct. No. M108566)
v.
CALIFORNIA STATE PERSONNEL
BOARD,
Defendant and Respondent;
CALIFORNIA DEPARTMENT OF
CORRECTIONS AND
REHABILITATION,
Real Party in Interest and
Respondent.
Salvador Cortina appeals from the trial court’s denial of his petition for a writ of
administrative mandamus to compel the State Personnel Board (Board) to set aside its
decision terminating his employment as a correctional sergeant for the Department of
Corrections and Rehabilitation (CDCR). Cortina was terminated for inexcusable neglect
of duty (Gov. Code, § 19572, subd. (d))1 and other failure of good behavior (§ 19572,
1
Further statutory references are to the Government Code unless otherwise
specified. Unspecified references to “subdivision” refer to subdivisions of Government
Code section 19572.
subd. (t)). He contends that the Board abused its discretion in sustaining the violation of
subdivision (d) because there were no findings that the elements of the underlying crimes
had been proven, there was no substantial evidence to support any such findings, and
there was no finding that his violations of the law were intentional or grossly negligent.
He contends that the Board abused its discretion in sustaining the violation of subdivision
(t) because its factual findings were not supported by substantial evidence and even if
they were, did not establish the required nexus between those actions and his
employment. We affirm.
I. Background
Cortina became a correctional officer in 2001 and was promoted to correctional
sergeant in November 2007.
On November 21, 2007, he and five other men (Leobardo Rivas, Jose Rojo Rivas,
Juan Pablo Tavarez, Fernando Rojo De La Cruz, and Luis Magana Villalobos)2 went
night hunting for rabbits on a cactus ranch outside Gonzales, California. Cortina brought
his seven-year-old son along. The men met at Luis’s house in Gonzales, and Cortina
drove everyone to the ranch in his minivan.
Some of the men had their own rifles. The others used borrowed rifles. Some of
the men appeared to be unfamiliar with the rifles and had to be shown how to use them.
Some of the men consumed alcohol that night.
The minivan had no middle row of seats. Cortina sat in the front passenger seat as
Pablo drove the minivan on a dirt road perpendicular to the cactus furrows. Two men sat
in the open sliding door on one side and two sat in the open sliding door on the other side.
The men “spotlighted out into the furrows” and when they caught sight of animals to
2
Because some of the men share surnames, we will refer to them by their first
names to avoid confusion.
2
shoot, the men in the open door on that side of the minivan would sit down and shoot,
while the two in the open door on the other side would stand up and shoot over the top of
the minivan. Cortina would shoot out his window or across Pablo’s chest and out Pablo’s
window.
Sometime after midnight, the men spotted a rabbit on the passenger side of the
van. Luis stood up on the driver’s side and fired across the top of the van. As Luis fired,
Leobardo unexpectedly stood up on the passenger side and Luis accidentally shot him in
the head.
Cortina had been dozing. He heard screaming and saw Jose “in panic mode.”
Cortina got out of the minivan and found Leobardo on the ground with blood coming out
of his nose and mouth. Cortina collected the rifles and put them in the minivan. He and
Fernando lifted Leobardo into the van. Leobardo “was dead weight.” Cortina told
Fernando to “sit him up” so he would not choke on his own blood. Cortina drove the
minivan out of the cactus fields. When he reached the road, Cortina “started screaming”
at the others to call 911. Jose tried to place the call but he was “nervous” and
“[s]omehow, it was very difficult for me at the time to dial the numbers.” Pablo also
attempted to call 911. Cortina did not use his own phone to call 911.
The men wanted Cortina to drive directly to a hospital but Cortina thought it
would be “safer” to return to town and call for an ambulance. He drove back to Luis’s
house. Someone reached the 911 dispatcher at 1:33 a.m. Cortina and Fernando placed
Leobardo’s lifeless body in the back of Luis’s pickup truck, which was parked in Luis’s
driveway.
Cortina’s son had gotten out of the minivan and was “crying a lot.” At that
moment, Cortina “heard a siren.” He left immediately with his son and drove the
minivan to his parents’ house in Gonzales. He parked the minivan outside and took his
son into the house.
3
Cortina took the rifles out of the minivan and put them in a spare bedroom. His
pants were wet and muddy and had blood on them so he changed them and threw the
muddy ones in the laundry room. When his brother asked what had happened, Cortina
said “somebody got shot.” Cortina left the minivan at his parents’ house, took his
brother’s car keys, and set off in his brother’s car for Luis’s house. After he left, his
brother washed the minivan and cleaned the blood from the inside.
Cortina was “kind of in a state of shock” and “ran off the road for, like, a minute
or two minutes” because he “just couldn’t stop crying.” He headed for his girlfriend’s
house but missed the freeway exit. He was on his way back to town when somebody
called him from his parents’ house. An officer met him there and took him into custody.
The record does not reveal precisely when Leobardo died. Cortina testified that
Leobardo was “dead weight” when he and Fernando lifted him into the minivan at the
hunting site. It is clear from the record that Leobardo was dead by the time the first
officers arrived at Luis’s house in Gonzales. An autopsy recovered a bullet from
Leobardo’s skull.
The district attorney charged Cortina with involuntary manslaughter (Pen. Code,
§ 192, subd. (b)), discharging a firearm in a grossly negligent manner (Pen. Code,
§ 246.3), felony child endangerment (Pen. Code, § 273a, subd. (a)), and misdemeanor
destruction of evidence (Pen. Code, § 135). The complaint was amended a year later to
add counts for misdemeanor child endangerment (Pen. Code, § 273a, subd. (b)) and
misdemeanor unlawful taking of game (Fish & G. Code, § 2000). Cortina pleaded no
contest to the latter two counts. The trial court dismissed the remaining counts and
placed Cortina on conditional probation for four years.
The criminal charges were still pending when the CDCR served Cortina with a
notice of adverse personnel action terminating his employment effective
January 31, 2008. The grounds asserted were inexcusable neglect of duty (subd. (d)),
discourteous treatment of the public or other employees (subd. (m)), willful disobedience
4
(subd. (o)), and other failure of good behavior either during or outside duty hours
(subd. (t)). The notice described the “dangerous and illegal hunting expedition.” It stated
that Cortina’s duties and responsibilities as a correctional sergeant included “the
requirement that on or off duty conduct and behavior be law-abiding . . . .” It alleged that
his conduct that night constituted (among other things) “involuntary manslaughter (Penal
Code section 192(b), child endangerment (Penal Code Section 273a(a)) . . . and illegal
taking of game (Fish and Game Code section[s] . . . 2000, 2005, 2006).” Cortina
appealed the adverse action to the Board and requested a Skelly3 hearing.
A. Skelly Hearing
An administrative law judge (ALJ) conducted the hearing on November 12, 2009.
The Board called three investigating officers, Cortina’s young son, and Luis as witnesses.
Cortina called his brother Alejandro (Alex), his cousin Jose, and Pablo as witnesses.
Cortina testified in his own behalf.
Kelly McCoy was a Monterey County Deputy Sheriff in November 2007.4 She
went to Cortina’s parents’ house in the early hours after the shooting. She saw Alex
come in “half-dressed” and “wet” from washing the minivan. A cursory search for
weapons located “several rifles and shotguns” under a bedspread and additional rifles in
the closet of another bedroom.
McCoy spoke with Cortina’s young son for about 10 minutes. He told her that his
father and his friends were drinking beers that night. A man was shot in the back of the
head and when he did not get up, Cortina and others lifted the man into the minivan, took
him to a house, and put him in the back of a pickup. His father said “they were going to
3
Skelly v. State Personnel Bd. (1975) 15 Cal.3d 194, 197 (Skelly).
4
McCoy’s supplemental police report was marked as an exhibit and admitted into
evidence without objection.
5
take the man to the hospital later.” His father drove him to his grandmother’s house and
asked Alex to wash the dirt and blood from the minivan.
Detective Alfred Martinez interviewed three of the hunters in Spanish.5 Fernando
told him that Cortina and Jose arranged the hunting trip. After Martinez recounted
Fernando’s description of the hunters’ methods at the hearing, he was asked if he
considered those methods safe. Martinez responded that he was “on the sheriff’s SWAT
team . . . . We would never train to shoot across our partner’s chest in a vehicle with a
long gun, or any gun, for that matter -- for sport.” Shooting over the top of a vehicle
knowing that there are individuals on the other side “might be a tactic I’d employ on the
SWAT team, where we train that way, and there are a lot of safety measures built into
that kind of training . . . .” “[B]ut for . . . lay people who are out shooting in the middle
of the night with only the assistance of a spotlight and would’ve been drinking, as other
people told me . . . it’d just be ludicrous to think that that would be anything but unsafe
and looking for something bad to happen.”
Martinez also interviewed Luis. Luis said he took aim after the men spotlighted
something on the passenger side of the van. He saw a “shadow cross his sights” as he
fired and realized that Leobardo had been hit. Luis told Martinez “that he really -- he
wasn’t a hunter, hadn’t handled firearms very much in his life . . . .” Luis also claimed
that he “couldn’t drink because of some medications . . . but other individuals [including
Leobardo] were drinking and they were drinking and shooting” that night. Martinez
opined that this was “[a]bsolutely not” a safe procedure.
Martinez also interviewed Pablo, who contradicted Luis’s assertion that Luis did
not drink alcohol that night. None of the men that Martinez interviewed told him that
Cortina consumed alcohol that night.
5
Martinez’s supplemental police report was marked as an exhibit and admitted into
evidence without objection.
6
Martinez testified that Pablo told him that Cortina “seemed scared” when he left
with his son and was “concerned that he didn’t want to get involved in this -- being
involved in a situation was not going to be a good thing and he needed to get his son
home because of that.”
Detective Martin Opseth was the lead investigator in the case.6 He obtained
consent to search Cortina’s parents’ house. He found rifles under a blanket in a bedroom
and additional rifles in a closet. He interviewed Cortina’s son, who told him that Alex
“cleaned out the van, took the weapons out of the van, and told him not to tell anybody”
and “not to say anything about what happened.”
Opseth also interviewed Alex. Alex said he was at the hunting site “briefly in the
beginning” but “thought that the participants were inexperienced and it was an unsafe
situation.” “So he left.” Alex said he asked Cortina to leave with him but Cortina did not
want to leave. Alex told Opseth that he “saw blood and mud on the van” when Cortina
left it at their parents’ house, so he washed it out.
Opseth interviewed Cortina, who told him that “he wasn’t shooting at the time, so
he knew it wasn’t him.” Cortina told Opseth that he was operating the spotlight when the
fatal shooting occurred. He said the others wanted to take Leobardo directly to the
hospital but he “decided that’s not what he wanted to do.” He admitted to Opseth that he
left Luis’s house, took the minivan and his son to his parents’ house, removed the rifles
from the minivan, and changed his pants.
Opseth was asked if Cortina told him “that he was concerned about his son being
exposed to the weapons, being present with those around.” Opseth replied that Cortina
was concerned about his son “after the shooting, yes,” but he “definitely didn’t take any
action before the shooting. I mean, they’re shooting over the van, through the van . . . .”
6
Opseth’s supplemental police report was marked as an exhibit and admitted into
evidence without objection.
7
“[T]hey were shooting all over the place” in the cactus fields. The ALJ asked Opseth if it
was legal to do that and if the men had permission to be there. Opseth responded, “It’s
not legal to shoot at night, it’s not legal to night hunt, and it’s not legal to use a spotlight
to hunt.” “They were on private property. They had no permission to be on that
property . . . .” “I think one or two of the guys there had worked there and had
knowledge of the field, but nobody could show that they had any proof and I think we
eventually contacted [the owners of the ranch]. They . . . did not give anybody
permission to be shooting out there . . . .” It wouldn’t matter even if they had permission
because “[t]hey’re still illegally hunting.”
Cortina’s cousin Jose testified that Leobardo worked at the ranch and had
permission from his manager to hunt there. Jose did not drink alcohol that night. He did
not recall Luis drinking alcohol, and he did not see Cortina drinking alcohol. He testified
that Cortina was not operating the spotlight when the fatal shot was fired but was instead
napping. Jose did not recall who was operating the spotlight.
Pablo testified that Cortina said he would be right back when he left with his son.
Contradicting what he had told Martinez after the shooting, Pablo testified that Cortina
did not say the shooting would cause him problems.
Alex testified that he went to the ranch around 11 or 12 that night and stayed about
20 minutes. He knew his brother was at the ranch because he had called him there
earlier. Alex admitted that he “probably said it was unsafe.” He maintained that he
meant “in the matter of too many guys out there with rifles.” “But they weren’t being
reckless or anything.” Alex said he was drinking that night and had a 12-pack of beer
with him. He ran into two guys “walking around with a flashlight . . . and they asked if I
had beer and I gave them, like, two beers . . . .” Alex testified that Cortina did not tell
him to clean the van; he did it on his own. He said their mother covered the rifles with a
blanket.
8
Cortina did not recall Alex telling him that he should leave. He stated that he
“wasn’t a hunter that night” but when challenged, admitted firing his rifle 10-12 times
during the course of the hunt. He denied firing it across Pablo’s chest. He did not recall
telling Ospeth that he was in the front passenger seat operating the spotlight when the
fatal shot was fired. He testified that he never saw anything unsafe “other than after the
fact, when I found out about Luis Magana, what he had done.”
Cortina testified that he “was the person who took charge” after Leobardo was
shot “because I knew this guy needed help.” He admitted that he was trained in CPR but
did not apply CPR. He had his cell phone with him but did not call for help “because I
was driving.” He did not drive directly to the hospital because the van had a bad tire and
he thought it would be “safer” to drive to Luis’s house. He admitted knowing that law
enforcement is notified whenever a gunshot victim turns up in the ER. “Oh, that’s a
given, yes.” “[W]hen it’s a gunshot, yeah, it’s automatic.”
Cortina testified that he did not know that hunting with a spotlight is illegal. He
admitted knowing that it is illegal under the Fish and Game Code to shoot at night
without a permit.
The ALJ issued a proposed decision sustaining Cortina’s termination for
inexcusable neglect of duty (subd. (d)), willful disobedience (subd. (o)), and other failure
of good behavior (subd. (t)). With respect to the subdivision (d) charge, the ALJ noted
that “[p]eace officers must act responsibly and within the scope of the criminal law,
whether on or off duty.” The ALJ concluded that “the evidence established that [Cortina]
participated in illegal hunting and endangered his son in violation of the criminal law.
[Cortina] acted unethically and outside the scope of the law. He has a duty as a peace
officer to act responsibly and ethically both on and off duty. [Cortina] was negligent in
his failure to exercise due diligence in his performance as a Correctional Sergeant. Thus,
[the CDCR] has established that [Cortina] neglected his duty in a manner that constitutes
a violation of . . . subdivision (d).”
9
With respect to the subdivision (t) charge, the ALJ explained that subdivision (t)
requires “more than mere misconduct.” “[T]he ‘misconduct must bear some rational
relationship to [the employee’s] employment and . . . must be of such character that it can
easily result in the impairment or disruption of the public service.’ ” The ALJ noted
further that “[t]he courts have consistently held that peace officers are held to a higher
standard of behavior than non-peace officers [citation] and that peace officers may be
disciplined for off-duty violations of the criminal laws. [Citation.]” The ALJ found “a
clear nexus” between Cortina’s conduct and his position as a correctional sergeant
because his job requires him to “exercise[] control of adults who have been committed to
an institution for criminal behavior.” “In addition, [Cortina’s] irrational conduct, when
faced with the accidental shooting . . . , and his irresponsible behavior in tampering with
the evidence, reflected poorly on his position . . . . As a trained peace officer, [Cortina]
had a responsibility to remain calm under the circumstances, take charge, and take
appropriate action. By failing to obtain medical assistance for the victim, failing to drive
the victim to a hospital, failing to report the incident to the police, leaving the scene,
removing evidence from the van, changing his pants, leaving the van which resulted in
evidence being washed away, and not returning immediately to the scene, [Cortina]
demonstrated poor judgment and failed to exercise appropriate discretion and
responsibility.” The ALJ concluded that Cortina’s actions “reflected poorly on, and
caused discredit to” himself and to the CDCR. “Therefore, [the CDCR] has established
that [Cortina] violated . . . subdivision (t).”
B. The Board’s Decision
The Board adopted the ALJ’s recommended decision in large part. It sustained
Cortina’s dismissal for violations of subdivisions (d) and (t) but took exception to the
ALJ’s conclusion that Cortina’s no contest pleas constituted willful disobedience under
subdivision (o). Cortina petitioned for rehearing. The Board denied the petition.
10
C. Trial Court Proceedings
Cortina petitioned the trial court for a writ of administrative mandamus, arguing
among other things that no substantial evidence supported the Board’s findings. In a
written statement of decision, the court ruled that the Board’s decision was supported by
substantial evidence and that the penalty of dismissal was not an abuse of the Board’s
discretion. The court entered judgment denying Cortina’s petition “in its entirety.”
Cortina timely appealed from the judgment.
II. Discussion
A. Standard of Review
Code of Civil Procedure section 1094.5 governs inquiries “into the validity of any
final administrative order or decision made as a result of a proceeding in which by law a
hearing is required to be given, evidence is required to be taken, and discretion in the
determination of facts is vested in the inferior tribunal, corporation, board, or
officer . . . .” (Code Civ. Proc., § 1094.5, subd. (a).) When a vested, fundamental right
such as the right of an employee to continued employment is at issue, the trial court
“must exercise its independent judgment on the evidence and find an abuse of discretion
if the findings are not supported by the weight of the evidence.” (Strumsky v. San Diego
County Employees Retirement Assn. (1974) 11 Cal.3d 28, 32.) “In exercising its
independent judgment, a trial court must afford a strong presumption of correctness
concerning the administrative findings, and the party challenging the administrative
decision bears the burden of convincing the court that the administrative findings are
contrary to the weight of the evidence.” (Fukuda v. City of Angels (1999) 20 Cal.4th 805,
817 (Fukuda).)
On appeal from the trial court’s denial of a writ of administrative mandamus, “we
review the record to determine whether substantial evidence supports the trial court’s
conclusions . . . .” (Deegan v. City of Mountain View (1999) 72 Cal.App.4th 37, 45; see
11
Fukuda, supra, 20 Cal.4th at p. 824.) “ ‘ “We must resolve all evidentiary conflicts and
draw all legitimate and reasonable inferences in favor of the trial court’s decision.
[Citations.] Where the evidence supports more than one inference, we may not substitute
our deductions for the trial court’s. [Citation.]” ’ ” (Lake v. Reed (1997) 16 Cal.4th 448,
457.)
B. Inexcusable Neglect of Duty
Cortina contends that the Board abused its discretion in sustaining the violation of
subdivision (d). Subdivision (d) provides that “inexcusable neglect of duty” constitutes
cause for discipline of an employee. The Board defines the phrase to mean “the
intentional or grossly negligent failure to exercise due diligence in the performance of a
known official duty.” (In the Matter of the Appeal by E.W. (1999) SPB Dec. No. 99-09,
p. 19; see Gubser v. Dept. of Employment (1969) 271 Cal.App.2d 240, 242-243
(Gubser).)
“Peace officers must act responsibly and within the scope of the criminal law,
whether on or off duty.” (In the Matter of the Appeal by J.R. (1993) SPB Dec. No. 93-04,
p. 5.) “It is not unreasonable for a law enforcement agency to forbid and discipline for
off-duty conduct by its officers which violated the penal laws.” (Gillies v. Civil Service
Bd. (1979) 99 Cal.App.3d 417, 419 (Gillies).) “ ‘Peace officers may be disciplined,
including termination of employment for violating laws they are employed to enforce.’ ”
(Hooks v. State Personnel Bd. (1980) 111 Cal.App.3d 572, 577.)
Here, Cortina acknowledges that “illegal conduct is, on its own, a valid basis for
discipline” under section 19572. He complains, however, that the Board’s conclusion
that he participated in illegal hunting and endangered his son in violation of the criminal
law lacked evidentiary support because the Board did not expressly find the elements of
those crimes proven by a preponderance of the evidence, and there was no substantial
evidence to support any such findings. We disagree.
12
“ ‘ “In following the substantial evidence rule we are obligated to consider the
evidence in the light most favorable to the Board, giving to it the benefit of every
reasonable inference and resolving all conflicts in its favor.” [Citation.] “Inferences
based upon circumstantial evidence are sufficient to support a finding.” [Citation.]’ ”
(Catricala v. State Personnel Bd. (1974) 43 Cal.App.3d 642, 649 (Catricala).) Here as
we will conclude, the Board’s determination that Cortina violated the criminal law was
supported by its findings, which included implicit findings that the elements of the
underlying crimes were proven. (See Catricala, at pp. 648-649.)
1. Violations of the Fish and Game Code
Fish and Game Code section 2000 provides in pertinent part that it is “unlawful to
take any . . . mammal . . . except as provided in this code or regulations made pursuant
thereto.” Fish and Game Code section 2002 makes it “unlawful to possess any . . .
mammal . . . taken in violation of any of the provisions of this code, or of any regulation
made under it.” Fish and Game Code section 2005 makes it “unlawful to use an artificial
light to assist in the taking of . . . game mammals . . . .” (Fish & G. Code, § 2005,
subd. (a).) That section also makes it unlawful “to throw or cast the rays of any spotlight,
headlight, or other artificial light . . . in any field, woodland, or forest where game
mammals . . . are commonly found, or upon any game mammal . . . , while having in his
or her possession or under his or her control any firearm or weapon with which that
mammal could be killed, even though the mammal is not killed, injured, shot at, or
otherwise pursued.” (Fish & G. Code, § 2005, subd. (b).)
Here, the Board expressly found that “[o]n the evening of November 21, 2007,
[Cortina] and five other adults . . . went hunting for rabbits . . . .” (Finding of Fact 2.)
“The group hunted from [Cortina’s] van using a spotlight to illuminate the rabbits. While
traveling around in the fields, one individual would put the spotlight on the rabbit, and
another individual would . . . use a rifle to shoot at the rabbit, and another individual
would stand on the running board of the van and use a rifle to shoot at the rabbit over the
13
roof of the van from the opposite side.” (Finding of Fact 3.) The Board also stated that
Cortina “admitted at [the] hearing that he knew that he could not shoot game at night
without a license.”
Substantial evidence supported these findings. It was undisputed that the group
went hunting for rabbits at night with a spotlight. There was evidence that Cortina
organized the hunt and drove everyone to the cactus ranch. Cortina admitted that he shot
his rifle that night. “I would see a rabbit. I’d exit the van. I’d shoot . . . .” The others
also shot their rifles. There was evidence that the hunt was successful. Cortina’s son told
Opseth that the group killed several rabbits during the hunt. There was also evidence that
Cortina possessed the game. Alex testified that he saw blood in the van “under the bag
with the rabbits” and that he took “the rabbits” out of the minivan after Cortina left it at
their parents’ house. Finally, there was evidence that Cortina knew that he and the group
were violating the Fish and Game Code. Cortina testified that he did not know that using
a spotlight was illegal. But as the Board noted, he “admitted at the hearing that he knew
that he could not shoot game at night without a license.”
The foregoing evidence was sufficient to establish violations of Fish and Game
Code sections 2000 and 2002. Cortina argues, however, that even if there was sufficient
evidence to establish the elements of the underlying offenses, there was no evidence apart
from his no contest pleas to establish that his violation of the criminal law was
“ ‘intentional or grossly negligent’ ” as subdivision (d) requires. (Gubser, supra, 271
Cal.App.2d at pp. 242-243.) We disagree.
With certain exceptions that do not apply here, a no contest plea to a misdemeanor
cannot be used in an administrative disciplinary proceeding. (County of Los Angeles v.
Civil Service Com. (1995) 39 Cal.App.4th 620, 628-629 (County of L.A.); see Cartwright
v. Board of Chiropractic Examiners (1976) 16 Cal.3d 762, 773; Pen. Code, § 1016,
subd. (3).) However, that does not advance Cortina’s argument because the record
refutes his assertion that the subdivision (d) violation was upheld “solely” based on his no
14
contest plea. As the Board expressly found, Cortina “admitted at the hearing that he
knew that he could not shoot game at night without a license.” Thus, substantial
evidence supported the Board’s conclusion that Cortina intentionally or with gross
negligence violated a known duty by “participat[ing] in illegal hunting . . . in violation of
the criminal law.” This provided a sufficient basis to sustain the violation of subdivision
(d). (Gillies, supra, 99 Cal.App.3d at p. 419.)
2. Child Endangerment
We reach a different conclusion with respect to the Board’s determination that
Cortina intentionally or with gross negligence violated a known duty by “endangering his
son . . . in violation of the criminal law.” We need not address whether the evidence
supported the Board’s implicit finding that the elements of the child endangerment statute
were satisfied because even if they were, there was no evidence apart from his no contest
plea to misdemeanor child endangerment that Cortina intentionally or with gross
negligence violated that law. To the extent the Board relied on Cortina’s no contest plea,
that reliance was improper. (County of L.A., supra, 39 Cal.App.4th at pp. 628-629; Pen.
Code, § 1016, subd. (3).) However, this does not mean that the trial court abused its
discretion in sustaining the violation of subdivision (d). As we have explained, the
violation of subdivision (d) was properly sustained because sufficient evidence supported
the Board’s conclusion that Cortina intentionally or with gross negligence violated the
Fish and Game Code.
C. Other Failure of Good Behavior
Cortina contends that the Board abused its discretion in sustaining the violation of
subdivision (t) because there was no substantial evidence of a nexus between his actions
that night and his employment. We disagree.
Subdivision (t) provides that “[o]ther failure of good behavior either during or
outside of duty hours, which is of such a nature that it causes discredit to the appointing
15
authority or the person’s employment,” constitutes cause for discipline of an employee.
Subdivision (t) is “ ‘a catchall to include situations and acts which do not easily fit into
the [24] specific causes’ ” enumerated in section 19572. (Nightingale v. State Personnel
Board (1972) 7 Cal.3d 507, 512 (Nightingale).) It “refers to conduct which would reflect
discredit on the employing agency or the position held by the person engaging in such
conduct.” (Orlandi v. State Personnel Bd. (1968) 263 Cal.App.2d 32, 37 (Orlandi).)
“[S]ubdivision (t) does not require ‘that the employee be convicted of a crime [or] that it
appear that [his] actions . . . [were] illegal.’ ” (Anderson v. State Personnel Bd. (1987)
194 Cal.App.3d 761, 768 (Anderson).) The misconduct need not be expressly proscribed
by rule. (Orlandi, at p. 40 [“Inherent in the position of a patrolman is his knowledge,
without being told, that ‘fixing a ticket’ is a violation of good behavior and one which
would bring discredit upon himself and the department.”].) Nor does it have to be
“publicly known, resulting in actual discredit to the agency.” (Nightingale, at pp. 513-
514.) “ ‘If the misconduct bears some rational relationship to the employment and is of a
character that can reasonably result in the impairment or disruption of public service,’ the
employee may be disciplined.” (Johnson v. County of Santa Clara (1973) 31 Cal.App.3d
26, 32; Anderson, at pp. 769-770.)
Here, the Board found “a clear nexus” between Cortina’s conduct that night and
his employment on several grounds. His criminal conduct provided one nexus because
“as a correctional sergeant, [Cortina] exercises control of adults who have been
committed to an institution for criminal behavior.” Cortina concedes that substantial
evidence supported the finding that his job required him to exercise control of inmates.
He does not challenge the existence of a nexus between his criminal conduct and his
employment as a correctional sergeant. Nor could he. It is well-settled that the
commission of off-duty crimes establishes a nexus between a peace officer’s duties and
his or her off-duty conduct for purposes of subdivision (t). “[W]illfully breaking the law
. . . is entirely inconsistent with . . . the duties of a sworn peace officer” and “can be
16
found to be conduct which has or is likely to have harmed the public service and . . .
cause[d] discredit to the . . . [person’s] employment.” (Ramirez v. State Personnel Bd.
(1988) 204 Cal.App.3d 288, 294 (Ramirez).)
The Board found that Cortina’s “irrational conduct” immediately after the
shooting and his “irresponsible behavior in tampering with the evidence” provided
another nexus to his employment. Cortina does not challenge the facts underlying the
Board’s findings. On the contrary, he concedes that “many” of those facts are true. He
complains, however, that the Board abused its discretion in finding a nexus between his
conduct and his job because it failed to make an express finding that he tampered with or
removed evidence.
The argument lacks merit. As we have already explained, we review the evidence
in the light most favorable to the Board’s findings and indulge all reasonable inferences
in support thereof. (Catricala, supra, 43 Cal.App.3d at pp. 648-649.) Here, there was
more than sufficient evidence to support an implied finding that Cortina tampered with
and removed evidence. He left the scene and took the van to his parents’ house.
(Finding of Fact 7.) He removed the guns from the van and put them in his parents’
house. (Finding of Fact 8.) He removed his bloody pants and threw them into his
parents’ laundry room. (Finding of Fact 8.) He left the van at his parents’ house, which
resulted in his brother washing away evidence. (Finding of Fact 10.) There was evidence
that before he left in the van, he told those who remained at the scene “that this [situation]
would cause too many problems for him.” He did not return immediately to the scene
after he left his parents’ house. A reasonable factfinder could conclude from all of this
evidence that Cortina was trying to hide something and/or to evade questioning. Thus,
substantial evidence supported the Board’s implicit finding that Cortina tampered with
the evidence.7
7
As Cortina acknowledges, this conclusion means that we need not reach his
additional argument that there was no nexus between his conduct and his job because the
17
Cortina next complains that no substantial evidence supported the Board’s finding
that he had a responsibility as a trained peace officer to remain calm under the
circumstances, take charge, and take appropriate action. We disagree. The Board found
that Cortina’s job specifications included “the following relevant tasks: [¶] Supervises
the work of Correctional Officers in the safe custody, discipline, and welfare of inmates
or parolees on an assigned watch or in a major area; . . . develops procedures and posts
orders; provides on-the-job training for Correctional Officer staff; promotes acceptable
attitudes and behavior of inmates; . . . reports infractions of rules and regulations and
irregular or suspicious occurrences and takes or recommends appropriate action; . . .
prepares employee and performance reports; . . . .” Implicit in these specific obligations
is the general obligation to remain calm under the circumstances, take charge, and take
appropriate action. Cortina acknowledged as much when he emphasized at the hearing
that he “was the person who took charge” after Leobardo was shot. He also emphasizes
on appeal that he “took the initiative” after Leobardo was shot and “went into action”
while the others “panicked.”
Cortina next complains that the Board’s findings that he acted irrationally and
irresponsibly, demonstrated poor judgment, and failed to exercise appropriate discretion
were “based on arbitrarily drawn inferences which unexplainably ignore certain portions
of the record.” The argument misperceives our task as a reviewing court. It is not our
task to determine whether substantial evidence supports Cortina’s view of the evidence.
Under the substantial evidence test, “[w]e review the [B]oard’s decision in light of the
entire administrative record. [Citation.] Our standard is whether the record discloses
substantial evidence (reasonable, credible, and of solid value) such that a reasonable trier
fact that he “panicked when his friend was shot” and did not handle the situation well
“does not discredit the CDCR in any way.” That argument “assumes that this Court does
not find substantial evidence to support [the finding] that [he] intentionally tampered with
or removed evidence.”
18
of fact could have found as it did.” (Parker v. State Personnel Bd. (1981) 120
Cal.App.3d 84, 87.) We have determined that the Board’s conclusions were supported by
its findings and that its findings were supported by substantial evidence. Thus, the trial
court did not abuse its discretion when it upheld the Board’s decision and denied
Cortina’s petition for a writ of administrative mandamus.
III. Disposition
The judgment is affirmed.
19
___________________________
Mihara, J.
WE CONCUR:
_____________________________
Bamattre-Manoukian, Acting P. J.
_____________________________
Grover, J.
20