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


Menu:
  • 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    NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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
    

Document Info

Docket Number: H039531

Filed Date: 1/5/2016

Precedential Status: Non-Precedential

Modified Date: 4/18/2021