Opinion
E071545
01-23-2020
MARIANO HERNANDEZ, Plaintiff and Appellant, v. CALIFORNIA STATE PERSONNEL BOARD, Defendant and Respondent; CALIFORNIA DEPARTMENT OF CORRECTIONS AND REHABILITATION, Real Party in Interest and Respondent.
Castillo Harper and Michael A. Morguess for Plaintiff and Appellant. No appearance for Defendant and Respondent. California Department of Corrections and Rehabilitation, Janie Hickok Siess and Joseph Williams for Real Party in Interest and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super.Ct.No. CIVDS1721397) OPINION APPEAL from the Superior Court of San Bernardino County. David Cohn, Judge. Affirmed. Castillo Harper and Michael A. Morguess for Plaintiff and Appellant. No appearance for Defendant and Respondent. California Department of Corrections and Rehabilitation, Janie Hickok Siess and Joseph Williams for Real Party in Interest and Respondent.
Plaintiff and appellant Mariano Hernandez worked as a correctional lieutenant at the California Institution for Women in Chino (the prison). On March 16, 2016, the State of California Department of Corrections and Rehabilitation (the Department) notified Hernandez that his employment would be terminated effective March 24, 2016. The Department alleged Hernandez (1) was dishonest about sharing sexual text, photographic, and video messages with an inmate; (2) was dishonest about using a cell phone in the Department's in-service training office; (3) was dishonest about a telephone call from another correctional officer, Sergeant Louie Flores (Sergeant Flores), who informed Hernandez's wife about the office of internal affairs exiting Hernandez's office; and (4) misused the state's e-mail system by sending sexually and racially insensitive e-mails.
Hernandez appealed the Department's decision to terminate his employment. In a proposed decision, an administrative law judge sustained the termination of Hernandez's employment. The State Personnel Board (the Board) adopted the proposed findings and decision made by the administrative law judge. Hernandez petitioned the trial court for a writ of administrative mandate. (Cod Civ. Proc., § 1094.5.) The trial court denied Hernandez's petition.
All subsequent statutory references will be to the Code of Civil Procedure unless otherwise indicated.
Hernandez raises five issues on appeal. First, Hernandez contends substantial evidence does not support the finding that he was dishonest regarding communications with an inmate. Second, Hernandez contends substantial evidence does not support the finding that he was dishonest about having a cell phone in his office. Third, Hernandez asserts substantial evidence does not support the finding that he was dishonest about the phone call from Sergeant Flores regarding the office of internal affairs. Fourth, Hernandez contends the notice provided by the Department did not allege dishonesty in the form of Hernandez receiving information from Sergeant Flores through a phone call made to Hernandez's wife. Fifth, Hernandez asserts it was an abuse of discretion to terminate his employment. We affirm the order.
FACTUAL AND PROCEDURAL HISTORY
The Board adopted the following facts from the administrative law judge's proposed decision:
"[Hernandez] commenced his employment with [the Department] as a Correctional Officer (CO) in December 1996. [Hernandez] promoted to Correctional sergeant in May 2003, promoted to Health Program Coordinator in March 2006, and promoted to Correctional Lieutenant in June 2006. [Hernandez] has worked at [the prison] since May 2003. [Hernandez] has no previous adverse actions.
"During his tenure, [Hernandez] has received ratings of 'standard' to 'outstanding' in his performance evaluations and received 10 Letters of Commendation.
"In June 2014, [Hernandez] was assigned to manage [the prison's] In-Service Training (IST) Unit. [Hernandez's] duties were to oversee, implement, and record training courses for [the prison's] staff. At all times relevant, [Hernandez] supervised six [Department] staff members, which included Office Technician (OT) Carmen Nelson (OT Nelson) . . . and IST inmate clerk Inmate Angela Parks (Inmate Parks). [Hernandez's] supervisor was Correctional Captain James Hill (Captain Hill) The IST Unit maintained their offices in a separate building inside [the prison's] secured area, near the Administration Building. [Hernandez] shared an office with OT Nelson."
[¶] . . . [¶]
"In February 2015, a confidential informant notified [the Department's] Office of Internal Affairs (OIA) that [Hernandez] was engaged in a sexual relationship with [prison] inmate Christina White (Inmate White). OIA Special Agent Jeffrey Cleland (Agent Cleland) was assigned to investigate the allegations.
"On February 28, 2015, Agent Cleland secretly installed four security cameras in the IST office that [Hernandez] shared with OT Nelson. Said cameras were monitored remotely from an OIA surveillance van that was stationed in [the prison's] parking lot.
"On March 4, 2015, at 2:20 p.m., [Hernandez] was in his office when he opened a manila envelope and removed a bundle of paper towels. [Hernandez] unwrapped, from the paper towels, a black cellular phone. [Hernandez's] desk faced the office wall to the left of the doorway. [Hernandez] moved to OT Nelson's desk, which faced the office's doorway. [Hernandez] then opened OT Nelson's desk drawer and placed the cellular phone in the open drawer. Next, [Hernandez] powered on the cellular phone, and while the cellular phone was powering on, [Hernandez] closed the desk drawer and waited for approximately 10 seconds. After 10 seconds, [Hernandez] opened the drawer and used the phone's touchscreen to open a video. [Hernandez] then watched a video of Inmate White and her cellmate, Inmate Parks, from the waist up dancing in their cell and wearing only their brassieres. During the video, the two inmates removed their brassieres and exposed their breasts. The video lasted approximately 43 seconds. After viewing the video, [Hernandez] turned off the phone, placed it back in the manila envelope, and left the office with the manila envelope. When [Hernandez] returned to the office, he did not have the manila envelope. [Hernandez's] actions were viewed by Agent Cleland and recorded by an OIA security camera.
"On March 17, 2015, after 7:00 p.m., Agent Cleland and [prison] Investigative Service Unit (ISU) Lieutenant Frank Esqueda (Lieutenant Esqueda) entered the IST building so Agent Cleland could install additional security cameras in the hallway outside [Hernandez's] office. Agent Cleland and Lieutenant Esqueda exited the IST building sometime after 7:00 p.m. When Agent Cleland and Lieutenant Esqueda exited the IST building, they were seen by [prison] Transportation Correctional Sergeant Louie Flores (Sergeant Flores) who was in the [prison] parking lot after returning an inmate from transport. Lieutenant Esqueda informed Agent Cleland that Sergeant Flores was a friend of [Hernandez].
"Shortly after Agent Cleland and Lieutenant Esqueda exited the IST building, [Hernandez] received a telephone call on his home phone from an anonymous caller notifying [Hernandez] that Agent Cleland and Lieutenant Esqueda had just exited the IST building. At the conclusion of the anonymous call, [Hernandez] discussed it with his wife, CO Illiana Hernandez (CO [Illiana]).
We use first names for the sake of clarity. No disrespect is intended.
"At 7:51 p.m. on March 17, 2015, Sergeant Flores called [Hernandez's] personal cellular phone, but [Hernandez] did not answer his cellular phone. Sergeant Flores then called CO [Illiana's] cellular phone. CO [Illiana] also worked at [the prison] and was a friend of Sergeant Flores. CO [Illiana] answered her cellular phone, and Sergeant Flores notified her that he had just observed Agent Cleland and Lieutenant Esqueda exiting the IST building. While on the phone with Sergeant Flores, CO [Illiana] related to [Hernandez] what Sergeant Flores was saying.
"At 8:16 p.m. on March 17, 2015, [Hernandez] called ISU Correctional Sergeant Michael Alvarado (Sergeant Alvarado). Sergeant Alvarado was [Hernandez's] friend. [Hernandez] told Sergeant Alvarado about the telephone call from Sergeant Flores. [Hernandez] asked Sergeant Alvarado if he knew why Agent Cleland and Lieutenant Esqueda were in the IST building. Sergeant Alvarado did not know why Agent Cleland and Lieutenant Esqueda had been in the IST building. [Hernandez] then ended his conversation with Sergeant Alvarado.
"On March 18, 2015, between 9:00 a.m. and 10:00 a.m., [Hernandez] approached Sergeant Alvarado to speak with him about the events of March 17 and told Sergeant Alvarado he had noticed that a ceiling panel in his office had been moved. Sergeant Alvarado advised [Hernandez] to report what he knew to a supervisor. [Hernandez] told Sergeant Alvarado that he would report he had received information on March 17 from an anonymous caller, but would not mention Sergeant Flores's telephone call when he reported to the supervisor.
"On March 18, 2015, between 10:00 a.m. and 12:00 p.m., [Hernandez] searched his office and discovered the hidden surveillance cameras. Upon [Hernandez's] discovery of the surveillance cameras, Agent Cleland acquired a search warrant for [Hernandez's] cellular phones.
"On the afternoon of March 18, 2015, Agent Cleland interviewed [Hernandez]. . . . [¶] During the interview, Agent Cleland asked [Hernandez] about the events of March 4, 2015. [Hernandez] stated that on March 4, 2015, an unmarked manila envelope was in [Hernandez's] designated mailbox. [Hernandez] took the envelope to his office and later that day opened the envelope to discover an unidentifiable personal digital assistant (PDA) wrapped in paper towels in the envelope. [Hernandez] explained that he tried to turn the PDA on while at OT Nelson's desk but the PDA would only flash on and off, either displaying the work 'aardvark,' or a clock, or a picture of a notebook. [Hernandez] recounted that after approximately one minute of trying to activate the PDA, he returned the PDA to the envelope and placed it back into his mailbox. [Hernandez] reported that on the next day, March 5, 2015, the PDA had disappeared from his mailbox. [Hernandez] conveyed that he thought the matter was a prank and took no action to report the PDA's disappearance.
"Further, during the March 18, 2015, interview, Agent Cleland asked [Hernandez] whether he had received a phone call from Sergeant Flores on March 17, 2015. [Hernandez] reported he did not speak to Sergeant Flores on March 17, 2015, but did not further elaborate. Later in the interview, [Hernandez] notified Agent Cleland that Sergeant Flores had spoken to CO [Illiana] on March 17, 2015.
"On March 18, 2015, Agent Cleland seized [Hernandez's] personal cellular phone—a Motorola XT1254. [¶] At all times relevant, Inmate White's and Inmate Park's cell was located in the Emmons Housing Unit.
"At 6:00 p.m., on March 18, 2015, Security Patrol Officer II, CO Zareh Sevanesian (CO Sevanesian) was ordered by the Emmons Housing Sergeant to perform a cell search and inventory of Inmate White and Inmate Park's cell. Cell searches were a regular duty for CO Sevanesian. During the cell search, CO Sevanesian discovered a Kyocera model cellular phone (Kyocera phone) in a plastic bag hidden in a coffee container. Upon discovering the Kyocera phone, CO Sevanesian immediately called ISU and spoke to Sergeant Alvarado. Five minutes after contacting ISU, CO Sevanesian handed the Kyocera phone to ISU CO Linda Bravo (CO Bravo). . . .
[¶] . . . [¶]
"On May 7, 2015, Agent Cleland performed a forensic examination of the Kyocera phone. Upon the first examination, the Kyocera phone's memory contained no data. Agent Cleland then used the Cellebrite Universal Forensic Examination Device (Cellebrite) to extract the Kyocera phone's memory. The Cellebrite system allows for the retrieval of deleted information from a cellular phone's memory. After using Cellebrite, Agent Cleland retrieved the following deleted information:
"- 3836 images. Ninety percent of the images were of Inmate White in either nude or provocative poses.
"- 5966 short message service messages (text messages). Fourteen of the retrieved text messages were sent to [Hernandez's] personal cellular phone number from November 12, 2014, to February 7, 2015. One of the 14 text messages sent to [Hernandez] at 4:39 p.m. on November 15, 2014, was of an explicit sexual nature regarding Inmate White's description of her sexual desire for [Hernandez]. Another of the 14 text messages [was] sent at 12:47 a.m. on February 7, 2015, and listed details about IST staff members. The message stated: [¶] All you staff called in sick today Captain Hill came looking for reports Dallas caused an uproar now is pissed and Dallas told Denise she is getting rid of Angie just giving you heads up for Monday :-( other than that hope all is well with
"Dallas was a nickname for OA Gisler."
"The text message contained no punctuation and various grammatical irregularities."
"- Nine videos. Three of the videos were recorded on March 3, 2015, with the Kyocera phone's camera. The first video would not play. The second was an eight-second video of Inmate White lying on her cell bed, nude. The third video was a 43-second video of Inmate White and her cellmate, Inmate Parks, from the waist up dancing in their cell and wearing only their brassieres. During the video, the two inmates removed their brassieres and exposed their breasts.
"Agent Cleland performed a forensic examination of [Hernandez's] Motorola XT1254 cellular phone, but due to the Motorola XT1254's incompatibility with the Cellebrite program, he was unable to confirm [Hernandez's] Motorola XT1254 had received any of the 14 text messages sent by the Kyocera phone.
"On May 5, 2015 OIA Special Agent Michael Newman (Agent Newman) was assigned to perform an administrative investigation regarding [Hernandez's] alleged misconduct. [¶] On June 1, 2015, Agent Newman interviewed [Hernandez], which was audio recorded. During the interview, Agent Newman asked [Hernandez] whether he had received any text messages from Inmate White and [Hernandez] responded he had not seen any text messages from Inmate White. During the interview, Agent Newman played the March 4, 2015, surveillance video for [Hernandez]. Agent Newman then asked [Hernandez] to explain his actions on March 4, 2015. [Hernandez] reported that the surveillance video showed [Hernandez] trying to use a PDA that he had discovered in his mailbox. [Hernandez] further explained that he could not identify the PDA, nor could he get the PDA to function properly.
"[Hernandez's] Emails
"During his investigation of [Hernandez], Agent Newman reviewed 500 emails from [Hernandez's] [Department] email account spanning from March 2015 back through an unspecified time in 2014.
"During the June 1, 2015, investigatory interview, Agent Newman provided the following emails to [Hernandez]:
"A) On October 30, 2014, [Hernandez] received an email from [Department] employee Don Glucksman (Glucksman) who was using the initials 'CIW' as a source for wordplay. [Hernandez] sent a reply email in which we wrote, 'Cumming In Wads' and 'Cunt In Water.'
"B) On November 4, 2014, [Hernandez] received an email from [Department] employee, Greg Hughes (Hughes). Hughes wrote, 'What's up? Sluglips!' [Hernandez] sent an email replying, 'Back that A$$ up Slug Lips!'
"C) On November 20, 2014, commencing at 2:04 p.m., OT Nelson, and [Hernandez] wrote an email chain. In the email chain, [Hernandez] used the term 'Precious' as a pseudonym for [prison] Warden Kim Hughes (Warden Hughes) with the email exchange as follows:
"OT Nelson: Are you back at your office?
"[Hernandez]: No, I am watching the leftover food on the nine wide. Precious punked me.
"OT Nelson: Sure . . . you are probably pigging out with her.
"[Hernandez]: See [sic] poured gravy on me and is licking it off.
"OT Nelson: You poor thing, you are going to have to get disinfected . . . LOL
"[Hernandez]: It feels good, her tongue is big.
"D) On December 5, 2014, commencing at 12:01 p.m., OT Nelson, and [Hernandez] wrote the following email chain:
"[Hernandez]: From the neck down you looked fine today.
"OT Nelson: I am blushing . . . . :-)
"OT Nelson: Like I was told, from the 'neck down I am as fine as F!@#, from the neck up I am F!@# up! . . . LOL . . . Wiggy thinks she is the 'shiz' today . . . . hey, hey, hey.
"[Hernandez]: I think the neck up is good too! I just talk shit, but all of you is fine. Now, you can blush!
"OT Nelson: Awww . . . thank you . . ."
The excerpts from Hernandez's e-mails continue, but, for the sake of brevity, we do not include all of the excerpts.
DISCUSSION
A. ADMINISTRATIVE MANDAMUS
"Administrative mandate applies to challenge the results of an administrative hearing." (Danser v. Public Employees' Retirement System (2015) 240 Cal.App.4th 885, 890.) "[T]he writ is issued for the purpose of inquiring into the validity of any final administrative order or decision made as the 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." (§ 1094.5, subd. (a).)
"On review of an administrative mandamus judgment, the inquiry is 'whether there was any prejudicial abuse of discretion.' [Citation.] . . . [A]n abuse of discretion is established 'if the [agency] has not proceeded in the manner required by law' [citation] or 'if the court determines that the findings are not supported by substantial evidence in the light of the whole record.' [Citation.] ' " 'In [administrative] mandamus actions, the trial court and appellate court perform the same function' " '; 'we do not "undertak[e] a review of the trial court's findings or conclusions. Instead, 'we review the matter without reference to the trial court's actions.' " ' [Citation.] Appellate review of the agency's factual determinations in administrative mandamus proceedings is 'deferential,' and 'the agency's findings must be upheld unless arbitrary, capricious, or entirely lacking evidentiary support.' " (City of Hesperia v. Lake Arrowhead Community Services Dist. (2019) 37 Cal.App.5th 734, 748.)
B. INMATE COMMUNICATIONS
Hernandez contends substantial evidence does not support the finding that he was dishonest when he denied receiving provocative images and text messages from Inmate White.
" ' "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." ' " (Catricala v. State Personnel Bd. (1974) 43 Cal.App.3d 642, 649 (Catricala).)
Dishonesty "constitutes cause for discipline of an employee." (Gov. Code, § 19572, subd. (f).) "Falsehood Qua falsehood is not specified as a ground for dismissal; the criterion established by subdivision (f) of section 19572 of the Government Code is 'dishonesty.' The general concept [of] 'dishonesty' as used in the cases is of little help because in each the nature of the falsehood and the circumstances of the particular case give the symbol its significance. . . . [¶] Whether the falsehoods of [an] appellant constitute dishonesty undoubtedly will strike reasonable minds with different force, but for our purpose it is enough if the falsehoods the personnel board deemed to constitute dishonesty could be accepted by a reasonable mind as substantial evidence in support of that deduction." (Cvrcek v. State Personnel Bd. (1967) 247 Cal.App.2d 827, 830.)
Agent Cleland testified at the administrative hearing. Cleland performed a forensic examination of Inmate White's cell phone. Cleland found 14 text messages were sent from Inmate's White cell phone to Hernandez's cell phone.
The messages from Inmate White's cell phone were admitted as an exhibit. One of the text messages read: "Woke up this morning with you heavy on my mind, my pussy was hot, wet and throbbing. I was having crazy sex dreams and of course you were there . . . I couldn't just hold back so I proceeded to part my thighs and slide my fingers to begin pleasuring myself, closing my eyes and picturing you and your big cock starting to enter and slam inside me. I am so hot right now and moving my hips and letting my fingers play on my clit. I felt that amazing hot rush begin and warmth spread throughout my body . . . Damn I want more; can you help me with that?"
A second text message read, "By the way, you looked very GQ the other day. It got my attention but then again you seemed to have that when I'm in your presence." A third text message read, "Merry Christmas or in your case Happy Hanukkah handsome." A fourth message read, "Here's your files. Ho ho ho." A fifth message read, "Check your phone later sending you some files took care of that issue yesterday you just relax and don't worry :-!"
From the evidence that (1) Inmate White sent text messages to Hernandez's cell phone; and (2) that Inmate White was sending messages regarding files, which read as though she was following up on issues, e.g., "sending you some files took care of that issue," it is reasonable to infer that Hernandez received the messages and was in communication with Inmate White. The inference is reasonable because the evidence leaves the impression that Hernandez wanted files from White, was waiting to hear from her, and provided her with his cell phone number as a means to communicate with her. As a result, there is substantial evidence that Hernandez was communicating with White via cell phone.
Cleland further testified that when he interviewed Hernandez, Hernandez denied ever receiving a text message from Inmate White "or any inmate for that matter." One could reasonably conclude from this evidence that Hernandez was dishonest when he denied ever having received a text message from Inmate White because there is substantial evidence from which one could reasonably infer that Hernandez received text messages from Inmate White.
Hernandez contends substantial evidence does not support the finding that he was dishonest about communicating with Inmate White because there is no direct evidence of Hernandez having received any communications from Inmate White. " 'Relevant circumstantial evidence is admissible in California' [citation] and can be substantial evidence for an inference based on it [citation]. Even where contradicted by direct testimony, the finder of fact is entitled to accept persuasive circumstantial evidence to the contrary." (Norris v. State Personnel Bd. (1985) 174 Cal.App.3d 393, 398-399.) Because direct evidence is not required to support a finding, we are not persuaded by Hernandez's assertion.
Hernandez contends the Department alleged he received two telephone calls from Inmate White on November 12, 2014, but Hernandez's cell phone records reveal he did not receive those two calls. Therefore, Hernandez asserts that the reliability of the extraction report could be called into question because if Hernandez "did not receive the two phone calls, he may not have received the text messages." Hernandez's opportunity to present evidence indicating he did not receive the text messages occurred at the administrative hearing. This court cannot speculate as to whether Hernandez received the text messages. This court's job is to examine the record for any evidence that will support the factual finding and to resolve any conflicts in favor of that finding. (Catricala, supra, 43 Cal.App.3d at p. 649.) In sum, because Hernandez does not direct this court to uncontradicted evidence reflecting that he did not receive Inmate White's text messages, we are not persuaded by his speculation that he may not have received the text messages.
Next, Hernandez faults the Department for failing to present direct evidence that Hernandez received the text messages and "fail[ing] to provide the promised PMK for Verizon Wireless." Hernandez asserts that the Department's evidentiary failures "detract[] from the credibility, and substantiality, of what little evidence it did provide." Hernandez fails to cite a law or other rule that requires the Department to present specific evidence, such as the person most knowledgeable from Verizon. Because we have not been directed to a requirement for such evidence, we find Hernandez's argument to be unpersuasive.
C. POSSESSING A CELL PHONE
Hernandez contends substantial evidence does not support the finding that he was dishonest about having a cell phone in his office. Specifically, Hernandez asserts there is not substantial evidence that the object he removed from the manila envelope was a cell phone.
Cleland found nine videos on Inmate White's phone, three of which were made using the phone's camera, as opposed to downloaded from the internet. In one video, Inmate White had a towel across her body, "[s]he then laid back . . . and removed the towel exposing her—her naked vagina and breasts, and then the video ended." In another video, which lasted 40 to 45 seconds, Inmate White and her cellmate, Inmate Parks, danced in their bras, then removed their bras, "danc[ed] topless and rubb[ed] their breasts together." The two videos were made on March 3, 2015.
On March 4, 2015, Cleland watched Hernandez via a hidden camera. That afternoon, Hernandez removed an envelope from his desk. Hernandez then removed a wad of paper towels from inside the envelope. Hernandez removed an electronic device, which "appeared to be a cell phone," from the paper towels. Hernandez moved to OT Nelson's desk, placed the device in the drawer, and turned it on. Hernandez then "manipulate[d] . . . what appeared to be a touch screen, and then it appeared that he watched videos on the phone as [Cleland] saw motion and flashes of light moving across the screen."
Cleland compared "the flashes of light that occurred on the screen between the video of . . . Hernandez watching the video and the video that [Cleland] discovered on the inmate's cell phone that was created the night before [Cleland] observed [Hernandez] watching a video." Cleland created a "picture-in-picture comparison of the two so that [he] could play them side by side in real time."
"[Cleland] first observed the flashes of light come in from the lower left-hand corner as [Inmate] White's arm kind of gyrated in the corner being exposed to the bright light, creating a bright image on the bottom right-hand corner. And then [Cleland] noticed flashes of bright light on the lower left-hand corner of the screen in which [Inmate] Park's arm moved in and out close to the light from the camera. [¶] And then [Inmate] Parks moves her arm in a lateral motion across her body, which created an upward motion and a bright flash of light across the screen moving in order for her to hold her bra against her chest before removing it, and [Cleland] noted the same flashes of light in both videos."
Further, Cleland "did a similar picture-in-picture comparison of the boot-up process of the cell phone found in [Inmate] White's cell to the boot up of the device that Lieutenant Hernandez turned on in his office on March 4th." "[Cleland] observed the colors red during the boot-up process, which was similar to the device that [Inmate] White's phone also showed a red screen with a white emblem in the center that said Virgin Mobile." Cleland could not see words on the screen that Hernandez was looking at, but the screen Hernandez was looking at "followed the same sequence of events starting with a black screen with a white blurb across in a basic shape and size as [Inmate] White's phone, and then transitioning to a red screen with white in the center." The different colors on the two screens lasted "the same approximate amount of time," "[w]ithin a second."
Given the evidence that (1) the boot-up process for Inmate White's cell phone and Hernandez's device appeared similar; (2) the device Hernandez used appeared to be a cell phone; (3) the flashes on Hernandez's screen matched the flashes on Inmate White's video; (4) Inmate White made the video on March 3rd; and (5) Hernandez was manipulating the device on March 4th, one could reasonably infer that Hernandez was watching the video that Inmate White made on Inmate White's cell phone. In sum, there is reasonable and credible evidence from which one could conclude that Hernandez watched a sexually provocative video of Inmate White on a cell phone in his office.
When Cleland interviewed Hernandez, Hernandez asserted the device he removed from the envelope "was a spell check device." Hernandez denied the device was a cell phone, and he denied looking at a video on a cell phone. Based upon the foregoing evidence one could reasonably conclude that Hernandez was dishonest about having a cell phone in his office. In sum, substantial evidence supports the finding that Hernandez was dishonest about having a cell phone in his office.
Hernandez contends substantial evidence does not support the finding he was dishonest about having a cell phone in his office because "there was no evidence presented by [the Department] of what the device actually was." As set forth ante, Cleland testified that the device "appeared to be a cell phone," and he testified that it had the same boot-up screens as Inmate White's cell phone. Moreover, as the ALJ explained, Hernandez's action of placing the device in a desk drawer while it booted-up was consistent with the device being a cell phone, i.e., a prohibited device. Accordingly, there is evidence that the device was a cell phone.
Hernandez faults the Department for not producing evidence "of how the phone allegedly was brought to [Hernandez's] work area" and faults Cleland for "not look[ing] for the device to determine what that device was." Under the substantial evidence standard, we examine the record for evidence that supports the judgment, we do not ponder what other evidence could have been produced. (Catricala, supra, 43 Cal.App.3d at p. 649.) We find Hernandez's argument to be unpersuasive because it is not focused on the evidence supporting the judgment.
D. NOTICE RELATED TO SERGEANT FLORES'S TELEPHONE CALL
1. PROCEDURAL HISTORY
The Department's Notice of Adverse Action, which was sent to Hernandez, alleged: "During your OIA interview on June 1, 2015, you were asked about the evening of March 17, 2015. You stated you and your wife Illiana Hernandez ([Illiana]) were at home and you received a call on your cellular telephone from Sergeant Flores, which you did not answer. You indicated you had Sergeant Flores' personal telephone number stored in your cellular telephone's contact file and described Sergeant Flores as a personal friend. Sergeant Flores called [Illiana] on her personal cellular telephone. While Sergeant Flores and [Illiana] had their conversation, you said you received a telephone call on your home land-line telephone.
"You stated you did not know the identity of the caller but indicated the caller was someone who attempted to disguise their voice to sound like an older female. The unknown caller informed you five people witnessed the 'Goon Squad Lieutenant' (referring to Lieutenant Esqueda) and two unidentified staff coming out of IST with bags. The caller informed you to watch your back. You discussed the telephone call with [Illiana] who indicated Sergeant Flores had provided the same information to her during their conversation. These statements to OIA were dishonest."
The Notice of Adverse Action continued, "Sergeant Louie Flores was interviewed by OIA. Sergeant Flores stated when he got off-duty while on his way home; he called you on his personal cellular telephone. You did not answer his phone call so he called [Illiana] on her personal cellular telephone. Sergeant Flores indicated [Illiana] answered her phone.
"Sergeant Flores admitted he spoke to [Illiana] and could not recall if he asked to speak to you. Sergeant Flores advised [Illiana] he had observed Esqueda and two guys exit IST. While on the phone with [Illiana], Sergeant Flores heard her relay the information to you."
The administrative law judge made the following finding in his proposed decision: "At 7:51 p.m. on March 17, 2015, Sergeant Flores called [Hernandez's] personal cellular phone, but [Hernandez] did not answer his cellular phone. Sergeant Flores then called CO [Illiana's] cellular phone. CO [Illiana] also worked at [the prison] and was a friend of Sergeant Flores. CO [Illiana] answered her cellular phone, and Sergeant Flores notified her that he had just observed Agent Cleland and Lieutenant Esqueda exiting the IST building. While on the phone with Sergeant Flores, CO [Illiana] related to [Hernandez] what Sergeant Flores was saying."
In regard to credibility, the administrative law judge wrote, "Finally, [Hernandez] testified that on March 17, 2015, he received an anonymous telephone call on his home phone notifying him that Agent Cleland and Lieutenant Esqueda had just exited the IST building. [Hernandez's] testimony was supported by [Hernandez's] wife, CO [Illiana]. [Illiana] testified that on March 17, 2015, [Hernandez] received an anonymous telephone call and that the call occurred before Sergeant Flores's telephone call to her in which Sergeant Flores notified her about Agent Cleland and Lieutenant Esqueda exiting the IST building." The ALJ concluded, "[Hernandez's] testimony that on March 17, 2015, [Hernandez] received an anonymous telephone call notifying him that Agent Cleland and Lieutenant Esqueda had just existed the IST building is deemed, credible."
2. ANALYSIS
Hernandez contends the Department did not provide notice of its allegation that Hernandez was dishonest concerning Illiana relaying information from Sergeant Flores to Hernandez. The Department contends Hernandez forfeited this issue by failing to raise it in the proceedings before the Board. We choose to address the merits of the issue.
An "[a]dverse action is valid only if a written notice is served on the employee prior to the effective date of the action, as defined by board rule. The notice shall be served upon the employee either personally or by mail and shall include: (1) a statement of the nature of the adverse action; (2) the effective date of the action; (3) a statement of the reasons therefor in ordinary language; (4) a statement advising the employee of the right to answer the notice orally or in writing; and (5) a statement advising the employee of the time within which an appeal must be filed." (Gov. Code, § 19574, subd. (a).)
The notice of adverse action sets forth Hernandez's version of the events, which was that, when Sergeant Flores called Illiana, Hernandez was on the landline telephone. The notice of adverse action alleged Hernandez was dishonest in setting forth that version of events. The notice of adverse action further alleged, "While on the phone with [Illiana], Sergeant Flores heard her relay the information to you."
In sum, the notice of adverse action alleged, in ordinary language, that Hernandez was dishonest about being on the landline telephone during Illiana's conversation with Sergeant Flores; Hernandez was allegedly dishonest because during Illiana's conversation, she was relaying information to Hernandez, i.e., he was not on the landline telephone. In sum, the notice of adverse action provided notice of the allegation that Hernandez was dishonest about Sergeant Flores's telephone call.
E. EVIDENCE RELATED TO SERGEANT FLORES'S TELEPHONE CALL
Hernandez contends substantial evidence does not support the finding that he was dishonest about the telephone call from Sergeant Flores.
Sergeant Flores testified that, on March 17, 2015, he called Illiana and informed her that he had seen internal affairs agents/officers "in Mr. Hernandez's work area." Flores heard Illiana relay that information to Hernandez.
When Cleland interviewed Hernandez, Cleland asked what prompted Hernandez to search his office for hidden cameras. Hernandez said he was prompted by "a call from an anonymous woman." Hernandez told Cleland "he had not received a call from Flores." Hernandez's failure to inform Cleland that he was prompted, at least in part, to search his office due to the information he received from Sergeant Flores, via Illiana, was an omission. Hernandez omitted relevant information, which could reasonably be considered an act of dishonesty. (Paulino v. Civil Service Com. (1985) 175 Cal.App.3d 962, 968, 972 (Paulino); People v. Truer (1985) 168 Cal.App.3d 437, 440, fn. 1.) Accordingly, we conclude substantial evidence supports the finding that Hernandez was dishonest regarding the telephone call from Sergeant Flores.
F. NOTICE CONCERNING E-MAILS
1. PROCEDURAL HISTORY
The Department's notice of adverse action is broken into separate sections. In the "Statement of Causes" section, it wrote, "This adverse action is being taken against you for the causes set forth in the following Section of Government Code . . . 19572 Subsection(s): [¶] . . . [¶] (p) Misuse of State Property."
In the "Governing Policies" section, the Department wrote, "Section 47110.1 Policy, which states, 'The California Department of Corrections and Rehabilitation ([the Department]) maintains an e-mail system to facilitate business communications and assist employees in performing their daily work activities." The Department continued, "Section 47110.6, Unacceptable Use, which states, 'Examples include, but are not limited to, the following: [¶] . . . [¶] Transmitting profanity, obscenity, threatening language, gossip, or derogatory remarks. [¶] Distributing jokes, poems, chain-letters, or other non-business related material. [¶] . . . [¶] E-mail shall be free of offensive or unlawful material, including slanderous, discriminatory, sexual, pornographic, profane, or revolutionary content."
In the "Statement of Facts" section, the Department alleged, "You viewed a series of 44 electronic mail messages which had been sent or received by you from October 30, 2014 through March 10, 2015. These e-mails were personal in nature, non-work related, sexually insensitive, and racially insensitive. You admitted you sent and/or received each of the 44 electronic mail messages. You admitted each of the 44 messages you sent and/or received violated departmental policy. You admitted you did not report your receipt of any of the messages which violated policy."
The alleged offending e-mails were printed and included with the notice of adverse of action. The e-mails included, in part: (1) Hernandez's comment that the prison warden licked gravy off of Hernandez and how "[i]t feels good, her tongue is big"; (2) Hernandez telling OT Nelson, "[A]ll of you is fine. Now, you can blush!"; and (3) Hernandez sending "an attached photograph of a man in blackface."
2. ANALYSIS
Hernandez contends the notice of adverse action is deficient because it failed to allege how his e-mails constituted a misuse of state property. (Gov. Code, § 19572, subd. (p).)
As set forth ante, "[An] [a]dverse action is valid only if a written notice is served on the employee prior to the effective date of the action . . . . The notice . . . shall include: (1) a statement of the nature of the adverse action; (2) the effective date of the action; (3) a statement of the reasons therefor in ordinary language." (Gov. Code, § 19574, subd. (a).)
The notice of adverse action alleged that Hernandez violated the Department's policy related to work e-mail by sending e-mails that "were personal in nature, non-work related, sexually insensitive, and racially insensitive." The notice of adverse action also alleged that Hernandez misused state property. (Gov. Code, § 19572, subd. (p).) We understand Hernandez's argument as taking issue with the Department's failure to specifically cite Government Code section 19572, subdivision (p), within the factual allegations about the improper e-mails.
The notice of adverse action separates the citation to Government Code section 19572, subdivision (p) from the factual allegations. In particular, the notice of adverse action sets forth the legal allegations, and then, in a separate section, sets forth the factual allegations. After citing Government Code section 19572, subdivision (p), the notice of adverse action provides, "The facts which underlie the legal causes for this adverse action are set forth with more particularity herein, below." Thus, one would be expected to read the factual allegations, e.g., the allegations about the e-mails, and understand that they relate to the legal allegations, e.g., about misuse of state property.
Nevertheless, to the extent Hernandez was confused about how the factual allegations matched up to the legal allegations, Hernandez needed to raise that issue in the administrative proceedings. As the trial court concluded, Hernandez's failure to raise the issue before the Board forfeits the issue for judicial review. (Alameida v. State Personnel Bd. (2004) 120 Cal.App.4th 46, 53; Hooks v. State Personnel Bd. (1980) 111 Cal.App.3d 572, 577.)
G. DISCIPLINE
Hernandez contends the Board abused its discretion by sustaining the termination of his employment.
"In a mandamus proceeding to review an administrative order, the determination of the penalty imposed by an administrative body will not be disturbed on appeal in the absence of a manifest abuse of discretion. [Citations.] In considering whether such abuse occurs in the context of public employee discipline, we assess such factors as the risk of repeated harm to public service, the circumstances of the misconduct, and the likelihood of its recurrence. [Citation.] The fact that reasonable minds may differ as to the propriety of the penalty imposed fortifies the conclusion that the administrative body acted within the area of its discretion." (Flowers v. State Personnel Bd. (1985) 174 Cal.App.3d 753, 761.)
"A deputy sheriff's job is a position of trust. A deputy sheriff is held to the highest standard of behavior. His honesty and credibility are crucial to proper performance of his duties. Dishonesty in matters of public trust is intolerable. [Citation.] . . . Dishonesty is not an isolated act; it is more a continuing trait of character." (Paulino, supra, 175 Cal.App.3d at p. 972.)
We have concluded ante that substantial evidence supports the finding that Hernandez engaged in multiple acts of dishonesty. Given (1) the repeated nature of Hernandez's untruths and omissions, and (2) the importance of honesty and credibility in the work of a correctional officer, it was within the bounds of reason to terminate Hernandez's employment. One could reasonably conclude that, if Hernandez were to remain employed, there would be too great a risk that Hernandez would again be dishonest and that his dishonesty would likely "result in harm to the public service." (Paulino, supra, 175 Cal.App.3d at p. 972.) We find no abuse of discretion.
DISPOSITION
The order is affirmed. Respondent/Real-Party-in-Interest, the Department of Corrections and Rehabilitation, is awarded its costs on appeal. (Cal. Rules of Court, rule 8.278(a)(5).)
Respondent, the State Personnel Board, has not made an appearance in this court. Therefore, we do not award it costs on appeal. (Cal. Rules of Court, rule 8.278(a)(5).) --------
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
MILLER
Acting P. J. We concur: SLOUGH
J. FIELDS
J.