The opinion
Filed 10/30/24 Jackson v. Cal. State Personnel Board CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
QUINTON JACKSON, D082160
Plaintiff and Appellant, (San Diego County
Super. Ct. No. 37-2022-00017639-
v. CU-WM-CTL)
CALIFORNIA STATE PERSONNEL
BOARD,
Defendant and Respondent;
CALIFORNIA DEPARTMENT OF
CORRECTIONS AND
REHABILITATION,
Real Party in Interest and
Respondent.
APPEAL from an order of the Superior Court of San Diego County,
Katherine A. Bacal, Judge. Affirmed.
Castillo Harper, Montana L. Massone, and Brandi L. Harper for
Plaintiff and Appellant.
No Appearance for Defendant and Respondent.
Rob Bonta, Attorney General, Chris A. Knudsen, Assistant Attorney
General, Celine M. Cooper, and Paul Batcher, Deputy Attorneys General, for
Real Party in Interest and Respondent.
Quinton Jackson appeals an order denying his petition for a writ of
mandate, challenging the final administrative decision of the California State
Personnel Board (Board), which resulted in the termination of Jackson’s
employment. Because we conclude substantial evidence supports the Board’s
findings and the Board did not abuse its discretion in determining that
termination was appropriate, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
The Incident
Jackson began working in the California Department of Corrections
and Rehabilitation (CDCR) as a correctional officer at the Richard J.
Donovan Correctional Facility (Donovan) in 2006. In 2015, Jackson received
an adverse action for failing to accurately report time worked and failing to
cooperate during an investigative interview. However, he was promoted to
Correctional Sergeant in 2016.
On December 25, 2019, Jackson was working as a supervisor on A yard
at Donovan. Correctional Officers Lisa Terronez and Mario Real also were
working on A yard. Around 3:00 p.m., Terronez received a radio call
requesting that she call one of the housing units. Terronez and Real walked
to a phone located under the observation tower for A yard so Terronez could
make the call. As Terronez began dialing, Real, who was standing behind
Terronez and watching the yard, observed a bucket being lowered from the
observation tower. Observation tower officers routinely use buckets to lower
equipment to officers on the yard, including replacement radio batteries.
Seeing the bucket being lowered, Real asked Terronez if she had requested
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batteries from the observation tower. Terronez turned around and both she
and Real observed an inmate reach into the bucket, remove one or more
candy canes from the bucket, pocket them, then turn and walk away.
Terronez immediately called Jackson, her supervisor that day, and
reported that she had just seen an inmate take candy from a bucket lowered
from the observation tower. Jackson told Terronez he would call the
observation tower officer and find out what was going on. Jackson then
called Correctional Officer Martin Rosalez, who was working in the
observation tower. When Rosalez answered the phone, Jackson said, “Really?
Really? Candy canes to inmates?” He then berated Rosalez and gave him a
verbal reprimand. Jackson took no other immediate action with respect to
Terronez’s report of an inmate taking candy from the observation tower
bucket. He did not document his verbal reprimand of Rosalez; he did not
attempt to recover the contraband; he did not report the incident to the
CDCR’s Investigative Services Unit (ISU); and he did not report the incident
to the watch commander.1
Around 4:00 p.m. on December 25, 2019, Correctional Officer Charles
Hamilton, who was also working on A yard that day, overheard correctional
officers commenting on the observation tower officer giving candy to inmates.
A few minutes later, in one of the buildings on the yard, Hamilton heard
Jackson tell a group of correctional officers that “What happens on Alpha
Yard stays on Alpha Yard. Don’t tell anybody about the candy cane issue.
1 A correctional officer giving unauthorized candy to an inmate is not
minor misconduct. The correctional officer has violated the rules and
potentially faces discipline. Once an inmate receives contraband of any sort
from a staff member, he or she obtains a measure of leverage over that
officer. The inmate can use this leverage to obtain further contraband or
favors from the correctional officer, gaining additional control over the officer
as the incidents of supplying contraband or providing favors accrue.
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Let’s not kick a man in the nuts.” Hamilton reported the officers’ comments
and Jackson’s statement to ISU on December 30, 2019, and subsequently
prepared a memorandum at ISU’s request.
ISU Sergeant Franklin Lewis contacted Jackson and requested that he
prepare a memorandum. Jackson subsequently submitted a memorandum to
ISU dated January 10, 2020. In the memorandum, Jackson did not state
that Terronez reported to him that she had personally observed an inmate
take candy from a bucket lowered from the observation tower. Rather,
Jackson stated:
“I received a phone call from Officer Terronez informing me
that there was rumor amongst custody staff in regards to
Officer Rosalez (Facility A Observation). The rumor was
that Officer Rosalez was sending candy canes from
Facility A Observation down to inmates.”
The Office of Internal Affairs (Internal Affairs) subsequently
interviewed Jackson as part of its administrative investigation. At the outset
of the interview, the Internal Affairs special agent admonished Jackson that
“[t]he truth is expected as is your entire knowledge relative to the items
discussed.” During a critical portion of the questioning, the special agent
reiterated the importance that Jackson tell the truth.
The special agent asked Jackson what Terronez told him when she
called him from the yard. Jackson stated that Terronez said she had heard a
“rumor” that Rosalez was giving candy to inmates. In response to the special
agent’s subsequent questioning, Jackson confirmed that he only heard from
Terronez that there was a rumor of candy being provided:
“[Q.] And in your mind what did you—did you [¶] . . . [¶]
was that your investigation?
“[A.] In my—no. In my mind I thought I was—I was
doing—I was doing a verbal. Okay. Because, once again, it
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was something that—it wasn’t—it wasn’t saw by—at that
point it was told to me that it was a rumor.”
Subsequently, Jackson again confirmed that Terronez used the word
“rumor.”
“Q. She used the word rumor?
“A. Yes, the word rumor was specifically used.”
The CDCR determined that Jackson’s statements in his memorandum
and his administrative interview were false because Terronez told Jackson
unequivocally that she witnessed an inmate receiving candy from the
observation tower bucket, rather than reporting a “rumor” that Rosalez was
giving candy to inmates.
On December 9, 2020, the CDCR issued Jackson a notice of adverse
action terminating his employment with the CDCR, effective
December 31, 2020. The adverse action was based on Jackson’s dishonest
statements in his January 10, 2020 memorandum and his Internal Affairs
interview that Terronez had merely reported a rumor that Rosalez was giving
candy to inmates, rather than that she had personally observed an inmate
take candy from the observation tower bucket, as well as Jackson’s failure to
identify the inmate or recover the contraband, and his failure to adequately
investigate, document, or report Terronez’s report of misconduct.
Jackson Challenges the Adverse Action
Jackson filed an appeal with the Board on January 4, 2021, challenging
his dismissal. The Board held an evidentiary hearing on September 20, 2021.
Terronez, Real, Rosalez, Hamilton, and Jackson testified. Terronez testified
that she observed an inmate take candy from a bucket lowered from the
observation tower and immediately called Jackson to tell him what she had
seen. Real likewise testified that Terronez told Jackson she had just seen an
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inmate take candy from the observation tower bucket. Rosalez testified that
Jackson immediately called him and gave him a verbal reprimand, and
Hamilton testified about reporting the incident to ISU. In contrast, Jackson
testified that Terronez told him only that she had heard a rumor about
Rosalez giving candy to inmates.
The administrative law judge presiding over the hearing determined
that Terronez was credible based on her demeanor and recollection of key
details and because her testimony was logical and consistent with Real’s
testimony. The judge also found that she had no apparent motive to testify
unfavorably to Jackson.
Additionally, the judge determined that Real was credible because his
testimony was consistent with a memorandum he prepared shortly after the
incident and because he had no apparent motive to testify falsely.
However, the judge found Jackson not credible based on his demeanor
and because he was incorrect in some of his factual assertions, his testimony
was inconsistent with his conduct, and he had a motive to mischaracterize
Terronez’s statement to excuse his failure to properly document or report the
incident.
The Board adopted the judge’s credibility determinations. Based on the
evidence adduced at the hearing, the Board found Terronez told Jackson that
Rosalez had lowered candy canes in a bucket to an inmate and that she did
not say that she had merely heard a rumor about a correctional officer giving
candy canes to inmates. The Board also found that Jackson had not reported
the incident to ISU because Jerome Pickett, the ISU officer to whom Jackson
purportedly made the report, was not working that day and Pickett seemed
surprised when he heard about the incident from Hamilton.
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The Board therefore concluded that Jackson was dishonest in his
memorandum as well as his administrative interview and had failed to report
Rosalez’s conduct to ISU. Based on these findings, the Board sustained the
charges of inexcusable neglect of duty, dishonesty, willful disobedience, and
other failures of good behavior.
The Board also upheld the penalty of dismissal. The Board found that
Jackson’s conduct caused serious harm to the public service because his
dishonesty impaired Internal Affair’s ability to investigate the incident and
peace officers like Jackson are held to the highest standards of behavior.
The Board also found that Jackson’s conduct was likely to recur because he
had previously received discipline for impeding an investigation, yet still
made false statements during the subject investigation.
Jackson filed a petition for writ of mandate in San Diego Superior
Court challenging the Board’s decision. Jackson insisted that the Board
erred by not specifically analyzing whether Rosalez was more credible than
Terronez and by concluding that Terronez and Real had no reason to testify
falsely. The court rejected these arguments and denied Jackson’s petition for
writ of mandate.
Jackson timely filed a notice of appeal.
DISCUSSION
A. Jackson’s Contentions
Jackson argues that the Board’s findings are not based on substantial
evidence. Further, he asserts that the Board’s termination of his
employment constituted an abuse of discretion. We are not persuaded.
B. Standard of Review
On appeal from a judgment of the superior court denying a petition for
writ of administrative mandamus, we “independently determine[ ] whether
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substantial evidence supports the [Board’s] findings, not the trial court’s
conclusions.” (Furtado v. State Personnel Bd. (2013) 212 Cal.App.4th 729,
742.) “ ‘Substantial evidence’ is relevant evidence that a reasonable mind
might accept as adequate to support a conclusion. [Citation.] Such evidence
must be reasonable, credible, and of solid value.” (California Youth
Authority v. State Personnel Bd. (2002) 104 Cal.App.4th 575, 584–585.) In
applying the substantial evidence test, “ ‘ “[w]e do not reweigh the evidence;
we indulge all presumptions and resolve all conflicts in favor of [the Board’s]
decision. Its findings come before us ‘with a strong presumption as to their
correctness and regularity.” ’ ” (Palmieri v. State Personnel Bd. (2018)
28 Cal.App.5th 845, 851 (Palmieri).) Further, we do not “take into account
evidence which detracts from the weight of other evidence . . . .” (Flowers v.
State Personnel Bd. (1985) 174 Cal.App.3d 753, 758.) Instead, we “examine
all relevant evidence in the entire record, considering both the evidence that
support’s the Board’s decision and the evidence against it, in order to
determine whether that decision is supported by substantial evidence.”
(Telish v. State Personnel Bd. (2015) 234 Cal.App.4th 1479, 1487.)
“ ‘[T]he determination of the penalty by the administrative body will
not be disturbed unless there has been an abuse of its discretion.’ ” (Skelly v.
State Personnel Bd. (1975) 15 Cal.3d 194, 217.) “ ‘In reviewing the exercise of
this discretion we bear in mind the principle “[c]ourts should let
administrative boards and officers work out their problems with as little
judicial interference as possible . . . . . . . In determining whether an agency
abused its discretion in assessing a particular penalty, a court will look to
‘whether reasonable minds may differ as to the propriety of a penalty
imposed.’ [Citations.] Judicial interference with the agency’s assessment of a
penalty ‘will only be sanctioned when there is an arbitrary, capricious or
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patently abusive exercise of discretion by the administrative agency.’ ”
(Kazensky v. City of Merced (1998) 65 Cal.App.4th 44, 54.) “Neither an
appellate court nor a trial court is free to substitute its discretion for that of
the administrative agency concerning the degree of punishment imposed.”
(Fout v. State Personnel Bd. (1982) 136 Cal.App.3d 817, 821.) On the other
hand, we give no deference to the trial court’s determination of whether the
Board abused its discretion. (Pollak v. State Personnel Bd. (2001)
88 Cal.App.4th 1394, 1404.)
C. Analysis
Jackson contends that the Board’s findings are not supported by
substantial evidence. Thus, he was obligated to set forth in his opening brief
all the material evidence on the point, not merely his own evidence.
(Boeken v. Philip Morris, Inc. (2005) 127 Cal.App.4th 1640, 1657–1659.)
Further, he was required to present the facts in the light most favorable to
the judgment. (Id. at pp. 1657–1658; see Cal. Rules of Court,
rule 8.204(a)(2)(C).) Jackson’s opening brief did not comply with these
conditions.
Jackson’s failure to cite all of the evidence favorable to the judgment, as
is required, is fatal to his substantial evidence challenge. (Sanchez v.
Martinez (2020) 54 Cal.App.5th 535, 548 [in citing only evidence in his favor,
appellant forfeited his substantial evidence argument].) “[W]hen a losing
party challenges the verdict for a lack of substantial evidence, they ‘must set
forth, discuss, and analyze all the evidence on [the pertinent] point[s], both
favorable and unfavorable.’ [Citations.] Appellants’ ‘fundamental obligation
to this court, and a prerequisite to our consideration of their challenge’
[citation] is to ‘set forth the version of events most favorable to [respondent]’
[citation]. ‘Accordingly, if . . . ‘some particular issue of fact is not sustained,
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they are required to set forth in their brief all the material evidence on the
point and not merely their own evidence. Unless this is done the error is
deemed to be waived.’ ” (Pope v. Babick (2014) 229 Cal.App.4th 1238, 1246;
accord, Doe v. Roman Catholic Archbishop of Cashel & Emly (2009)
177 Cal.App.4th 209, 218.) Here, Jackson fails to discuss the relevant
material evidence, resulting in a forfeiture of his contention of insufficient
evidence.
Further, even if we did not find forfeiture, we nonetheless would
determine that Jackson’s substantial evidence challenge is without merit.
On appeal, Jackson attacks the credibility of Terronez and Real. To this end,
he claims (1) the Board failed to consider “material evidence impacting
witness credibility” and (2) there was a lack of evidence supporting the
witnesses’ claims.
Regarding credibility determinations made by the Board, we are guided
by Government Code section 11425.50, subdivision (b), which provides:
“If the factual basis for the decision includes a
determination based substantially on the credibility of a
witness, the statement [of the factual basis for the decision]
shall identify any specific evidence of the observed
demeanor, manner, or attitude of the witness that supports
the determination, and on judicial review the court shall
give great weight to the determination to the extent the
determination identifies the observed demeanor, manner,
or attitude of the witness that supports it.”
Here, the Board found Terronez and Real credible. Terronez testified
that she personally witnessed an inmate take candy from the bucket lowered
from the observation tower and informed Jackson of that activity. Real, who
was with Terronez at the time, corroborated Terronez’s version of events.
In addition, Terronez’s and Real’s testimony was buttressed by
Rosalez’s testimony. Rosalez testified that he lowered candy canes down to
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the yard in the bucket along with batteries with the intention of providing
officers in the yard with both items. When he pulled the bucket up, the candy
canes were gone. Rosalez further testified that Jackson called him shortly
thereafter, chastised him, and hung up. Rosalez’s description of his
conversation with Jackson is consistent with Terronez’s testimony that she
reported to Jackson that she had seen an inmate take candy from the
observation tower bucket. If Jackson was merely informed of a rumor that
candy had been provided to inmates, it begs the question why he would have
called Rosalez and yelled at him.
Moreover, Jackson’s own testimony supports the credibility of Terronez
and Real. Jackson admitted that immediately after Terronez called him, he
called Rosalez. At that point, he had not investigated the incident. Jackson
acknowledged that Rosalez never confirmed whether he gave candy to
inmates. Nevertheless, Jackson testified that he gave Rosalez a verbal
reprimand that should have been formally documented.
Jackson’s conduct after the incident as documented by Hamilton also
supports Terronez’s and Real’s credibility. According to Hamilton, Jackson
told staff on the yard that, “What happens on Alpha Yard stays on Alpha
Yard. Don’t tell anybody about the candy cane issue. Let’s not kick a man in
the nuts.” There would be no need for Jackson to make this statement if he
had only been informed of a rumor that candy had been provided to the
inmates. Instead, Jackson’s statement is consistent with Jackson having
received a report of an inmate taking candy from a bucket lowered from the
observation tower.
The only evidence that contradicted Terronez’s version of events was
Jackson’s own testimony. But the Board heard the conflicting testimony,
weighed the evidence, and decided the issue against Jackson. Moreover, the
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Board’s order identified the specific evidence of the demeanor, manner, and
attitude of both Jackson and Terronez that supported the credibility
determination. For example, the order indicated that the judge found that
Jackson testified in a calm manner and that his testimony was largely
consistent with his prior statements. Yet, Jackson was sometimes hesitant,
wary, or evasive, even when asked routine questions about CDCR policies.
And the judge determined that Jackson’s testimony was inconsistent with
other witnesses’ testimony as well as his own conduct, that Jackson was
wrong when he said that he contacted Pickett the same day, and that
Jackson had motive to testify falsely to justify his failure to properly
investigate, document, and report the incident.
Regarding Terronez, the judge found that although Terronez sometimes
paused during her testimony and did not recall some precise details, she
testified in a calm manner, demonstrated a good recollection of the essential
events, and testified consistently with her prior statements. Additionally, the
judge concluded that Terronez’s testimony was internally consistent, made
sense, and was in harmony with Real’s testimony. Finally, the judge
observed that Terronez had no motive to lie.
Because the Board’s order included the observed demeanor, manner,
and attitude of the witnesses, we give “great weight” to the Board’s credibility
determination. (Gov. Code, § 11425.50, subd. (b).) And none of Jackson’s
additional arguments give us pause in following Government Code
section 11425.50.
For example, Jackson challenges the Board’s conclusion that Terronez
had no reason to lie, arguing that she (as well as Real) lied to “remove their
culpability in the alleged incident.” Thus, he claims that if Terronez
witnessed an inmate take a candy cane from the bucket, she should have
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apprehended the inmate, recovered the candy, and documented the incident.
We agree with the CDCR that this argument is “pure speculation.” First,
Jackson’s statement is inconsistent with his claim that Terronez only heard a
rumor. Second, Terronez explained why she did not attempt to apprehend
the inmate. She was not sure if the candy was contraband or permitted
because it was Christmas Day. Accordingly, she called her supervisor
(Jackson) to report it. This was a reasonable response to observing an inmate
taking a candy cane out of the bucket considering all circumstances.
Jackson also contends the Board should not have credited Terronez’s
testimony because she had received a prior adverse action for dishonesty.
We disagree.
In January 2021 (after the events at issue here), Terronez received a
notice of adverse action that included a charge of dishonesty. Terronez and
the CDCR subsequently entered into a settlement agreement that removed
the dishonesty charge from the adverse action. The Board considered these
facts, and concluded that, “[t]he fact that . . . Terronez’s initial [Notice of
Adverse Action] charged her with dishonesty should not render her testimony
unreliable.” A factfinder is not obligated to disregard a witness’s testimony
simply because there is evidence the witness had been dishonest in the past.
Instead, prior dishonesty is simply one fact the factfinder may consider when
weighing a witness’s testimony. (See Evid. Code, § 780 [providing that, “the
court or jury may consider . . . [¶] . . . [¶] . . . [h]is character for honesty or
veracity or their opposites” in determining the credibility of a witness].)
Terronez’s adverse action settled, and there was no finding of
dishonesty. Moreover, in this case, her testimony was consistent with that of
her partner and Jackson’s own actions toward Rosalez. The Board
appropriately considered all the factors pertaining to credibility, including
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Terronez’s prior notice of adverse action, and found her to be credible. It is
not our role to reweigh the evidence. (See Palmieri, supra, 28 Cal.App.5th
at p. 851.)
Thus, on the record before us, we conclude the Board’s findings are
supported by substantial evidence.
Having concluded that the Board’s findings are supported by
substantial evidence, we turn to Jackson’s contention that the Board abused
its discretion in terminating his employment. The overriding consideration
when considering what penalty to impose is the extent to which the
employee’s conduct resulted in, or if repeated is likely to result in, harm to
the public service. (Cate v. State Personnel Bd. (2012) 204 Cal.App.4th 270,
284–285 (Cate).) Peace officers are held to higher standards of conduct than
civilian employees. (Id. at p. 285.) Specifically, dishonesty by law
enforcement personnel is treated severely. (Ibid.; see Ackerman v. State
Personnel Bd. (1983) 145 Cal.App.3d 395, 400.) And several cases have held
that a peace officer’s dishonesty warrants dismissal. (See Cate, at
pp. 285–286; Kolender v. San Diego County Civil Service Com. (2005)
132 Cal.App.4th 716, 721–722 (Kolender); Paulino v. Civil Service Com.
(1985) 175 Cal.App.3d 962, 970–972.)
Here, the Board determined that Jackson’s misconduct warranted
dismissal because his dishonesty impaired the CDCR’s ability to investigate
the incident and, as a peace officer, his dishonesty caused particular harm to
the public service. Honesty is essential to a law enforcement officer’s duties.
(Kolender, supra, 132 Cal.App.4th at p. 721.) The evidence established that
Jackson lied in his memorandum to ISU and lied again during his
administrative interview where he was specifically instructed to tell the truth
during the interview. Moreover, he received an adverse action in 2015 in
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part for failing to cooperate during an investigative interview. Additionally,
the seriousness of Jackson’s dishonesty was underscored by the Board’s
finding that he would be dishonest in the future. (See Cate, supra,
204 Cal.App.4th at pp. 284–285.) Consequently, the Board did not abuse its
discretion by determining that Jackson’s dishonesty betrayed the public trust
and warranted his termination. (See Kolender, at p. 721.)
DISPOSITION
The order is affirmed. The CDCR is entitled to its costs on appeal.
HUFFMAN, Acting P. J.
WE CONCUR:
DO, J.
RUBIN, J.
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