IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Sacramento)
October 24, 2011
MATT CATE, AS SECRETARY, ETC., ET AL., PLAINTIFFS AND RESPONDENTS,
STATE PERSONNEL BOARD, DEFENDANT AND RESPONDENT; AARON RALLS, REAL PARTY IN INTEREST AND APPELLANT.
(Super. Ct. No. 34200980000327)
The opinion of the court was delivered by: Robie , J.
Cate v. State Personnel Bd. CA3
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 this public employment case, the State Personnel Board (the board) essentially found Correctional Sergeant Aaron Ralls was not lying, but was instead only mistaken, when he wrote in a report and then told an investigator that he did not place an inmate in a neck hold but instead placed his arm only around the inmate's jaw. When the California Department of Corrections and Rehabilitation (the department) sought review of the board's decision in this administrative mandamus proceeding, the superior court disagreed with the board and determined that Ralls was lying. Based on that determination, the court granted the department's petition and issued a writ of mandate directing the board to set aside its decision and reconsider the appropriate discipline.
On Ralls's appeal, we conclude the trial court erred in substituting its own judgment for the board's on the purely factual question of whether Ralls's misrepresentation about where he placed his arm was intentional. Contrary to the court's conclusion, there is substantial evidence in the administrative record from which the board reasonably could have found that Ralls was not being dishonest, but was merely mistaken, when he reported that his arm had been on the inmate's jaw instead of the inmate's neck.*fn1 As long as substantial evidence supports the board's finding, the superior court is without power to make or direct a different finding. Accordingly, we will reverse the judgment granting the department's mandamus petition and direct the trial court to recall the writ and enter a new judgment denying the petition.
FACTUAL AND PROCEDURAL BACKGROUND
Because any factual finding by the board "which is not specifically attacked is to be accepted as true" (Black v. State Personnel Board (1955) 136 Cal.App.2d 904, 909), and the bulk of the findings here were not attacked, we take the following facts from the board's decision in this matter as established:
In April 2007, Ralls was working as a correctional sergeant at California State Prison, Sacramento, when an incident arose in which an inmate placed a note in his mouth and resisted the efforts of various correctional officers to make him relinquish it. Aware only that the inmate had "some type of contraband" in his mouth, Ralls "ran up to [the] inmate . . . from behind,[*fn2 ] wrapped his right arm around [the inmate's] lower neck area, and grabbed his own right arm with his left hand." He then "lifted [the inmate] to almost a kneeling position, and forcefully threw [the inmate] down into a prone position." The inmate, who "has a stocky build, and a thick neck," "had his head leaned down as if trying to touch his chin to his chest." When Ralls told the inmate to "'spit it out,'" the inmate did, and Ralls released him.
Ralls's action did not restrict the inmate's ability to breathe. Nonetheless, the inmate was taken to get medical attention, including a decontamination shower to wash away pepper spray that was used during the incident.
After the inmate was taken to get medical attention, Ralls instructed several of the correctional officers involved to write incident reports. Ralls also discussed the incident with another correctional sergeant, Christopher McCarvel. Sergeant McCarvel showed Ralls a section of the department's operational manual that prohibits trying to retrieve contraband from an inmate's mouth*fn3 and told Ralls he might be subject to discipline over his use of force.
In his own incident report, Ralls wrote that he grabbed the inmate "around [the inmate's] lower jaw area."
One of the correctional officers involved, Lorenzo Lee,*fn4 who was in his first day on the job, handwrote the first draft of his incident report. He intended to type his report after Ralls approved the draft. In his draft, L. Lee wrote that Ralls had the inmate in "some sort of chokehold." L. Lee did not believe Ralls had used an actual choke hold, as L. Lee understood that term, but instead believed Ralls had put his arm around the inmate's upper chest and collarbone area; he used the phrase "some sort of chokehold" because he was not sure how else to describe Ralls's actions.
Upon reviewing L. Lee's draft report, Ralls crossed out several words and phrases, telling L. Lee the report was "rambling" and included too many unnecessary details about the events leading up to the incident. Ralls also asked if L. Lee was sure it was a "chokehold." Ralls told L. Lee that if he was not sure it was, then he should not use that term in his report because an attorney could "pick it apart" in court.
Believing he did not have sufficient training or knowledge to use the term "chokehold," and that the phrase "some sort of chokehold" did not accurately describe the events and could be misleading, L. Lee omitted the phrase from his revised report, writing instead that Ralls grabbed the inmate in the "upper chest area."
Ralls discussed the incident with Correctional Officer G. Lee, who had also been involved, before G. Lee wrote his incident report. G. Lee asked Ralls if Ralls had been choking the inmate. Ralls said he had not and asked G. Lee if he wanted to review Ralls's report. G. Lee said he did, and Ralls gave it to him to review. At some later point, G. Lee wrote in his own report that Ralls "grabbed [the inmate's] jaw with his right forearm." Although G. Lee initially had some concerns that Ralls might have been choking the inmate, he concluded Ralls had not.
During an investigatory interview in March 2008, Ralls told the investigator he "placed the crook of his right arm around [the inmate]'s 'head/jaw area.'"
In May 2008, the department dismissed Ralls from his position for inefficiency, inexcusable neglect of duty, insubordination, dishonesty, willful disobedience, and other failure of good behavior of a nature to discredit the department. Ralls appealed the dismissal.
On review of the department's decision, an administrative law judge (ALJ) found that Ralls had, in fact, placed the inmate in a neck hold. With respect to the conflicting testimony of the various witnesses about where Ralls had placed his arm on the inmate's body, the ALJ determined that the "[d]ifferences in testimony could simply reflect honest differences of opinion." Ultimately, however, the ALJ credited L. Lee's testimony that Ralls's arm was on the inmate's lower neck area, rather than the testimony of the inmate and another correctional officer that the arm was on the inmate's central neck area or Ralls's testimony that his arm was on the inmate's lower jaw area.
The ALJ dismissed the charges of inefficiency, insubordination, and willful disobedience, finding that Ralls did not knowingly and intentionally violate the department's operational manual when he grabbed the inmate because Ralls "was not specifically aware of th[e] section of the" manual prohibiting trying to retrieve contraband from an inmate's mouth.
On the charge of dishonesty, the ALJ found that "the evidence did not establish that [Ralls] intentionally misrepresented the manner in which he grabbed [the inmate]," did not suggest "that [he] attempted to conceal the identity of any witnesses," and "did not establish that [he] encouraged or coerced [three correctional officers, including the Lees,] into making any dishonest statement in their incident reports" or "tried to 'cover up' his conduct by pressuring [the officers] to alter their incident reports." Nonetheless, the ALJ sustained the dishonesty charge because Ralls "did not disclose in his incident report that he forced [the inmate] into a prone position," which was "pertinent information . . . that he knew should have been included."
The ALJ also sustained the charges of inexcusable neglect of duty and other failure of good behavior of a nature to discredit the department because Ralls: (1) "risked unnecessary injury to [the inmate]"; (2) "fail[ed] to follow [the department's] policies regarding use of force"; (3) "used unnecessary force on an inmate without justification"; (4) "fail[ed] to include significant facts in his incident report"; and (5) "risked the possibility of improperly influencing G. Lee's [and L. Lee's] perception of the facts."
Based on the findings of what Ralls had done, and various mitigating and aggravating factors, the ALJ decided dismissal was "too harsh" and "the appropriate penalty [wa]s a demotion to the position of Correctional Officer."
The board adopted the ALJ's findings and decision. The department then sought review of the board's decision in the superior court by means of a petition for writ of administrative mandate. The department argued that the board "committed prejudicial error when it failed to sustain the allegation that . . . Ralls . . . was dishonest in his written report and his . . . interview when he failed to report that he applied a prohibited use of force to the neck on [the inmate] and denied in his interview that he applied such force." More specifically, the department argued that "[a]fter specifically finding that Ralls placed his arm around the inmate's lower neck and that he knew, before he wrote his incident report, that such force was against Departmental policy, the ALJ was constrained by his own findings to rule that Ralls was dishonest in his report and in his . . . interview when he stated evasively and falsely only that his arm was around the inmate's head and jaw." The department also argued that even without the incidents of alleged dishonesty the ALJ had rejected, the ALJ abused his discretion in reducing the dismissal to a demotion.
In opposition, Ralls argued that the board's factual finding that Ralls was not dishonest when he claimed he put his arm on the inmate's jaw rather than the inmate's neck was supported by substantial evidence. Ralls also argued that the reduction of the discipline was not an abuse of discretion given that the board had dismissed many of the charges against him.
Agreeing the issue was one of substantial evidence, the superior court nonetheless decided the "[d]ishonesty determination . . . [wa]s made incorrectly by the . . . [b]oard." The court pointed out that "the rather specific finding" that Ralls did, in fact, place a neck hold on the inmate was "specifically contrary in detail to the version . . . that Officer Ralls held [the inmate] by his chin or head area." The court also relied on the fact that Ralls had omitted from his report the "significant physical force" he used in throwing the inmate to a prone position. The court then noted that it was only after Ralls was made aware of the department policy, which specifically mentioned choke holds, that Ralls wrote his report and "coached or persuaded or urged [the Lees] not to use or reference a choke hold" in their reports.
Summing up, the court stated that the board's "findings do not . . . address the specificity of the manner in which the hold was effected . . . versus the version of events related by . . . Ralls and how the hold is just fundamentally different as to both location and manner, do not reflect the motivational event which occurred when . . . Ralls learned of the [department] policy specifically with regard to choke holds[,] and do not consider the confirmatory behavior or activity he engaged in in attempting other officers under his authority . . . to alter their reports in ways that would be favorable to [him]."
Rather than "alter the penalty" itself, however, the superior court decided to remand the matter to the board, noting, "The issue of penalty is not an easy issue in this case. It involves . . . both the improper use of force and the untruthful completion of the report. But there is an officer here [who] has a substantial number of years, eight with the department, with no prior disciplinary activity." The court specifically noted that, on remand, the discipline "obviously could range from that which they've already imposed, to a termination, to a variety of interim steps . . . properly within their authority."
Thereafter, in May 2010, the superior court entered judgment and issued a peremptory writ of mandate ordering the board to set aside its decision and "reconsider the penalty proportionate to [Ralls]'s misconduct in light of revised findings that [Ralls] dishonestly described his use of force." Ralls timely appealed.
On appeal, Ralls contends the trial court erroneously reweighed the evidence when it found, contrary to the board's finding, that Ralls was dishonest when he said he grabbed the inmate around his jaw rather than around his neck. We agree.
"The State Personnel Board is an agency having adjudicating power derived directly from the Constitution and under settled rules the court in an administrative mandamus proceeding under section 1094.5, Code of Civil Procedure, is limited, so far as sufficiency of evidence is concerned, to determination of whether substantial evidence was produced in support of a challenged finding. It may not weigh the evidence or make independent finding as to the effect thereof." (Black v. State Personnel Board, supra, 136 Cal.App.2d at p. 909.) "It is the general rule in reference to the review of administrative proceedings under Code of Civil Procedure, section 1094.5, that every presumption in favor of the administrative findings which may ordinarily be accorded to such determinations of the trier of fact should be indulged to support the administrative findings on these factual matters. Up to the point where the court cannot, in good conscience, say that the administrative evidence supporting those findings and inferences of fact is substantial, in that there is no reasonable relation between the facts and the findings, the court should not substitute its judgment for that of the agency, even though, had the court heard the case de novo it would not have reached the same findings of fact itself." (Pranger v. Break (1960) 186 Cal.App.2d 551, 559-560.)
Our scope of review on appeal from a judgment in a case like this is identical to that of the superior court. (California Youth Authority v. State Personnel Bd. (2002) 104 Cal.App.4th 575, 584.) Thus, like the superior court, "[w]e apply the substantial evidence test in reviewing [the] decision of the board. [Citation.] We 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.' [Citation.] We do not substitute our own judgment if the board's decision '"'is one which could have been made by reasonable people.'"'" (Camarena v. State Personnel Bd. (1997) 54 Cal.App.4th 698, 701.)
The question here is whether there is substantial evidence to support the board's finding that, in saying he had his arm on the inmate's jaw rather than the inmate's neck, Ralls was not dishonest -- that is, he did not "intentionally misrepresent the manner in which he grabbed [the inmate]." The superior court essentially concluded there was no such substantial evidence and that Ralls's misrepresentation about where is arm was had to have been intentional, because: (1) Ralls's version of what he did was so different from what the ALJ found he actually did; (2) it was undisputed Ralls was dishonest when he failed to include in his report the fact that he had thrown the inmate to the floor; and (3) it was only after he learned of the policy specifically prohibiting the use of choke holds that Ralls wrote in his report that he had put his arm only on the inmate's jaw and then attempted to persuade the Lees to alter their descriptions of his conduct in their reports.
We certainly agree a reasonable person could draw an inference of dishonesty from the factors on which the superior court relied. But that inference is hardly so strong as to be the only inference a reasonable person could draw from the evidence here, especially in light of other pertinent facts in the record bearing on whether Ralls was being dishonest when he said his arm was only on the inmate's jaw.
Of particular significance, as Ralls points out, are the board's findings that the inmate "has a stocky build, and a thick neck" and that the inmate "had his head leaned down as if trying to touch his chin to his chest." Based on these findings, the board further found that with the inmate's chin "pointed downward, it would be difficult to distinguish his chin from his neck." Thereafter, in rejecting the conclusion that Ralls "intentionally misrepresented the manner in which he grabbed [the inmate]," the board recalled these findings, specifically noting that "the evidence . . . established that it would have been difficult for a person to gauge exactly where [Ralls]'s arm was in relation to [the inmate]'s neck." As Ralls points out, this aspect of the board's decision can be reasonably understood as concluding that Ralls was not necessarily dishonest in saying he had his arm on the inmate's jaw because, due to the inmate's physique and the position of his head, Ralls might have mistakenly believed his arm was only on the inmate's jaw, when in fact it was on the lower part of the inmate's neck.
The department challenges this interpretation of the board's decision based on the asserted "vagueness of the [board]'s use of the term 'a person.'" According to the department, "The issue is not whether some unidentified 'person,' perhaps while observing the incident, could tell [where] Ralls placed his arm. The issue is whether Ralls knew that his arm was around the lower neck of the inmate." (Bolding omitted.)
As we have noted, however, we must indulge all presumptions and resolve all conflicts in favor of the board's decision. (Camarena v. State Personnel Bd., supra, 54 Cal.App.4th at p. 701.) While it is true the board did not find, in so many words, that it would have been difficult for Ralls to gauge exactly where his arm was in relation to the inmate's neck, that is certainly a reasonable interpretation of what the board meant by what it said, even though the board used the term "a person" instead of "Ralls." Indeed, we think it is the most reasonable interpretation of the board's meaning, given that immediately following this assertion, the board stated, "Thus, the evidence did not establish that [Ralls] intentionally misrepresented the manner in which he grabbed [the inmate]." (Italics added.)
The word "thus" means "because of this or that," and in this context it is a synonym for "hence" and "consequently." (Merriam-Webster's Collegiate Dict. (11th ed. 2006) p. 1305, col. 2.) Consequently, what the board was saying was that "the evidence did not establish that [Ralls] intentionally misrepresented the manner in which he grabbed [the inmate]" because "the evidence . . . established that it would have been difficult for a person to gauge exactly where [Ralls]'s arm was in relation to [the inmate]'s neck." Essentially, then, the board can be understood to have found that because of the inmate's physique and the position of his head, Ralls could have been mistaken about where his arm was, thinking his arm was on the inmate's chin (which the inmate was trying to press to his chest), when, in fact, his arm was actually on the inmate's lower neck. Because this was a reasonable conclusion based on the evidence (albeit not necessarily the only reasonable conclusion), the superior court had no business substituting its judgment for that of the board on this point.
That the superior court was substituting its judgment for the board's is borne out by the differing views the board and the court took on Ralls's actions in talking to the Lees about their incident reports. The court first asserted that "a dominant inference" was that Ralls "coached or persuaded or urged [the Lees] not to use or reference a choke hold." Later, the court reiterated this point, asserting that "the dominant inference" was that Ralls attempted to get the Lees "to alter their reports in ways that would be favorable to [him]."
The board, however, found that with regard to the Lees, "the evidence did not establish that [Ralls] encouraged or coerced them into making any dishonest statement in their incident reports" or that Ralls "tried to 'cover up' his conduct by pressuring [the Lees] to alter their incident reports, or that [Ralls] otherwise violated the 'Code of Silence' policy, which "strictly prohibits staff from . . . discouraging other employees from reporting wrongdoing." The board also later found that "[w]ith regard to G. Lee and L. Lee, the evidence failed to establish that [Ralls] instructed, pressured or coerced either [officer] into making any dishonest statement in his incident report or any statement which the [officer] did not believe to be true."
Because the department never attacked these findings by the board about Ralls's actions with respect to the Lees, the superior court was bound by law to accept the findings as true (Black v. State Personnel Board, supra, 136 Cal.App.2d at p. 909), but the court did not do so. Instead, the court chose to draw its own contrary inferences about what Ralls was trying to accomplish by talking to the Lees -- inferences that, in the court's view, supported, indeed (along with other evidence) compelled, a finding of dishonesty in Ralls's statements about where his arm was. But as long as the inferences the board drew were reasonable, the court was not free to draw contrary inferences and impose those contrary inferences on the board.
And the board's inferences here were reasonable. Based on the reasonable inference that Ralls may have mistakenly believed his arm was on the inmate's jaw instead of the inmate's neck (due to the inmate's physique and the placement of his head during the incident), the board could have reasonably inferred that Ralls was not being dishonest in his description of where his arm was, even though his version of what he did was different from what the board eventually determined he actually did.
Furthermore, the board could have reasonably concluded that even though Ralls was dishonest when he failed to include in his report the fact that he had thrown the inmate to the floor, that did not mean he was dishonest in his description of where his arm was. The latter point was one on which no basis for confusion was shown. In contrast, the position of Ralls's arm was a subject on which various witnesses had various views, which the board found "could simply reflect honest differences of opinion."
Finally, the board could have reasonably inferred that even though Ralls wrote his report and spoke with the Lees only after he learned of the policy generally prohibiting the use of force to retrieve contraband from an inmate's mouth, and specifically prohibiting the use of choke holds, that did not mean Ralls was dishonest in the position he took about where his arm was in his report and to the investigator. On this point, it is important to note that the department policy at issue did not simply forbid choke holds; it provided that "no attempt shall be made to retrieve the contraband by force." (Italics added.) Arguably, it would have been of only marginal benefit for Ralls to lie about where he placed his arm, because even doing what he admitted doing -- putting his arm on the inmate's jaw -- was a violation of the department's policy. Under these circumstances, the board could have reasonably concluded that Ralls's statement about where his arm was was a result of mistaken perception rather than an outright lie.
In summary, then, we conclude there is substantial evidence in the record to support the board's finding that Ralls was not dishonest when he wrote in his incident report and then told the investigator that he did not place the inmate in a neck hold but instead placed his arm only around the inmate's jaw. The trial court erred in concluding otherwise.
That leaves only one remaining issue for us. In its brief, the department reiterates the second argument it made to the trial court: that is, that the ALJ abused its discretion in reducing the dismissal to a demotion. In reply, Ralls contends we should ignore this argument because "the issue of penalty is not the subject of the appeal" and "[t]he Trial Court did not make a finding that the ALJ abused his discretion by reducing the discipline."
It is true the superior court did not expressly rule on this argument, but we believe the court implicitly rejected the argument when it declined the department's request to reinstate Ralls's dismissal. Essentially, the department's second argument was that even if the board properly found that Ralls was not dishonest in his statements about where his arm was, the board still should not have reduced the dismissal to a demotion because Ralls was still dishonest in failing to put in his report that he threw the inmate to the floor and he still violated the department's policy on the use of force. In other words, the department argued that the only reasonable discipline under the circumstances, even if Ralls did not lie about where his arm was, was dismissal. When the superior court remanded the matter to the board to reconsider the appropriate discipline "in light of [the] revised findings that [Ralls] dishonestly described his use of force," the court implicitly rejected this argument. In the court's view, even though Ralls had lied about where his arm was, dismissal was not the only reasonable discipline the board could impose. It necessarily follows, of course, that the court's conclusion would have been the same even if it had found that Ralls did not lie about where his arm was. Thus, the court necessarily rejected the department's argument that dismissal was the only reasonable discipline the board could impose in this case.
Nonetheless, we agree with Ralls that this issue is not properly before us. To the extent the department can be understood to argue that the trial court erred in concluding that some discipline other than dismissal could be appropriate in this case, that claim of error is not proper here because "[a]s a general matter, 'a respondent who has not appealed from the judgment may not urge error on appeal.'" (Estate of Powell (2000) 83 Cal.App.4th 1434, 1439.) Here, the department did not file an appeal or cross-appeal of its own from the trial court's judgment. Thus, the department is barred from asserting its own claim of error.
A limited exception to this rule applies where the respondent urges error in a trial court ruling "for the purpose of determining whether or not the appellant was prejudiced by the error or errors upon which he relies for reversal or modification of the judgment from which the appeal is taken." (Code Civ. Proc., § 906.) "The purpose of the statutory exception is to allow a respondent to assert a legal theory which may result in affirmance of the judgment." (California State Employees' Assn. v. State Personnel Bd. (1986) 178 Cal.App.3d 372, 382, fn. 7.) Here, however, the department's penalty argument is not couched in terms of prejudice to Ralls from the ruling the trial court made. Thus, even if the department could have brought this argument within the exception set forth in Code of Civil Procedure section 906, it failed to do so.
On the appeal before us, then, based on our conclusion that there was substantial evidence to support the board's finding that Ralls was not dishonest when he asserted he placed his arm only around the inmate's jaw, we must conclude that the superior court erred in granting the department's mandamus petition and in ordering the board to set aside its decision and reconsider the appropriate discipline to be imposed on Ralls.
The judgment is reversed, and the case is remanded to the trial court with instructions to recall the peremptory writ of mandate and to enter a new judgment denying the petition. Ralls shall recover his costs on appeal. (Cal. Rules of Court, rule 8.278(a)(2).)
We concur: HULL , Acting P. J. MURRAY , J.