Filed 1/28/20 Faulkner 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Sacramento)

—-

WALTER FAULKNER,

Plaintiff and Appellant,

v.

STATE PERSONNEL BOARD,

Defendant;

DEPARTMENT OF CORRECTIONS AND REHABILITATION,

Real Party in Interest and Respondent.

C084683

(Super. Ct. No. 34-2016-80002398-CU-WM-GDS)

The Department of Corrections and Rehabilitation (CDCR) terminated Walter Faulkner’s employment as a correctional officer following an investigation into an incident in which Faulkner pepper-sprayed an inmate. CDCR concluded the use of force was unnecessary, unreasonable, and excessive, that Faulkner provided false statements regarding the incident, and that he also encouraged others to provide false statements. The State Personnel Board (SPB) upheld the termination. Faulkner filed a petition for writ of administrative mandamus in the trial court, which the trial court denied. (Code Civ. Proc., § 1094.5.) Faulkner did not designate the petition for writ of administrative mandamus as part of the record on appeal.

Faulkner now contends:

1. The evidence was insufficient to sustain the SPB’s findings because (A) the trial court should have rejected the credibility determinations made by the administrative law judge (ALJ), and (B) a video of the incident was insufficient to support the SPB’s findings.

2. The trial court erred in determining there was substantial evidence based only on the disbelief of witnesses, contrary to Pereyda v. State Personnel Board (1971) 15 Cal.App.3d 47 (Pereyda).

We conclude the evidence was sufficient to sustain the SPB’s findings. The ALJ’s credibility determinations were supported by evidence along with the ALJ’s observation of the witnesses, and the video supports the findings of the ALJ. We also conclude the decision was not based solely on the disbelief of witnesses.

We will affirm the trial court’s denial of the petition for administrative mandamus.

STANDARD OF REVIEW

Our review of an agency decision by way of administrative mandamus shall extend to whether the respondent agency “has proceeded without, or in excess of, jurisdiction; whether there was a fair trial; and whether there was any prejudicial abuse of discretion.” (Code Civ. Proc., § 1094.5, subd. (b).) Abuse of discretion is established if the respondent agency “has not proceeded in the manner required by law, the order or decision is not supported by the findings, or the findings are not supported by the evidence.” (Ibid.)

The SPB’s decisions are entitled to judicial deference. We view the record in the light most favorable to the SPB’s decision, and we uphold the SPB’s factual findings if they are supported by substantial evidence. (Fisher v. State Personnel Bd. (2018) 25 Cal.App.5th 1, 13-14.) On the other hand, we review questions of law under the independent standard of review. (Id. at p. 14.)

Faulkner finds fault with some of the statements and findings of the trial court in ruling against him. However, we need not address the statements and findings of the trial court because we stand in the same shoes as the trial court, applying the substantial evidence test to the administrative record and considering legal questions de novo. (California Dept. of Corrections v. State Personnel Bd. (2004) 121 Cal.App.4th 1601, 1611.)

BACKGROUND

The state may take adverse action, including dismissal, against an employee in state civil service for, among other things, inexcusable neglect of duty, dishonesty, discourteous treatment, willful disobedience, and other failure of good conduct. (Gov. Code, §§ 18526, 19570, 19572, subds. (d), (f), (m), (o), & (t).) Regulations applicable to CDCR allow use of reasonable force but do not allow unnecessary or excessive force. (Cal. Code Regs., tit. 15, § 3268, subd. (b).) “Whenever possible, verbal persuasion or orders shall be issued prior to resorting to force and are required to be provided before controlled force is used.” (Cal. Code Regs., tit. 15, § 3268, subd. (c).)

After Faulkner used pepper spray on an inmate at the California Health Care Facility (Facility), CDCR terminated his employment based on the pepper-spraying incident as well as his conduct after the pepper-spraying incident. He appealed his termination to the SPB. After an ALJ heard the case and ruled in favor of CDCR, the SPB adopted the ALJ’s decision.

In the same administrative proceeding, the SPB concluded that a five-percent salary reduction was appropriate for Correctional Officer Jacob Babauta. Babauta’s salary reduction is not at issue in this judicial proceeding.

A

As Faulkner’s contentions relate to the sufficiency of the ALJ’s decision, which was adopted by the SPB, we begin by summarizing that decision.

A CDCR inmate named Payton, whose full name does not appear in the record, was detained at the Facility in a cell along a central hallway. He had a history of creating disturbances, including attempting to gas officers — that is, to launch urine and other noxious substances at them. Payton’s cell had a food port, which could be slid open to introduce food into the cell and to allow for handcuffing of inmates inside the cell. Because of Payton’s gassing propensity, a food port extender was attached to the food port. A food port extender is a metal box affixed to the food port; an officer can place food in the extender and close the exterior door of the extender before opening the interior food port to allow inmate access to the food.

Another inmate named Jones was in the cell next to Payton. Psychiatric Technician Richard Morrow was assigned to watch Jones on a one-on-one basis from outside Jones’s cell to prevent Jones from harming himself. Before the incident in question, Morrow was seated about three feet from Jones’s cell, and correctional officers Faulkner and Babauta were seated across the hall from the two cells, a distance of about 30 feet.

After Payton received his food, he stuffed a shirt in the food port, preventing it from closing. While yelling, Payton reached into the food port extender, rattled it, and banged on the extender’s exterior door. Morrow moved from about three feet from Jones’s cell to about 15 feet from Jones’s cell. Morrow could still see Jones from that position.

Payton urinated into the food port extender, causing urine to drip from the closed exterior door of the extender and pool on the floor. Morrow alerted Faulkner and Babauta to the situation.

During the relevant time period, CDCR’s Operations Manual included the following:

“If during routine duties, correctional officers encounter an inmate who refuses to allow staff to close and lock the food port:

“The officer shall verbally order the inmate to relinquish control of the food port and allow staff to secure it. The officer shall issue a warning that chemical agents will be used if he/she does not comply.

“If the inmate refuses to relinquish control of the food port after the warning, the officer is authorized to administer chemical agents against the inmate to secure the food port. Alternatively, the officer may choose to contact a supervisor and await further guidance in formulating a response.” (Cal. Dept. of Corrections and Rehabilitation, Operations Manual (2012) § 51020.11.2, p. 317.)

Babauta walked across the hallway and kicked at the exterior door of the food port extender on Payton’s cell to make sure it was securely closed. He then walked away. According to the ALJ’s decision, Faulkner then walked across the hallway shaking a can of pepper spray, kicked open the exterior door of Payton’s food port extender, and pepper-sprayed Payton’s lower body twice. Faulkner closed the door of the food port extender with his foot, then slid the inner food port closed with his foot.

According to the ALJ decision, Faulkner told Morrow to write in his incident report that when Payton was urinating, Morrow was forced to move to avoid the urine splashing out of the food port extender, and that when he did so, it caused him to lose sight of his assigned one-to-one inmate. Faulkner also told Morrow to write that he heard Faulkner and Babauta order Payton to remove his hands from the food port extender, and that prior to Payton being pepper-sprayed, Morrow heard Faulkner and Babauta order Payton to stop urinating or else he would be pepper-sprayed. The ALJ decision said Faulkner, Babauta and Morrow knew those circumstances did not occur. Babauta joined in Faulkner’s efforts to persuade Morrow to falsify his incident report.

The ALJ decision said incident reports prepared by Faulkner, Babauta and Morrow provided the following false information: Faulkner wrote that when first alerted to the situation, he ordered Payton to stop trying to destroy his cuff port extender. Faulkner added that when he arrived at Payton’s cell door, Payton tried to gas Faulkner and Morrow by urinating on them. Faulkner, Babauta and Morrow wrote that prior to pepper-spraying Payton, Faulkner ordered Payton to stop urinating or else he would be pepper-sprayed. Faulkner, Babauta and Morrow wrote that when Payton began urinating into the food port, Morrow was forced to move to avoid urine splashing onto the floor underneath the food port extender. Faulkner and Morrow wrote that when Morrow moved away from Payton’s cell, it caused him to lose sight of his assigned one-to-one inmate. Faulkner explained that immediate use of force (the pepper spray) was required because Morrow was in danger of being splashed by urine and Morrow had lost sight of Jones.

Among other things, the ALJ decision discussed credibility determinations. The ALJ noted that Morrow changed his account when presented with a video of the incident during an internal affairs investigation. According to the ALJ, Morrow said in the internal affairs interview that he believed Faulkner’s use of pepper spray was unwarranted because nobody was in immediate danger at the time, Morrow did not lose sight of his assigned inmate, Faulkner had not given Payton verbal orders before pepper-spraying him, both Faulkner and Babauta coached Morrow on what to write in his report, which made him uneasy, Faulkner and Babauta urged him to falsify his report because they knew the use of force on Payton had not been necessary, and Morrow intentionally falsified his report because he was intimidated by Faulkner and Babauta and thought they might ostracize him if he did not do so.

At the administrative hearing, Morrow changed back to the account he had given in his report. However, the ALJ found Morrow’s testimony “was offered in a nervous and evasive manner, and featured convenient lapses of memory. His testimony regarding when he moved away from the cells and whether he lost line of sight with [Jones] were vague and inconsistent. At hearing, he tried to explain away the inconsistencies in his accounts by asserting that viewing the videotape during his [internal affairs] interview temporarily changed what he actually ‘saw’ and what he ‘thought.’ He also claimed that he felt pressured by the [internal affairs] agents during the interview, and that therefore, he ‘maybe’ gave false information during that interview. To the contrary, it appeared that at the [internal affairs] interview, when confronted with a videotape that directly rebutted his versions of events set forth in his incident report, [Morrow] felt compelled to acknowledge the truth: that he had agreed to cover up [Faulkner’s] misconduct due to pressure on the part of [Faulkner and Babauta].”

Despite some inconsistencies between Morrow’s statement in the internal affairs interview and his testimony at the administrative hearing, Morrow consistently stated that Faulkner directed him on what to put in his report on the incident. At the administrative hearing, when asked whether Faulkner gave Morrow input on what to put in the report, Morrow responded: “[H]e kind of directed me since I’d never written a report before.” Morrow also testified that it was possible that Faulkner was giving him information to put in the report to make the need for Faulkner to use the pepper spray more believable.

The ALJ concluded Faulkner’s conduct constituted inexcusable neglect of duty (Gov. Code, § 19572, subd. (d)), dishonesty (Gov. Code, § 19572, subd. (f)), discourteous treatment (Gov. Code, § 19572, subd. (m)), willful disobedience (Gov. Code, § 19572, subd. (o)), and other failure of good conduct (Gov. Code, § 19572, subd. (t)), and therefore warranted dismissal from his employment. (Gov. Code, § 19571.)

B

Video of the incident was introduced at the administrative hearing. Faulkner refers to it as a partial or incomplete recording of the incident because the video begins after Morrow had already moved from three feet to 15 feet from Jones’s cell. Faulkner accuses the trial court of making additional findings by describing what it saw on the video. Even though we need not address what the trial court said, we disagree with Faulkner’s characterization of the trial court’s discussion of the video. Summarizing for the record what is seen in the video is no more objectionable than summarizing a witness’s testimony. Like the trial court, we must review the video and describe what we see so that we can decide this appeal with reasons stated. (Cal. Const., art. VI, § 14.)

The entire video, which has no audio, is about three minutes long, with the relevant actions occurring in the first minute of the video. The video shows two separate camera angles, representing separate contemporaneous points of view down a wide hallway. The hallway is described in the record as being about 30 feet wide.

The cells holding Payton and Jones are not visible in video number one, the feed that appears on the left, because of the angle of the camera. There is no dispute concerning who appears in the video. At the beginning of the video, Morrow is seated about halfway across the hallway, so he has already moved back from his position three feet away from Jones’s cell. Correctional Officers Faulkner and Babauta are seated across the hall from the cells. At about the 23-second mark of the video, Babauta stands and walks at a normal pace across the hallway. At about the 29-second mark, Babauta kicks once at something not seen in the video because of the camera angle and starts walking away. At about the 31-second mark, Faulkner stands and walks across the hallway. It takes him about eight seconds to walk across the hallway to where Babauta had kicked something. About halfway across the hallway, he starts shaking what appears to be a bottle. When he arrives at the other side of the hallway, at about the 39-second mark, he kicks at something and reaches down and forward with the bottle. He remains in that position for about ten seconds before again kicking and stepping back. At the 56-second mark, Faulkner again kicks.

Video number two, the feed that appears on the right, is from farther away than video number one. While it shows the same timeframe, the cells holding Payton and Jones can be seen, but only from a great distance and not clearly. What video number two adds to video number one is that it can be seen more clearly that Faulkner and Babauta kick at the door of the cell, which we interpret, considering the other evidence, to be kicking at the food port or food port extender.

Based on our review of the video, it appears that (1) Morrow had been sitting halfway across the hallway from Jones’s cell for at least 23 seconds before Babauta stood up and began walking across the hallway toward Payton’s cell, (2) Morrow had been sitting across the hallway from Jones’s cell for at least 31 seconds before Faulkner stood and began walking across the hallway, and (3) there was no significant pause during the time Faulkner stood up, started walking, shook the bottle as he walked, kicked at something, and directed the bottle at something unseen in the video.

C

Morrow wrote in his report on the day of the incident, and testified later at the administrative hearing, that Payton’s urinating into the food port extender caused Morrow to move and lose sight of Jones. However, in an internal affairs interview nine months after the incident, Morrow wavered. At first, he maintained that Payton’s urinating caused him to move and lose sight of Jones for 60 to 90 seconds. He said that the urine pooled 10 to 15 feet from the cell, and Faulkner or Babauta warned Payton before pepper-spraying him. After the investigators showed Morrow the video, he said the urine puddled only a foot or two from the cell, far from Morrow, and Morrow was not in danger of being splashed by the urine. Morrow later moved farther away from Jones’s cell because of the pepper spray residue. He did not lose sight of Jones, and he could not remember Faulkner warning Payton before pepper-spraying. There was no imminent danger to anyone when Faulkner pepper-sprayed Payton. Morrow wrote the report the way he did, knowingly falsifying it, because of coaching from Faulkner and Babauta to justify use of pepper spray.

Faulkner and Babauta both testified at the administrative hearing that (1) Morrow moved away from Jones’s cell when Payton urinated, (2) Faulkner warned Payton before pepper-spraying him, and (3) Faulkner and Babauta did not coach Morrow on what to say in his report, although Faulkner said he helped Morrow with where to put certain information on the form. Faulkner testified Morrow’s move away from Jones’s cell caused Morrow to lose sight of Jones.

DISCUSSION

I

Faulkner claims the evidence was insufficient to sustain the SPB’s findings because (A) the trial court should have rejected the credibility determinations made by the ALJ, and (B) the video of the incident was insufficient to support the SPB’s findings.

A

We begin with Faulkner’s argument that the trial court should have rejected the credibility determinations made by the ALJ. Faulkner notes that the reports and testimony from him and Babauta were consistent, and four of the five statements from Morrow also corroborated the account by Faulkner and Babauta. Although the ALJ gave greater weight to the statement Morrow made during the internal affairs interview, finding that Morrow “felt compelled to acknowledge the truth” when confronted with the video, Faulkner characterizes the statement as inadmissible hearsay that cannot be substantial evidence to support his dismissal.

Contrary to Faulkner’s argument, Morrow’s statement in the internal affairs interview was not inadmissible. At the administrative hearing, Morrow testified and was subject to cross-examination. Any statements he made before his administrative hearing testimony that were inconsistent with his administrative hearing testimony constituted prior inconsistent statements, which were not made inadmissible by the hearsay rule. (Evid. Code, § 1235; People v. Brown (1995) 35 Cal.App.4th 1585, 1596-1597.)

The ALJ made a credibility determination regarding Morrow’s statements, and that determination is now entitled to great weight. (Gov. Code, § 11425.50, subd. (b).) Nevertheless, Faulkner points to a Law Revision Commission comment to Government Code section 11425.50, which states: “Nothing in subdivision (b) precludes the agency head or court from overturning a credibility determination of the presiding officer, after giving the observational elements of the credibility determination great weight, whether on the basis of nonobservational elements of credibility or otherwise.” (Cal. Law Revision Com. com., Deering’s Ann. Gov. Code (1995 ed.) foll. §11425.50.) That may be true, but based on our review of the record, we conclude it was not error to accept the ALJ’s credibility determinations, and we also accept them.

Faulkner adds that Morrow’s statement during the internal affairs interview cannot be substantial evidence because it is uncorroborated. But the video corroborates many of the details of Morrow’s statements at the internal affairs interview. Morrow was 15 feet away from Jones’s cell and had been that far away for at least 23 seconds when Babauta and then Faulkner stood up and walked across the hallway. Even though there is no audio accompanying the video, the video shows that Faulkner walked across the hallway and immediately kicked open the food port extender and began pepper-spraying Payton. Indeed, it was watching the video during the internal affairs interview that caused Morrow to reconsider his prior statements.

B

Faulkner contends the video cannot constitute substantial evidence to support his dismissal because the video was incomplete.

The video was not the only evidence that tended to support Faulkner’s dismissal. And just because it was incomplete did not preclude reliance on the portions that were available. (See In re Noreen G. (2010) 181 Cal.App.4th 1359, 1381 [deficiencies in evidence go to weight but do not preclude reliance].) Nevertheless, Faulkner argues the video does not rebut the testimony that Morrow moved out of the way in order to avoid being splashed with urine.

It is true that the video does not show what happened before the video started. But in any event, the video shows that Faulkner did not take action based on Payton’s conduct until at least 23 seconds after Morrow was 15 feet away from Jones’s cell, which is where Morrow was located at the beginning of the video. Thus, at the time Faulkner pepper-sprayed Payton, no one was in danger of being splashed with urine.

Faulkner also claims the video did not disprove that he gave warnings to Payton before pepper-spraying him. But as the ALJ explained, the video showed “Faulkner quickly walking up to that cell, kicking open the food port extender door, and immediately pepper-spraying [Payton]. This quick and seamless action belies [Faulkner’s] account that he stood in front of [Payton’s] cell and gave numerous warnings to desist.” The ALJ added that Morrow admitted in his internal affairs interview that Faulkner had not given Payton verbal orders before pepper-spraying him.

Faulkner claims he never said he stood in front of Payton’s cell and gave numerous warnings to desist. But there is substantial evidence that Faulkner’s statements and testimony were not credible, and that he did not give Payton any warning at all. The evidence, including the video, is sufficient to support the SPB’s decision to dismiss Faulkner.

II

Faulkner contends the trial court erred in determining there was substantial evidence based only on the disbelief of witnesses, contrary to Pereyda, supra, 15 Cal.App.3d at pp. 51-52.

It is true that the SPB’s disbelief of the employee’s testimony cannot create evidence to the contrary. (Catricala v. State Personnel Bd. (1974) 43 Cal.App.3d 642, 649, citing Martin v. State Personnel Bd. (1972) 26 Cal.App.3d 573, 584; Pereyda, supra, 15 Cal.App.3d at pp. 51-52.) In Pereyda, a correctional officer was dismissed from his employment after he allegedly brought alcoholic beverages into a restricted area. (Pereyda, supra, 15 Cal.App.3d at p. 49.) In dismissing the officer, the SPB rejected the officer’s explanation that he was simply hauling empty alcohol containers to the dump as a favor for a friend, finding the explanation difficult to believe. (Id. at p. 51.) The trial court granted a petition for administrative mandamus because the administrative decision was not supported by evidence, and the Court of Appeal agreed. (Id. at p. 53.) Although the officer’s explanation could be viewed with suspicion, the Court of Appeal said suspicion was not a substitute for proof. Absent proof that the containers had once held alcohol while in the area where alcohol was forbidden, there was an insufficient basis to terminate the officer’s employment. (Ibid.)

Here, however, the decision is not merely based on disbelief of witnesses. The decision is based on evidence, such as Morrow’s statements during the internal affairs interview and the video. There is no Pereyda error.

DISPOSITION

The judgment denying the petition for writ of administrative mandamus is affirmed. CDCR is awarded its costs on appeal. (Cal. Rules of Court, rule 8.278(a).)

/S/

MAURO, J.

We concur:

/S/

ROBIE, Acting P. J.

/S/

MURRAY, J.