Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 34200980000371CUWMGDS
MURRAY, J.
In this consolidated appeal, Manuel Medina and Jose Lopez, former officers with the California Department of Corrections and Rehabilitation (CDCR), appeal the trial court’s denial of their writs of administrative mandamus. Their writs challenged a decision of the California State Personnel Board (SPB) sustaining their dismissals from public employment for engaging in misconduct. Finding no merit in their appeal, we affirm.
BACKGROUND
I. Notices of Adverse Action
In June 2008, the CDCR issued a Notice Of Adverse Action (Notice) to Medina and to Lopez, notifying each of them that they were being dismissed, effective July 15, 2008, following an incident at the California State Prison, Sacramento (the prison). Medina served as a correctional sergeant, and Lopez as a correctional officer.
Medina’s Notice of Adverse Action alleged that on May 8, 2007, during a search of a prison cell for contraband, he used excessive force on a male inmate by punching the inmate at least three times with a closed fist. Medina then failed to honestly document his use of force in the incident report he prepared on or about the day of the incident. In addition, during an internal affairs investigation, Medina misrepresented his use of force by dishonestly denying that he punched the inmate. Also, he falsely stated that no one had voiced concerns to him regarding his use of force on the inmate. The Notice alleged that Medina’s conduct constituted incompetency, inexcusable neglect of duty, dishonesty, willful disobedience, and other failure of good behavior under Government Code section 19572. (See Gov. Code, § 19572, subds. (b), (d), (f), (o) & (t).)
Undesignated section references are to the Government Code.
Lopez’s Notice of Adverse Action alleged that he was present during the incident and observed Medina punch the inmate, but that he failed to honestly document that use of force in his report. In addition, during an internal affairs investigation, Lopez also dishonestly denied observing Medina’s use of force. The Notice alleged that Lopez’s conduct constituted incompetency, inexcusable neglect of duty, dishonesty, willful disobedience, and other failure of good behavior. (§ 19572, subds. (b), (d), (f), (o) & (t).)
The Notices of Adverse Action alleged other forms of misconduct not germane to this appeal.
II. The Administrative Proceedings
Medina and Lopez appealed the adverse actions to the SPB and their cases were referred to an administrative law judge (ALJ). Their cases were consolidated with another matter involving the dismissal of Benjamin Haugen, a correctional officer who also had been present during the incident. The ALJ held administrative proceedings in March 2009, during which numerous individuals testified.
III. The ALJ’s Proposed Decision
Following the administrative proceedings, the ALJ issued a Proposed Decision that ultimately sustained the adverse actions against Medina and Lopez. The Proposed Decision contained various sections, including Findings of Fact, Credibility Determinations, Principles of Law and Analysis, Penalty, and Conclusions of Law. Portions of these sections are summarized and quoted below.
The Proposed Decision also dismissed certain allegations against Medina and Lopez not germane to this appeal.
A. The ALJ’s Findings of Fact
According to the ALJ’s findings, the incident occurred in May 2007 after prison staff discovered heroin on an inmate in the main yard. The inmate told prison staff that other inmates were hiding narcotics in three prison cells. Teams of officers were assembled to search the cells. Correctional Officers Joel Carlson and Jeffrey Klink searched cell No. 2-212, which was empty at the time. Correctional Sergeant Ralls and two other correctional officers searched cell No. 2-218. Medina, along with Lopez and Haugen, searched cell No. 2-118.
Before Medina’s team conducted its search, Medina informed Lopez and Haugen how the search would be conducted. They were going to sneak up on cell No. 2-118, signal Control Booth Officer Ronald Brown to open the cell door, and once the cell door slid open, they would enter the cell and search for contraband.
As planned, when Haugen approached cell No. 2-118, Lopez signaled to Brown in the control booth and the cell door slid open. Haugen was in the lead with his baton at the ready, Lopez followed with handcuffs, and Medina brought up the rear, holding pepper spray. There were two inmates inside the cell. Inmate Machuca was sitting on the toilet near the cell doorway, bathing himself with the toilet water. Inmate Palacios was behind a bed sheet that was strung between the bunk and the wall.
Haugen entered the cell and knocked the bed sheet down with his baton. Lopez came to the cell doorway, followed by Medina. Machuca was ordered to get down. Palacios launched himself toward Machuca with something in his hand. Machuca lifted his left leg off the toilet seat while Palacios thrust something into the toilet. Machuca flushed.
“Haugen [then] forced Palacios into a face-down position on the cell floor between the bunk and the toilet, and straddled him. Simultaneously, Lopez and Medina struggled with Machuca. Machuca was wet and slippery with soap. Medina and Lopez took Machuca down to the floor. [¶]... Carlson and Klink, on the second tier, heard the melee... and rushed down to the scene. [¶]... Meanwhile, inside Cell 2-118, Palacios grabbed Haugen’s baton and tried to take it from Haugen. Haugen wrested the baton away from Palacios’ grip, grabbed Palacios’ hands, and pulled them behind Palacios’ back. [¶]... Simultaneously, Medina and Lopez were subduing Machuca. When Medina and Lopez took Machuca down, Machuca landed on his back, with his upper torso outside the cell, and his legs inside the cell. Medina was outside the cell on the right of Machuca, near Machuca’s head and torso. Lopez was outside the cell on the left side of Machuca, near Machuca’s legs and waist. Machuca had his arms at his side. Medina punched Machuca several times in the upper torso/arm area, then drove a forearm into Machuca’s midsection. Brown, Carlson, and Klink saw Medina punch Machuca. Lopez, with [the] help of other officers, handcuffed Machuca. [¶]... In writing their incident reports, Appellants [i.e., Medina, Lopez and Haugen] did not mention that Medina punched Machuca several times. During their administrative interrogation, Medina denied punching Machuca, and Lopez and Haugen denied that they observed Medina punching Machuca.”
B. The ALJ’s Credibility Determinations
The ALJ issued express credibility determinations. He did not believe Medina and Lopez on key points.
“Medina testified that he did not punch Machuca, while Carlson, Brown, and Klink testified that they saw Medina punch Machuca. Applying the factors set forth in Evidence Code section 780 for determining credibility, Medina’s testimony is not believed. Medina testified in an evasive, defensive, and unconvincing manner. While Carlson disliked Medina, and his version of events contained inconsistencies, the testimony of Carlson, Brown, and Klink was consistent regarding the type of punches Medina administered to Machuca, and the area of Machuca’s body that he punched. Brown and Klink, moreover, had no known motive to testify against Medina. Brown, in particular, had a clear sightline from the Control Booth to witness the incident, and observed the incident from beginning to end.
“Lopez testified that he never saw Medina punch Machuca. Applying the factors set forth in Evidence Code section 780, that testimony is not believed. Lopez testified in an evasive and highly defensive manner. He was inches away from Medina when Medina punched Machuca, and thus could not help observing those punches.
“Haugen also testified that he never saw Medina punch Machuca. Applying the factors set forth in Evidence Code section 780, that testimony is believed. Haugen testified in a straightforward and relaxed manner. From where Haugen was straddling Palacios within the cell, it would have been very difficult, if not impossible, for him to see Medina punching Machuca outside the cell. [Fn. omitted.] In addition, Haugen’s attention was diverted when the punching occurred, as he was struggling for control of his baton with Palacios at the time.”
From these credibility determinations, the ALJ concluded, “[i]t is believed... that Medina punched Machuca several times in the torso/arm areas while Machuca was lying on the floor with his hands at his side. It is believed that Lopez observed these punches, but that Haugen did not.”
The ALJ made one further credibility determination with respect to a postincident conversation between Medina and Carlson. According to the ALJ, “... Carlson testified that after the incident, he told Medina that he had concerns about Medina’s use of force during the incident. Medina testified that Carlson expressed no such concerns to him. Applying the factors set forth in Evidence Code section 780, Medina is not believed. Medina admitted during hearing that Carlson spoke to him after the incident and was upset, and that he told Carlson that if Carlson saw something untoward during the incident, he should report it. When asked during the hearing why Carlson was upset, and what Carlson said to prompt Medina to tell him to report any untoward behavior, Medina could not give a cohesive answer. It is believed, then, that after the incident, Carlson expressed concerns to Medina about the force Medina used during the incident.”
C. Principles of Law and the ALJ’s Analysis
Applying the law to the facts, the ALJ found that Medina and Lopez engaged in multiple forms of misconduct.
“Regarding the allegation that Medina punched Machuca, CDCR officers are prohibited from using excessive force on an inmate, i.e., more force than is objectively reasonable under the circumstances. (Cal. Code Regs., tit. 15, § 3268, subds. (a) & (b)(3).) It was not reasonable for Medina to punch an inmate who was lying prone [sic] on the floor with his hands at his side. Medina’s knowing contravention of CDCR’s use of force policy violated Government Code section 19572, subdivisions (d) inexcusable neglect of duty, (o) willful disobedience, and (t) the failure of good behavior. [Citations.]
We understand the evidence to show that Medina was lying on his back, face up in a supine position, not face down in a “prone” position. That he was lying supine is undisputed, and it appears that the ALJ’s use of the word “prone” was inadvertent.
“CDCR employees who engage in or observe force greater than verbal persuasion must report that force. (Cal. Code Regs., tit. 15, § 3268.1, subd. (a)(1); Department Operations Manual, § 33030.3.1.) Medina’s and Lopez’s intentional failure to report Medina’s use of force on Machuca violated Government Code section 19572, subdivision (d) inexcusable neglect of duty, (o) willful disobedience, and (t) failure of good behavior.
“Dishonesty under Government Code section 19572, subdivision (f) is the intentional misrepresentation of known facts, or a willful omission of pertinent facts. [Citation.] Medina’s and Lopez’s failure to report Medina’s use of force, and their statements during their administrative interrogations that they did not see Medina punch Machuca, constitute dishonesty. In addition, Medina’s false claim during his interrogation that Carlson did not express concern to him regarding Medina’s excessive use of force constitutes dishonesty.”
D. Penalty
For a penalty, the ALJ concluded that Medina’s excessive use of force and Medina’s and Lopez’s “attempts to cover up the incident” warranted dismissal. The ALJ determined that their conduct caused serious harm to public service, as it fostered a “Code of Silence” and violated the public’s trust. Furthermore, Medina’s excessive force brought discredit upon the CDCR. The ALJ determined that their misconduct was likely to recur given that Medina and Lopez failed to “own up” to it.
E. The ALJ’s Conclusions of Law
In his conclusions of law, the ALJ determined that “Medina’s excessive use of force, and the attempts by Medina and Lopez to cover up that use of force, violated Government Code section 19572, subdivisions (d) inexcusable neglect of duty, (f) dishonesty, (o) willful disobedience, and (t) other failure of good behavior.” The ALJ reiterated that their conduct merited dismissal. The allegations against Haugen were dismissed.
IV. The SPB Decision and Subsequent Procedural History
In a written decision, the SPB adopted the ALJ’s Proposed Decision in full. Lopez and Medina filed petitions for administrative rehearing, which were denied. Lopez and Medina then each filed a petition for writ of administrative mandate in the Sacramento County Superior Court. Both matters were eventually assigned to Judge Patrick Marlette. The hearing on the petitions took place on May 14, 2010. The trial court denied the petitions in a detailed minute order. The trial court rejected Medina’s and Lopez’s challenge to the SPB’s credibility determinations and concluded that substantial evidence supported the SPB’s decision. The court then entered a separate judgment in each case consistent with the minute order. This appeal followed.
DISCUSSION
I. Standard of Review
The SPB is a statewide administrative agency to which the California Constitution grants adjudicatory power to review disciplinary actions taken against state civil service employees. (Department of Parks & Recreation v. State Personnel Bd. (1991) 233 Cal.App.3d 813, 823.) “As such the [SPB] acts much as a trial court would in an ordinary judicial proceeding. Thus, the [SPB] makes factual findings and exercises discretion on matters within its jurisdiction.” (Ibid.)
In reviewing an SPB decision on a petition for administrative mandate, we stand in the same shoes as the trial court. (California Dept. of Corrections v. State Personnel Bd. (2004) 121 Cal.App.4th 1601, 1611 (Dept. of Corrections).) We view the record in the light most favorable to the SPB’s decision and uphold its factual findings if supported by substantial evidence. (Code Civ. Proc., § 1094.5, subd. (c); County of Siskiyou v. State Personnel Bd. (2010) 188 Cal.App.4th 1606, 1615.) An SPB determination as to whether the facts properly determined justify a penalty, and, if so, what that penalty should be, are matters we will not disturb unless an abuse of discretion is demonstrated. (County of Siskiyou, supra, 188 Cal.App.4th at p. 1615; Pollak v. State Personnel Bd. (2001) 88 Cal.App.4th 1394, 1404.) To the extent the appeal presents questions of law, our review is de novo. (Dept. of Corrections, supra, 121 Cal.App.4th at p. 1611.)
The appellate briefing consists of only Medina’s and Lopez’s opening briefs. The CDCR did not file a respondent’s brief. The CDCR was notified of this deficiency pursuant to California Rules of Court, rule 8.220(a), and given an additional 15 days to file its brief. The additional time period elapsed and no respondent’s brief was filed. Accordingly, we determine this appeal based on the record and Medina’s and Lopez’s opening briefs. (Cal. Rules of Court, rule 8.220(a)(2) & 8.220(c).) The burden is on Medina and Lopez to affirmatively demonstrate reversible error. (County of Lake v. Antoni (1993) 18 Cal.App.4th 1102, 1104; Miles v. Speidel (1989) 211 Cal.App.3d 879, 881.)
Review under a substantial evidence standard is highly deferential to the fact finder. (Escobar v. Flores (2010) 183 Cal.App.4th 737, 748.) Under this standard, the California Supreme Court has observed that it is “very difficult for a complaining employee to have the board’s adverse factual findings overturned.” (State Bd. of Chiropractic Examiners v. Superior Court (2009) 45 Cal.4th 963, 977.)
“‘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 (California Youth Authority).) Although not synonymous with “‘“any”’ evidence, ” the substantial evidence standard is easily satisfied. (People v. Barnwell (2007) 41 Cal.4th 1038, 1052, fn. 11.) Indeed, the testimony of a single witness can constitute substantial evidence and support a finding, even in the face of significant countervailing evidence. (Barnwell, supra, 41 Cal.4th at p. 1052; Phelps v. State Water Resources Control Bd. (2007) 157 Cal.App.4th 89, 99.)
In conducting our review, “[w]e do not reweigh the evidence” presented to the SPB. (Camarena v. State Personnel Bd. (1997) 54 Cal.App.4th 698, 701 (Camarena).) Moreover, when a factual finding by the SPB is based substantially on a witness’s credibility, by statute, the SPB’s credibility determination is entitled to “great weight” if that determination is derived from the observed demeanor, manner, or attitude of the witness. (§ 11425.50, subd. (b); California Youth Authority, supra, 104 Cal.App.4th at pp. 595-596.)
In reviewing the administrative record, we do not ignore evidence that fairly detracts from the evidence that supports the SPB’s decision. (California Youth Authority, supra, 104 Cal.App.4th at p. 586.) Nevertheless, we are required to resolve all evidentiary conflicts and indulge all presumptions in favor of the SPB’s decision. (Strei v. State Personnel Board (1962) 210 Cal.App.2d 643, 648; California Youth Authority, supra, 104 Cal.App.4th at p. 584.) Under the substantial evidence standard, moreover, the question is not whether the evidence may support some other finding, but whether substantial evidence supports the finding made. (People v. Cartier (1960) 54 Cal.2d 300, 306; People v. Jason K. (2010) 188 Cal.App.4th 1545, 1553.) “We do not substitute our own judgment if the board’s decision ‘“‘is one which could have been made by reasonable people....’ [Citation].”’” (Camarena, supra, 54 Cal.App.4th at p. 701.)
II. Analysis
On appeal, Medina and Lopez (represented by the same counsel) attack the crucial factual finding “that Medina punched Machuca.” Although not phrased in such straightforward terms, the substance of their appeals is that the evidence does not support the finding that Medina punched Machuca. By extension, the evidence is also insufficient to support the finding that either Medina or Lopez attempted to “cover up” that use of force.
At the outset, we note (and set straight) a misconception that permeates Medina’s and Lopez’s appellate briefing. Throughout their briefing they erroneously state that the trial court made factual “findings” and “credited” the testimony of certain witnesses. Contrary to Medina’s and Lopez’s repeated assertions, the trial court merely reviewedthe factual findings and credibility determinations made by the ALJ and adopted by the SPB. The trial court did not issue its own factual findings or credibility determinations.
Another related misconception in the appellate briefing is that the trial court’s decision is subject to review under the substantial evidence standard. On appeal, we stand in the same shoes as the trial court and review the SPB’sdecision. (Dept. of Corrections, supra, 121 Cal.App.4th at p. 1611.) Of course, we must ultimately affirm or reverse the trial court’s determination, but the decision subject to review under the substantial evidence standard -- the one to which we direct our attention -- is that rendered by the SPB.
A. Medina’s Use of Force
The SPB made factual findings on two different types of force. The SPB found that Medina (1) punched Machuca and (2) drove a forearm into Machuca’s midsection. Medina and Lopez do not dispute the latter finding.
In Medina’s appellate briefing, Medina represents that “[u]sing his forearm, Medina struck Machuca in the chest area in an attempt to gain control of Machuca’s right arm.” During the administrative proceedings, Medina testified that he “came across [Machuca’s] chest area with my right forearm” and “hit him with my forearm.” Medina also referred to this force as a “strike” with his forearm.
In light of Medina’s representations on appeal and his own testimony, we readily accept the SPB’s finding that Medina drove a forearm into Machuca’s midsection. We now turn to the critical factual finding that Medina also punched Machuca, the main point of contention and the centerpiece of the SPB’s decision.
Substantial evidence supports the SPB’s finding that Medina punched Machuca. At least three witnesses testified to this effect: Brown, Klink, and Carlson.
Brown testified that from the control booth, he observed Medina crouching over Machuca’s upper body. According to Brown, he “saw Sergeant Medina make a few strikes toward[] [Machuca’s] mid section or arm area, his right side.” Brown could not remember whether the strikes were “an open hand or a fist, ” but he observed “three” strikes. From Brown’s perspective, Lopez was “partially blocked” and Brown “couldn’t see, really, [Lopez] doing anything.”
Klink testified that he was searching an empty cell with Carlson on the upper second tier. During the search, Carlson did not spend the entire time with Klink; instead Carlson was “in and out” of the cell. From inside the cell, Klink heard something outside that caught his attention. Klink left the empty cell to determine what was happening and encountered other officers. Officer Alvindovar (phonetic) requested Klink to head downstairs to assist. Upon reaching the first tier, Klink encountered Machuca, Medina and Lopez. Machuca lay naked on the ground, face up, covering his groin. Medina was on Machuca’s right side and Lopez was on Machuca’s left side. Klink testified that he saw “Medina strike [Machuca] in his stomach area” one time with a “closed fist.” Klink learned that another inmate was inside the cell. Klink entered the cell and saw Palacios and Haugen. Palacios was face down with his hands behind his back. Klink handcuffed Palacios.
Carlson testified that he searched the empty cell with Klink, but primarily provided cover by standing at the door. At some point, Carlson heard a noise and exited the cell. He looked to his left and observed Ralls and his team placing handcuffs on inmates. Carlson believed the noise he heard was coming from elsewhere. Consequently, he went to the edge of the second tier, looked down and saw officers struggling with an inmate on the lower tier. Carlson proceeded down the staircase and observed the inmate, Machuca, lying on his back. Machuca’s legs were still inside the cell, but roughly three-quarters of his body was outside of the cell. Medina was on Machuca’s right upper shoulder area and Lopez was on Machuca’s left side. Machuca’s right arm was alongside his body. Lopez had Machuca’s left arm, which Carlson believed was over Machuca’s belly. Carlson testified that he observed Medina strike Machuca “[t]hree to five times” with a “[c]losed fist” in what appeared to be the “upper torso, upper arm” area. Machuca was handcuffed face up and Carlson wanted to get Machuca cuffed properly in the back. Carlson assisted Officer Lopez in handcuffing Machuca behind his back, and Carlson moved Machuca out of the cell doorway.
As the foregoing demonstrates, Brown, Klink, and Carlson all testified that they saw Medina punch Machuca. Furthermore, both Brown and Carlson testified that they observed multiple strikes. While Brown’s, Klink’s and Carlson’s accounts may not be identical, their testimony nonetheless constitutes direct, relevant evidence that a reasonable person would accept as adequate to support the factual conclusion that Medina punched Machuca.
On appeal, Medina and Lopez make several attempts to undermine Brown’s, Klink’s and Carlson’s testimony. We are not persuaded by this effort.
1. Attack on Brown’s testimony
As to Brown’s testimony, Medina and Lopez contend that “Brown testified that his view of the incident was partially blocked; [he] could not see the whole incident and [he] had left the scene of the incident before it was over to open cell doors.” These contentions are misleading. Brown testified that his view of Lopez (not Medina)was partially blocked and that he could not really see what Lopez was doing during the incident. Brown testified that he observed Medina strike Machuca. Brown had not “left the scene” before witnessing this conduct.
2. Attack on Klink’s testimony
As to Klink’s testimony, Medina and Lopez contend that Klink “testified that he witnessed Medina strike Machuca one time in the stomach area and that the strike was consistent with an aggressive grabbing motion rather than a punch.” This contention mischaracterizes the evidence. Klink testified that he observed Medina strike Machuca with a closed fist. While Klink acknowledged, on cross-examination, that a punch and an aggressive grabbing motion could be very similar, Klink never retracted or qualified his testimony that he saw Medina strike Machuca with a closed fist. In fact, on cross-examination, Klink repeatedly testified that Medina struck Machuca with a closed fist.
3. Attack on Carlson’s testimony
As to Carlson’s testimony, Medina and Lopez advance several arguments. First, they call into question whether Carlson was even present during the incident. In this regard, they claim that “Brown testified that he did not see Carlson in the area or assist in the control of Machuca, ” that Klink testified “he did not see Carlson assist in subduing Machuca or in the immediate area, ” and that Haugen testified that he “did not see Carlson in the area.” Once again, Medina and Lopez have injected content into witness testimony that the record does not substantiate. Brown’s, Klink’s, and Haugen’s testimony do not prove that Carlson was absent.
Brown acknowledged that he never saw “Carlson in a struggle with Medina and Machuca.” Brown explained, however, that he observed “some staff enter” the scene “but couldn’t identify who they were.” Moreover, Brown testified that after watching the situation unfold for some time he decided “that was enough for me” and he “opened the yard door and called on the radio for additional staff, and then when [he] came back, the naked inmate was in handcuffs but in front.” According to Brown, Machuca was then turned over and recuffed.
Brown’s acknowledgment that he observed “some staff” that he could not identify, and that he momentarily attended to other tasks, leaves open the possibility that Carlson was present and witnessed the incident. Moreover, Brown’s testimony that Machuca was first cuffed in the front and then turned over and recuffed is consistent with how Carlson explained the sequence of Machuca’s cuffing.
Klink testified that at the time he observed Medina strike Machuca, he did not see Carlson. Klink further testified, however, that he entered the cell and encountered Haugen and Palacios. Klink then handcuffed Palacios. It is possible that when Klink entered the cell and handcuffed Palacios, Klink’s attention was trained on the situation inside the cell and he did not detect Carlson’s arrival and presence outside the cell where the top portion of Machuca’s body, and Medina and Lopez, were situated. Indeed, Klink conceded that he did not know who handcuffed Machuca.
Haugen testified that he had no recollection as to whether Carlson was present at the scene. Haugen also posited, however, that Carlson “probably was there” as “[t]here was [sic] a lot of officers there.” Haugen’s testimony that he did not know whether Carlson was there, but that a “lot of officers” were present, leaves open the prospect that Carlson was among them. Moreover, Haugen was inside the cell handling Palacios and may not have detected Carlson’s arrival and presence outside the cell.
Moving away from Brown, Klink, and Haugen, the testimony of Medina and Lopez support an inference that Carlson was present. Medina testified that Carlson approached him after the incident, appeared somewhat upset, and asked, “[w]hat happened up there?” Medina responded, “if he [Carlson] saw something that he needed to write something.” That Medina instructed Carlson to write a report if Carlson “saw something” suggests that Medina believed that Carlson may have witnessed the incident. Moreover, Lopez’s testimony placed Carlson on the scene. Lopez testified that after handcuffing Machuca in the front, Lopez “looked around, and [he] saw Carlson by the pipe chase.” Lopez conceded that Carlson helped him handcuff Machuca from behind.
When Medina was further questioned as to how his order to Carlson to write something came about, Medina testified that Carlson said, “What happened up there, ” and Medina responded to Carlson, “‘If you saw anything, if you observed anything, you need to write it up.’ It’s that simple. I’m not going to sit there and discuss it.”
In sum, the testimony of Brown, Klink, and Haugen do not conclusively remove Carlson from the scene. On the contrary, viewing the evidence in a light most favorable to the SPB’s decision, Brown’s and Haugen’s testimony that multiple officers were present, Medina’s testimony that he instructed Carlson to write a report if Carlson “saw something, ” and Lopez’s testimony that he saw Carlson after cuffing Machuca in the front, augur in favor of a finding that Carlson was present and observed the incident. When coupled with Carlson’s own testimony, the evidence is more than sufficient to support the SPB’s implied finding that Carlson was present and observed the incident.
Next, Medina and Lopez contend that Carlson disliked Medina, and that Carlson believed Medina retaliated against him after the incident. From this, they contend that Carlson’s testimony is imbued with bias.
From the record it does appear that Carlson disliked Medina. Carlson testified that Medina is “reckless, ” a “dangerous supervisor” and “tends to bully his officers.” Moreover, Carlson conceded that he probably called Medina a “knucklehead” and a “piece of shit.” From the record, it also appears that Carlson believed Medina retaliated against him in that Medina essentially modified Carlson’s duties after the incident.
Although the potential for bias may arise from Carlson’s evident dislike of Medina and his belief that Medina retaliated against him, bias goes to the weight of the evidence, not its admissibility (Ermolieff v. R.K.O. Radio Pictures (1942) 19 Cal.2d 543, 552-553), and we cannot reweigh the evidence presented to the SPB (Camarena, supra, 54 Cal.App.4th at p. 701). The weight that should be afforded to a witness’s testimony is a matter within the SPB’s domain as the trier of fact. (Estate of Baker (1982) 131 Cal.App.3d 471, 483 [recognizing that, in any case, the “trier of fact is the sole judge of the credibility and weight of the evidence”].)
Citing page 1197 of the administrative record, Medina and Lopez contend that “[o]n cross[-]examination, Carlson testified that contrary to his earlier testimony he did not see Medina hit Machuca with a close[d] fist.” This is an egregious misinterpretation of Carlson’s testimony. Carlson never testified that he did not see Medina hit Machuca with a closed fist.
As reflected on page 1197 of the administrative record, on cross-examination, Carlson conceded that his written reportsof the incident do not mention the “closed-fist punching” to which Carlson testified. In other words, during the administrative proceedings, Carlson conceded that his prior written reports of the incident differed from his live testimony. As we discuss immediately below, Carlson explained why he omitted the punching from his written reports.
Medina and Lopez note that Carlson conceded that he submitted false written reports and also lied to Captain Leiber regarding Medina’s use of force. This is true. Carlson acknowledged much wrongdoing. Carlson admitted that after the incident, he did not immediately write any report on Medina’s use of force, contrary to CDCR policy. Carlson also admitted that when he wrote his initial report the day after the incident, and when he wrote subsequent revisions to that report, he falsely omitted the fact that Medina struck Machuca with a closed fist. Carlson further admitted that he lied to Captain Leiber about Medina’s use of force. Carlson explained his transgressions at numerous points during the administrative proceedings.
As to falsifying his reports, Carlson testified that if “you start ratting on cops, you become a rat, and you have a lot of problems with your own personal safety.” In addition, he “just also didn’t want -- excuse me, did not want to be involved in this.” With respect to Captain Leiber, Carlson testified that he “didn’t want to get caught up in this. I didn’t want to have anything to do with this.” Carlson further revealed that he finally decided to divulge Medina’s use of force after an investigation into the incident was underway and Sergeant Brandt informed him he could be facing criminal charges for falsifying records.
While Carlson apparently engaged in a wide array of less than admirable conduct, it was up to the SPB to determine how Carlson’s admitted malfeasance impacted the weight of his testimony. Again, our function is not to reweigh the evidence.
Citing Flowers v. State Personnel Bd. (1985) 174 Cal.App.3d 753, 759 (Flowers), Medina and Lopez assert that Carlson’s testimony is “inherently so improbable as to be unworthy of belief.” We disagree.
The full passage from Flowers reads: “‘Credibility, or lack thereof, is for the factfinder, not the reviewing court, to determine. The trier of fact’s determination will be interfered with on appeal only when it appears that the witness’ testimony is inherently so improbable as to be unworthy of belief. [Citation.] “On the cold record a witness may be clear, concise, direct, unimpeached, uncontradicted, but on a face to face evaluation, so exude insincerity as to render his credibility factor nil. Another witness may fumble, bumble, be unsure, uncertain, contradict himself, and on the basis of a written transcript be hardly worthy of belief. But one who sees, hears, and observes him may be convinced of his honesty, his integrity, his reliability.”’ [Citation.]” (Flowers, supra, 174 Cal.App.3d at p. 759.)
Testimony may be inherently so improbable as to be unworthy of belief when it defies common sense or is physically impossible. (See People v. Fontana (2010) 49 Cal.4th 351, 369; see also People v. Cudjo (1993) 6 Cal.4th 585, 608-609 [“the direct testimony of a single witness is sufficient to support a finding unless the testimony is physically impossible or its falsity is apparent ‘without resorting to inferences or deductions’”].) Carlson’s testimony does not fit the bill. The record does not support the conclusion that either Carlson’s presence during the incident or his account that Medina punched Machuca is so inherently improbable as to be unworthy of belief.
Medina and Lopez further assert that Carlson’s testimony did not meet the credibility factors in Evidence Code section 780. The factors in Evidence Code section 780 are examples of what the trier of fact “may” consider in assessing the credibility of a witness. Whether these factors are present in a given case and diminish a witness’s credibility is something the trier of fact, not an appellate court, is entitled to evaluate. (Flowers, supra, 174 Cal.App.3d at p. 759 [“‘Credibility, or lack thereof, is for the factfinder, not the reviewing court, to determine’”].) Absent testimony that is inherently so improbable as to be unworthy of belief, we do not pass independent judgment on witness credibility. (Ibid.)
Even assuming, arguendo, that the SPB should not have relied on Carlson’s testimony to conclude that Medina punched Machuca, two other witnesses still testified to this effect. Removing Carlson from the calculus, the testimony of Brown and Klink still constitutes substantial evidence in support of the SPB’s factual finding that Medina punched Machuca. Any error in considering Carlson’s testimony on this point was harmless.
4. Contrary evidence
In a continued effort to undermine the SPB’s finding that Medina punched Machuca, Medina and Lopez assert that they, along with “Haugen[, ] testified without rebuttal that Machuca was not punched.” This contention is unavailing.
To begin with, Medina denied that he punched Machuca, while Lopez and Haugen testified that they did not observe any punching. Accordingly, it is not accurate to assert that Medina, Lopez, and Haugen all testified that “Machuca was not punched.”
In any event, even assuming Medina, Lopez, and Haugen all testified that Machuca was not punched, three others witnesses (Brown, Klink, and Carlson) testified that Machuca was punched. This presents a conflict in the evidence that the SPB is entitled to resolve. It is up to the SPB to determine who is telling the truth and what side of the story to believe. (See Wilson v. State Personnel Bd. (1976) 58 Cal.App.3d 865, 879 [recognizing that a reviewing court cannot “usurp the Board’s fundamental right to make the determination as to which witness is accurate” and “truthful” and that the “only practical and sensible way to resolve matters of credibility is to leave them to the trier of fact”]; see also Rufo v. Simpson (2001) 86 Cal.App.4th 573, 622.) We only review whether the side of the story the SPB has chosen to believe (that Medina punched Machuca) is supported by substantial evidence. It is, and that ends the matter.
Medina and Lopez have not argued that if the punching occurred, it was justified under the circumstances. Instead, they have argued that no punching occurred, period. Therefore, we do not address whether Machuca did anything with his hands or body to warrant Medina’s punching, an application of force the SPB deemed excessive.
B. Medina’s And Lopez’s “Cover[-]Up” Attempt
After properly finding that Medina punched Machuca, the SPB further determined that Medina and Lopez attempted to “cover up” this use of force by intentionally failing to report it and making false statements during the internal affairs investigation. Substantial evidence supports these findings as well.
1. Medina
There is substantial evidence to support the finding that Medina intentionally failed to report his use of force on Machuca. Medina acknowledged that the use of force must be reported. As we have explained, the evidence supports the conclusion that Medina punched Machuca. Medina’s written report, however, omits this use of force. Moreover, the SPB’s characterization of Medina’s testimony as evasive and defensive is supported by the record.
There is also substantial evidence to support the finding that, during the internal affairs investigation, Medina misrepresented his use of force. The evidence supports the conclusion that Medina punched Machuca; yet, during the internal affairs investigation, Medina denied that he engaged in this conduct.
Finally, there is also substantial evidence to support the finding that Medina made a false claim during the internal affairs investigation by representing that Carlson did not express concern to him regarding the use of force. Both Medina and Carlson testified that they had a conversation about the incident.
According to Medina, after the incident, Carlson approached him, he appeared somewhat upset and asked, “[w]hat happened up there?” In response, Medina stated “if he [Carlson] saw something that he needed to write something.” During the administrative proceedings, Medina was asked why he instructed Carlson to write a report if Carlson already knew that if “he saw something, he needs to write it up.” Medina responded, “it appears that [Carlson’s] been involved in numerous incidents that he has failed to report the use of force, what he perceives to be use of force.”
Medina’s instruction to Carlson to write something if Carlson “saw something” creates an inference that Carlson and Medina were discussing Medina’s use of force on Machuca. This inference is further bolstered by Medina’s testimony to the effect that he instructed Carlson to write something because Carlson had failed to report the “use of force” with respect to “numerous incidents.”
According to Carlson’s account, after the incident, he told Medina that “those kinds of actions with the kind of staff he had was not the best way to do it, and I didn’t want to really be involved in it. And [Medina] told me that it’s not what I saw. He was trying to remove the inmate’s hand from underneath the inmate.” Carlson responded, “‘[t]hat’s your story.’” Although Carlson was not “100% certain, ” Carlson believes he told Medina that he thought Medina was striking Machuca.
Carlson’s testimony that he believed he discussed the striking with Medina, that Medina stated “it’s not what [Carlson] saw, ” and that Medina explained he was “trying to remove the inmate’s hand from underneath the inmate, ” support an inference that Medina and Carlson were discussing Medina’s use of force on Machuca.
Medina’s and Carlson’s testimony provides substantial evidence in support of the SPB’s finding that Carlson expressed concern to Medina about Medina’s use of force on Machuca. Consequently, substantial evidence supports the SPB’s finding that Medina falsely claimed during the internal affairs investigation that Carlson did not express concern to him regarding Medina’s use of force.
2. Lopez
Whether Lopez participated in the “cover[-]up” attempt depends on whether Medina punched Machuca (a fact supported by substantial evidence) and whether Lopez observed that use of force. Lopez denied that he observed Medina punch Machuca. Despite his denial, there is substantial evidence to support the finding that Lopez observed Medina punch Machuca.
Lopez testified that he observed Medina use his forearm on Machuca and also grasp Machuca’s right bicep/elbow area. Thus, by his own testimony, Lopez was in a position to view Medina’s actions with respect to Machuca. The record otherwise shows that Lopez was very close to Medina during the incident, making it likely that he saw the punching. Moreover, the SPB’s characterization of Lopez’s testimony as evasive and defensive is supported by the record.
Because the evidence supports the findings that Medina punched Machuca and that Lopez observed the punching, the SPB was justified in finding that Lopez intentionally failed to report Medina’s use of force. Lopez acknowledged that the use of force must be reported and his written report of the incident does not mention the punching. Since the evidence supports the conclusion that Lopez observed Medina’s punching, the SPB was also justified in finding that, during the internal affairs investigation, Lopez misrepresented that he did not observe the punching.
C. The Misconduct and the Penalty
The SPB determined that Medina’s use of force and Medina’s and Lopez’s attempts to cover up that use of force constituted inexcusable neglect of duty, dishonesty, willful disobedience, and other failure of good behavior. (§ 19572, subds. (d), (f), (o) & (t).) On appeal, Medina and Lopez do not challenge that their actions, as found, fall within these statutory categories of misconduct. Likewise, Medina and Lopez do not challenge that their actions, as found, warranted dismissal. Accordingly, these points are forfeited and we do not address them. (Tiernan v. Trustees of Cal. State University & Colleges (1982) 33 Cal.3d 211, 216, fn. 4.)
DISPOSITION
For the reasons stated, we affirm the trial court’s denial of Medina’s and Lopez’s petitions for writ of administrative mandate. The CDCR shall recover its costs on appeal, if any. (Cal. Rules of Court, rule 8.278(a)(1) & (3).)
We concur: NICHOLSON, Acting P. J. HULL, J.