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Puentes v. County of Santa Clara

Court of Appeal of California
Apr 24, 2009
No. H032395 (Cal. Ct. App. Apr. 24, 2009)

Opinion

H032395

4-24-2009

BENJAMIN PUENTES, Plaintiff and Appellant, v. COUNTY OF SANTA CLARA, Defendant and Respondent.

Not to be Published in Official Reports


I. INTRODUCTION

Benjamin Puentes brought a petition for writ of administrative mandamus in superior court after the termination of his employment from the County of Santa Clara (County) was upheld by the Santa Clara County Personnel Board (Personnel Board). The superior court denied the petition and entered a judgment in favor of the County. Puentes appeals. For reasons that we will explain, we will affirm the judgment.

II. FACTUAL AND PROCEDURAL BACKGROUND

Termination of Puentess Employment

In July 2003, Probation Manager Cathy L. Shields advised Puentes in a nine page letter that she was recommending his termination as a group counselor from the county probation department. Puentes had been working in juvenile hall. Shields explained that an investigation had revealed that he failed to take proper steps to ensure that Jamie, a minor who had been housed in juvenile hall and who had subsequently run away from a court-ordered placement, safely returned to custody. It was believed that Puentes took Jamie to his house in South San Francisco, gave her alcohol, and had sexual intercourse with her, and that he had not been truthful when he denied having contact with her while she was a runaway. Shieldss letter provided a summary of the investigation and referred to several documents, including Jamies drawings of the South San Francisco house.

Shields informed Puentes that he was charged with violating county merit system rules, including by violating departmental rules and policies, engaging in gross misconduct and conduct unbecoming a county officer or employee which tends to discredit the county or county service, and engaging in immoral conduct or a criminal act. Shields also identified the policies in the "Probation Department-Juvenile Hall-Procedures Manual" that had been violated by Puentes. Those policies included the "Code of Ethical Conduct," which defines inappropriate conduct to include "engaging in improper relationships with clients and/or their families." He also violated the "Institutional Behavior Control Policy." This policy states that an individual should "NOT become personally involved or accept any gifts from minors or their families." It also states that "Juvenile Hall staff are not to maintain contact or develop social relationships with minors who have been in custody in Juvenile Hall." In addition, it requires an individual to "be familiar with, understand and obey pertinent regulations, policies and procedures." Puentes was informed of his right to provide a response to the recommended termination and that a hearing had been scheduled regarding the recommendation.

In August 2003, Puentess attorney notified the County that Puentes would not appear for the Skelly hearing because Puentes was facing criminal prosecution for the same conduct upon which he was being recommended for termination. Puentess attorney believed that in order for Puentes to exercise his Skelly rights, he would have to forfeit his Fifth Amendment rights. Thereafter, Puentes did not appear for the Skelly hearing, nor did he provide a substantive response to the charges.

A "Skelly" hearing provides an opportunity for the employee to respond to charges upon which the employers proposed discipline is based. (Skelly v. State Personnel Board (1975) 15 Cal.3d 194, 215; Flippin v. Los Angeles City Bd. of Civil Service Commissioners (2007) 148 Cal.App.4th 272, 280.)

In October 2003, Skelly hearing officer, Karen Fletcher, informed Puentes in a 10 page letter that after reviewing the charging letter and documentary evidence, she was sustaining the disciplinary action. Puentes was informed that he would be terminated from his position effective October 24, 2003.

Puentes appealed the termination and requested a hearing before the Personnel Board. He informed the Personnel Board that there were criminal proceedings pending against him and asserted that the Personnel Board hearing should be held "after his right against self-incrimination is no longer an issue." The County objected to any delay, arguing that Puentess termination "does not rely on the criminal matter" and "there is no legal authority requiring the County to delay a personnel matter until [Puentess] criminal proceedings are final." Puentes and the County eventually agreed to continue the Personnel Board hearing.

Personnel Board Hearing

The Personnel Board ultimately held the hearing regarding Puentess termination on July 8, 2005. Four board members were present. The County and Puentes were each represented by counsel at the hearing. The following evidence was presented at the hearing.

Jamie testified that in October 2002, she had just turned 16 years old and was in juvenile hall. Puentes was one of the counselors at juvenile hall. He gave her "special privileges," such as letting her stay up later than others to watch television one time and bringing her "Jamba Juice" on one occasion.

After being in juvenile hall for more than one month, Jamie was placed in a group home in Fresno in November 2002. Before she left juvenile hall, she told Puentes where she was going. Puentes told her that when she got out of the group home, she should call him. He told her that if she called juvenile hall, she should say she was "Jamie from the bank" so no one would know it was her.

On December 7, 2002, after being at the group home for a week, Jamie escaped and went to stay with friends. There was a warrant for her arrest. She eventually came back to San Jose, where she stayed with a friend.

Jamie subsequently attempted to contact Puentes. She did not remember when she called him but it was "[a]round a month" after she left the group home. She did not know whether it was before or after Christmas but recalled that it was in the wintertime. When she called juvenile hall, she stated that she was "Jamie from the bank." At some point, Puentes paged her from the "650" area code and she called him back. They agreed to meet. Approximately 10:00 p.m. that evening, Puentes picked her up at a 7-Eleven in San Jose. When asked which 7-Eleven, Jamie testified, "Albany and Stevens Creek." Puentes was driving a black Honda that was "manual," a "stick shift." When Jamie was in the car, Puentes told her "[n]ot to tell anybody."

Puentes and Jamie drove to a house in South San Francisco. Puentes told her that it was his house and that his sister lived there. The house had two stories, and on the right side there were stairs and a security gate. No one was present in the house. Once inside, Puentes and Jamie kissed. They "hung out" in the living room, where there was a couch with green, orange, and yellow colors. Jamie drank two beers, while Puentes consumed at least that amount if not more. They subsequently went to a bedroom where they had consensual sex. The bedroom had a hardwood floor and various pieces of furniture. Afterwards, Puentes told her "not to tell anyone" a "few times." Sometime during that night, Jamie told Puentes that she had run away from the group home. He did not tell her to turn herself in. She eventually went to sleep, and Puentes woke her in the morning because he had to go to work. He drove her to a friends house in Sunnyvale, and she never saw him again.

Puentes had never previously told Jamie what kind of car he drove or where he lived, and he had never previously talked about his sister.

Jamie never complained to anyone about what happened with Puentes. She did not want him to get in trouble. She eventually told her mom, and her mom told Jamies probation officer, Shelby Brewer.

In April 2003, Brewer caught Jamie hiding in a closet at her mothers house. When Jamie was being transported back to juvenile hall, Brewer asked Jamie what happened with Puentes because Jamies mother had told Brewer about it. Jamie was subsequently interviewed by Jim Tarshis from the probation department and Sergeant Mike Powers from the Santa Clara County Sheriffs Office.

Brewer later prepared a memorandum summarizing her conversation with Jamie. In the memorandum, Brewer reported that Jamie had stated that Puentes picked her up at her friend Ashleys house. At the Personnel Board hearing, Jamie testified that Brewer was mistaken. Jamie testified that she told Brewer that she was at her friend Ashleys house and Puentes picked her up "at a 7-Eleven which is right across the street."

Jamie testified that she has "a hard time remembering the times." She "kn[e]w what happened" but was "just not too sure about the dates or about what time things happened."

Tarshis testified that he was asked by his manager, Shields, to investigate the allegations against Puentes in April 2003. Tarshis testified that he has been a supervising group counselor for the past five years, and prior to that he was a group counselor for 11 years. Group counselors maintain safety and security in the juvenile institution. They work with the wards all day, give them meals, make sure they go to school, and run small group discussions.

Tarshis began the investigation by reviewing various juvenile hall records. He determined that Puentes had worked ten shifts in the unit where Jamie was housed. He found that Jamies stay was "uneventful" in that she had not been disciplined by Puentes or any other counselor while she was in custody.

Tarshis then interviewed Jamie. Present during the interview was Sergeant Powers from the sheriffs office and Sergeant Langley who was assigned to county counsels office. Jamie reported that Puentes was "nice" to her at juvenile hall. She stated that he wanted her to contact him. She later called him at juvenile hall, and she identified herself as "Jamie from the bank." Puentes subsequently called her from the 650 area code, and they arranged to meet at a 7-Eleven on Stevens Creek Boulevard and Albany. They then drove in his black Honda Civic to a house in South San Francisco. The right side of the house had stairs. Once inside the house, they drank beer and eventually went to the bedroom to have consensual intercourse. Puentes woke her up the next morning about 5:00 a.m. and dropped her off at a friends house in Sunnyvale. At some point, he told her not to tell anyone, and she at some point told him that she had run away from the group home. During the interview with Tarshis, Jamie was asked to draw pictures of Puentess home. She drew the outside of the house, the inside, and the bedroom where they had intercourse.

Tarshis testified that Jamies interview was taped and that two transcripts were prepared from the tape. Regarding the first transcript, Tarshis explained that the tape was initially "sent . . . out to some agency or someone in the department who transcribes tapes . . . ." This first transcript contained many question marks. For example, when Jamie was asked at which 7-Eleven did Puentes pick her up, the first transcript reflects her answer as, "The one on ??Winchester?? and Stevens Creek." Tarshis testified that he listened to the tape and noticed that there were some inconsistencies in the transcript. He was able to fill in some of the question marks by listening to the tape, and he ultimately prepared a new transcript. This second transcript reflects Jamies answer to the question of "which" 7-Eleven as Albany and Stevens Creek. Tarshis testified that the second transcript accurately reflected his recollection of what Jamie stated during the interview and what was on the tape. Jamie similarly testified that she did not tell investigators that the 7-Eleven was on Winchester.

Tarshis interviewed Puentes concerning the allegations against him. Sergeant Langley was present. Sergeant Powers from the sheriffs office was not present, and Tarshis testified that he did not share information from Puentess interview with Sergeant Powers.

Prior to the interview, Puentes was notified of certain rights he had under Government Code section 3303, et seq. During the interview, Puentes, who had counsel present, did not remember Jamie until he was shown a photograph of her. He did not recall any problems with her at juvenile hall. He denied having contact with her outside of juvenile hall and denied having sex with her. When asked where he lived, Puentes stated that he lived in a house in San Bruno with his aunt and uncle. He indicated that he was living with his relatives to save money for a house. Tarshis told Puentes that Jamie had alleged that he took her to a house in South San Francisco. Puentes never volunteered that he had a house there.

Government Code section 3303 is part of the Public Safety Officers Procedural Bill of Rights Act (Gov. Code, § 3300 et seq.). The Act is commonly referred to as "POBRA." (Mays v. City of Los Angeles (2008) 43 Cal.4th 313, 317 & fn. 1 (Mays).)

Tarshis testified that he later learned from Sergeant Powers that public records reflected Puentess ownership of property in South San Francisco. Sergeant Powers obtained a search warrant for the house. Those present during the search included Sergeant Powers, Tarshis, Sergeant Langley, and officers from the South San Francisco Police Department. The residence had a garage on the lower level. On the right side of the residence, there were stairs leading up to a security gate and the entrance to the house door. Tarshis testified that the outside of the residence "matched [Jamies] drawing basically," with one "minor discrepancy" regarding the number of windows on one side. The layout inside the residence was also consistent with Jamies drawings. There were a few discrepancies. For example, Jamie had described a 1970s style, yellow and orange couch to Tarshis, but he saw those colors on an upholstered chair. Jamie had also told him that there were hardwood floors in the house, including in the bedroom. He observed hardwood flooring only in one bedroom and carpet in other areas of the house. The bedroom in which Jamie had said they had sex was empty of any furniture, whereas Jamies drawing of the room included a bed, dresser, and chair.

Tarshis testified that Puentess sister was present during the search of the house. She stated that the bedroom in question belonged to a roommate and denied that it was Puentess bedroom. She also stated that the jackets in the bedroom closet belonged to her boyfriend. The pocket of one of the jackets contained a blank form from juvenile hall. After the form was found, Puentess sister admitted that some of the jackets belonged to Puentes. She stated that Puentes stayed over on some occasions but would not stay the night.

Tarshis interviewed three other counselors who had worked in the same unit as Puentes. They did not remember any positive or negative interaction between Puentes and Jamie. They also could not confirm other things that Jamie had told Tarshis, such as Jamie being allowed to stay up past bedtime.

Tarshis determined that there was a 7-Eleven on Albany near Stevens Creek Boulevard.

Tarshis prepared a report regarding his investigation. He testified that there was "overwhelming evidence" of contact between Jamie and Puentes outside of juvenile hall. Tarshis acknowledged there were "some minor inconsistencies," but he found Jamie credible. He explained that Jamie "gave her story in a very matter of fact way" and provided "an extreme amount of detail[] that could have only been known by somebody who had actually been inside the house in South San Francisco." Tarshis noted that Jamie had never been disciplined by Puentes and he believed that she had "no motive against" him. Tarshis also observed that it was Jamies mom, and not Jamie, who had come forward with the complaint. Further, Jamie knew the type of car Puentes drove and that it was stick shift, and she knew Puentess sister lived at the house. At the same time, Puentes had "no answer as to why she would make up this story" and he never disclosed that he owned a home in South San Francisco. Tarshis also testified that he did not believe it was possible to stand outside Puentess house, look in the window, and observe the floor plan of the house. He explained that the garage is on the lower level and "you would have to have some kind of ladder . . . to look inside the window" on the second level. Tarshis acknowledged that it was only after the probation department told Jamies mother that it was looking for her daughter that Jamies mother reported the contact between her daughter and Puentes.

Sergeant Powers testified that he has been employed by the Santa Clara County Sheriffs Office for nearly 23 years. In 2003, he was contacted by the probation department to investigate an allegation against Puentes. At the time, Sergeant Powers was assigned to the detective bureau where he handled crime reports that were generated out of the "jail system or custody systems" in the county.

Sergeant Powers interviewed Jamie more than once during his investigation. During the first interview, Tarshis and Sergeant Langley were present. Jamie reported that Puentes had picked her up at a 7-Eleven near Albany and Stevens Creek. Sergeant Powers determined that there is a 7-Eleven on Albany near Stevens Creek. Jamie also reported that Puentes was wearing a black, puffy jacket. Sergeant Powers later observed a similar jacket in Puentess car. Jamie drew pictures of the home where she went with Puentes. Sergeant Powers obtained a San Bruno address where Puentes lived with his aunt and uncle and executed a search warrant at the house. He determined that the house did not match the pictures drawn by Jamie.

Sergeant Powers conducted a second interview with Jamie. He questioned her and had her make new drawings to determine whether her statements were inconsistent. He then showed her pictures of the San Bruno house. Jamie told him it was not the house to which Puentes had taken her. Relying on Jamies report that one of the bedrooms at the South San Francisco house belonged to Puentess sister, Sergeant Powers obtained an address for the sister in South San Francisco. Using that address, he searched public records and found that the deed for the property was in Puentess name. Sergeant Powers drove to the address and discovered that the exterior "matched almost to a T what Jamie had described and drawn" in both interviews.

Sergeant Powers returned to the South San Francisco house to execute a search warrant. Tarshis and others went with him. Sergeant Powers found the floor plan to be "very similar to what Jamie had drawn." Further, Jamie told him that Puentes had warned her not to let the security gate at the property close, because it would lock and they would need a key to open it. Sergeant Powers discovered that Jamies statement was true, because the gate accidentally closed while the search warrant was being executed and they had to get a key from Puentess sister, who was present during the search, to let them out. Puentess sister admitted that her brother owned the home and that he had a key to it, but she stated that he did not live there. Regarding the bedroom where Jamie reported that she had sex, Puentess sister acknowledged that there used to be more furniture in the room.

Sometime after the first interview with Jamie, Sergeant Powers sought to interview Puentes in order to "get his side of the story." Puentes apparently refused to be interviewed by Sergeant Powers on the advice of counsel.

Sergeant Powers documented his investigation, and the case was ultimately presented to the district attorney. Sergeant Powers believed that Jamie had been in Puentess home.

Shields testified that she was a manager in juvenile hall for the probation department and that all group counselors in the probation department are peace officers. Shields directed Tarshis to conduct an investigation into the allegations concerning Jamie and Puentes, and she ultimately reviewed Tarshiss investigation report. She also met with Jamie. Shields found Jamies statements credible, believed that Jamie had been in Puentess home, and believed that Puentes had not been truthful during the investigation.

Shields determined that Puentes had violated several written probation department rules. She also testified that if a counselor encountered a minor out of custody, and the counselor knew the minor "had a warrant out or was at risk," the counselor had a responsibility to call the probation officer or try to get the minor to turn himself or herself in. In view of Puentess conduct, Shields believed that it was "not suitable" for him to be working with minors anymore and recommended his termination of employment. Shields knew that Puentes did not have any prior disciplinary history.

In addition to witness testimony, the County provided numerous documents to the Personnel Board to support its decision to terminate Puentes. The documents included Shieldss July 2003 letter notifying Puentes that she was recommending his termination, as well as Fletchers October 2003 letter informing Puentes that the termination was being sustained. The County also provided copies of memoranda from Brewer, Jamies probation officer; Tarshiss investigation report; transcripts of the first interview of Jamie and the interview of Puentes; Jamies drawings of the interior and exterior of the South San Francisco home; excerpts of the probation department policies that Puentes was charged with violating; and Sergeant Powerss reports which described his investigation. In addition, the County provided the Personnel Board with a copy of the clerks minutes for a superior court hearing on June 17, 2005, in Puentess criminal case. The clerks minutes indicate that Puentes was sentenced to one year in county jail for a misdemeanor violation of Penal Code section 272, subdivision (a)(1), and ordered to register under Penal Code section 290.

Puentes testified after the County finished presenting its case. Puentes was 36 years old in October 2002. He stated that he had worked eight full shifts and one partial shift in Jamies unit at juvenile hall. He testified that he provided her with a "Jamba Juice" when he was at juvenile hall. If she was "on detail or supply," he allowed her to stay up late and watch television. He explained that minors get "special privileges," such as staying out longer than the rest of the unit, when they are on detail or supply.

At the Personnel Board hearing, Puentes was asked by his attorney whether he provided Jamie with a Jamba Juice when he was at juvenile hall. The reporters transcript reflects that Puentes answered "Yes." Puentes asserts, for the first time in a footnote in his reply brief on appeal, that the answer "is a typo" and that the "[t]he proper answer" is his denial of bringing special foods to Jamie, as reflected in Tarshiss interview of him.

Puentes did not remember any specific conversation with Jamie and was not aware of her age. He denied telling her to contact him after she was released or to say that she was from the bank if she called him at work. After Jamie left juvenile hall, Puentes never received a message from her, never saw her, and did not know why she left. He was also unaware that she had run away from a group home and was a fugitive. He did not take Jamie to his house or to his sisters house, give her beer, or have sexual relations with her. He also denied owning a puffy, black jacket.

Puentes further testified that the "things that Jamie has put on her diagram" are visible from the outside of the residence. He also stated that there were features in the home that were "very memorable," including the chimney, red "psychedelic" mirrors in the living room, a "big old chandelier" in the dining room, a 15-square foot mirror in the dining room, and green carpet over hardwood floors throughout the entire house. He removed the carpet in the bedrooms "in April." He acknowledged that he stayed overnight on occasion and kept some clothing at the house.

Puentes asserted that in his first criminal trial, the prosecution suggested to the jury that the incident with Jamie occurred during "Christmastime, Christmas weekend." Puentes stated that he was at his cousins house in Fresno County for "Christmas, Christmas Eve." He also stated that he filed an appeal regarding his criminal conviction.

Puentes knew that department policy did not allow him to get personally involved with minors who he meets in juvenile hall. He also knew that even after they are released, policy precluded him from socializing with them. He did not agree that he had any responsibility to take action if he encountered a minor who he knew had run away from a group home placement or juvenile hall.

When questioned about his failure to disclose to investigators his ownership of the residence in South San Francisco and whether that information might be relevant to investigators, Puentes responded that he "wasnt asked" by investigators if he owned a residence. Puentes acknowledged telling Tarshis that the reason he was living with his aunt and uncle in San Bruno was to "`sav[e] up money for a house" although he had already purchased the South San Francisco house. At the Personnel Board hearing, Puentes stated that he was "saving money to remodel" the South San Francisco home. He also testified that although his name is on the deed to the South San Francisco home, "the bank owns the house" and he is "still purchasing it" and "make[s] the payment every month."

Personnel Board Decision

At the conclusion of the hearing on July 8, 2005, the Personnel Board deliberated in a closed session for 10 minutes and then announced its decision in a public session. By unanimous decision, the Personnel Board upheld the termination of Puentess employment.

The County subsequently proposed written findings of fact and conclusions to the Personnel Board. Puentess attorney objected to the proposed findings and ultimately submitted his own version after being given the opportunity by the Personnel Board.

A written decision was issued by the Personnel Board in September 2005. The Personnel Board adopted most of the factual findings and conclusions proposed by the County, although it did include some facts that had been proposed by Puentes. Among other things, the Personnel Board found that Puentes took Jamie to a house in South San Francisco, drank beer with her, and had consensual intercourse. The Personnel Board also stated that "[b]oth investigators, Tarshis and Powers, determined that Puentes had contact with Jamie outside juvenile hall; knew she had a warrant out for her arrest; took her to his home in South San Francisco; gave her beers; and had sex with her." The Personnel Board also found that Puentes had been convicted of contributing to the delinquency of a minor for his conduct with Jamie, that he was sentenced to one year in jail and ordered to register as a sex offender, and that his conviction was on appeal. The Personnel Board ultimately concluded that Puentes had violated county merit system rules and probation department policies. Based on those violations, the Personnel Board determined that termination was appropriate. The Personnel Board stated that it "base[d] its decision upon Puentes failure to report Jamies runaway status, the fact that he provided a minor with alcohol, and had sex with a minor he formerly supervised."

Petition for Writ in Superior Court

Puentes filed a verified petition in superior court, and on December 15, 2005, he filed an amended verified petition for writ of mandate and writ of administrative mandamus. (Code Civ. Proc., §§ 1085, 1094.5.) Puentes was represented by counsel throughout the superior court proceedings.

In the amended petition, Puentes alleged that the notice recommending disciplinary action against him did not state when he furnished alcohol to and had sex with the minor, other than it being sometime in December 2002. He asserted that the county did not offer any evidence at the Personnel Board hearing regarding the date of the misconduct. Puentes contended that "[t]his made it impossible" for him to refute the charge by providing evidence of an alibi. Without notice as to the date of the misconduct, Puentes alleged that his right to due process was violated and the Personnel Board acted in excess of its jurisdiction. Puentes also alleged that the boards decision was "invalid" for a variety of reasons. For example, he contended that the Personnel Boards findings were not supported by the weight of the evidence. He also argued that it was improper for the Personnel Board to rely on his criminal conviction for contributing to the delinquency of a minor and the sentence requiring him to register as a sex offender because he had filed an appeal in the criminal case. He further contended that the Personnel Board should not have relied on evidence from the criminal investigation.

In August 2007, Puentes filed a memorandum of points and authorities in support of his petition for writ of administrative mandamus. First, he argued that his right to due process was violated because his termination was based on a criminal conviction that was not cited as a ground for termination in the charging document. He also asserted that he was prevented from presenting evidence of an alibi because the date on which the incident allegedly occurred was not specified. Second, he argued that the Personnel Boards decision was not supported by the weight of the evidence. Lastly, he asserted that he should be reinstated with back pay. Puentes filed a request to supplement the administrative record with testimony from his criminal trial by Jamie and by other individuals who had not testified at the Personnel Board hearing. He also filed a request for judicial notice of this courts nonpublished decision in case No. H029010, which reversed the judgment in his criminal case. (People v. Puentes (Mar. 29, 2007, H029010) [nonpub. opn.].)

In September 2007, the County filed opposition to Puentess request to supplement the administrative record. It also filed opposition to Puentess petition for writ of administrative mandamus. The County argued that Puentes was not denied due process, the weight of the evidence supported the Personnel Boards decision to uphold his termination, and Puentes was not entitled to back pay.

Puentes filed reply briefs supporting his request to supplement the record and the petition for writ of administrative mandamus.

Superior Courts Denial of Petition for Writ of Administrative Mandamus

On October 16, 2007, the superior court held a hearing on Puentess petition for writ of administrative mandamus. After hearing argument from counsel, the court took the matter under submission.

That same day, on October 16, 2007, the court issued its written ruling denying Puentess request to supplement the administrative record and denying his petition for writ of administrative mandamus. In reaching its decision, the court rejected Puentess argument that he was deprived of due process. Puentes had contended that he was not informed that his termination was allegedly based upon a criminal conviction. The court explained that Puentes "was put on notice of the County policies that he allegedly violated" and "the Personnel Board found that [Puentes] violated those same policies." The court also observed that although Puentes was given the opportunity to object to the Countys proposed findings of fact and conclusions, he included the criminal conviction in his own proposed findings of fact and failed to object to the Countys proposed conclusion. In addition, the court stated that "[i]ndependent of [Puentess] criminal conviction, the evidence at the hearing provided more than adequate grounds for upholding the termination." As for Puentess contention that he was not provided with the date upon which the misconduct took place, the court stated that "[d]ue process does not require [the County] to provide him with the specific date in which the misconduct took place. Even in the criminal context, the prosecution is not required to identify a specific date." The court also observed that Puentes failed to raise this argument at the hearing or request a continuance of the hearing, and he prepared the findings of fact to which he now objects. The court stated that "[r]aising the issue for the first time in this writ proceeding is too late."

The court also determined that the weight of the evidence supported the findings of the Personnel Board. The court explained that "Jamie consistently maintained that [Puentes] took her to his home, provided her with alcohol, and engaged in sexual intercourse with her. Her description of [Puentess] home was largely accurate. There was no way she would have known the layout of the home unless she had actually been inside it. Also, she knew that [Puentes] drove a black Honda with a stick shift. [Puentess] efforts to prevent [the County] from discovering his home during the administrative investigation undermines his credibility."

A judgment was subsequently entered in favor of the County. Puentes filed a timely notice of appeal.

On appeal, Puentes moved to augment the record. This court denied Puentess motion by order filed July 9, 2008.

III. DISCUSSION

Issues Not Preserved for Appeal

We understand Puentes, a self-represented litigant on appeal, to be arguing in his opening brief that (1) the search of his house in South San Francisco was illegal and/or his employers involvement in or presence during the search was illegal; (2) "arrest information that does not result in a conviction cannot be used to terminate" him under Labor Code section 432.7; (3) his employer "violate[d] many of the provisions and protections mandated by" POBRA; (4) the administrative investigation by his employer was unauthorized and not kept separate from the criminal investigation; (5) it was a conflict of interest for Tarshis to investigate his own staff; (6) Puentess personnel file was illegally requested by Sergeant Powers and illegally provided by Shields; and (7) the evidence does not support the findings that resulted in his termination. Aside from the issues of whether the County failed to comply with Government Code section 3308 of POBRA, and whether the evidence fails to support the termination, we determine that Puentes did not preserve the remaining issues for appeal.

"Appellate courts generally will not consider matters presented for the first time on appeal. [Citations.]" (Franz v. Board of Medical Quality Assurance (1982) 31 Cal.3d 124, 143 (Franz ).) An argument raised for the first time on appeal is generally deemed forfeited. (Kaufman & Broad Communities, Inc. v. Performance Plastering, Inc. (2006) 136 Cal.App.4th 212, 226 (Kaufman & Broad Communities, Inc.); see In re S.B. (2004) 32 Cal.4th 1287, 1293, fn. 2, superseded on other grounds by statute as stated in In re S.J. (2008) 167 Cal.App.4th 953, 962.) Moreover, "[t]he general rule that a legal theory may not be raised for the first time on appeal is to be stringently applied when the new theory depends on controverted factual questions whose relevance thereto was not made to appear at trial. [Citation.]" (Bogacki v. Board of Supervisors (1971) 5 Cal.3d 771, 780 (Bogacki); see also McDonalds Corp. v. Board of Supervisors (1998) 63 Cal.App.4th 612, 618 [a new theory may not be raised for the first time on appeal except if it involves a question of law on undisputed facts].)

In this case, we have carefully reviewed the record on appeal, including the transcript of the proceedings before the Personnel Board and the proceedings before the superior court. In neither of these proceedings did Puentes raise the issue of whether the search of the South San Francisco house was illegal or his employers involvement or presence therein was illegal, whether Labor Code section 432.7 was violated, whether his employer violated POBRA (other than with respect to Government Code section 3308), whether the administrative investigation by his employer was unauthorized and not kept separate from the criminal investigation, whether Tarshis had a conflict of interest, or whether Puentess personnel file was illegally requested or provided. As these issues were not raised below, and involve factual questions that were not addressed or determined below, Puentes has forfeited these issues on appeal.

In his reply brief on appeal, Puentes contends that he raised in the superior court the issue of whether his house was illegally searched. In making this contention, Puentes refers to the memorandum of points and authorities that he filed in support of the writ petition in superior court. Specifically, in the memorandums statement of facts, Puentes asserted that Tarshis is employed by the county probation department as a supervising group counselor, Tarshis was asked by his manager to conduct an investigation, and this was not a part of Tarshiss basic job duties. Elsewhere in the statement of facts, Puentes asserted that Sergeant Powers executed the search warrant of the South San Francisco home, Sergeant Powers was accompanied by Sergeant Langley and Tarshis, and Tarshis is not employed by the sheriffs department. Assuming these facts would have supported an argument that Puentess house was illegally searched, Puentes never actually made a legal argument to that effect in the points and authorities in support of the petition. (See Landry v. Berryessa Union School Dist. (1995) 39 Cal.App.4th 691, 699-700 [an issue unsupported by legal argument may be deemed abandoned].)

Puentes also appears to suggest that certain issues were preserved for appeal as a result of a letter that his attorney wrote to Skelly hearing officer, Karen Fletcher, in August 2003. In this letter, Puentess attorney informed Fletcher that Puentes would not appear for the Skelly hearing because Puentes was facing criminal prosecution for the same conduct upon which he was being recommended for termination. Puentess attorney believed that Puentes would have to forfeit his Fifth Amendment rights in order to exercise his Skelly rights. At the conclusion of the letter, Puentess attorney states: "As a consequence, . . . Mr. Puentes will be unable to appear for and cannot participate in the Skelly process . . . . By doing so, he waives no right to appeal, nor waives any other claim that he has which may have arisen prior to this date, including but not limited to any claims of procedural irregularities, violations of his right to privacy, violation of his right under Government Code sections 3300 et seq. or violations of his civil rights." Notwithstanding this general assertion by Puentess attorney to Fletcher, as we have explained most of the issues about which Puentes now complains on appeal were not raised and argued before the Personnel Board or the superior court.

We now turn to the issues that Puentes has preserved for appeal—whether the evidence fails to support the findings that resulted in his termination of employment and, within this context, whether the County failed to comply with Government Code section 3308 of POBRA.

Standard of Review

Code of Civil Procedure section 1094.5 sets forth the rules of review for administrative mandate. The superior courts inquiry extends to "questions whether the respondent has proceeded without, or in excess of jurisdiction; whether there was a fair trial; and whether there was any prejudicial abuse of discretion. Abuse of discretion is established if the respondent 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." (Code Civ. Proc., § 1094.5, subd. (b).)

Where the petitioner claims that the findings of the administrative entity are not supported by the evidence, and the decision substantially affected a "fundamental vested right," the superior court exercises its independent judgment on the evidence in the administrative record in order to determine whether the findings are supported by the weight of the evidence. (Strumsky v. San Diego County Employees Retirement Assn. (1974) 11 Cal.3d 28, 32; Code Civ. Proc., § 1094.5, subd. (c).) "`[D]iscipline imposed on [public] employees affects their fundamental vested right in their employment. [Citations.]" (Boctor v. Los Angeles County Metropolitan Transit Authority (1996) 48 Cal.App.4th 560, 572-573.) Therefore, the superior court was required to exercise its independent judgment on the evidence. In exercising its independent judgment, the superior court "examines the entire administrative record and reviews evidence both in support of, and in conflict with, the administrative agencys findings. [Citations.] [It] resolves evidentiary conflicts and is required to assess witnesses credibility and to arrive at its own independent findings of fact. [Citation.]" (Deegan v. City of Mountain View (1999) 72 Cal. App. 4th 37, 45.) "In exercising its independent judgment, a trial court must afford a strong presumption of correctness concerning the administrative findings, and the party challenging the administrative decision bears the burden of convincing the court that the administrative findings are contrary to the weight of the evidence." (Fukuda v. City of Angels (1999) 20 Cal.4th 805, 817 (Fukuda).)

"[T]he standard of review on appeal of the trial courts determination is the substantial evidence test. [Citations.]" (Fukuda, supra, 20 Cal.4th at p. 824.) Under the substantial evidence test, "we may not reweigh the evidence, but consider that evidence in the light most favorable to the trial court, indulging in every reasonable inference in favor of the trial courts findings and resolving all conflicts in its favor. [Citations.]" (Breslin v. City and County of San Francisco (2007) 146 Cal.App.4th 1064, 1078 (Breslin).) "`"Where the evidence supports more than one inference, we may not substitute our deductions for the trial courts. [Citation.] We may overturn the trial courts factual findings only if the evidence before the trial court is insufficient as a matter of law to sustain those findings. [Citation.]" [Citation.]" (Lake v. Reed (1997) 16 Cal.4th 448, 457 (Lake).) "The question on appeal is whether the evidence reveals substantial support—contradicted or uncontradicted—for the trial courts conclusion that the weight of the evidence supports the [boards] findings of fact. [Citation.]" (Breslin, supra, 146 Cal.App.4th at p. 1078.)

Sufficiency of the Evidence

The Personnel Board concluded that Puentes had violated county rules and probation department policies and that termination was appropriate. The Personnel Board stated that it "base[d] its decision upon Puentes failure to report Jamies runaway status, the fact that he provided a minor with alcohol, and had sex with a minor he formerly supervised."

The superior court found that the weight of the evidence supported the findings of the Personnel Board. The superior court essentially found that Jamie was credible in her allegations against Puentes and that Puentes was not credible in his denials. The court explained that "Jamie consistently maintained that [Puentes] took her to his home, provided her with alcohol, and engaged in sexual intercourse with her. Her description of [Puentess] home was largely accurate. There was no way she would have known the layout of the home unless she had actually been inside it. Also, she knew that [Puentes] drove a black Honda with a stick shift. [Puentess] efforts to prevent [the County] from discovering his home during the administrative investigation undermines his credibility."

Substantial evidence supports the superior courts findings. As the court observed, Jamie consistently reported that Puentes took her to his house, that she consumed alcohol with him at the house, and that they engaged in consensual intercourse. She also accurately described Puentess vehicle as a stick shift black Honda. Tarshis testified that the inside and outside of Puentess South San Francisco house matched Jamies drawings with only a few inconsistencies. Tarshis also testified that the details that Jamie provided about the house could only have been known by someone who had been inside.

At the same time, Puentess responses to questions by Tarshis and Sergeant Langley during the administrative investigation give rise to a reasonable inference that he was trying to hide the fact that he had access to the South San Francisco home that Jamie had described and that would have provided support for Jamies claims. Specifically, when questioned about where he was currently living, Puentes provided a San Bruno address and informed investigators that it was his aunts house. He was later asked whether he took Jamie "to a house near South San Francisco," presumably "[his] place or [his] sisters place." Puentes responded, "No." When questioned as to whether he knew of "any reason why minor Jamie would have a floor plan of the interior of [his] house," he responded, "No." Eventually he was asked to describe the San Bruno residence and to clarify whether it was in San Bruno or South San Francisco. He confirmed that the residence was in San Bruno and proceeded to describe the outside and inside of the residence in response to specific questions from investigators. For example, he indicated that there were only three or four steps leading up to the front door and there was no security gate. Puentes, however, only provided details about the San Bruno home where he was currently living with his relatives and never acknowledged that he had access to a residence in South San Francisco.

Moreover, after Puentes indicated that he did not pay rent at his aunt and uncles San Bruno house, he was asked: "So are you saving up money for a house? So they afford you the opportunity to stay at their house?" Puentes responded, "Yes." When asked how long he had "been doing that," Puentes indicated that he had been staying with his relatives since he moved from his parents house in Fresno three years ago. At the Personnel Board hearing, Puentes acknowledged that he had already purchased the South San Francisco home during the year prior to being questioned by investigators. Based on the interview of Puentes during the administrative investigation, the superior court could reasonably infer that Puentes was attempting to "to prevent [the County] from discovering his home" in South San Francisco—a home about which Jamie had provided a "largely accurate" description. In view of the record, we believe that substantial evidence supports the superior courts findings.

We understand Puentes to be arguing on appeal that certain inferences should have been drawn from the evidence presented during the Personnel Board hearing or that there was evidence showing that Jamie made contradictory statements about certain matters.

As we have stated, the superior court denied Puentess request to supplement the administrative record with evidence that had not been produced at the Personnel Board hearing. On appeal, Puentes does not challenge this ruling by the superior court. We will therefore disregard facts asserted by Puentes that are not contained in the administrative record.
We will also disregard Puentess factual statements to the extent they are based on evidence summarized in this courts nonpublished opinion in case No. H029010. The nonpublished opinion was not part of the evidence that was produced at the Personnel Board hearing and thus is not part of the administrative record.
In addition, we will disregard those factual assertions by Puentes that are not supported by appropriate references to the page(s) in the record where the facts may be found, as required by California Rules of Court, rule 8.204(a)(1)(C). (See City of Lincoln v. Barringer (2002) 102 Cal.App.4th 1211, 1239 & fn. 16 [discussing California Rules of Court, former rules 14 & 15].)

We determine that Puentess arguments do not warrant reversal of the judgment.

First, Puentes suggests that Jamie may have "misinterpreted [his] kindness or fairness" at juvenile hall when she was given certain privileges. We observe that different inferences could be drawn from Jamies and Puentess testimony regarding the privileges that Jamie received from Puentes in juvenile hall. As an appellate court, however, "`"[w]e must resolve all evidentiary conflicts and draw all legitimate and reasonable inferences in favor of the trial courts decision. [Citations.] Where the evidence supports more than one inference, we may not substitute our deductions for the trial courts. [Citation.]"" (Lake, supra, 16 Cal.4th at p. 457.) Further, even assuming Jamie "misinterpreted" Puentess "kindness," Puentes fails to explain the significance of Jamies misinterpretation with respect to the superior courts findings.

Second, Puentes discusses the phone call that Jamie reportedly made to him in juvenile hall. Jamie stated to Tarshis that Puentes had "told" her the number to call after she was out of custody, but she forgot it and called police admissions. At the Personnel Board hearing, she testified that Puentes "never gave" her a number and that she looked up the number for police admissions. As to how Jamie called Puentes after he paged her, Sergeant Powers testified: "If I remember, . . . [i]t was a phone booth or pay phone. It could have even been a cell phone." Puentes asserts on appeal that "[g]iven these multiple contradictory claims, no one ever verified if any of these are even possible or how the phone system works at juvenile hall." Puentes fails to explain the significance of the evidence concerning Jamies phone call, as well as the relevance of ascertaining how the phone system(s) function. Moreover, as we have explained, substantial evidence supports the superior courts finding that Jamie was credible, particularly given her largely accurate descriptions of Puentess house and car. If there is substantial evidence to support the superior courts determination, the rules of review require that we accept the superior courts resolution of factual issues, even if other substantial evidence would have supported a different result. (Bowers v. Bernards (1984) 150 Cal.App.3d 870, 874.)

Third, Puentes suggests that Jamie and her mother fabricated the allegations against him as part of an effort "to divert attention away from their criminal behavior," with the "criminal behavior" apparently including Jamie running away from the group home and her mother harboring her. Although there are various inferences that may be drawn from the evidence in the record, we reiterate that we must "`"draw all legitimate and reasonable inferences in favor of the trial courts decision" "and we "`"may overturn the trial courts factual findings only if the evidence before the trial court is insufficient as a matter of law to sustain those findings. [Citation.]" [Citation.]" (Lake, supra, 16 Cal.4th at p. 457.) As we explained, there is ample evidence to support the superior courts determination that Jamie was credible regarding her assertion that she drank alcohol and had sexual intercourse with Puentes, notwithstanding the fact that she was a runaway at the time.

Fourth, Puentes asserts that his employer and the Personnel Board "claim" that he "purchased beer with Jamie on December 7, 2002, at 10 p.m. at a 7-11 that does not exist on Albany and Stevens Creek Boulevard." Puentes contends he was working at juvenile hall at the time. Puentess citations to the record do not support his assertion that his employer and the Personnel Board "claim" that the incident occurred on December 7, 2002. Further, Puentes does not provide a citation to the record to support his contention that he was working at the time. In addition, Jamie, Tarshis, and Sergeant Powers each testified at the Personnel Board hearing that there is a 7-Eleven at or near Albany and Stevens Creek Boulevard.

Puentes cites to the October 2003 letter by Skelly hearing officer, Karen Fletcher. On the page cited by Puentes, Fletcher summarizes the interview of Jamie, including Jamies claim that Puentes picked her up at 10:00 p.m. at a 7-Eleven on Albany and Stevens Creek Boulevard. Fletcher does not claim that the incident occurred on December 7, 2002.
Puentes also cites to the Personnel Boards written findings of fact, which state: "On December 7, 2002, Jamie ran away from her group home in Fresno and returned to the San Jose area with a friend. Jamie called Puentes while he was on duty at Juvenile Hall and left a message for him saying it was `Jamie from the bank. She left her pager number. Puentes paged her back and Jamie returned his page and recalled that it was a 650 area code and he told her he was in a casino." The Personnel Boards written findings of fact also state that "Jamie arranged to meet Puentes at 10:00 p.m. at a 7/11 store on Albany near Stevens Creek Blvd." The Personnel Boards written findings of fact thus indicate that Jamie ran away on December 7, 2002, and that she called and met Puentes sometime thereafter.

Fifth, Puentes suggests that his employer violated Government Code section 3308. Section 3308 is a part of POBRA, which "provides certain protections for [peace officers] who are the subjects of administrative investigations." (Van Winkle v. County of Ventura (2007) 158 Cal.App.4th 492, 494.) POBRA "`sets forth a list of basic rights and protections which must be afforded all peace officers [citation] by the public entities which employ them. It is a catalogue of the minimum rights [citation] the Legislature deems necessary to secure stable employer-employee relations [citation]. [Citations.]" (Mays, supra, 43 Cal.4th at p. 320.) Section 3308 states: "No public safety officer shall be required or requested for purposes of job assignment or other personnel action to disclose any item of his property, income, assets, source of income, debts or personal or domestic expenditures (including those of any member of his family or household) unless such information is obtained or required under state law or proper legal procedure, tends to indicate a conflict of interest with respect to the performance of his official duties, or is necessary for the employing agency to ascertain the desirability of assigning the public safety officer to a specialized unit in which there is a strong possibility that bribes or other improper inducements may be offered." (Gov. Code, § 3308.) A "public safety officer" means all peace officers specified in certain sections of the Penal Code. (Gov. Code, § 3301.) In this case, the County acknowledges that "[g]roup counselors have peace officer status" and does not dispute that POBRA applied to Puentes as a group counselor.

We find unpersuasive Puentess suggestion that the County violated Government Code section 3308. To the extent Puentes contends that this section was violated because of the public records search that revealed his ownership of the property in South San Francisco, or because pictures were taken of the exterior and interior of his South San Francisco house, these arguments were not raised before the Personnel Board or the superior court. Consequently, we will not consider these matters, which are presented for the first time on appeal. (Franz, supra, 31 Cal.3d at p. 143; Bogacki, supra, 5 Cal.3d at p. 780; Kaufman & Broad Communities, Inc., supra, 136 Cal.App.4th at p. 226.) To the extent Puentes is challenging the questions that Tarshis asked him during the administrative investigation, Puentes fails to identify on appeal which questions he finds objectionable and explain how those questions constitute a violation of section 3308.

We observe that Puentes did make the following argument in his reply brief in support of the petition for writ of administrative mandamus in superior court: "Respondent [County] seems to believe that Mr. Puentes was being dishonest by not disclosing his ownership interest in the South San Francisco house voluntarily during the investigative interview. However, Mr. Puentes was never asked whether he owned any real estate. Even if he was, the forced disclosure of assets by a public safety officer is prohibited by Government Code Section 3308." Puentess counsel made a similar argument at the hearing on the petition in superior court. He asserted that Puentes never lied about owning a house in South San Francisco, was never asked about owning a house in South San Francisco, and "wasnt obligated to reveal that information" because POBRA "prohibits the department from asking questions about an officers assets." To the extent Puentes is reasserting this argument on appeal, we observe that, as Puentes himself acknowledges, he was never specifically asked whether he owned a house in South San Francisco when being interviewed by Tarshis and Sergeant Langley during the administrative investigation. And although the superior court in its written ruling found that Puentes engaged in "efforts to prevent [the County] from discovering his home during the administrative investigation," we believe that it was not Puentess ownership per se of the South San Francisco property that was of significance to the superior court, but rather it was the fact that Puentes had access to a house that matched the description provided by Jamie. Therefore, because the record does not support a contention that Puentes was "required or requested for purposes of job assignment or other personnel action to disclose" his ownership of the South San Francisco property, we conclude that Puentes has failed to establish a violation of Government Code section 3308.

Sixth, Puentes appears to suggest that "[i]n exchange for her unquestioned testimony," Jamie received favorable treatment in the juvenile case against her as a result of a "deal" with Puentess employer or the authorities. Puentess assertion is speculative and without factual support in the administrative record.

Lastly, we understand Puentes to be arguing for the first time in his reply brief on appeal that (1) Sergeant Langleys presence during or involvement in the search of Puentess South San Francisco house was illegal, and (2) the search of the South San Francisco house by "County Counsel and juvenile hall" was a "conflict of interest" that is "criminal." "Points raised in the reply brief for the first time will not be considered, unless good reason is shown for failure to present them before." (Campos v. Anderson (1997) 57 Cal.App.4th 784, 794, fn. 3.) "The California Supreme Court long ago expressed its hostility to the practice of raising new issues in an appellate reply brief." (Reichardt v. Hoffman (1997) 52 Cal.App.4th 754, 764.) "`Obvious reasons of fairness militate against consideration of an issue raised initially in the reply brief of an appellant. [Citation.]" (Ibid.) Puentes has not offered a reason for failing to raise these issues prior to the reply brief. We also observe that Puentes did not preserve these issues for appeal by raising them in the proceedings below. (See Franz, supra, 31 Cal.3d at p. 143; Bogacki, supra, 5 Cal.3d at p. 780; Kaufman & Broad Communities, Inc., supra, 136 Cal.App.4th at p. 226.) As Puentes did not preserve the issues for appeal and their presentation in his reply brief is untimely, we will not consider them.

Because we have concluded that substantial evidence supports the superior courts determination, we need not reach the issue of whether Puentes is entitled to back pay.

IV. DISPOSITION

The judgment is affirmed.

WE CONCUR:

MCADAMS, J.

DUFFY, J.


Summaries of

Puentes v. County of Santa Clara

Court of Appeal of California
Apr 24, 2009
No. H032395 (Cal. Ct. App. Apr. 24, 2009)
Case details for

Puentes v. County of Santa Clara

Case Details

Full title:BENJAMIN PUENTES, Plaintiff and Appellant, v. COUNTY OF SANTA CLARA…

Court:Court of Appeal of California

Date published: Apr 24, 2009

Citations

No. H032395 (Cal. Ct. App. Apr. 24, 2009)