Judge: Curtis A. Kin, Case: 23STCP03374, Date: 2024-08-15 Tentative Ruling

Case Number: 23STCP03374    Hearing Date: August 15, 2024    Dept: 86

Petitioner Jeffery Hohman petitions for a writ of mandate directing respondent Los Angeles County Civil Service Commission (“Commission”) to set aside the termination of petitioner and restore him to his prior position of Deputy Sheriff with back pay and interest.

I.       Factual Background

Petitioner was hired by the Los Angeles County Sheriff’s Department (“Department”) in 2007. (AR 1195.) In 2012 and 2013, his two evaluations prior to the incident leading to his discharge rated him as “Very Good.” (AR 120.) Petitioner was initially assigned to Men’s Central Jail, Custody Division. (AR 1195.) In August 2012 through August 2013, he was on loan to the Tactics and Survival Unit (“TAS”) of the Training Bureau. (AR 1195, 1197.) While assigned to TAS, petitioner was part of the Sheriff’s Response Team and the Marijuana Enforcement Team. (AR 1196.)

On August 27, 2013, petitioner was administratively relieved of duty pending a separate administrative investigation concerning a use of force incident at Men’s Central Jail. (AR 1138.) He was assigned to home but was still receiving pay from the Department in the classification of deputy sheriff. (AR 875, 1185.) After the investigation, he was discharged, effective February 13, 2014. (AR 724.) The Civil

Service Commission reduced the discharge to a 30-day suspension on November 18, 2015. (AR 121, 724.) The Department investigation into the use of force incident determined that petitioner had used unreasonable force and failed to treat an inmate in a respectful and courteous manner. (AR 724-25.)

When petitioner was relieved of duty in August 2013, he was advised in writing that “action in the capacity of a Los Angeles County Deputy Sheriff beyond the limited duties specifically assigned, along with the carrying of a concealed firearm, is prohibited until reinstatement to standard duty status.” (AR 742.) He understood that he was not allowed to take police action. (AR 1258-59.) He understood that an individual without law enforcement powers could not carry a concealed handgun without a proper permit, which petitioner did not have. (AR 1252-53.) He understood that it was a violation of Sheriff’s Department policy for a deputy sheriff who had been relieved of duty to carry a concealed firearm. (AR 1265-66.)

On November 1, 2013, petitioner accompanied his girlfriend at the time, Elizabeth Sthokal, to Keck USC Hospital to undergo surgery, which was scheduled for 9:00 a.m.; they left their house at approximately 6:00 a.m. (AR 120, 1050.) That morning, at approximately 9:00 a.m., a shooting occurred at Los Angeles International Airport, claiming the life of a TSA officer. (AR 586.) Petitioner became aware of this information while at the hospital. (AR 1233.) Due to his training and experience with the TAS Unit, petitioner understood that hospitals are often secondary targets of terrorist attacks. (AR 1233.) Concerned that the shooting at the airport was a terrorist attack, petitioner retrieved a handgun from his vehicle. (AR 1233.) That handgun, as well as an AR-15 rifle and several magazines containing over 30 rounds, were in his car because petitioner was in the process of moving to Sthokal’s house. (AR 120, 395, 605, 608, 1234.)

After Sthokal was released from the hospital, petitioner drove her to her home in the city of Sierra Madre. (AR 98.) Sthokal had a big brace and a “pain pump” that administered morphine and other sedatives through a catheter in her neck. (AR 120, 141.) They reached Sthokal’s house at approximately 2:00 p.m., just as the elementary school across the street was letting out. (AR 120.) A car, driven by an individual named Mr. Wolf, who, along with his wife and younger daughter, was picking up his older daughter from school, was blocking Sthokal’s driveway. (AR 120, 457, 461, 1234.) Petitioner stopped his car in the street and approached Mr. Wolf’s car; Mrs. Wolf was standing outside the car on the passenger side. (AR 457, 538.) Petitioner asked Ms. Wolf to move the car, and then got into what he described as a “heated discussion” with Mr. Wolf who was sitting in the driver’s seat. (AR 1237, 1240.) The man in the car said something rude, and Hohman “said something rude back to him.” (AR 1242; see also AR 129, 538, 543, 1241.) Despite allegations that petitioner kicked the Wolfs’ car, there was no damage. (AR 131.)

Officer Jonathan Hare, from the Sierra Madre Police Department, was at the school to investigate an unrelated parking complaint, noticed petitioner’s vehicle in the street, and stopped to investigate after hearing a noise that sounded like “two cars maybe bumped each other,” resulting in a “loud bang.” (AR 481-82, 484.) Hare requested some help over the radio; Sgt. Joe Ortiz responded. (AR 482.) Hare then asked for petitioner’s identification, and petitioner informed Hare that he was a deputy. (AR 482.) Ortiz asked petitioner if he had a gun on him, and petitioner indicated he had a gun in his waistband, which Hare removed. (AR 482.) Petitioner at some point explained that he was on administrative leave. (AR 476, 482.) Petitioner also informed Hare that he had more firearms in his car. (AR 482.) Petitioner was detained during the search of his car but was not arrested. (AR 121.)

During the search of the vehicle, the following items were recovered: (1) a Stag Arms Stag-15 (AR-15 Rifle); (2) a 60-round magazine inside the AR-15 Rifle, (3) a Smith and Wesson 5 Shot .38 Caliber loaded revolver; (4) a Glock Model 25 9mm loaded pistol; and (5) four 30-round magazines for the AR-15 Rifle. (AR 552, 563, 605, 608.) Petitioner was at all times cooperative and professional with the Sierra Madre police officers. (AR 139.) Four months later, on February 25, 2014, petitioner was charged with Possession of an Assault Weapon, in violation of Penal Code section 30605(a), a felony; two misdemeanor counts of Having Concealed Firearm in Vehicle, in violation of Penal Code section 25400(a)(1); and one misdemeanor count of Having Concealed Firearm on Person, in violation of Penal Code section 25400(a)(2). (AR 631-32.) Petitioner pled nolo contendere to one misdemeanor count of Having Concealed Firearm in Vehicle, and the court dismissed the three remaining counts. (AR 640-41.)

Petitioner’s work history with the Department included four commendations and one 30-day suspension. (AR 140, 397-98.) On August 18, 2016, petitioner was served with a Letter of Imposition for discharge, alleging the following:

1. That in violation of the Manual of Policy and Procedures Sections 3-01/030.05, General Behavior; and/or 3-01/030.10, Obedience to Laws, Regulations, and Orders (as it pertains to one count of 25400(a)(2) P.C., possession of a Concealed Firearm Upon the Person; and/or two counts of 25400(a)(l) P.C. Possession of a Firearm in a Vehicle; and/or 30605(a) P.C., Felony), Possession of an Assault Weapon), on or about November 1, 2013, you, who were relieved from your peace officer status, failed to conform to State laws and brought discredit to yourself when you illegally possessed firearms, as evidenced by, but not limited to:

a. admitting to Sierra Madre Police personnel that you possessed a loaded handgun; and/or,

b. admitting to Sierra Madre Police personnel that you were not allowed to carry loaded firearms; and/or,

c. possessing a loaded handgun in your waistband; and/or,

d. possessing an unregistered AR-15 assault rifle, loaded with a 60-round magazine; and/or,

e. possessing multiple Large Capacity Magazines, a felony, in violation of California Penal Code Section 32310 P.C.; and/or,

f. possessing a loaded revolver and handgun in your vehicle; and/or,

g. admitting to Sierra Madre Police personnel that you possessed the weapons because you were going to the hospital and hospitals were viewed by terrorist as secondary targets, and/or words to that effect; and/or,

h. being arrested by Sierra Madre police personnel for possessing concealed weapons, and challenging another to fight in public (report number 130737); and/or,

i. being charged with misdemeanors, 25400(a)(2) P.C., Possession of a Concealed Firearm Upon the Person, and/or two counts of 25400(a)(1) P.C., Possession of a Firearm in a Vehicle, and/or 30605(a) P.C., (a Felony), Possession of an Assault Weapon, and entering a plea of Nolo contendere in Pasadena Superior Court to 25400(a)(1), Possession of a Firearm in a Vehicle (GA092455). You were convicted and sentenced to 24 months of probation.

2. That in violation of the Manual of Policy and Procedures Sections 3-01/030.05, General Behavior; and/or 3-01/000.13, Professional Conduct - Core Values; and/or 3-01/030.15, Conduct Towards Others; and/or 3-01/030.10, Obedience to Laws, Regulations, and Orders (as it pertains to 415 (1), P.C., Challenging Another Person to Fight in Public), on or about November 1, 2013, you failed to conform to State law and exhibited behavior which resulted from a situational outburst of emotion as you used profanity toward, and/or antagonized, and/or challenged Victor Wolf to a fight in the presence of his neighbors, parents and school aged children as evidenced by, but not limited to:

a. being observed approaching Mr. Wolf and taking an aggressive fighting stance while displaying clenched fists and yelling at Mr. Wolf to move his vehicle from blocking a driveway; and/or,

b. being observed challenging Mr. Wolf by stating “Get out of your car motherfucker,” several times and then kicking the vehicle in the left rear quarter panel area; and/or,

c. admitting that you “got carried away,” and/or words to that effect; and/or,

d. being arrested by Sierra Madre police personnel for possessing concealed weapons and named as a suspect in a 415(1) P.C., Challenging Another Person to Fight in Public police report (report number 1300737); and/or,

e. being charged with 415(1) P.C., Challenging Another Person to Fight in Public and entering a plea of Nolo Contendere in Pasadena Superior Court to 25400(a)(1) P.C., Possession of a Firearm in a Vehicle (GA092455). You were convicted and sentenced to 24 months of probation.

3. That in violation of the Manual of Policy and Procedures Sections 3-01/040.75, Failure to Make Statements and/or Making False Statements During Departmental Internal Investigations, on or about June 13, 2016, you made false, incomplete and/or untruthful statements during an administrative interview, as evidenced by, but not limited to:

a. stating that you did not tell Mr. Wolf to exit his vehicle, and/or words to that effect; and/or,

b. denying that you kicked the vehicle that Mr. Wolf was sitting in; and/or,

c. being observed by your then-girlfriend, Ms. Sthokal, along with multiple other witnesses including Mr. Wolf, Mrs. Wolf, and independent witness Johanna Anderson kicking the vehicle Mr. Wolf was sitting in.

(AR 361-64.) After two days of hearing, the Commission’s Hearing Officer issued his “Findings of Fact, Conclusions and Recommended Decision” on March 7, 2022. (AR 119.) The Hearing Officer wrote that petitioner had violated the policies on which the first and second charges were based, but the Sheriff’s Department had not proved the truth of the third charge. (AR 135-38, 142.) The Hearing Officer concluded that being arrested on four charges and pleading nolo contendere to one charge “does bring discredit upon Appellant and the Department.” (AR 127.) He also concluded that petitioner “got carried away” during his interchange with the other driver “by expressing anger and frustration and making angry gestures.” (AR 137.) The Hearing Officer recommended a 30-day suspension. (AR 143.)

The Commission rejected the Hearing Officer’s recommendation to reduce the discharge to a 30-day suspension. (AR 195.) It issued revised conclusions of law to explain its determination:

1. It is true that the Appellant violated MPP 3-01/030.10, obedience to laws Regulations and Orders in the he carried a concealed firearm upon his person despite being in relieved of duty status. It is also true that the Appellant's emotional response to the other driver violated MPP Section 3-01/030.05, General Behavior Section 3-01/030.15, Conduct Toward Others. This behavior merits some discipline.

2. Appellant physically possessed the four weapons. This conduct is uncontested as the Appellant admitted possessing the weapons and told responding officers exactly where to find them in his vehicle. Appellant possessed the weapons with the belief that said possession was legal because he was in the status of Deputy Sheriff, even if ROD [i.e., Relieved of Duty], and not a civilian. Appellant was moving the weapons and other possessions into his new residence, his then girlfriend's house at the scene of the incident in Sierra Madre. Department offered no evidence to disprove this fact. It is uncontested that moving these weapons would have been legal and appropriate for a Deputy Sheriff not on ROD status. The Appellant, however, was on ROD status and should not have been in possession of the weapons.

3. The Department has not proved by a preponderance of the evidence that Appellant made false, incomplete or untruthful statements during an administrative interview. Appellant provided a clear and consistent account of the entire incident to Internal Affairs. Department's four witnesses provided inconsistent, incomplete, self-interested and at times unclear testimony regarding portions of the incident that the Department unsuccessfully attempted to weave together into a coherent whole.

4. The discipline imposed by the Department is proportionate to the offense. Discharge is the appropriate discipline.

(AR 194, emphasis in original.)

II.      Procedural History

             On September 14, 2023, petitioner filed a Verified Petition for Writ of Mandate. On August 29, 2022, real parties in interest County of Los Angeles and County of Los Angeles Sheriff’s Department (collectively, “Department”) filed an Answer.

            On April 12, 2024, petitioner filed an opening brief. On May 10, 2024, the Department filed an opposition. On May 28, 2024, petitioner filed a reply. The Court has received a hard copy of the joint appendix and an electronic copy of the administrative record.

III.     Standard of Review

Under CCP § 1094.5(b), the pertinent issues are whether the respondent has proceeded without jurisdiction, whether there was a fair trial, and whether there was a prejudicial abuse of discretion. An abuse of discretion is established if the agency has not proceeded in the manner required by law, the decision is not supported by the findings, or the findings are not supported by the evidence. (CCP § 1094.5(b).)

Because the suspension of petitioner from his position as Deputy Sheriff concerns a fundamental vested right, the Court exercises its independent judgment on the administrative findings. (See Wences v. City of Los Angeles (2009) 177 Cal.App.4th 305, 314; Bixby v. Pierno (1971) 4 Cal.3d 130, 143.) Under the independent judgment test, “the trial court not only examines the administrative record for errors of law, but also exercises its independent judgment upon the evidence disclosed in a limited trial de novo.” (Bixby, 4 Cal.3d at 143.) The Court must draw its own reasonable inferences from the evidence and make its own credibility determinations. (Morrison v. Housing Authority of the City of Los Angeles Board of Commissioners (2003) 107 Cal. App. 4th 860, 868.) 

An agency is presumed to have regularly performed its official duties. (Evid. Code § 664.) “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, internal quotations omitted.) A reviewing court “will not act as counsel for either party to an appeal and will not assume the task of initiating and prosecuting a search of the record for any purpose of discovering errors not pointed out in the briefs.” (Fox v. Erickson (1950) 99 Cal.App.2d 740, 742.) When an appellant challenges “‘the sufficiency of the evidence, all material evidence on the point must be set forth and not merely their own evidence.” (Toigo v. Town of Ross (1998) 70 Cal.App.4th 309, 317.) 

“On questions of law arising in mandate proceedings, [the Court] exercise[s] independent judgment.’” (Christensen v. Lightbourne (2017) 15 Cal.App.5th 1239, 1251.) The interpretation of statute or regulation is a question of law. (See State Farm Mut. Auto. Ins. Co. v. Quackenbush (1999) 77 Cal.App.4th 65, 71.)

“The propriety of a penalty imposed by an administrative agency is a matter vested in the discretion of the agency, and its decision may not be disturbed unless there has been a manifest abuse of discretion.” (Lake v. Civil Service Commission (1975) 47 Cal.App.3d 224, 228.) If reasonable minds can differ with regard to the propriety of the disciplinary action, there is no abuse of discretion. (County of Los Angeles v. Civil Service Commission (1995) 39 Cal.App.4th 620, 634.)

In considering whether an abuse of discretion occurred, the “overriding consideration … is the extent to which the employee’s conduct resulted in, or if repeated is likely to result in, ‘[h]arm to the public service.’ [Citations.] Other relevant factors include the circumstances surrounding the misconduct and the likelihood of its recurrence.” (Skelly v. State Personnel Bd. (1975) 15 Cal.3d 194, 218.)

“[A peace officer’s] job is a position of trust and the public has a right to the highest standard of behavior from those they invest with the power and authority of a law enforcement officer. Honesty, credibility and temperament are crucial to the proper performance of an officer’s duties.” (Talmo v. Civil Service Com. (1991) 231 Cal.App.3d 210, 231.)

IV.     Analysis

            Petitioner argues that the Commission abused its discretion in sustaining his termination. “Judicial interference with the agency’s assessment of a penalty ‘will only be sanctioned when there is an arbitrary, capricious or patently abusive exercise of discretion by the administrative agency.’” (Kazensky v. City of Merced (1998) 65 Cal.App.4th 44, 54.)

After having reviewed the record, the Court finds that reasonable minds could agree that a discharge, as opposed to a suspension, was appropriate.

            Petitioner concedes that he signed a form indicating that he was not permitted to carry a concealed firearm while on Relieved of Duty status. (AR 742; Opening Br. at 17:1-2.) Petitioner does not dispute that he was carrying a concealed firearm during the November 1, 2013 incident. (AR 482.) Petitioner contends that there were mitigating circumstances, namely a shooting occurring the same morning, which caused him to grab a handgun, as he had previously learned as a Deputy Sheriff that hospitals were often secondary targets of terrorist attacks. (AR 1235.) Regardless of petitioner’s reasons for carrying a concealed weapon, the Commission was entitled to find that some discipline was warranted for having violated Manual of Policy and Procedures (“MPP”) 3-01/030.10, which required obedience to all lawful orders issued by any supervisor of higher rank.  (AR 385.)

            Petitioner also contends that the “emotional response” in his dispute with Mr. Wolf was nothing more than “yelling and frustration out of care and concern for his girlfriend,” which were “understandable emotions,” according to the Hearing Officer.

(AR 136, 1237, 1240.) Had the “heated discussion” with Mr. Wolf (AR 1240) been the sole basis for discipline, discharge arguably may have been excessive. However, petitioner was also carrying a concealed firearm, which he was not permitted to do under Relieved of Duty Status.

            Moreover, petitioner had three other weapons in his vehicle. (AR 552, 563, 605, 608.) Petitioner contends that he was under no order banning him from possessing such weapons. Petitioner contends that the prohibition against carrying concealed weapons does not apply to possession of other firearms not issued by the Department, according to Department witnesses. (AR 912, 1144, 1154-55.) However, Penal Code section 25400(a)(1) provides: “A person is guilty of carrying a concealed firearm when the person does any of the following: [¶] (1) Carries concealed within any vehicle that is under the person’s control or direction any pistol, revolver, or other firearm capable of being concealed upon the person….” Petitioner was not merely possessing non-Department-issued firearms; he was carrying them concealed in a vehicle, which he was prohibited to do. (AR 742 [Relieved of Duty form signed by petitioner].)

Citing Cartwright v. Board of Chiropractic Examiners (1976) 16 Cal.3d 762, 773, petitioner contends that a plea of nolo contendere may not be used as grounds for administrative discipline. Petitioner pled no contest to having violated Penal Code section 25400(a)(1)—Having Concealed Firearm in Vehicle. (AR 631-32, 640-41.) However, the Commission did not base its discharge based on petitioner’s no contest plea.  Rather, it was the conduct leading to that conviction—the occurrence of which is not disputed (see AR 123-136 [Hearing Officer’s recitation of petitioner’s possession of firearms])—that the Commission cited as a basis for discipline.  (See AR 194 [discussing petitioner’s possession of weapons].)

            Further, MPP 3.01/030.05 General Behavior states: “A member shall not act or behave while on or off duty in such a manner as to bring discredit upon himself or the Department. [¶] Members’ arrests and/or referrals for prosecution are an embarrassment to the Department and bring discredit upon the member and the Department regardless of whether a criminal case is filed and/or ultimately results in a conviction or plea agreement.” Petitioner’s carrying of firearms within his vehicle after having been prohibited from carrying a concealed firearm, while at the same time getting into an emotional and heated discussion involving yelling with another on the public street, brought discredit upon himself and the Department.

            Under the totality of circumstances discussed above, the Commission could have reasonably found that discharge was appropriate. Consideration of the risk to the safety of the public is paramount in determining whether the Commission manifestly abused its discretion in discharging petitioner. (Skelly v. State Personnel Bd. (1975) 15 Cal.3d 194, 218.) “The public is entitled to protection from unprofessional employees whose conduct places people at risk of injury and the government at risk of incurring liability.” (Hankla v. Long Beach Civil Service Com. (1995) 34 Cal.App.4th 1216, 1223.) Petitioner having been relieved of duty, petitioner was not permitted to carry firearms on his person or his vehicle. Considering that petitioner had access to firearms during his verbal dispute with a member of the public, the public would rightly be concerned about petitioner’s carrying of an unauthorized weapon.

            Even though the applicable Guidelines for Discipline state that the “Disciplinary Options” for carrying an unauthorized weapon is 3-20 days, conduct on or off duty which causes embarrassment to the Department is subject to discharge. (AR 784.) Based on the discredit petitioner’s behavior brought to the Department, imposing a penalty of discharge was within the Department’s discretion.

In the alternative, petitioner contends that the Commission’s decision violates Topanga. In Topanga Assn. for a Scenic Community v. County of Los Angeles (1974) 11 Cal.3d 506, the Supreme Court held that “implicit in [Code of Civil Procedure] section 1094.5 is a requirement that the agency which renders the challenged decision must set forth findings to bridge the analytic gap between the raw evidence and ultimate decision or order.” (Topanga, 11 Cal.3d at 515.) The Court explained that “among other functions, … findings enable the reviewing court to trace and examine the agency's mode of analysis.” (Id. at 516.)

“Administrative agency findings are generally permitted considerable latitude with regard to their precision, formality, and matters reasonably implied therein.” (Southern Pacific Transportation Co. v. State Bd. of Equalization (1987) 191 Cal.App.3d 938, 954; see also Oduyale v. Cal. State Bd. of Pharmacy (2019) 41 Cal.App.5th 101, 113 [Topanga “does not require the Board to outline all the reasons it opted not to impose a lesser form of discipline. It is only required to justify the penalty imposed, including ‘a statement of the factual and legal basis of the decision’”].)

            In its Revised Conclusion of Law, the Commission set forth its finding that petitioner carried a concealed firearm upon his person despite being in Relieved of Duty status, petitioner had an emotional response to the other driver, and that petitioner was moving firearms in his vehicle despite being in Relieved of Duty status. (AR 194.) The Commission set forth the offenses upon which it based its imposition of discipline. The Commission also cited the policies that petitioner violated. The decision complies with Topanga.

V.      Conclusion

            The petition is DENIED. Pursuant to Local Rule 3.231(n), real parties in interest County of Los Angeles and County of Los Angeles Sheriff’s Department shall prepare, serve, and ultimately file a proposed judgment.