Judge Stephen I. Goorvitch, Case Number: 24STCP01614, Date: 2025-04-18 Tentative Ruling

Judge: Stephen I. Goorvitch, Case: 24STCP01614, Date: 2025-04-18 Tentative Ruling

[Tentative] Order Granting in Part and Denying in Part Petition for Writ of Mandate

Real Party in Interest Karen Martinez (the “Real Party” or “Martinez”) was a Deputy Probation Officer II with the County of Los Angeles, Department of Probation (“Petitioner” or the “County” or the “Department”). Martinez was terminated for knowingly having contacts/relationships with four prohibited individuals: (1) A minor, Brandon E., after she stopped working on his case; (2) A convicted felon, Manuel Martinez, whom she had known since childhood and married following his release from prison; (3) A convicted felon, Sergio Pereyra, who was her friend before she worked for the County; and (4) Her nephew, Derek Martinez, on one occasion after he was incarcerated.

Martinez appealed her termination to the Civil Service Commission (the “Commission”). The hearing officer found that Martinez violated policies concerning her two visits with Brandon E. because she failed to log the two visits; she did not obtain permission for the second visit; and she showed poor judgment. However, the hearing officer found no misconduct relating to any other allegation and therefore reduced the termination to a five-day suspension. The hearing officer found that the County did not prove Martinez had a personal relationship with Brandon E. because the contacts were sufficiently “work related.” The hearing officer found that upon becoming a probation officer, Martinez reported her relationship with Manuel Martinez to her supervisor and was given permission to visit incarcerated adults (plural). In February 2019, the Probation Department enacted a new policy—Probation Department Directive Number 1183—requiring probation officers to disclose all relationships with incarcerated individuals and to report all prison visits. By this point, Manuel Martinez had been released—and had married Martinez—and Martinez’s single visit with her nephew had already occurred. Martinez visited Sergio Pereyra three times after this policy was enacted, but there is no evidence that the Probation Department specifically informed or trained Martinez about this new policy.

Now, the County seeks a writ of mandate setting aside this decision. The hearing officer erred in finding that Martinez’s contacts with Brandon E. did not violate policy because the applicable policy—Probation Department Policy Manual 606—prohibited contacts with clients “unless necessitated by the employee’s performance of official duties.” At that time, Martinez was no longer working on Brandon E.’s case. The hearing officer also erred in finding that Martinez’s failure to disclose her relationship with Sergio Pereyra and three visits did not violate Directive Number 1183. Essentially, the hearing officer erred by considering evidence in mitigation—which is appropriately considered at the penalty phase—in determining whether there were violations of policy. Therefore, the court grants the petition and issues the writ on these grounds and remands the case under Code of Civil Procedure section 1094.5(f). On remand, the Commission may consider all evidence in mitigation, as well as the context of the violations, in determining whether to impose the same or a different penalty. The petition is otherwise denied.

The facts are largely undisputed. Martinez was hired by the County as a Detention Services Officer in 2002. (AR 57.) She promoted to Detention Probation Officer I in 2003 and then to Detention Probation Officer II in 2006. (Ibid.) Martinez had no prior discipline in her record and her recent performance evaluations “exceeded expectations.” (AR 57, 122-133, 498-528.) Martinez’s most recent supervisor, Michael Zahn, thought she was a “very good” probation officer. (AR 648-652.)

Starting in 1997, Martinez began visiting two childhood friends in prison, Manuel Martinez and Sergio Pereyra. (AR 48.) She visited them 26 times before she began working for the Probation Department. (Ibid.) Martinez had a romantic relationship with Manuel Martinez before she began working at the Probation Department. (AR 48, 54.) In 2003, Martinez notified her supervisor, Leanne Steinhaus, about her relationship with Manuel Martinez and that she was visiting him in prison. (AR 48, 50, 54.) Steinhaus confirmed that she was aware of the visits. (AR 48, 54.) “Ms. Steinhaus told the investigator that she informed her supervisors about these visits and then informed Ms. Martinez that there wasn’t any problem with this so long as she was only visiting adults and not minors.” (AR 50.) According to Ms. Steinhaus, Martinez was not required to “fill out a form or anything” concerning the notification. (AR 54.) Although Martinez did not specifically tell Steinhaus about her visits with Sergio Pereyra, Steinhaus gave Martinez permission to visit adults in prison. (AR 48, 50, 52, 54.) Between 2003 and 2005, Martinez visited Manuel Martinez seven (7) times. (Ibid.) Martinez filed a “Declaration of Domestic Partnership” with Manuel Martinez in 2005, when he was released from prison, and the two got married in 2006. (Ibid.) Martinez visited Sergio Pereyra on five (5) occasions between 2003 and 2005. (AR 49.) There were two visits in 2005, one visit in 2009, and two visits in 2010. (Ibid.) In the course of this investigation, Martinez volunteered that she visited her nephew when he was in jail in 2007. (See ibid.)

On February 9, 2009, the Probation Department issued Directive Number 1183, which required probation officers to disclose all associations and prison visits with incarcerated individuals. (AR 50.) Martinez testified that she was unaware of this policy. (AR 50-51.) There is no evidence that Martinez signed a receipt or acknowledgment of the new policy. (AR 50.) Nor is there any evidence that the Department conducted any training on this new policy. (AR 50-51.) Of all Martinez’s visits to adult inmates, the policy was in effect only during Martinez’s final two to three visits to Sergio Pereyra. (See ibid.)

Martinez supervised Brandon E., a minor, in 2019, but the case was transferred to a different employee. (AR 49, 53.) On July 31, 2019, Martinez emailed the manager of the group home and asked permission to visit Brandon E. and take him to lunch. (AR 53.) This was not the first time that a deputy probation officer took a minor to lunch. (Ibid.) The manager gave permission to the visit, so on that same date, Martinez appeared at Brandon E.’s group home, signed him out for a lunch appointment, and took him to lunch at a restaurant. (Ibid.) Martinez permission from the manager of the group home, but did not inform her supervisor or log the visit into the Department’s Probation Case Management System. (Ibid.) During lunch, Martinez Spoke to Brandon E. about his case, his newborn son, and tried to encourage him to be successful, based upon which the hearing officer found that the conversation was “work related.” (Ibid.) Then, on August 9, 2019, Martinez went to Brandon E.’s group home and dropped off a gift—some baby clothes—as well as a cake and a donut. (Ibid.) The visit was “very short,” so Martinez did not sign into the group home or sign Brandon E out of the group home. (Ibid.) Nor did Martinez seek permission from the group home or her supervisor for this second visit. (Ibid.) Four days later, the manager of the group home reminded Martinez about the rules requiring that gifts be inventoried and documented, and Martinez apologized for the error. (Ibid.)

On April 8, 2021, the Department discharged Martinez on the grounds that she knowingly entered into, and failed to report, associations and contacts with four prohibited individuals: (1) Brandon E.; (2) Manual Martinez; (3) Sergio Pereyra; and (4) Derek Martinez, her nephew who was incarcerated. (AR 124-127.) The notice of discharge alleged the following charges:

1. Failure to report relationship or association with former or current clients or prohibited individuals;

2. Association or relationship with former or current clients or prohibited individuals;

3. Unbecoming conduct when such conduct is related to the employee’s duties or interest of the Department or County or promoting such criminal or unbecoming conduct;

4. Failure to maintain records prescribed records which result in loss to the Department or loss or injury to persons or property;

(AR 123, 128, 51.) Martinez appealed the discharge and an administrative hearing was held before a hearing officer. The Commission certified the following issues to be decided:

1. Are the allegations contained in the department’s letter of April 8, 2021, true?

In her proposed decision, the hearing officer found that “very few of the facts are disputed” and “[m]any if not most of the allegations in the April 8, 2021 letter are reasonably accurate,” but that “some of the context, timing and detail are missing.” (AR 48-49.) The hearing officer found that the evidence supported the charges that Petitioner failed to follow established rules or regulations and failed to exercise sound judgment “with regard to the visits with the minor.” (AR 51.) Specifically, the hearing officer found:

The Department met its burden in proving that [Martinez] violated the policies concerning contact with minor clients in that she failed to log the two visits in the Department’s PCMS system and she failed to obtain permission for the second visit with the minor and for the gifts.

(AR 54-55.) However, the hearing officer found that “[t]he Department did not meet its burden of proving that [Martinez] had a personal relationship with the minor” in violation of any policy. (AR 55.)

The hearing officer found that the evidence did not support any of the charges based on Petitioner’s alleged associations with two felons. (AR 49-54.) Specifically, the hearing officer found as follows:

The Department did not meet its burden of proving that the prison and jail visits were in violation of any contemporaneously existing rule or training concerning any rule or expectation. Nor did the Department meet its burden in proving that [Martinez] had prohibited relationships with felons.

The Department was on notice that Ms. Martinez visited inmates starting in 2003 because she told her then supervisor. No evidence was provided showing that the supervisor asked her to document every visit, so she didn’t do so. Indeed, Ms. Steinhaus told the investigator that no forms were required. Ms. Steinhaus didn’t testify. It is disingenuous for the Department, and possibility a violation of the time limits in the Public Safety Officers Procedural Bill of Rights, Government Code section 3304(d) to complain 10 years after the visits ceased about these visits.

(AR 50.) The hearing officer proposed that the Commission reduce the penalty from a discharge to a five-day suspension. (AR 51-55.)

The Department filed objections to the hearing officer’s proposed decision. (AR 84.) On January 10, 2024, the Commission overruled the Department’s objections and adopted as its final decision the findings and recommendation of the hearing officer to reduce the discharge to a five-day suspension. (Ibid.) This writ petition followed.

Under Code of Civil Procedure section 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. (Code Civ. Proc. § 1094.5(b).) “It is well-established that an employer’s right to discipline or manage its employees . . . is not a fundamental vested right entitling the employer to have a trial court exercise its independent judgment on the evidence.” (County of Los Angeles v. Civil Service Comm. (1995) 39 Cal.App.4th 620, 633.) Therefore, the County has the burden of demonstrating that the hearing officer’s findings are not supported by substantial evidence.

Substantial evidence is relevant evidence that a reasonable mind might accept as adequate to support a conclusion, or evidence of ponderable legal significance which is reasonable in nature, credible and of solid value. (California Youth Authority v. State Personnel Board (2002) 104 Cal. App. 4th 575, 584-85; Mohilef v. Janovici (1996) 51 Cal. App. 4th 267, 305 fn. 28.) The court does “not weigh the evidence, consider the credibility of witnesses, or resolve conflicts in the evidence or in the reasonable inferences that may be drawn from it.” (Doe v. Regents of the Univ. of Cal. (2016) 5 Cal.App.5th 1055, 1073.) Under the substantial evidence test, “[c]ourts may reverse an [administrative] decision only if, based on the evidence …, a reasonable person could not reach the conclusion reached by the agency.” (Sierra Club v. California Coastal Com. (1993) 12 Cal.App.4th 602, 610.) However, “[w]here the facts before the administrative body are uncontradicted, the determination of their effect is a question of law.” (Aries Dev. Co. v. California Coastal Zone Conservation Com. (1975) 48 Cal.App.3d 534, 545.) Furthermore, “both the trial and appellate courts have broader responsibility to consider all relevant evidence in the administrative record, both contradicted and uncontradicted … [and] [t]his consideration involves some weighing of the evidence to fairly estimate its worth.” (County of San Diego v. Assessment Appeals Bd. No. 2 (1983) 148 Cal.App.3d 548, 555.)

An agency is presumed to have regularly performed its official duties. (Evid. Code

§ 664.) “[A] trial court must afford a strong presumption of correctness concerning the administrative findings.” (Fukuda v. City of Angels (1999) 20 Cal. 4th 805, 817.) The petitioner seeking administrative mandamus has the burden of proof and must cite to the administrative record to support its contentions. (See Alford v. Pierno (1972) 27 Cal.App.3d 682, 691.) 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 [its] own evidence.” (Toigo v. Town of Ross (1998) 70 Cal.App.4th 309, 317.)

The court exercises its own independent judgment on questions of law arising in mandate proceedings. (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, 77.) “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.” (Williamson v. Board of Medical Quality Assurance (1990) 217 Cal.App.3d 1343, 1347.)

The hearing officer erred in finding that “[t]he Department did not meet its burden of proving that [Martinez] had a personal relationship with the minor” because “[t]he conversation was work related.” (AR 53, 55.) In fact, there is substantial evidence that Martinez violated Probation Department Policy Manual (“PDPM”) 606, which states in relevant part:

Probation Department employees shall not knowingly enter into relationships or engage in any contact with clients … unless necessitated by the employee’s performance of official duties. An employee must report all contacts, including those that are incidental and not preventable, to his or her immediate supervisor. In all cases, the report must be made within 48 hours of the initial contact.

…. In person or telephone contact with clients … shall be limited to those required to carry out the employee’s official assignment.

(AR 353 [emphasis added].) PDPM 606, was made effective September 1, 2011. (AR 349.) Petitioner acknowledged receipt of PDPM 15.6, the nearly identical predecessor to PDPM 606, in or about 2002 or 2003. (AR 734.)

Martinez was assigned to Brandon E.’s case as an investigation deputy on March 19, 2019. (AR 53.) At the time of the visits, however, Martinez was no longer assigned to Brandon E.’s case and had no official duties with respect to him. Martinez completed her pre-plea report for Brandon E.’s delinquency case and that her official duties related to minor Brandon E. ended on July 12, 2019, when the court issued a placement order for Brandon E. and the matter was reassigned to another probation officer for supervision, Tonya Calais. (AR 53, 389-390, 742-743; see also AR 3-4 [notice of discharge alleging that the minor “was no longer under your investigation caseload”].) Martinez’s visits with Brandon E. occurred on July 31, 2019, and August 8, 2019. (AR 53.) While Martinez asserted on cross-examination that the case remained “in transition” or “limbo,” she did not identify any official duties that she had after July 12, 2019. (AR 743.) It is undisputed that Martinez’s role was not to supervise Brandon E., as that was another probation officer’s responsibility.

Martinez testified that she was “trying to be a positive influence” and she felt “empathy for the kid.” (AR 726-728). But Martinez eventually admitted that she did not have any official

business with Brandon E. because the case had been reassigned to a supervision probation officer. (AR 372, 389-390, 742-745.) Specifically, Martinez testified as follows:

Q: And the file [on Brandon E.] was physically transferred . . . to the new supervision DPO, Ms. Calias, on July 12, 2019; correct?

A: Official duties, no, but it was a transition period from the time he left my -- went to Calais.

Q: But the strict answer to my question was you had no official duties; correct?

A: Well, that’s what you have to understand. When the case is in transition, which means it’s in limbo, Calais might not have the physical file, and if there’s a question to be answered, it would most likely be myself because Calais hasn’t even received the file.

Q: And he was very clear that you have no duties and -- with respect to Brandon E. after the case was dispo’d by the court; correct?

Q: And he testified . . . that you should have no contact with the minor after the case was dispo’d by the court; correct?

Q: And that’s typically what happens in every case that you prepare a pre-plea report for a minor and the court dispo’s the case; correct?

Q: You still wanted to have some involvement with the minor after the case was dispo’d because you felt empathetic for him, is that correct?

(AR 743-745.) Nor was giving Brandon E. gifts necessitated by the performance of Martinez’s official duties.

Martinez focuses on evidence in mitigation. (See Oppo. 4-6.) Martinez notified the manager of the group home and completed the necessary paperwork at the group home before taking Brandon E. to lunch. During the lunch, Martinez talked to Brandon E. about his case and newborn son, and tried to encourage Brandon E. to be successful because she felt empathy for him and was trying to be a positive influence. Moreover, there is no evidence that the visits were nefarious or that Martinez had an ulterior motive. The court assumes for purposes of deciding this petition that Martinez’s objective was to help Brandon E. Regardless, these factors do not change the court’s view that Martinez clearly violated PDPM 606. Rather, these factors relate to the appropriateness of the punishment for this violation, i.e., the context, which falls within the discretion of the Commission.

In sum, the evidence is clear that Martinez violated PDPM 606. Rather, it appears that the hearing officer erred in considering the circumstances and context of Martinez’s contacts with Brandon E. in determining whether she violated the policy: “Many if not most of the allegations in the April 8, 2021 letter are reasonably accurate. However, some of the context, timing and detail are missing. Those details are what makes this disciplinary case complex.” (AR 49.) The Commission may consider these factors in determining the appropriate punishment for the violation, which falls squarely within its discretion.

The hearing officer erred in finding that the Department did not prove that Martinez had prohibited relationships with felons or violated any rule or training. In fact, Martinez violated Directive 1183 with respect to her relationship with Sergio Pereyra and three prison visits, one of which occurred in 2009 and two of which occurred in 2010. Directive 1183 provides, in relevant part:

It is the policy of the Probation Department that employees shall not knowingly establish or maintain any personal, social, or business associations with identified criminal street or prison gang members or organizations, incarcerated individuals, registered sex offenders, and/or felons who are on parole or formal probation, unless expressed written permission is received from the employee’s Bureau Chief. The restriction against association does not apply to close family members defined as a grandparent, parent, legal spouse, siblings, or any child for whom our employee is the parent, step-parent or legal guardian.

Within 30 calendar days of this policy issuance, … or within 30 calendar days of becoming aware of a potential association issue, … employees are to disclose in writing to their manager any associations they may have with the above described individuals or groups including when those associations involve family members. Employees who fail to disclose associations inconsistent with Probation Department employment may be subject to disciplinary action up to and including discharge.

After the policy was enacted, Martinez visited Pereyra on three occasions: October 4, 2009, February 27, 2010, and September 11, 2010. (AR 217, 357.) It is undisputed that Martinez had known Pereyra since high school and that she visited him as a “friend” and not for any official business. (AR 217, 395, 402, 758.) Pereyra’s criminal history includes: (1) a conviction in 1993 for assault to commit mayhem/rape and sentenced to 1 year in jail; (2) a 1995 felony conviction of throwing a substance at a vehicle with great bodily injury intent and sentenced to 16 months in prison; (3) a 1995 conviction of first degree robbery and sentenced to a 19 year prison term; (4) an identified member of the 38th Street Gang; and (5) a registered sex offender. (AR 6, 277-285.) Accordingly, Martinez’s association with Pereyra and her three visits in 2009 and 2010 fell squarely within the scope of Directive 1183. Martinez did not disclose her prohibited association or prison visits with Pereyra in writing to her supervisor at any time. (AR 400-405, 737.) The Department did not discover Martinez had visited Pereyra in prison until 2019, when it began its investigation into Martinez’s contacts with Minor Brandon E. (AR 553-55.)

Martinez argues that Pereyra was “akin to a family member.” (Oppo. 4:25.) Martinez does not show that Pereyra fell within the exception for family members in Department Directive 1183. That exception does not include “friends,” even close ones. This is a factor more appropriately considered in assessing the penalty.

The Commission found that “[n]o evidence was presented that [Martinez] was ever informed or trained on policies prohibiting employees from visiting incarcerated persons or of maintaining relationships with parolees.” (AR 54.) Department Directive 1183 shows, on its face, that the policy was “issued” and “posted” in February 2009 and that any “questions or comments about this policy should be directed to your Bureau’s Special Assistant.” (AR 54.) Even though similar prohibited association policies were issued in 2011 and 2013, Martinez still did not disclose her association and prison visits with Pereyra. (See AR 355-358.) Further, as discussed, Martinez only notified her supervisor in 2003, Leanne Steinhaus, about her prison visits to a different felon, Manual Martinez. (AR 54, ¶¶ 14-15.)[1] Regardless, Martinez’s alleged ignorance of Department Directive 1183—a lawful directive of the Probation Department—is not a defense to the charges. (See People v. Noori (2006) 136 Cal.App.4th 964, 978 [“ignorance of the law will not excuse any person, either civilly or criminally.”]; accord Fisher v. State Personnel Board (2018) 25 Cal.App.5th 1, 20.) Neither the Commission in its decision, nor Martinez in her opposition, has cited any authority to the contrary. However, the Commission may these factors in assessing the appropriate penalty for the violation, e.g., the Department’s failure to specifically inform and train Martinez about the policy, Martinez’s lack of knowledge, Steinhaus’s prior authorization to visit adults in custody, etc.

The writ is otherwise denied because Petitioner demonstrates no other prejudicial abuses of discretion.

Martinez’s remaining visits with Sergio Pereyra occurred before enactment of Directive 1183, and the Commission does not establish that this policy applied retroactively to past visits. As discussed, in 2003, Martinez’s supervisor gave her permission to visit adults (plural) in custody. Therefore, the County has not demonstrated any prejudicial abuse of discretion in the hearing officer’s remaining findings relating to Sergio Pereyra.

Although the County challenges the conclusions with respect to Manuel Martinez, the County does not challenge the Commission’s findings of fact. For example, the Commission found that Martinez “notified Ms. Steinhaus about her boyfriend, Manual Martinez in approximately 2003.” (AR 54, ¶ 14; see also AR 734-742, 485-488.) The Commission also found:

Ms. Steinhaus remembers this notification because there was a new rule issued regarding relationships with parolees. Ms. Steinhaus alerted her supervisors about [Martinez’s] situation. She was told “Hey don’t worry about it, it’s not a problem”. (Exhibit 24, p. 3:24). Ms. Steinhaus told the investigator that it “[w]asn’t like we had to fill out a form or anything...” regarding the notification under this new “directive or notice.”

(AR 54, ¶ 15.) In addition, the Commission found that “[i]t is disingenuous for the Department, and possibly a violation of the time limits in the Public Safety Officers Procedural Bill of Rights, Government Code Section 3304(d) to complain 10 years after the visits ceased about these visits.” (AR 50.)

Petitioner does not show any prejudicial abuse of discretion or legal error. The charges related to Manual Martinez are barred by the one-year statute of limitations in Government Code section 3304(d)(1) because Steinhaus—and arguably her supervisors—knew about the relationship and prison visits as early as 2003. (See Pedro v. City of Los Angeles (2014) 229 Cal.App.4th 87, 101.) It is undisputed that the prison visits ceased no later than 2005, because Martinez and Manual Martinez were living together. Regardless, Petitioner had permission to visit Martinez and have a relationship with him. To the extent there were procedural errors in how permission was given, this is Steinhaus and her supervisors’ responsibility. Therefore, it was not unreasonable for the Commission to find that Department did not prove the charges related to Manual Martinez.

Finally, the court finds no abuse of discretion in the Commission’s finding that Petitioner’s visit to her nephew in 2007 violated any policy. Department Directive 1183 was issued in February 2009 and, therefore, was not in effect at the time of this visit. Further, given the length of time since this jail visit, which occurred only once; the fact Derek Martinez was a relative of Real Party Martinez; the lack of evidence that Derek Martinez was a felon, registered sex offender, or gang member; and Real Party Martinez’s disclosure of the contact at her interview (AR 396), it was not unreasonable for the Commission to find that Department did not prove the charges related to Derek Martinez.

Having found that substantial evidence does not support the Commission’s decision with respect to certain allegations, the court must set aside the penalty. While it is possible the Commission will impose the same penalty, it is also possible that the Commission would have reached a different decision with respect to the penalty. Therefore, the court orders the Commission to reconsider the penalty in light of the court’s opinion and judgment in this case. As discussed, the Commission may consider all mitigating factors, including the context of the violations, and may impose the same penalty or a different penalty. The court expresses no opinion in terms of what would be an appropriate penalty for these violations, as this matter falls squarely within the Commission’s discretion. (See Code Civ. Proc. § 1094.5(f).

2. The court shall issue a writ directing the Commission to set aside all findings except as follows: “Martinez violated the policies concerning contact with minor clients in that she failed to log the two visits in the Department’s PCMS system and she failed to obtain permission for the second visit with the minor and for the gifts” and “exercised poor judgment with regard to her two contacts with her prior minor client.” (AR 55.)

3. The court shall issue a writ directing the Commission to reconsider Martinez’s guilt on the following allegations in consideration of the court’s opinion and judgment:

(a) Martinez violated Probation Department Policy Manual 606 based upon her two visits with Brandon E.; and (b) Martinez violated Probation Department Directive Number 1183 by not disclosing her relationship with Sergio Pereyra and three prison visits after February 9, 2009.

5. The court vacates the penalty and orders the Commission to reconsider the penalty in light of the court’s opinion and judgment. The Commission may consider all evidence in mitigation, as well as the context in which the violations occurred, in determining what would be an appropriate penalty. To that end, the Commission may impose the same or a different penalty. The court expresses no opinion on what would be an appropriate penalty, as that issue falls within the Commission’s discretion. (Code Civ. Proc. § 1094.5(f).)

[1] This notification only pertained to Manual Martinez and not to the prison visits with Pereyra that occurred later in 2009-2010. Accordingly, the notification to Steinhaus in 2003 does not raise any statute of limitations issue with respect to the charges related to Pereyra. The Commission made no finding, and Martinez develops no argument, to the contrary.