Filed 6/20/23 Onwuka v. Dept. of Corrections & Rehabilitation CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT DIVISION ONE STATE OF CALIFORNIA

JAMES ONWUKA, D080375 Plaintiff and Appellant, v. (Super. Ct. No. CIVDS1935462) DEPARTMENT OF CORRECTIONS AND REHABILITATION, Defendant and Respondent.

APPEAL from a judgment of the Superior Court of San Bernardino County, David S. Cohn, Judge. Affirmed.

Law Offices of Gloria Dredd Haney and Gloria Dredd Haney, for Plaintiff and Appellant.

Joseph Macaluso, California Department of Corrections and Rehabilitation, Office of Legal Affairs, for Defendant and Respondent.

James Onwuka appeals from the trial court’s judgment denying his petition for a writ of mandate directing the California State Personnel Board (the SPB) to set aside its order sustaining the decision of the California Department of Corrections and Rehabilitation (CDCR) to terminate his employment as a psychiatric technician at the California Institute for Women (CIW). We conclude that Onwuka’s appeal lacks merit, and we accordingly affirm the judgment.

I.

FACTUAL AND PROCEDURAL BACKGROUND Onwuka was hired as a psychiatric technician by CDCR in 2015 and began working at CIW in March 2016. At CIW, he worked in the Special Care Unit (SCU), which houses inmates with special needs.1 Onwuka’s responsibilities included leading group therapy sessions, dispensing medication, and crisis intervention. Onwuka’s supervisor was Kathy R. On May 2, 2018, one of the inmate-patients, B.M.,2 became agitated and made loud accusations against Onwuka in the presence of Onwuka and other employees. Among other things, B.M. stated that Onwuka was always asking the inmate-patients personal questions, such as when they lost their

On May 9, 2018, after Onwuka learned that he had been reassigned from dispensing B.M.’s medication, Onwuka took the initiative to speak to Kathy R. about the incident with B.M. Kathy R. wrote an email to her supervisor on May 9, 2018, to document what Onwuka told her. As set forth in the email, in addition to discussing B.M.’s May 2, 2018 outburst, Onwuka brought to her attention an incident involving a different inmate-patient,

We see no indication in the record that Onwuka acted on CDCR’s offer.

Finally, although Onwuka’s opening appellate brief makes much of the missing Cerner note, Onwuka does not explain why that document is material to the issues he raises on appeal. It is undisputed that the Cerner note concerned the May 2, 2018 incident involving B.M., which was witnessed by other employees, and about which there appears to be no material dispute.

E.G. As Kathy R. described in her email, Onwuka told her that during a group therapy session on May 2, 2018, E.G. asked Onwuka “if she could journal about the first time she had sex.” Onwuka “responded back to the inmates indicating [that] they can write about whatever they wanted.”

In August 2018, the Office of Internal Affairs interviewed Onwuka.

Onwuka denied ever speaking to any inmate-patient, including E.G., about losing her virginity. Onwuka also denied that he ever told Kathy R. about any incident in which E.G. asked during a group therapy session whether she could write in her journal about losing her virginity, and he denied that E.G. ever made such a comment.

In January 2019, CDCR sent Onwuka a notice of adverse action (the Notice), which stated that Onwuka’s employment would be terminated effective February 6, 2019. The Notice explained that the adverse action was being taken based on inexcusable neglect of duty; dishonesty; and other failure of good behavior. (Gov. Code, § 19572, subds. (d), (f), (t).) As the factual basis for the adverse action, the Notice stated that on or about May 2, 2018, Onwuka led a group therapy session, immediately prior to which inmate-patient E.G. asked what kinds of things were talked about in the group. Onwuka told her that she could talk about “ ‘anything, like when you lost your virginity and whether it was a bad experience or good experience,’ ” or words to that effect. Onwuka then asked E.G. whether she was a virgin, to which E.G. answered “ ‘no.’ ” Further, the Notice alleged that Onwuka gave untruthful answers to the Office of Internal Affairs in August 2018 when it was investigating the incident.

Onwuka appealed to the State Personnel Board. An ALJ held a hearing on June 3 and June 4, 2019.

E.G. testified at the hearing. E.G. stated that prior to a group therapy session on “Emotions” in May 2018, she walked in when Onwuka was alone and setting up for the session. As E.G. explained, when she asked Onwuka what kinds of things they would talk about in the group session, “[h]e asked if I was a virgin and I said no[,] and he said you can talk about if it was good or bad . . . .” E.G. stated that on a different day that week, at a group therapy session that included writing in a journal, she made a joke referencing Onwuka’s earlier comments to her regarding virginity. Specifically, according to E.G., “[Onwuka] said you can write about anything you want[,] and I said like the first time when I lost my virginity.”4 E.G. testified that Onwuka did not respond.

According to E.G., after Onwuka made the comment to her about losing her virginity, she told another inmate-patient about the comment. Because B.M. was E.G.’s cellmate, B.M. overheard the discussion. E.G. believes that B.M. adopted the story as if it happened to B.M. herself, not to E.G. According to E.G., B.M. is a liar and makes up a lot of stories. E.G. also testified that she did not report Onwuka’s virginity comment to the authorities, and she never spoke with Kathy R. about it.

Kathy R. testified at the hearing. She stated that when she spoke to Onwuka on May 9, 2018, he was the one who brought up E.G. Specifically, Kathy R. testified that Onwuka told her that during a group therapy session E.G. asked whether she could write in her journal about the first time she

The record shows that E.G. did not take back her story as to what she said during the group therapy session. had sex. Kathy R. confirmed that she had never spoken with E.G. about any comments involving Onwuka and virginity, and she was not aware of E.G. complaining to anyone about Onwuka with respect to that issue.

During his own testimony, Onwuka stated that other than B.M.’s accusations during her outburst on May 2, 2018, there was never any conversation between himself and E.G., or any other patient-inmate, about losing her virginity. Onwuka also testified that he did not recall any comment by E.G. during a group therapy session about losing her virginity.

Finally, Onwuka denied that he told Kathy R. about any such comment by E.G. Instead, according to Onwuka, on May 9, 2018, it was Kathy R. who raised the issue of E.G. by asking Onwuka whether he ever talked to E.G. about anything inappropriate, such as her virginity. According to Onwuka, he responded to Kathy R. by denying any such interaction.

At the hearing, Onwuka called eight different witnesses who worked at CIW to discuss instances that they characterized as showing that, as a supervisor, Kathy R. made false allegations against them. Certain of Onwuka’s witnesses also testified that, in general, they would credit Onwuka over Kathy R., or that they had never witnessed Onwuka doing anything that was inappropriate.

On June 27, 2019, the ALJ issued a proposed decision sustaining Onwuka’s dismissal. The proposed decision contained an extensive discussion of the relevant testimony and evidence. As the ALJ explained, because Onwuka’s testimony conflicted with that of E.G. and Kathy R., a credibility determination was required. The ALJ expressly relied on the demeanor of the relevant witnesses, as well as a detailed review of their testimony and the other applicable evidence, to explain that he was crediting the testimony of E.G. and Kathy R. over that of Onwuka. Having credited

those witnesses, the ALJ decided that CDCR had established by a preponderance of the evidence that Onwuka made inappropriate comments to E.G. about losing her virginity, and that Onwuka lied to investigators from the Office of Internal Affairs about that fact, as well as about what he said to Kathy R. about E.G. on May 9, 2018.

Further, the ALJ sustained the penalty of dismissal, explaining that Onwuka’s “misconduct was very serious.” As the ALJ explained, “Asking an inmate-patient an intimate and personal question about her first sexual encounter without a legitimate business-related reason caused discredit to CDCR and [Onwuka]. This kind of misconduct can discourage inmate- patients from attending group therapy counseling, thereby impairing their rehabilitation progress.” Further, due to Onwuka’s dishonest statements, “[CDCR] can no longer trust that [Onwuka] can perform his duties in an ethical and honest manner. And the public may now have a legitimate concern that [psychiatric technicians] at CIW engage in inappropriate personal conversations with inmate-patients, and that they will lie during the course of an investigation to cover it up. Furthermore, dishonesty is not an isolated act; it is more a continuing trait of character.” Finally, “[Onwuka’s] refusal to accept responsibility for his misdeeds, and his reflexive attempts to foist the blame on others, suggests a very high likelihood of recurrence” and due to his “dishonest character, he is likely to commit further dishonest acts.” The ALJ concluded that “[t]he significant harm to the public service and high likelihood of recurrence, combined with [Onwuka’s] dishonesty, counsel in favor of a harsh penalty,” supporting Onwuka’s dismissal.

On August 16, 2019, the SPB issued a resolution adopting the ALJ’s proposed decision as its own.

Onwuka sought judicial review of the SPB’s decision by filing a petition for writ of administrative mandate in the trial court pursuant to Code of Civil Procedure section 1094.5. The operative amended petition (the Petition) named as respondents both the SPB and CDCR. The Petition alleged that CDCR wrongfully terminated Onwuka’s employment because the charges against him were not proven by a preponderance of the evidence and did not constitute a legal basis for discipline. It further alleged that the penalty of termination was not appropriate. Onwuka sought an order reinstating him or remanding for a new hearing.

After considering the briefing filed by Onwuka and CDCR, the trial court issued a tentative ruling.5 In the tentative ruling, the trial court explained: “[Onwuka’s] challenge to the administrative decision . . . is based almost entirely on credibility issues. In short, [Onwuka] argues that his testimony is simply more believable than the testimony of other percipient witnesses. But that is not what the trier of fact found, and those findings are not inherently incredible. . . . While [Onwuka’s] theory that his accusers were simply ‘out to get him’ is plausible, and a reasonable trier of fact could have believed [Onwuka’s] testimony rather than that of his accusers, it is at least equally plausible that his accusers were telling the truth. It cannot be said that substantial evidence does not support the findings.” With respect to the penalty, the trial court’s tentative ruling stated, “[Onwuka] was a Psychiatric Technician who worked with mentally ill prison inmates. His

At a hearing on August 13, 2021, the trial court adopted its tentative ruling and denied the Petition. Judgment was subsequently entered against Onwuka. Onwuka appeals from the judgment.

II.

DISCUSSION A. Legal Standards Governing Review of a Decision of the SPB Onwuka’s petition was based on Code of Civil Procedure section 1094.5.6 Under that provision, the trial court inquires “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).)

In many instances, when fundamental vested rights are at issue in an administrative proceeding, a trial court is required to exercise its

However, Onwuka’s Petition did not assert a claim under Code of Civil Procedure section 1085. independent judgment in reviewing an agency’s adjudicative decision. (Strumsky v. San Diego County Employees Retirement Assn. (1974) 11 Cal.3d 28, 34.) However, that rule does not apply when a court reviews a decision by the SPB because the SPB “derives its adjudicatory authority from the state Constitution rather than from a legislative enactment.” (State Personnel Bd. v. Department of Personnel Admin. (2005) 37 Cal.4th 512, 522 (State Personnel).) “Because the SPB has been endowed with quasi-judicial powers, the trial court may not exercise its independent judgment, but must uphold the findings if they are supported by substantial evidence.” (Furtado v. State Personnel Bd. (2013) 212 Cal.App.4th 729, 742 (Furtado).) This is the case even when a fundamental vested right is at issue. (Coleman v. Department of Personnel Administration (1991) 52 Cal.3d 1102, 1125 (Coleman) [“Decisions of the [SPB] . . . are reviewed only to determine whether substantial evidence supports the determination, even when vested rights are involved.”].)7 “In applying the substantial evidence test to [the SPB’s] decision, a court must examine all relevant evidence in the entire record, considering both the evidence that supports the [SPB’s] decision and the evidence against it, in order to determine whether that decision is supported by substantial evidence. [Citation.] This does not mean, however, that a court is to reweigh the evidence. Rather, all presumptions are indulged and conflicts resolved in favor of the [SPB’s] decision. [Citation.] [¶] These standards do not change on appellate review from a trial court’s denial of a petition for writ of

With respect to the degree of penalty imposed by the SPB, “ ‘the determination of the penalty by the administrative body will not be disturbed unless there has been an abuse of its discretion.’ ” (Skelly v. State Personnel Bd. (1975) 15 Cal.3d 194, 217 (Skelly).) “ ‘ “ ‘Neither an appellate court nor a trial court is free to substitute its discretion for that of the administrative agency concerning the degree of punishment imposed.’ ” ’ ” (County of Siskiyou v. State Personnel Bd. (2010) 188 Cal.App.4th 1606, 1615.) “If reasonable minds may differ as to the propriety of the penalty imposed, there has been no abuse of discretion. [Citation.] It is only in the exceptional case, when it is shown that reasonable minds cannot differ on the propriety of the penalty, that an abuse of discretion is shown.” (Deegan v. City of Mountain View (1999) 72 Cal.App.4th 37, 46-47.) Indeed, “[t]he fact that reasonable minds may differ as to the propriety of the penalty imposed fortifies the conclusion that the administrative body acted within the area of its discretion.” (Flowers v. State Personnel Bd. (1985) 174 Cal.App.3d 753, 761.)

On the issue of penalty, we review the SPB’s decision without regard to the trial court. (Pollak v. State Personnel Bd. (2001) 88 Cal.App.4th 1394, 1404.)

B. Onwuka’s Arguments Lack Merit Because It Is Not Our Role to Reevaluate Credibility Determinations Although Onwuka’s arguments are presented in a somewhat disorganized manner and often lack the required citations to the record, they

are clearly targeted at attacking the credibility of the two witnesses upon which the ALJ’s proposed decision relied: E.G. and Kathy R.8 As to E.G., Onwuka argues that E.G.’s testimony lacked credibility for two main reasons: (1) the End of Shift Report for the May 2, 2018 group therapy session does not indicate that E.G. attended it;9 and (2) E.G. admitted during her testimony that when interviewed by the Office of

Internal Affairs, she omitted the fact that another inmate-patient was present when B.M. heard E.G. talk about Onwuka’s inappropriate comments.10 As to Kathy R., Onwuka points mainly to the testimony from the various witnesses who recounted allegedly false accusations against them made by Kathy R., or who testified that they would credit Onwuka over Kathy R.11 Further, Onwuka contends that Kathy R.’s credibility is suspect because of how she described to the Office of Internal Affairs a separate incident involving Onwuka eating lunch at an improper time and place.12

We understand Onwuka’s arguments, but they are based on a fundamental misunderstanding of the applicable standard of review. As we have explained, courts apply a substantial evidence standard of review in a petition for writ of mandate challenging a decision of the SPB. (State Personnel, supra, 37 Cal.4th at p. 522; Coleman, supra, 52 Cal.3d at p. 1125.)

“On substantial evidence review, we do 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.’ ” (Do v. Regents of University of California (2013) 216 Cal.App.4th 1474, 1492.)13 In sum, the ALJ was entitled to credit the testimony of E.G. and Kathy R., and it is not our role to revisit the ALJ’s credibility determinations.

The testimony of E.G. and Kathy R., when credited, provides substantial evidence for a finding that Onwuka (1) made inappropriate comments to E.G.; and (2) was untruthful to the Office of Internal Affairs. Those findings support the CDCR’s determination that Onwuka engaged in inexcusable

“The most fundamental rule of appellate review is that a judgment is presumed correct, all intendments and presumptions are indulged in its favor, and ambiguities are resolved in favor of affirmance.” (City of Santa Maria v. Adam (2012) 211 Cal.App.4th 266, 286.) “In order to demonstrate error, an appellant must supply the reviewing court with some cogent argument supported by legal analysis and citation to the record.” (Id. at pp. 286-287.) “ ‘It is not our place to construct theories or arguments to undermine the judgment and defeat the presumption of correctness.’ ” (Flores v. Department of Corrections & Rehabilitation (2014) 224 Cal.App.4th 199, 204.) “When an appellant fails to raise a point, or asserts it but fails to support it with reasoned argument and citations to authority, we treat the

Because Onwuka has failed to present any cogent legal argument challenging the penalty of dismissal, the issue is forfeited, and we accordingly do not address it.

DISPOSITION The judgment is affirmed.

IRION, J.

WE CONCUR:

O’ROURKE, Acting P. J.

BUCHANAN, J.