Filed 4/1/15 McAlister v. State Personnel Bd. CA5




                   NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or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.


                IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                        FIFTH APPELLATE DISTRICT


MALCOLM McALISTER,
                                                                                           F068970
         Petitioner and Appellant,
                                                                          (Kern Super. Ct. No. S-1500-CV-
                   v.                                                             278104-SMG)

STATE PERSONNEL BOARD,
                                                                                          OPINION
         Respondent.

DEPARTMENT OF CORRECTIONS AND
REHABILITATION,

         Real Party in Interest.


         APPEAL from a judgment of the Superior Court of Kern County. Susan M. Gill,
Judge.
         Yarra, Kharazi, & Clason and H. Ty Kharazi for Petitioner and Appellant.
         No appearance by Respondent.
         Stephen A. Jennings and Clayton A. Mack, Staff Counsel, for Real Party in Interest.
                                                         -ooOoo-
                                      INTRODUCTION
          Appellant Malcolm McAlister was dismissed as a correctional officer after prison
authorities reviewed a video depicting him shoving an inmate’s head into a door frame.
McAlister challenges the superior court’s refusal to disturb the State Personnel Board’s
decision sustaining the dismissal, and argues that there was insufficient evidence he
intentionally injured the inmate. He also contends that reversal is warranted because seven
pages of the administrative record are missing from the clerk’s transcript on appeal. We
reject McAlister’s contentions and affirm the judgment.
                              PROCEDURAL BACKGROUND
          Effective January 24, 2012, appellant Malcolm McAlister was dismissed from his
position as a correctional officer with the California Department of Corrections and
Rehabilitation at Kern Valley State Prison. In the notice of adverse action regarding the
dismissal (Gov. Code, § 19574), the warden of Kern Valley State Prison cited a January 19,
2011, incident where McAlister allegedly used unnecessary force on an inmate. The notice
also claims McAlister failed to report the use of force and lied about the incident in a
report.
          McAlister appealed his dismissal to the State Personnel Board. (See Gov. Code,
§ 19575.) An administrative law judge (ALJ) heard the appeal on June 11, 2012. The ALJ
made several findings of fact and sustained McAlister’s dismissal. The State Personnel
Board adopted the ALJ’s findings and decision.
          McAlister petitioned the Kern County Superior Court for a writ of mandamus
compelling the State Personnel Board (the “Board”) to reverse its decision. (See Code Civ.
Proc., § 1094.5.) The Department of Corrections and Rehabilitation (the “Department”)
opposed the petition as the real party in interest. The superior court denied McAlister’s
petition, and he now appeals.




                                               2.
                               ADMINISTRATIVE RECORD
         The Video Recording
         At the hearing before the ALJ, a video recording of the incident was admitted into
evidence.
         The parties do not dispute that the video depicts several officers extracting an
inmate referred to as “Joe” from his cell. Nor do they dispute that the video shows pepper
spray is used on the inmate, and that he is transported to the showers to remove the pepper
spray.
         The crucial part of the video occurs as McAlister is escorting Joe out of the shower.
As the two men approach the exit to the shower, Joe’s head accelerates into a vertical metal
door frame. At the time, McAlister’s left hand was holding on to Joe’s left arm, and
McAlister’s right hand was around the back of Joe’s neck.
         The Department contended the video is consistent with McAlister intentionally
shoving Joe’s head into the frame. McAlister maintained that he slipped on the shower
floor, and the contact between Joe’s head and the frame was unintentional.
         Lieutenant Blackstone’s Testimony
         Lieutenant Blackstone testified that he was the leader for the cell extraction.
Blackstone did not see Joe’s head hit the door frame when it occurred. However,
Blackstone later reviewed the video of the incident pursuant to his duties as Incident
Commander. He observed that “McAlister turned the inmate around to take him out of the
shower, it looked like his hand went up to the back of his neck, and then as he was exiting
the shower door, that he got forcibly pushed into the wall, into the framework.” In
Blackstone’s opinion, this was an inappropriate, unnecessary use of force because Joe was
not resisting. Blackstone saw no indication that McAlister slipped or that Joe’s contact
with the wall was accidental.




                                                3.
        Lieutenant Blackstone testified that after a cell extraction is completed, every officer
involved is required to submit a written incident report. The form should contain details of
the incident including use of force used or observed by the officers.
        Lieutenant Blackstone reviewed McAlister’s incident report. In the report,
McAlister claimed that he had slipped on the shower floor causing his arms to “snap
forward inadvertently causing Joe to make contact with the shower wall.” Blackstone
testified that even if Joe’s contact with the wall had been caused inadvertently, it should
have been reported to the onsite RN.
        Special Agent Anthony Graham’s Testimony
        Anthony Graham, a special agent with the Department of Corrections’s Office of
Internal Affairs, testified at the hearing. Graham reviewed the video and concluded that it
was “very apparent” that McAlister “forcefully pushed the inmate’s forehead.”
        Pursuant to his investigation of the incident, Special Agent Graham interviewed
McAlister. Before the interview, Graham allowed McAlister to view the video. McAlister
told Graham that he slipped and accidentally caused Joe’s head to hit the door frame.
McAlister “kept saying that he did not go to the base of the neck.” Graham was troubled
by McAlister’s account because the video shows McAlister’s “right hand is in the middle
of his back and as he’s coming out, you can clearly see he is not slipping.”
        McAlister’s Testimony
        McAlister testified that he did not intend to cause Joe to come into contact with the
wall.
        McAlister said that as he was walking Joe out of the shower, he felt the “watery
shower floor” on the soles of his boots. He moved his right hand up to Joe’s neck area so
he “could be stable and have … secure control of him.” As McAlister took another step, he




                                               4.
slipped causing his arms to “snap forward” causing Joe’s body1 to make contact with the
shower wall.
       McAlister testified that Joe was not resisting at the time of the incident. McAlister
also said he never told the nurse that Joe hit the wall. McAlister admitted to suffering a
prior adverse employment action for improper use of force on an inmate. McAlister
testified: “I think the charges was [sic] being less than honest and using either unnecessary
or excessive force, and I was off for five months.”
       The ALJ’s Proposed Decision
       In a proposed decision, the ALJ found that McAlister had “moved his right hand
from Inmate Joe’s back to his neck and then shoved Inmate Joe’s head into the door
frame.” The ALJ also found that the video showed no sign that McAlister had slipped or
lost his balance in any way. The ALJ also determined McAlister’s testimony was not
credible.
       The ALJ recommended sustaining the penalty of dismissal. The Board adopted the
ALJ’s findings and proposed decision.
                                          DISCUSSION

       I.        The Video Provides Substantial Evidence that McAlister Intentionally
                 Shoved Joe’s Head into the Door Frame
       McAlister argues the Board’s findings are not supported by substantial evidence,
and the superior court therefore erred in denying the petition for a writ of mandate.2 We
disagree.


       1    McAlister indicated that it “could have been” Joe’s head that hit the wall.
       2 The second issue raised in McAlister’s opening brief is, in effect, indistinguishable
from this substantial evidence argument. He argues that “the lack of evidence showing
‘intention’ by McAlister in the push incident should have been held against the [State
Personnel Board], not McAlister.” Of course, the premise of this contention is that there
was indeed a lack of evidence showing intent. We conclude, however, that the video itself
is substantial evidence of intent.


                                                 5.
          Findings adopted by the Board must be upheld if they are supported by substantial
evidence. (Furtado v. State Personnel Bd. (2013) 212 Cal.App.4th 729, 742.) The
evidence is sufficient if it is reasonable, credible and of solid value, such that a reasonable
mind might accept it as adequate to support a conclusion. (California Youth Authority v.
State Personnel Bd. (2002) 104 Cal.App.4th 575, 584–585.) In determining whether such
evidence exists in the administrative record, we do not reweigh evidence or substitute our
own judgment if the Board’s decision is reasonable. (Id. at p. 584.) We “ ‘indulge all
presumptions and resolve all conflicts in favor of the board’s decision….’ [Citation.]”
(Ibid.)
          The superior court, ALJ and State Personnel Board all concluded that the video
shows McAlister intentionally pushing Joe’s head in to the door frame. We have reviewed
the video and determine that substantial evidence supports their conclusions. The video
depicts McAlister using his right hand to shove Joe’s head into the door frame. Nothing in
the movement of McAlister or Joe suggests the incident was accidental. Since
circumstantial evidence may be used to prove intent (Gubser v. Department of Employment
(1969) 271 Cal.App.2d 240, 243; 1 Witkin, Cal. Evidence (5th ed. 2012) Circumstantial
Evidence, § 122, p. 528), we conclude the video constitutes substantial evidence that
McAlister intentionally pushed Joe’s head into the frame.

          II.   The Fact that Seven Pages of the Administrative Record are Missing from the
                Appellate Record Does Not Warrant Reversal
          McAlister argues we must reverse the trial court’s judgment because the superior
court failed to review seven pages of the administrative record. We disagree.
          Seven pages of the administrative record are indeed missing from the clerk’s
transcript on appeal.3 The seven pages apparently contain transcript of the hearing before
the ALJ.4 But these missing pages do not warrant reversal.

          3
        The Department claims that the version of the administrative record it received
contained the seven pages. However, the Department offers no citation to the appellate

                                               6.
       “In a [Code of Civil Procedure] section 1094.5 proceeding, it is the responsibility of
the petitioner to produce a sufficient record of the administrative proceedings;
‘… otherwise the presumption of regularity will prevail .…’ [Citations.]” (Elizabeth D. v.
Zolin (1993) 21 Cal.App.4th 347, 354.) “ ‘[I]n the absence of an evidentiary record,
sufficiency of the evidence is not an issue open to question. Rather, we must presume that
the findings were supported by substantial evidence.’ [Citation.]” (Ibid.)
       Here, any presumption raised by the missing seven pages supports affirmance of the
judgment.
                                      DISPOSITION
       The judgment is affirmed. The State Personnel Board and Department of
Corrections and Rehabilitation shall recover costs.


                                                           ___________________________
                                                           Poochigian, J.

WE CONCUR:


_______________________
Cornell, Acting P.J.


_______________________
Kane, J.




record to support this assertion (Cal. Rules of Court, rule 8.204(a)(1)(C), nor has it adduced
evidence on appeal to that effect (Code Civ. Proc., § 909).
       4 The pages before and after the gap in the clerk’s transcript are themselves
transcripts of the ALJ hearing.


                                              7.
