Hernandez v. State Pers. Bd.
| Decision Date | 10 February 2021 |
| Docket Number | E072444 |
| Citation | 275 Cal.Rptr.3d 154,60 Cal.App.5th 873 |
| Court | California Court of Appeals Court of Appeals |
| Parties | Anthony HERNANDEZ, Plaintiff and Appellant, v. STATE PERSONNEL BOARD, Defendant and Respondent; Department of Corrections and Rehabilitation, Real Party in Interest and Respondent. |
Petitioner and appellant Anthony Hernandez was convicted of misdemeanor domestic violence after choking his girlfriend. The California Department of Correction and Rehabilitation (Department) then terminated him from his position as a correctional officer. The Department stated that, because of his domestic violence conviction, federal law prohibited him from carrying a firearm, which he needed for the job.
We must decide whether the Department acted reasonably in terminating Hernandez. It is undisputed that federal law makes it a felony to possess a firearm after being convicted in any court of misdemeanor domestic violence, which is defined in part as the use of physical force by "a person similarly situated to a spouse" of a victim. Disputed here is whether Hernandez was "similarly situated to a spouse" of his girlfriend, given that he had been dating her five or six months and did not share a permanent residence with her. We hold, in line with the federal case law, that the evidence is sufficient to support the Department's determination that Hernandez was "similarly situated to a spouse" of his victim under these circumstances. Accordingly, the Department acted reasonably in terminating him, and we affirm.
Hernandez began a romantic relationship with the victim in May 2015. About five months later, on October 25, 2015, police responded to a call from the victim's home. The victim reported that, during an extensive fight that involved her locking herself in the bathroom and sending text messages seeking help, Hernandez had three times straddled her while she was lying on her back, placed both hands around her neck and lifted up and down so "she could not breathe or talk." Upon his arrest, Hernandez told the police that "he and his girlfriend ... have been together for approximately six months" and that he "lives with [her] for four to five days per week ...." The victim likewise said that Hernandez had been in an intimate dating relationship with her for about six months and "lives with her four to five days per week." Hernandez thereafter pled nolo contendere to a misdemeanor violation of Penal Code Section 273.5, which criminalizes the infliction of bodily injury on a spouse or cohabitant, or on another intimate partner who has had an "engagement or dating relationship" as defined in the Penal Code.
The Department then terminated Hernandez from his job as a Correctional Sergeant, stating that he was "unable to possess a firearm as a result of" section 922(g)(9) of title 18 of the United States Code ( section 922(g)(9) ). A correctional officer must be able to carry a firearm at work; his duties included preventing inmate escapes and capturing escaped inmates, as well as receiving, checking and issuing guns and ammunition.
Hernandez appealed to the State Personnel Board (Board). While the appeal was pending, the state Department of Justice sent the Department a notice that Hernandez was prohibited from possessing a firearm.1 In addition, the federal Bureau of Alcohol, Tobacco and Firearms issued an opinion letter stating that Hernandez was prohibited from possessing a firearm as a result of section 922(g)(9).
The administrative law judge granted Hernandez's request that his appeal be decided on the briefs without an evidentiary hearing. In its proposed decision, the administrative law judge stated that no material facts were in dispute, concluded that Hernandez was prohibited from possessing a firearm as a result of section 922(g)(9), and held that his termination was proper. The Board adopted the proposed decision. Hernandez then filed a petition for writ of administrative mandate with the trial court (see Code Civ. Proc., § 1094.5 ), which the court denied.
In a mandamus proceeding, we are not to disturb the penalty imposed on Hernandez unless the Department prejudicially abused its discretion. ( Skelly v. State Personnel Board (1975) 15 Cal.3d 194, 217, 124 Cal.Rptr. 14, 539 P.2d 774.) There is generally no prejudicial abuse of discretion if substantial evidence supports the Department's decision and the decision is correct as a matter of law. ( Topanga Assn. for a Scenic Community v. County of Los Angeles (1974) 11 Cal.3d 506, 514-515, 113 Cal.Rptr. 836, 522 P.2d 12 ; Code of Civ. Proc., § 1094.5, subd. (b).) We must give the Department's decision the benefit of every reasonable inference. ( Deegan v. City of Mountain View (1999) 72 Cal.App.4th 37, 46, 84 Cal.Rptr.2d 690.)
Congress enacted section 922(g)(9) in 1996 to "close [a] dangerous loophole" in the gun control laws. ( Voisine v. United States (2016) ––– U.S. ––––, 136 S.Ct. 2272, 2276, 2280, 195 L.Ed.2d 736.) Federal law banned felons from possessing firearms, but "many perpetrators of domestic violence are charged with misdemeanors rather than felonies, notwithstanding the harmfulness of their conduct." ( Id. at p. 2276.) As well, "[f]irearms and domestic strife are a potentially deadly combination." ( Ibid. ) Accordingly, Congress created section 922(g)(9) to prohibit any person convicted of a " ‘misdemeanor crime of domestic violence’ from possessing any gun or ammunition with a connection to interstate commerce." ( Voisine v. United States, supra , 136 S.Ct. at p. 2276.)
Around the time of passage, only about a third of the states had a criminal statute (like Penal Code section 273.5 in California) that specifically proscribed domestic violence. ( United States v. Hayes, supra , 555 U.S. at p. 427, 129 S.Ct. 1079.) Domestic abusers were "routinely prosecuted under generally applicable assault and battery laws." ( Ibid. ) Consequently, Congress defined a " ‘misdemeanor crime of domestic violence’ " to identify such crimes committed by "a person who had a specified domestic relationship with the victim." ( Id. at p. 429, 129 S.Ct. 1079.) To do so, it defined a crime of domestic violence as one involving the use or threatened use of physical force or a deadly weapon by (a) "a current or former spouse," (b) "a person who is cohabitating with or has cohabitated with the victim as a spouse," or (c) "a person similarly situated to a spouse ... of the victim." ( 18 U.S.C. § 921(a)(33)(A)(ii).) A person with such a conviction who possesses a firearm can be prosecuted for a felony under section 922(g)(9).
This case does not involve a crime where the perpetrator fit either of the first two prongs of the federal definition of a domestic relationship. Hernandez was neither a "current or former spouse" of the victim, nor was he a person cohabitating with (or having cohabited with) the victim "as a spouse." Rather, we must examine the caselaw addressing the third category under the federal definition, which qualifies convictions where the perpetrator was "similarly situated to a spouse" of the victim.
Applying the "similarly situated to a spouse" prong, five federal appellate courts have held that an assault against a "live-in girlfriend" qualifies even absent any additional facts about the relationship. That is, the cases do not require that the couple had a long relationship, shared finances, or intended to marry. ( United States v. White (11th Cir. 2010) 593 F.3d 1199, 1204 []; Buster v. United States (8th Cir. 2006) 447 F.3d 1130, 1133 []; United States v. Shelton (5th Cir. 2003) 325 F.3d 553, 563 []; United States v. Denis (1st Cir. 2002) 297 F.3d 25, 31 []; United States v. Slaughter (9th Cir. 2005) 124 Fed.Appx. 542, 543 [].)
With it firmly established that a live-in girlfriend of any duration is "similarly situated to a spouse," it is a strain to distinguish the relationship in this case. If Hernandez and his girlfriend spent four or five nights together weekly over five months, they would have spent perhaps 80 to 100 nights under the same roof. The question for us today is whether federal courts would distinguish such a relationship—where the couple has kept separate residences—from a relationship involving a live-in girlfriend. Does that difference make a couple not "similarly situated" to spouses for purposes of section 922(g)(9) ?
Under one federal appellate case, such a distinction is not viable. In United States v. Cuervo (8th Cir. 2004) 354 F.3d 969, 997-998 ( Cuervo ), a defendant had been convicted of assaulting his secretary, with whom he had engaged in a long-term extramarital affair. ( Id. at p. 997.) The defendant and victim had "stayed together periodically at an apartment [the defendant] kept." ( Ibid. ) But at the same time, the defendant "remained married and lived with his wife." ( Ibid. ) At trial, the issue of whether the defendant/secretary relationship qualified as domestic violence was a question for the jury, with the defendant attempting to establish that the relationship was not " ‘spouse-like.’ " ( Id. at 998.) The jury rejected that defense, and the...
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