Nelson v. Department of Corrections
| Decision Date | 08 April 1952 |
| Citation | 110 Cal.App.2d 331,242 P.2d 906 |
| Court | California Court of Appeals Court of Appeals |
| Parties | NELSON v. DEPARTMENT OF CORRECTIONS et al. Civ. 8024. |
Benjamin D. Frantz, Sacramento, for appellant.
Edmund G. Brown, Atty. Gen., Paul M. Joseph, Deputy Atty. Gen., for respondents.
Respondent Director of Corrections filed with the State Personnel Board a complaint charging appellant, who held a civil service position as Prison Canteen Manager of Folsom State Prison, with the following:
1. Failure to cancel Folsom Prison canteen coupons;
2. Knowingly allowing his wife to accept a gift from an inmate of Folsom Prison;
3. Knowingly receiving money from the mother of an inmate of Folsom Prison;
4. Failure to protect, cancel, and account for canteen coupons;
5. Possession of contraband merchandise; and
6. Receiving a purse from an inmate of Folsom Prison for additional canteen privileges.
After proceedings regularly held before the respondent Personnel Board, said Board found said charges to be true and made its order dismissing appellant from his position as said Prison Canteen Manager as as of the date of his suspension on January 30, 1948, and ordering that his name be removed from the State civil service employment lists.
Following the denial of his petition for a rehearing appellant filed a petition for a writ of mandate in the Superior Court of Sacramento County for a review of the findings and order of the State Personnel Board. The trial court found that of the charges made, only charges number 2 and number 6 were supported by substantial evidence, and the court found further that:
'* * * in view of the fact that the proceeding before the State Personnel Board was of a disciplinary nature and as this Court has found that only a part of the charges to be true by the State Personnel Board are fully supported by substantial evidence presented before said Board, this Court finds that it should remand the matter to the State Personnel Board with directions to said Board to set aside its decision of August 6, 1948, suspending Petitioner from his position as Prison Canteen Manager and to consider what order should be made in the premises in view of the charges sustained by this Court but without said State Personnel Board again trying Petitioner either on the original charges made or upon those herein sustained by this Court.'
Judgment was entered accordingly and the State Personnel Board thereafter set aside its decision of August 6, 1948, and upon reconsideration dismissed the appellant from his said position.
Appellant states in his brief that he has appealed from that portion of the judgment of the trial court which denies the right to an entirely new hearing by respondent Personnel Board on the charges preferred against him; from that portion of the judgment which restricts respondent Board to consider a new order based only on the charges sustained by the trial court; and from that portion of the judgment which denies petitioner his requested relief.
Appellant first contends that respondent Personnel Board should be required to hold an entirely new hearing because 'the admission of inflammatory and patently inadmissible evidence contaminated the entire administrative proceedings.' Appellant cites as the first instance of prejudicial evidence the testimony of the mother of an inmate, who was allowed to testify, over the objection of appellant, as to a conversation with her son in which he told her of the receipt of $85 by appellant as alleged in charge 3. However, as pointed out by respondent, the trial court in the instant mandate proceeding found that Count 3 was not sustained by the evidence, so it cannot be held that appellant was prejudiced by the admission of this testimony.
Appellant next contends that the respondent Board committed prejudicial error in admitting certain evidence relating to charge 2 (knowingly allowing his wife to accept a gift from an inmate). An inmate was permitted to testify that he gave a purse to another inmate by the name of Whitaker, and appellant argues that his motion to strike said testimony should have been granted as this evidence was in no way connected with appellant. However, Warden Heinze testified that appellant admitted to him that his wife received a purse from inmate Whitaker, and it was certainly proper to admit evidence to show that Whitaker had such a purse.
Appellant next complains of the admission of the testimony of inmate Roland concerning a conversation he had with inmate Whitaker in which he agreed to pay Whitaker some money for a commissary loan. Roland testified that Whitaker demanded the money and Roland wrote his mother for it. This evidence should not have been admitted, but in view of the fact that the trial court expressly found that this evidence was hearsay and did not support the charge made, and that there was no substantial evidence to support charge No. 3, we do not believe it can be held that appellant was prejudiced by this testimony or that the findings of the court that the second and sixth charges were sustained by substantial evidence were affected thereby.
Appellant's final objection to the reception of testimony is that over his objection a prison employee was permitted to testify that he had received a memorandum from a Folsom Prison executive with respect to inmate Whitaker and that this was never connected to appellant. However, the record shows that the objection to the admission of the document was sustained. Even if it had been admitted in evidence it is difficult to understand how appellant could have been prejudiced by it, because it was intended to show that Whitaker worked at the canteen during the period he was on 'idle assignment' and this was abundantly shown by other testimony.
Appellant does not argue that there is no substantial evidence to support charges 2 and 6, but contends that there should be an entirely new hearing by respondent Personnel Board on the charges preferred against him. But respondents argue correctly that incompetent evidence is not a basis for a new hearing before the Board, where, as here, the trial court found that two of the charges against appellant were based upon competent, substantial evidence.
The procedure adopted by the trial court, that is, remanding the case for reconsideration, is in accordance with the procedure adopted in Cooper v. State Board of Medical Examiners, 35 Cal.2d 242, at page 252 217 P.2d 630, at page 636, 18 A.L.R.2d 593, the court stating:
Appellant next contends that the trial court erred in applying the substantial evidence rule. It is appellant's view that the trial court should have exercised an independent judgment on the facts, that it should have weighed the evidence, and should have decided the matter according to the weight of the evidence rather than follow the substantial evidence rule, as was done by the court in its ruling upon demurrers, motions to strike and findings of fact.
Appellant cites Hohreiter v. Garrison, 81 Cal.App.2d 384, at pages 401-402, 184 P.2d 323, at page 333, revocation of an insurance agent's license by the Insurance Commissioner, the court stating: * * *' Also cited is Moran v. State Board of Medical Examiners, 32 Cal.2d 301, at page 308, 196 P.2d 20, at page 25, revocation of medical certificate, the court stating: 'That the trial court in this case was 'authorized by law to exercise its independent judgment on the evidence' is well established.'
Respondent in arguing that the substantial evidence rule...
To continue reading
Request your trial
-
Voices of Wetlands v. State Water Res. Bd.
...employee were supported by the evidence, limited remand was proper to reconsider just the penalty. (Nelson v. Department of Corrections (1952) 110 Cal.App.2d 331, 334, 242 P.2d 906 [rejecting the petitioner's contention "that respondent Personnel Board should be required to hold an entirely......
-
Sica v. Board of Police Com'rs of City of Los Angeles
... ... McConnell, 45 Cal.2d 304, 288 P.2d 502; Nelson v. Department of Corrections, 110 Cal.App.2d 331, 242 P.2d ... 906; Garfield v. Board of Medical ... ...
-
Morell v. Department of Alcoholic Beverage Control
...decision and all legitimate and reasonable inferences must be indulged in to support it. (Nelson v. Department of Corrections (1952) 110 Cal.App.2d 331, 337-338, 242 P.2d 906; Marcucci v. Board of Equalization, supra; Oxman v. Department of Alcoholic Beverage Control, The record of the admi......
-
Lorimore v. State Personnel Bd.
...Com., supra, 41 Cal.2d 354, 260 P.2d 70; Chenoweth v. Office of City Clerk, 131 Cal.App.2d 498, 280 P.2d 858; Nelson v. Dept. of Corrections, 110 Cal.App.2d 331, 242 P.2d 906; Genser v. State Personnel Board, supra, 112 Cal.App.2d 77, 245 P.2d 1090; DeMartini v. Dept. of Alcoholic Bev. Cont......