Lozano v. City of L.A. ( 2022 )

Filed 1/7/22
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION THREE
LOUIS LOZANO et al., B307412
Plaintiffs and Appellants, Los Angeles County
Super. Ct. No.
v. 19STCP00168
CITY OF LOS ANGELES et al.,
Defendants and Respondents.
APPEAL from a judgment of the Superior Court of
Los Angeles County, Mary H. Strobel, Judge. Affirmed.
Law Offices of Gregory G. Yacoubian and Gregory G.
Yacoubian for Plaintiffs and Appellants.
Michael N. Feuer, City Attorney, Carlos De La Guerra,
Assistant City Attorney, and Paul L. Winnemore, Deputy
City Attorney, for Defendants and Respondents.
_________________________
Louis Lozano and Eric Mitchell (petitioners), former police
officers for the City of Los Angeles (the City), filed a petition for
writ of administrative mandate challenging the City’s decision to
terminate their employment. A board of rights found petitioners
guilty on multiple counts of misconduct, based in part on a digital
in-car video system (DICVS) recording that captured petitioners
willfully abdicating their duty to assist a commanding officer’s
response to a robbery in progress and playing a Pokémon
mobile phone game while on duty. Petitioners contend the City
proceeded in a manner contrary to the law by using the DICVS
recording in their disciplinary proceeding and by denying them
the protections of the Public Safety Officers Procedural Bill
of Rights Act (Gov. Code, § 3300 et seq.) (POBRA or the Act). 1
The trial court denied their petition. We affirm.
FACTS AND PROCEDURAL HISTORY
Consistent with our standard of review, we state the facts
established by the evidence at the board of rights hearing in
the light most favorable to the trial court’s factual findings,
drawing all reasonable inferences and resolving all evidentiary
conflicts to uphold the court’s judgment. (Molina v. Board of
Administration, etc. (2011) 200 Cal.App.4th 53, 61 (Molina);
Steinert v. City of Covina (2006) 146 Cal.App.4th 458, 462, 465
(Steinert); Jaramillo v. County of Orange (2011) 200 Cal.App.4th
811, 815 (Jaramillo).)
1 Statutory references are to the Government Code, unless
otherwise designated
2
1. Radio Call for a Robbery in Progress at the
Crenshaw Mall
On Saturday, April 15, 2017, petitioners were working
as partners assigned to a foot beat patrol in the Los Angeles
Police Department (LAPD or Department) Southwest Division.
Petitioners’ primary responsibilities included providing
community services and addressing “quality of life” issues
in the Crenshaw Corridor and Leimert Park area. Sergeant
Jose Gomez was petitioners’ patrol supervisor that day.
Captain Darnell Davenport was the patrol commanding officer
for the Southwest Division.
It was a “busy” Saturday in the Southwest Division—
there were more calls than police cars available to respond and
there had been a homicide earlier in the day. While en route
to the homicide scene, Captain Davenport heard a radio call for
“a 211 [robbery] in progress” with multiple suspects at the Macy’s
in the Crenshaw Mall. When the call came in, the Captain
could see the Macy’s from where he was stopped, and to his right
he noticed a police car tucked back in an alley just feet away.
He was not able to identify the unit, and when the unit did
not respond to the radio call, the Captain assumed it might be
a traffic unit or a unit from a different division using a different
radio frequency. Consequently, Captain Davenport decided
he would respond to the call and notified communications he
was going “Code 6 on the call”—i.e., responding to the location
of the robbery. At around the same time, the Captain saw
the police car start to back up down the alley, then negotiate
a left-hand turn to leave the area.
Sergeant Gomez was in the watch commander’s office
when the robbery in progress call went out. He described the
3
next five to seven minutes as “chaotic,” with communications
sending constant “updates as to what was happening at Macy’s.”
As Captain Davenport went Code 6 on the robbery, Sergeant
Gomez looked at the watch commander’s board and saw
petitioners’ unit was Code 6 (located) in the Crenshaw Corridor.
He attempted to radio petitioners’ unit and requested they
respond to the Crenshaw Mall to assist the Captain, but he
received no response. Simultaneously, a unit broke away from
the homicide crime scene and went Code 3 (red lights and sirens)
from across the division to assist at the mall. Sergeant Gomez
queried communications again for petitioners’ response.
Communications replied, “ ‘No,’ and that was it.”
2. Sergeant Gomez’s Meeting with Petitioners
When Sergeant Gomez returned to the station he realized
petitioners had initiated their Code 6 on the Crenshaw Corridor
at approximately the same time that Captain Davenport went
Code 6 on the robbery in progress. This seemed “peculiar” to him
and he “wanted to find out what happened.”
Sergeant Gomez contacted petitioners and arranged to
meet with them later that evening at a 7-Eleven parking lot
where they were conducting an illegal merchandise investigation.
When the investigation concluded, the Sergeant asked petitioners
to clarify what their duties were as the foot beat patrol car.
Officer Lozano explained their primary responsibility was
community relations with citizens and businesspeople, adding
“the main issues are Leimert Park.”
After discussing their duties, Sergeant Gomez asked
petitioners if they had heard a call for “backup at Crenshaw Mall
for a 211.” Officer Mitchell said he had not, while Officer Lozano
said he heard Captain Davenport was Code 6 at the Crenshaw
4
Mall but he did not hear a request for backup. Sergeant Gomez
counseled petitioners that “ ‘we have to listen to the radio,’ ”
“ ‘[i]t’s what our livelihood and our safety depends on,’ ” and
he asked them “if their radios were working.” Officer Mitchell
responded that there was “a lot of music” and it was “really loud
in the park . . . [,] especially on Saturdays.” Officer Lozano
concurred, adding, “ ‘we have no control over the [public
announcement] system and all the loud noise, it was loud.’ ”
Sergeant Gomez acknowledged he “couldn’t dispute that,” and he
advised petitioners “to move to a location where [they] could hear
the radio” if they found themselves in a loud area in the future.
Sergeant Gomez asked petitioners if they had any
questions regarding his concerns and he reiterated that the best
practice was to be in a location where they could hear the radio.
In his testimony to the board of rights, the Sergeant explained:
“At that point, my understanding was that the [robbery] call
wasn’t heard because they were at the park. And like I said,
I could not dispute that.” He concluded the meeting by advising
petitioners that he was “counseling them for not listening to
the radio” and “left it at that.”
3. The DICVS Recording and Misconduct Investigation
Sergeant Gomez was still uneasy about the timing of
petitioners’ Code 6 on the Crenshaw Corridor when he came into
work the following day. It then dawned on him to review their
patrol unit’s DICVS recording to “find out what they do on their
average day.”
Sergeant Gomez’s review of the DICVS recording revealed
new and disturbing facts: It had been petitioners’ patrol unit
that Captain Davenport saw in the alley only a short distance
from the mall; petitioners did hear the radio call about a robbery
5
in progress; they discussed the call and whether they should
assist Captain Davenport; and they went Code 6 on the
Crenshaw Corridor to conceal that they had decided not
to respond to the call.
The DICVS recording disclosed that, immediately after
Captain Davenport’s Code 6 broadcast, Officer Lozano asked
Officer Mitchell if they were Code 6 on the Crenshaw Corridor
or on the corner near the mall where they were parked. Mitchell
responded they were “[a]t the corner” and noted the broadcast
radio call was “Davenport.” Lozano then instructed Mitchell to
put them Code 6 “at the corridor,” adding (after some laughter)
regarding Captain Davenport, “I don’t want to be his help.”
Petitioners’ unit then moved backwards through the alley and
turned away from the mall, as Captain Davenport had observed.
For the next several minutes the DICVS captured
continued radio traffic regarding the robbery and pursuit of
multiple suspects. After communications made a second attempt
to contact petitioners, Officer Lozano asked if they should “ask
[communications] if there’s a message.” Officer Mitchell replied,
“It’s up to you. Whatever you think. I don’t want them to think
we’re not paying attention to the radio.” Lozano responded,
“Aw, screw it.” Petitioners made no attempt to respond over
the radio when their unit was called.
Sergeant Gomez notified the watch commander about
petitioners’ conduct and what the DICVS recording disclosed.
His concerns were forwarded up the chain of command and
the Sergeant was ultimately instructed to prepare the face sheet
of a misconduct complaint against petitioners.
Detective Tracy McClanahan conducted the misconduct
investigation, focusing on allegations that petitioners failed
6
to respond to a robbery in progress call, made false statements
to a supervisor, and neglected to handle a radio call. Her
investigation primarily involved multiple reviews of the DICVS
recording and interviews with Captain Davenport, Sergeant
Gomez, Commander Gerald Woodyard (who oversaw the foot beat
units), and Officers Lozano and Mitchell.
Officers Lozano and Mitchell told Detective McClanahan
they did not respond to the robbery in progress call because
Captain Davenport did not request backup and because they
were instructed to stay in their assigned area of the Crenshaw
Corridor. Commander Woodyard said he did not give petitioners
that instruction and insisted they should have responded to
the call. Based on the interviews and the DICVS recording,
Detective McClanahan concluded petitioners willfully failed
to respond to the robbery call and attempted to conceal the fact
by “placing themselves Code 6 somewhere else.”
After carefully listening to the DICVS recording a number
of times, Detective McClanahan also became concerned that
petitioners were playing “the Pokémon Go video game” while
on duty the day of the robbery. 2 The recording showed that,
2 According to evidence admitted at the board of rights
hearing, Pokémon Go is an “augmented reality” mobile phone
game that “uses the mobile device GPS to locate, capture, battle,
and train virtual creatures, called Pokémon, which appear
as if they are in the player’s real-world location.” The game
is credited with “popularizing location-based and [augmented
reality] technology, promoting physical activity, and helping
local businesses grow due to increased foot traffic.” However,
the game also “attracted controversy for contributing to accidents
and creating public nuisances.”
7
at approximately 6:09 p.m. (just five minutes after Officer Lozano
said “screw it” to checking in with communications about the
robbery call), Officer Mitchell alerted Lozano that “Snorlax”
“just popped up” at “46th and Leimert.” 3 After noting that
“Leimert doesn’t go all the way to 46th,” Lozano responded,
“Oh, you [know] what I can do? I’ll [go] down 11th and swing
up on Crenshaw. I know that way I can get to it.” Mitchell
suggested a different route, then told Lozano, “We got four
minutes.”
For approximately the next 20 minutes, the DICVS
captured petitioners discussing Pokémon as they drove to
different locations where the virtual creatures apparently
appeared on their mobile phones. On their way to the Snorlax
location, Officer Mitchell alerted Officer Lozano that “a Togetic
just popped up,” noting it was “[o]n Crenshaw, just South
As players move within their real world surroundings,
their in-game “avatars” move within the game’s map. Upon
encountering a Pokémon, the player’s mobile device “display[s]
an image of [the] Pokémon as though it were in the real world,”
and the “player may throw a Poké Ball at it by flicking [the ball]
from the bottom of the screen up toward the Pokémon.” If the
Pokémon “is successfully caught, it will come under the
ownership of the player,” and the player “is awarded two types
of in-game currencies: Candies and Stardust,” which are needed
to “raise a Pokémon’s ‘Combat Power’ ” or “to evolve a Pokémon.”
The game’s “ultimate goal” is to “complete the entries in the
Pokédex, a comprehensive Pokémon logbook, by catching and
evolving [Pokémon] to collect every one in it.”
3 According to evidence admitted at the board of rights
hearing, “Snorlax” is a Pokémon creature known as “the Sleeping
Pokémon.”
8
of 50th.” 4 After Mitchell apparently caught the Snorlax—
exclaiming, “Got ‘em”—petitioners agreed to “[g]o get the Togetic”
and drove off. When their car stopped again, the DICVS recorded
Mitchell saying, “Don’t run away. Don’t run away,” while Lozano
described how he “buried it and ultra-balled” the Togetic before
announcing, “Got him.” Mitchell advised he was “[s]till trying
to catch it,” adding, “Holy crap, man. This thing is fighting
the crap out of me.” Eventually Mitchell exclaimed, “Holy Crap.
Finally,” apparently in reference to capturing the Togetic, and
he remarked, “The[ ] guys are going to be so jealous.” Petitioners
then agreed to return to the 7-Eleven (where Sergeant Gomez
later met them) to end their watch. On the way, Mitchell
remarked, “I got you a new Pokémon today, dude.”
Detective McClanahan conducted a second round of
interviews with petitioners to discuss her concern that they
were playing a video game while on duty. Petitioners denied
playing a video game. They claimed they were merely “having
a conversation about Pokémon Go” and Officer Mitchell had
been receiving text messages and alerts from a Pokémon Go
players group where “people [were] bragging about their scores.”
Detective McClanahan determined petitioners were not being
truthful.
4. The Board of Rights Hearing and Discharge Orders
The Department charged petitioners with multiple counts
of on-duty misconduct, including: (1) Failing to respond to a
robbery-in-progress call; (2) Making misleading statements
4 According to evidence admitted at the board of rights
hearing, “Togetic” is a Pokémon creature known as a “happy,
cheerful and a ditsy” Pokémon.
9
to Sergeant Gomez when asked why they did not hear the radio;
(3) Failing to respond over the radio when their unit was called;
(4) Failing to handle an assigned radio call; (5) Playing
Pokémon Go while on patrol in their police vehicle; and (6)
Making false statements to Detective McClanahan during
a complaint investigation. Petitioners pled “guilty” to the first
and third counts and “not guilty” to the remaining counts.
After opening statements, petitioners’ representative
objected to the admission of everything captured on the DICVS
recording up to petitioners’ conversation with Sergeant Gomez
at the 7-Eleven that evening. She argued the conversations
between petitioners preceding the meeting with Sergeant Gomez
were “private,” as petitioners did not realize the DICVS was
running at the time, and she asserted the Board of Police
Commissioner’s Special Order No. 45 precluded the use of the
DICVS to “monitor private conversations between Department
employees.” The Department stipulated to the admission of
Special Order No. 45, but argued it did not apply because the
DICVS had captured petitioners engaged in police business—
not private affairs. The board ruled the DICVS recording could
be offered as evidence subject to petitioners’ continuing objection
“to testimony about private conversations on the video.”
The board of rights received testimony from Captain
Davenport, Sergeant Gomez, Detective McClanahan, and
Officers Lozano and Mitchell. Both petitioners characterized
their willful failure to respond to the robbery in progress and
to provide assistance to Captain Davenport as an “error” or “lack”
in judgment. But they continued to insist they did not respond
to the call because they believed they needed to remain within
the boundaries of their “assigned . . . foot beat area.” Both also
10
denied that they had made misleading statements to Sergeant
Gomez, describing their comments about noise in the park as
“generaliz[ed]” observations that were not meant as a specific
response to the Sergeant’s questions about why they had not
heard the radio.
Petitioners also denied playing Pokémon Go while on duty.
They claimed they were monitoring a “Pokémon tracker”
application on their phone, but not playing the game itself.
As for “catching” Pokémon, Officer Lozano insisted this referred
to “capturing [an] image” of the Pokémon on the tracking
application to share with friends, while Officer Mitchell said his
statements about “fighting” the Togetic referred to “relaying that
information to the groups on my app,” adding that, “in order to
take the picture, occasionally, the creature will fight.” Lozano
said they were not engaged in a game; rather, it was a “social
media event.” Mitchell said he did not consider the application
a game because it was not “advertised as a game.” Petitioners
admitted leaving their foot beat area in search of Snorlax,
but they insisted they did so “both” as part of an “extra patrol”
and to “chase this mythical creature.”
After the presentation of evidence, petitioners’
representative moved to strike the count alleging petitioners
made misleading statements to Sergeant Gomez. She argued
their meeting violated petitioners’ rights under POBRA, because
the Sergeant interrogated them on matters that could lead
to punitive action without affording them the opportunity to
have a representative present.
The board of rights denied the motion and overruled
petitioners’ objection to the DICVS recording. Regarding
POBRA, the board found the meeting with Sergeant Gomez
11
“was in the normal course of Sergeant Gomez’[s] duty” and
his counseling and instruction “was routine and expected
of a supervisor.” As for the DICVS recording, the board
received evidence that, subsequent to Special Order No. 45,
the Professional Standards Bureau published Notice 13.5,
which authorized the use of unintentionally recorded personal
communications in disciplinary matters if there was “evidence of
criminal or egregious misconduct.” Consistent with the notice,
the board determined the DICVS recording could be used as
evidence in the disciplinary proceeding because the misconduct
captured “would certainly be classified as egregious.”
The board of rights reached a unanimous verdict, finding
petitioners guilty on all but the count alleging they failed to
handle an assigned radio call. Regarding the penalty, the
board found petitioners “were disingenuous and deceitful in
their remarks throughout the board [hearing]”; their willful
failure to respond to the robbery in progress and attempt to
conceal their whereabouts “demonstrated a severe negative
attitude and disdain towards Captain Davenport, and reflected
poorly” on the Department; their inattention to duty while
playing a mobile phone game “violated the trust of the public,
and represent[ed] unprofessional and embarrassing behavior”;
and petitioners’ “overall behavior [was] inconsistent with
the values and principles expected of our police officers who
serve this community.” The board unanimously recommended
petitioners be removed from employment with the Department.
The Chief of Police adopted the board’s penalty
recommendations and issued orders discharging petitioners
from their positions as LAPD officers.
12
5. The Administrative Mandamus Proceedings
Petitioners challenged their discharge orders by a petition
for administrative mandamus. They argued the board of rights
did not proceed in the manner required by law when it allowed
the DICVS recording to be used as evidence, and they maintained
their procedural rights under POBRA were violated because
Sergeant Gomez questioned them without affording them the
opportunity to have a legal representative present. Petitioners
also asserted discharge was “too harsh” a penalty under the
circumstances.
In their reply to the City’s opposition, petitioners argued—
for the first time—the DICVS recording was inadmissible under
Penal Code section 632, subdivision (d). The City objected to
the argument on the grounds that petitioners had not cited the
Penal Code section in their opening brief and the statute was
not part of the administrative record.
The trial court denied the petition. Regarding Penal Code
section 632, the court sustained the City’s objection, concluding
petitioners forfeited the argument by “improperly” raising it for
the first time in reply. The court also found the board of rights
properly admitted the DICVS recording into evidence under
Notice 13.5. And the court concluded there had been no POBRA
violation, because Sergeant Gomez questioned petitioners in
the “ ‘normal course’ ” of his duty as a supervisor to counsel and
instruct them. The court rejected the argument that the City
abused its discretion by discharging petitioners from employment
with the Department.
The trial court entered judgment denying the petition.
Petitioners filed a timely notice of appeal.
13
DISCUSSION
1. Standard of Review
Administrative mandamus is available to obtain judicial
review of a public agency “decision made as the result of a
proceeding in which by law a hearing is required to be given,
evidence is required to be taken, and discretion in the
determination of facts is vested in the inferior tribunal,
corporation, board, or officer.” (Code Civ. Proc., § 1094.5,
subd. (a).) In a proceeding for administrative mandate,
the judicial inquiry extends to whether the public agency
“has proceeded without, or in excess of, jurisdiction; whether
there was a fair trial; and whether there was any prejudicial
abuse of discretion.” (Id., § 1094.5, subd. (b).) An abuse of
discretion is established if the public agency “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.” (Ibid.)
Where the public agency’s decision affects a fundamental
vested right—such as a tenured police officer’s employment—
the trial court examines the administrative record for errors of
law and exercises its independent judgment in assessing whether
the evidence is sufficient to support the agency’s findings.
(Bixby v. Pierno (1971) 4 Cal.3d 130, 143; Molina, supra, 200
Cal.App.4th at pp. 60–61.) In such cases, the court conducts
a limited trial de novo and “abuse of discretion is established if
the court determines that the findings are not supported by the
weight of the evidence.” (Code Civ. Proc., § 1094.5, subd. (c);
Mann v. Department of Motor Vehicles (1999) 76 Cal.App.4th
312, 320.) “In all other cases, abuse of discretion is established
if the court determines that the findings are not supported by
14
substantial evidence in the light of the whole record.” (Code
Civ. Proc., § 1094.5, subd. (c).)
The trial court’s factual findings are subject to our
substantial evidence standard of review. (Molina, supra, 200
Cal.App.4th at p. 61.) We must uphold the court’s findings
unless they are so lacking in evidentiary support as to render
them unreasonable. (Ibid.) We do not reweigh the evidence, but
instead are bound to consider the facts in the light most favorable
to the respondent, giving it every reasonable inference and
resolving all conflicts in its favor. (Ibid.)
On questions of law, including the interpretation of
statutes, city charters, and administrative regulations, we apply
our de novo standard of review. (Molina, supra, 200 Cal.App.4th
at p. 61; Don’t Cell Our Parks v. City of San Diego (2018) 21
Cal.App.5th 338, 350 (Parks).)
2. The City Properly Used the DICVS Recording
in Petitioners’ Disciplinary Proceeding
Petitioners contend the City did not proceed in the manner
required by law when it used the portions of the DICVS recording
that captured their purported “ ‘private conversations’ ” in the
disciplinary proceeding against them. First, they argue use
of the recording violated Special Order No. 45, and they
maintain the City was compelled to follow that order under
the Los Angeles City Charter (Charter), notwithstanding a
supposedly conflicting authorization in Notice 13.5. Second,
they argue Penal Code section 632 precluded admission of their
“confidential communication[s]” at the board of rights hearing.
Finally, assuming Notice 13.5 governs, petitioners insist there
was no independent evidence of “egregious misconduct” to
permit the initiation of a disciplinary investigation involving
15
the recording. None of these contentions advances a reasonable
interpretation of the relevant statutes, Charter sections, or
administrative regulations.
a. The City Charter and Special Order No. 45
A city charter is “the supreme law of the City, subject only
to conflicting provisions in the federal and state Constitutions
and to preemptive state law.” (Domar Electric, Inc. v. City of
Los Angeles (1994) 9 Cal.4th 161, 170 (Domar); Parks, supra,
21 Cal.App.5th at p. 349.) A “charter city may not act in conflict
with its charter” and “[a]ny act that is violative of or not in
compliance with the charter is void.” (Domar, at p. 171.)
“The principles of construction that apply to statutes also
apply to the interpretation of charter provisions.” (Parks, supra,
21 Cal.App.5th at p. 349.) “We look first to the language of the
charter, giving effect to its plain meaning. [Citation.] Where
the words of the charter are clear, we may not add to or alter
them to accomplish a purpose that does not appear on the face
of the charter.” (Domar, supra, 9 Cal.4th at p. 172.) While we
apply our independent judgment in construing a city charter,
“[a]dministrative interpretations [of city charter provisions] of
longstanding are entitled to great weight unless they are plainly
wrong.” (Baird v. City of Los Angeles (1975) 54 Cal.App.3d 120,
123; United Assn. of Journeymen v. City and County of
San Francisco (1995) 32 Cal.App.4th 751, 759, fn. 6; see also
Yamaha Corp. of America v. State Bd. of Equalization (1998)
19 Cal.4th 1, 8; Parks, at pp. 349–350.)
Charter section 574, subdivision (c) authorizes the Chief
of Police to “appoint, discharge, discipline, transfer and issue
instructions to the employees of the department,” other than
certain enumerated department employees not implicated in
16
this case. (Italics added.) Additionally, Charter section 574,
subdivision (g) authorizes the Chief of Police to “exercise further
powers in the administration of the department conferred
upon the Chief of Police by the Board of Police Commissioners.”
Consistent with that provision, Charter section 571, subdivision
(b)(1) grants the Board of Police Commissioners authority to
“issue instructions to the Chief of Police concerning the exercise
of the authority conferred on the Chief of Police by the Charter,
other than the disciplinary authority conferred by Section 1070.” 5
Petitioners maintain Special Order No. 45 precluded the
City from taking disciplinary action based on the portions of
the DICVS recording that captured their private conversations.
They rely on a single line in the special order, appearing at
the end of a paragraph introducing the procedures for using
the DICVS as part of the pilot program approved by the Board
of Police Commissioners. The line reads: “The Digital In-Car
Video System is being deployed in order to provide Department
employees with a tool for crime documentation and prosecution,
and not to monitor private conversations between Department
employees.”
Six years after the Board of Police Commissioners
approved Special Order No. 45, the Professional Standards
Bureau published Notice 13.5 to provide commanding officers
with “guidelines” for “determining appropriate and reasonable
5 Charter section 1070 establishes the scope of the authority
of the Chief of Police to discipline a peace officer “[a]fter following
predisciplinary procedures otherwise required by law.” Thus,
by its express terms, Charter section 1070 does not apply to
predisciplinary matters, such as the use of DICVS recordings
in disciplinary proceedings.
17
responses to possible misconduct and other deviations from
established procedures discovered during the review of [ ]DICV[S]
recordings.” 6 With respect to “Unintentionally Recorded Personal
Communications” (boldface omitted), Notice 13.5 reaffirms,
consistent with Special Order No. 45, that “the DICV[S] system
was not deployed ‘to monitor private conversations between
Department employees.’ ” However, Notice 13.5 adds, if
“a sensitive personal communication between employees is
recorded, the personal communication will not be used to initiate
a personnel complaint investigation or used against an employee
in the adjudication of a personnel complaint, or during any
subsequent hearings, unless there is evidence of criminal
or egregious misconduct.” (Italics added.)
The trial court concluded the board of rights properly
admitted the DICVS recording under Notice 13.5. Petitioners
contend this was error. Because the Board of Police
Commissioners approved the DICVS pilot program with the
express understanding, as stated in Special Order No. 45, that
it be used “for crime documentation and prosecution, and not to
monitor private conversations between Department employees,”
petitioners argue Charter section 571, subdivision (b)(1)
6 The Professional Standards Bureau oversees the forces
investigations, special operations, and internal affairs divisions,
which comprise the investigative arm of the Chief of Police with
respect to employee misconduct that either violates the law or
Department policies, procedures, or practices. (Quezada v. City
of Los Angeles (2014) 222 Cal.App.4th 993, 998, fn. 3.) The
Commanding Officer of the Professional Standards Bureau and
the Chief of Staff of the Office of the Chief of Police approved
Notice 13.5.
18
precluded the Chief of Police from approving Notice 13.5.
Their implicit premise is that Notice 13.5 conflicts with Special
Order No. 45 and, therefore, the Chief of Police exceeded the
authority granted to him under Charter section 571, subdivision
(b)(1) by implementing the guidelines set forth in the notice.
That premise is flawed.
As the trial court correctly reasoned, Notice 13.5 does
not run afoul of Charter section 571, subdivision (b)(1), because
Special Order No. 45 does not provide instructions or mandates
to the Chief of Police when, through unintentional conduct,
the DICVS records a private communication. Following its
introductory paragraphs, Special Order No. 45 sets forth the
procedures officers are to follow in using the DICVS for “law
enforcement activities” (italics added, boldface and capitalization
omitted), including when the DICVS must be activated and
when it may be deactivated for traffic stops, pursuits, suspect
transports, and pedestrian stops. The order provides officers
with instructions for reviewing and documenting material
recorded with the DICVS, and instructions for reviewing
the recordings in advance of a use of force interview. Finally,
Special Order No. 45 specifies that “[a]ll data and imagery
captured by the DICVS are the sole property of the Los Angeles
Police Department” and warns employees that misuse of
DICVS recordings “may result in disciplinary action.” Thus,
Special Order No. 45 contemplates and exclusively concerns
the intentional use of the DICVS for law enforcement activities.
Because the Board of Police Commissioners did not give
instructions on the use of unintentionally recorded conversations
in disciplinary proceedings, Special Order No. 45 does not restrict
19
“the exercise of the authority conferred on the Chief of Police
by the Charter” under Charter section 571, subdivision (b)(1).
More to the point, the guidelines set forth in Notice 13.5
are consistent with the general purpose of the DICVS embodied
in Special Order No. 45. Notice 13.5 reaffirms that the DICVS
was not deployed to monitor private conversations, but it
recognizes there may be instances when the system records
personal communications that evidence “criminal or egregious
misconduct” by Department personnel. Because the DICVS’s
purpose, as stated in Special Order No. 45, is to “provide
Department employees with a tool for crime documentation and
prosecution,” it would be preposterous to require commanding
officers and internal affairs investigators to ignore evidence
of “criminal or egregious misconduct” simply because it was
unintentionally captured on a DICVS recording. Charter section
574, subdivision (g) authorizes the Chief of Police to “exercise
further powers in the administration of the department conferred
upon the Chief of Police by the Board of Police Commissioners.”
Because the guidelines set forth in Notice 13.5 are consistent
with Special Order No. 45, the Chief of Police and Professional
Standards Bureau acted well within their authority in issuing
the guidance.
b. Penal Code section 632
Penal Code section 632 “prohibits the intentional
eavesdropping to a confidential communication by means of
any electronic amplifying or recording device, without the consent
of all parties.” 7 (Marich v. MGM/UA Telecommunications, Inc.
7 Penal Code section 632, subdivision (a) provides: “A person
who, intentionally and without the consent of all parties to a
confidential communication, uses an electronic amplifying or
20
(2003) 113 Cal.App.4th 415, 421 (Marich).) Under Penal Code
section 632, subdivision (d), “evidence obtained as a result of
eavesdropping upon or recording a confidential communication
in violation of this section is not admissible in any judicial,
administrative, legislative, or other proceeding,” except “as
proof in an action or prosecution for violation of this section.”
Petitioners contend the statute precluded admission of the
DICVS recording in the board of rights hearing. We disagree.
The text of Penal Code section 632 plainly requires proof
of “intentional conduct” to establish a statutory violation and
to invoke the evidentiary sanction set forth in subdivision (d).
(Marich, supra, 113 Cal.App.4th at p. 421.) Under the statute,
“the recording of a confidential conversation is intentional if
the person using the recording equipment does so with the
purpose or desire of recording a confidential conversation, or
with the knowledge to a substantial certainty that his use of
the equipment will result in the recordation of a confidential
recording device to eavesdrop upon or record the confidential
communication, whether the communication is carried on
among the parties in the presence of one another or by means
of a telegraph, telephone, or other device, except a radio, shall
be punished by a fine not exceeding two thousand five hundred
dollars ($2,500) per violation, or imprisonment in a county jail
not exceeding one year, or in the state prison, or by both that fine
and imprisonment. If the person has previously been convicted
of a violation of this section or Section 631, 632.5, 632.6, 632.7,
or 636, the person shall be punished by a fine not exceeding
ten thousand dollars ($10,000) per violation, by imprisonment
in a county jail not exceeding one year, or in the state prison,
or by both that fine and imprisonment.”
21
conversation.” (People v. Superior Court of Los Angeles County
(1969) 70 Cal.2d 123, 134 (Smith); Marich, at p. 421.)
Consistent with the statute’s intentional conduct
requirement, Notice 13.5, by its terms, authorizes the use
of only “Unintentionally Recorded Personal Communications”
in disciplinary proceedings. (Italics added, boldface omitted.)
Notwithstanding this evident consistency, petitioners argue
Notice 13.5 actually proves just the opposite—that the City
(acting through the Department and Chief of Police) intentionally
uses the DICVS to record the confidential communications of
Department personnel. In petitioners’ telling, Notice 13.5 shows
the City was “aware that equipping police cars with recording
devices could record ‘sensitive personal communications between
employees,’ ” and this, petitioners contend, “establishes intent
within the meaning of [Smith and Marich].” We are not
persuaded.
Almost a decade after Smith, our Supreme Court revisited
the definition of “ ‘intentionally,’ ” summarizing its holding in
Smith as follows: “This court held that ‘intentionally’ in [the
invasion of privacy] statute required an intent to bring about
the proscribed result rather than an intent merely to do an act
which unintentionally brought about that result. Thus, the
[Smith] court concluded that the Penal Code section required
an intent to record a confidential communication, rather
than simply an intent to turn on a recording apparatus which
happened to record a confidential communication.” (Estate of
Kramme (1978) 20 Cal.3d 567, 572, fn. 5, second italics added.)
To the extent Notice 13.5 says anything about the City’s
intent with respect to recording confidential communications,
the notice squarely situates the City’s intent in the latter
22
category described in Estate of Kramme. In recognizing there
could be “Unintentionally Recorded Personal Communications”
(italics added, boldface omitted), Notice 13.5 proves only that
the City understood it was deploying recording devices that
might happen to record a confidential communication—not that
the City intended to record those communications. Moreover,
the procedures outlined in Special Order No. 45 suggest that
only the officers in the vehicle can activate the DICVS. Although
petitioners testified they were unaware the DICVS was running
on the day in question, they presented no evidence to establish
who activated the system. Without that critical piece of evidence,
petitioners plainly could not prove “[a] person . . . , intentionally
and without the consent of all parties to a confidential
communication,” used the DICVS to record their purportedly
confidential communications that day. (Pen. Code, § 632,
subd. (a).)
Because there was no evidence that a person intentionally
recorded a confidential communication in violation of the statute,
petitioners cannot show the trial court prejudicially erred by
rejecting their Penal Code section 632 argument.
c. Notice 13.5
Finally, petitioners contend Notice 13.5 did not authorize
the Department’s use of the DICVS recording in their
disciplinary proceedings because there was no independent
evidence, apart from the recording itself, of egregious misconduct.
Because Notice 13.5 states a “personal communication will not
be used to initiate a personnel complaint investigation . . . unless
there is evidence of criminal or egregious misconduct” (italics
added), petitioners argue Sergeant Gomez was not authorized
to review the DICVS recording unless he had some other evidence
23
of egregious misconduct to initiate the review. The argument
misconstrues Notice 13.5.
Contrary to petitioners’ construction, Notice 13.5 does
not impose an evidentiary threshold on a commanding officer’s
authority to review a DICVS recording. Rather, the notice
means exactly what it says—that “a personal communication
will not be used to initiate a personnel complaint investigation
. . . unless there is evidence of criminal or egregious misconduct.”
(Italics added.) Nothing in Notice 13.5 suggests there must be
independent evidence of criminal or egregious misconduct before
the DICVS recording may be reviewed. Indeed, because the
Professional Standards Bureau published the notice to provide
“guidelines” for “determining appropriate and reasonable
responses to possible misconduct . . . discovered during the review
of [ ]DICV[S] recordings” (italics added), the only reasonable
reading of the text is that it authorizes the initiation of
disciplinary proceedings when the DICVS recording itself
discloses evidence of criminal or egregious misconduct. Thus,
while Notice 13.5 ensures that Department personnel will not
be subject to discipline for minor infractions or purely private
communications unrelated to their police work (as long as the
private communications do not evidence criminal misconduct),
the notice reasonably provides that commanding officers will not
be forced to ignore egregious misconduct that is unintentionally
captured on a DICVS recording.
Petitioners do not dispute that the DICVS recording
constituted evidence of egregious misconduct. And the record
plainly shows Sergeant Gomez initiated a misconduct complaint
investigation based on this evidence.
24
We conclude the City proceeded in the manner required
by law with respect to the DICVS recording.
3. Sergeant Gomez’s Questioning Did Not Violate
Petitioners’ Rights Under POBRA
POBRA “provides a catalog of basic rights and protections
that must be afforded all peace officers by the public entities
which employ them.” (California Correctional Peace Officers
Assn. v. State of California (2000) 82 Cal.App.4th 294, 304.)
The Act’s purpose is “to maintain stable employer-employee
relations and thereby assure effective law enforcement.”
(Lybarger v. City of Los Angeles (1985) 40 Cal.3d 822, 826.)
“Although notions of fundamental fairness for police officers
underlie the Act, a number of its provisions also reflect the
Legislature’s recognition of the necessity for internal affairs
investigations to maintain the efficiency and integrity of the
police force serving the community.” (Pasadena Police Officers
Assn. v. City of Pasadena (1990) 51 Cal.3d 564, 572.) POBRA
thus reflects the Legislature’s balancing of two competing
interests: “the public interest in maintaining the efficiency
and integrity of its police force, which, in enforcing the law,
is entrusted with the protection of the community it serves”;
and the peace officer’s “personal interest in receiving fair
treatment” during an investigation that may subject the officer
to punitive action. (Pasadena Police, at p. 569; White v. County
of Sacramento (1982) 31 Cal.3d 676, 681.)
Like POBRA generally, section 3303, subdivision (i)
balances an officer’s interest in a fair disciplinary process with
the public’s interest in maintaining an efficient police force.
The statute protects the officer’s interest by affording an officer
the right to have a representative of his or her choosing present
25
“whenever an interrogation focuses on matters that are likely to
result in punitive action against” the officer. 8 (§ 3303, subd. (i).)
But, critically, the statute also ensures that this protection does
not generate needless inefficiency by expressly specifying that
the right to representation does “not apply to any interrogation
of a public safety officer in the normal course of duty, counseling,
instruction, or informal verbal admonishment by, or other routine
or unplanned contact with, a supervisor or any other public
safety officer.” (§ 3303, subd. (i).) This provision “was included
to avoid claims that almost any communication is elevated to an
‘investigation’ ” by expressly “exclud[ing] routine communication
within the normal course of administering the department,” as
well as “innocent preliminary or casual questions and remarks
between a supervisor and officer.” (City of Los Angeles v.
Superior Court (1997) 57 Cal.App.4th 1506, 1514 (Labio).)
Petitioners contend the right to representation under
section 3303, subdivision (i) attached to their meeting with
Sergeant Gomez because the Sergeant arranged the meeting with
the express purpose “to find out why they had not responded to
a ‘high priority call’ that had the potential to create a dangerous
situation for Captain Davenport.” The trial court rejected
this argument, finding the “meeting did not violate POBRA”
because it “ ‘was in the normal course of Sergeant Gomez’[s]
duty [to provide] counseling [and] instruction and was routine
and expected of a supervisor.’ ”
8 The Act defines “punitive action” as “any action that may
lead to dismissal, demotion, suspension, reduction in salary,
written reprimand, or transfer for purposes of punishment.”
(§ 3303.)
26
We review the trial court’s factual finding regarding
the nature of the meeting for substantial evidence. (Steinert,
supra, 146 Cal.App.4th at p. 462; Shafer v. Los Angeles County
Sheriff’s Dept. (2003) 106 Cal.App.4th 1388, 1396.) We are thus
“required to resolve all evidentiary conflicts, draw all reasonable
factual inferences, and uphold all express or implied findings in
[the Department’s] favor, if supported by substantial evidence.”
(Jaramillo, supra, 200 Cal.App.4th at p. 815.)
Substantial evidence supports the trial court’s finding. As
the court explained in its written decision, the evidence showed
the events surrounding the robbery call “unfolded rapidly,” and
Sergeant Gomez characterized the minutes that followed Captain
Davenport’s radio call as “ ‘chaotic.’ ” While the Sergeant
found it “peculiar” that petitioners had initiated their Code 6
at approximately the same time Captain Davenport responded
to the robbery, the frenzied pace of the incident and the hectic
radio chatter surrounding it also gave him reason to believe
petitioners had not responded because they were occupied with
other business and did not hear his attempt to contact them
on the radio.
When Sergeant Gomez met with petitioners later that
evening, he first asked them to clarify their duties, recognizing,
as the trial court observed, there “could be any number of
reasons, consistent with [their] duties as foot beat officers, that
[petitioners] would be Code 6 on Crenshaw Corridor at the time
of the robbery call.” Officer Lozano explained they were
charged with making community contacts with citizens and
businesspeople in the area, and their main focus was the Leimert
Park area of the Crenshaw Corridor. Sergeant Gomez then asked
petitioners if “their radios were working” and if they had heard
27
what he believed was a call for “backup at Crenshaw Mall” for
a robbery in progress. Petitioners explained the area around
the park was often very loud, especially on Saturdays when
parkgoers played music or used the public announcement system.
Sergeant Gomez acknowledged this was a credible explanation
for why they had not heard the radio, remarking in his testimony
about the meeting: “I couldn’t dispute that. If there’s loud
noise and you can’t hear the radio, I have nothing to say.”
The Sergeant instructed petitioners that they should have
moved to a location where they could hear the radio, advised
them that he “was counseling them for not listening to the radio,”
and “left it at that.”
Consistent with Sergeant Gomez’s characterization of the
meeting, Officer Mitchell acknowledged the meeting constituted
“a normal exchange between supervisor and subordinate” and
it was “the same type of discussion or . . . supervisory oversight
that’s provided daily to the patrol units.” This admission,
coupled with Sergeant Gomez’s testimony, and other reasonable
inferences that can be drawn from the Sergeant’s perception of
the events that day support the trial court’s finding that Sergeant
Gomez met with petitioners as part of his normal duty to provide
“counseling, instruction, or informal verbal admonishment”
to subordinate public safety officers. (§ 3303, subd. (i).)
Independently applying the law to the trial court’s factual
findings, we conclude POBRA did not apply. (See Steinert, supra,
146 Cal.App.4th at pp. 463–465 [where commanding officer
“knew no facts that would have caused him to believe” petitioner
engaged in serious misconduct, apparent minor infraction that
“could have been properly addressed by a training/educational
28
meeting” did not implicate right to representation under § 3303,
subd. (i)].)
Petitioners maintain Labio, supra, 57 Cal.App.4th 1506is directly on point. We disagree. 9 Officer Labio was on duty
as an airport police officer when a fatal accident occurred near
the airport. (Id. at pp. 1509–1510.) Shortly after the accident,
Labio’s commanding officer learned that a male Filipino officer
drove past the accident scene in a marked police vehicle and,
without stopping to render aid, went to a donut shop. (Id. at
p. 1510.) The commander checked the deployment log and
confirmed Labio was the only officer matching the description,
and he spoke with the donut shop’s owner, who confirmed a male
Filipino officer had been there at about the time of the accident.
(Ibid.) The commander also discovered Labio did not have
permission to use a vehicle that evening and asked another
officer “to write a report documenting that fact.” (Ibid.)
Before questioning Officer Labio, the commander “knew
that passing by the scene of the accident without stopping to
render aid was a serious offense and that the officer could face
9 The other case petitioners cite—Hanna v. City of
Los Angeles (1989) 212 Cal.App.3d 363—is totally irrelevant.
In a nonpublished opinion preceding Hanna, the appellate court
had determined an interrogation violated an officer’s rights under
POBRA and remanded the case to the trial court “ ‘for the limited
purpose of determining whether the violations of the Act warrant
the suppression of evidence.’ ” (Id. at p. 369.) In view of this
procedural posture, the Hanna opinion naturally addresses only
the suppression issue and says nothing about when an officer
is entitled to representation under section 3303, subdivision (i).
(See Hanna, at pp. 371–375.) The trial court understandably
declined to address Hanna in its ruling denying the petition.
29
disciplinary action if the allegation were sustained.” (Labio,
supra, 57 Cal.App.4th at p. 1510.) He also “realized the
matter would have to be forwarded to the department’s
internal affairs division.” (Id. at p. 1511.) Nevertheless,
the commander summoned Labio to his office and, upon
Labio’s arrival, immediately began questioning him about his
whereabouts and use of a police vehicle during the shift, without
informing Labio that he was under investigation or informing
him of his rights under POBRA. (Ibid.)
The trial court concluded the questioning violated Labio’s
rights under POBRA and the appellate court agreed, concluding
“the questioning [could] only be characterized as part of an
investigation of Officer Labio for sanctionable conduct.” (Labio,
supra, 57 Cal.App.4th at p. 1514.) Because the trial court
had found a violation, the Labio court gave short shrift to the
city’s contention that the questioning constituted a routine or
unplanned contact within the normal course of duty, stating only:
“There probably are cases in which routine questions and
remarks begin to shade into an investigation to which
subdivision (i) does not apply. We need not decide just where
that point is reached because it is clear that under our test
an investigation was underway in this case.” (Ibid.)
In contrast to Labio, here, Sergeant Gomez did not have
evidence that petitioners had committed a crime or egregious
misconduct when he met with them to discuss the radio calls
earlier that evening. To be sure, the record shows Sergeant
Gomez was uneasy about the timing of petitioners’ Code 6,
both before and after their meeting; however, because he had
not had “much contact” or “other issues” with them, he testified
the informal admonishment and counseling normally would have
30
been the “end” of it. It was only the next morning that it dawned
on him to look at their vehicle’s DICVS recording to “find out
what [petitioners] do on their average day.” At the time, of
course, the Sergeant had no reason to know the DICVS had
recorded petitioners’ conversation regarding Captain Davenport
or the mall robbery, as, under Special Order No. 45, petitioners
had been instructed to activate the DICVS “during the initiation”
of activities such as vehicle stops, pursuits, suspect transports,
or pedestrian stops, and to deactivate the unit after the
“incident or field contact has stabilized or the contact has ended.”
Nevertheless, by happenstance the DICVS did capture
petitioners’ conversations, and the record shows it was
uncovering this evidence of egregious misconduct—after his
meeting with petitioners—that led Sergeant Gomez to initiate
formal disciplinary action against them. Even if some of the
Sergeant’s “questions and remarks beg[an] to shade into an
investigation” during the meeting (Labio, supra, 57 Cal.App.4th
at p. 1514), the record amply supports the trial court’s finding
that this was, as Officer Mitchell acknowledged, a routine
exchange between supervisor and subordinate within the normal
course of administering the department. POBRA did not apply.
(See Steinert, supra, 146 Cal.App.4th at p. 466 [evidence that
commanding officer “had no intention to punish [petitioner],”
and only sought “to make sure she knew the proper procedure
for future” action, supported trial court’s refusal to suppress
evidence of petitioner’s apparent lie during questioning].)
31
DISPOSITION
The judgment is affirmed. The City and the Chief of Police
are entitled to costs, if any.
CERTIFIED FOR PUBLICATION
EGERTON, J.
We concur:
EDMON, P. J.
WINDHAM, J. ∗
∗
Judge of the Los Angeles County Superior Court, assigned
by the Chief Justice pursuant to article VI, section 6 of the
California Constitution.
32