Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County. Los Angeles County Super. Ct. No. BS097322 Dzintra Janavs, Judge.
Diane Marchant for Petitioner and Appellant.
Rockard J. Delgadillo, City Attorney, Claudia McGee Henry, Senior Assistant City Attorney, and Gerald M. Sato, Deputy City Attorney, for Respondent.
Judge of the Los Angeles Superior Court assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
The police chief suspended a Los Angeles police officer on domestic violence charges. The officer says the process deprived him of his constitutional rights of cross-examination and confrontation. He also says the punishment was time-barred. We affirm.
I
Appellant Phillip Carr is an officer with the Los Angeles Police Department. Respondents are the City of Los Angeles and the Chief of Police, William J. Bratton (collectively, “LAPD”). In July 2002 Carr worked as an LAPD motorcycle traffic officer. He had been married for one year to a woman we refer to, for confidentiality, as A. Carr. Carr met A. Carr when she worked as a file clerk at the West Valley Jail. At the time of these events, Carr was 41 years old, A. Carr was 21, and Carr was five inches taller and some 50 or 65 pounds heavier than A. Carr. There were two pertinent episodes between Carr and his wife.
A
On July 12, 2002 Carr and his wife got into an argument that escalated to a physical altercation. A. Carr left their house and called 911. Ultimately, seven police cars and two supervisors arrived at the Carrs’ home. The responding officers knew Carr had his service revolver and possibly other guns as well. Officers got behind cars and trucks around the house. A Sergeant Lium telephoned Carr. He told Carr his wife was outside, she had made a criminal complaint, and said she wanted him arrested. Lium told Carr to come out and talk with the officers. Carr said he would unlock the front door security screen and then hung up. He did not come out. Lium called Carr again. This time the answering machine picked up. Lium left a message warning Carr he was making things worse by not cooperating. Lium and the other officers yelled to Carr to come outside. Carr asked them to come to the screen door if they wanted to talk to him, but Lium would not permit officers to approach. Finally, Carr came out. The officers arrested him for domestic violence.
B
The second episode was 11 days later on July 23, 2002. A. Carr had not reported to work for some days. She had not called in sick. Her supervisor at the jail where she worked worried Carr might be keeping A. Carr captive in the house and went there with two officers for a “welfare check.” An officer rang the doorbell and knocked on the door but no one answered. Earlier Carr had used A. Carr’s Navigator to drive to the station to pick up his badge and identification. He got a call that officers at his house were trying to find his wife. Carr said his wife was home sick. He said she asked him to call in sick for her but he had refused. Carr called A. Carr. Carr got a second telephone call a few minutes later telling him officers were going to kick down the front door if A. Carr did not, or could not, answer the door. Carr called A. Carr again and told her to open the door or officers would kick it down. A. Carr finally opened the door. Her supervisor went inside to talk to her. A. Carr had not been locked inside the house. She just did not want to answer the door.
When the supervisor learned Carr was on his way home, the supervisor called for backup. Six police units were in front when Carr got home. Carr got out of the Navigator and started into his house. Officers blocked Carr and told him he had to stay outside until the investigation was complete. He lost control. He told the officers, “Get the fuck out of my way. I can get into my fucking house.” Carr got as close as he could to the front porch and yelled out to A. Carr, “Don’t fucking talk to them.” Carr was stomping his feet, “flexing up, almost like a ‘roid rage,’” which is when someone is “really angry and out of control. Flexing muscles a lot. You see it at the gym.” An officer told Carr, “Look, if you weren’t who you were we’d have already handcuffed you.” One sergeant told an officer to get a taser ready because Carr “was getting violent and it was escalating.”
C
After Carr’s arrest in July 2002, the LAPD referred the case to the district attorney, who declined to prosecute and referred Carr’s case to the city attorney. The city attorney also investigated and declined to press charges against Carr. Instead, in December 2002 the city attorney ordered Carr to complete a 52-session anger management course.
The LAPD served Carr with a personnel complaint in October 2003, less than a year after these agencies completed their investigations. (See Gov. Code, § 3304, subd. (d)(1) [statute of limitations is tolled where the allegation of misconduct is also the subject of a criminal investigation or prosecution].) The complaint charged Carr with eight counts of misconduct and ordered him to face the charges before a Board of Rights. The complaint stated the proposed disciplinary action was either “suspension or demotion, or suspension and demotion.” Only four counts remain at issue in this appeal. They basically charged as follows:
Count 3 On July 12, 2002, while off duty, you became involved in a domestic violence incident with A. Carr.
Count 4 On July 12, 2002, while off duty, you used physical force against A. Carr, during a domestic violence incident.
Count 5 On July 12, 2002, while off duty, you became involved in a domestic violence incident that resulted in your arrest by on duty Los Angeles Police Officers.
Count 6 On July 23, 2002, while off duty, you attempted to dissuade witness, A. Carr, from cooperating during an investigation.
Carr’s Board of Rights hearing began in May 2004 and continued sporadically for months. The LAPD presented documentary evidence and testimony from LAPD witnesses. A. Carr did not testify at the Board of Rights. The Carrs divorced shortly after the episodes at the Carr house. A. Carr left her job and moved away, apparently beyond the LAPD’s immediate subpoena power. The Board permitted police personnel and internal affairs personnel to repeat statements A. Carr made to them during their investigations. Carr himself also testified. Carr continuously objected to the Board’s consideration of hearsay statements that the LAPD presented.
In March 2005, the Board found Carr guilty of the four counts outlined above. The Board recommended a 44-day suspension as punishment. The chief of police accepted the recommendation and suspended Carr for 44 days.
D
Carr filed a petition for writ of mandate. In his petition Carr alleged the punitive action against him was time-barred under the one-year statute of limitations of the Public Safety Officers Procedural Bill of Rights Act because he did not receive notice of the 44 day length of his suspension “within one year of the public agency's discovery . . . of the allegation of an act, omission, or other misconduct.” (Gov. Code, § 3304, subd. (d).) His petition also alleged the Board’s guilty findings were unsupported because they were based on the inadmissible hearsay statements of A. Carr whose statements he was unable to cross-examine because she was not at the hearing, but not “unavailable” as defined in the Evidence Code.
The trial court denied Carr’s petition. The court stated A. Carr might have been sufficiently “unavailable” for the hearsay exception for victim’s statements of injury in Evidence Code section 1370 to apply. But even were she not “unavailable,” the court commented, the evidence of the 911 tape reporting domestic violence, plus other evidence, was more than enough to overcome Carr’s hearsay argument.
Carr appeals from the judgment.
II
In his opening brief on appeal, Carr does not repeat the hearsay arguments he made before the Board and the trial court. Carr thereby has abandoned these points. Instead, Carr says the Board’s admission of hearsay statements violated his constitutional rights of confrontation and cross-examination.
A
Carr’s constitutional argument goes like this. A. Carr did not testify at the Board of Rights. Carr asserts all A. Carr’s statements were “testimonial,” including her 911 statement that her husband “beat her up.” He claims the Board of Rights, by admitting her statements, violated his Sixth Amendment right of confrontation and cross-examination as explained in Crawford v. Washington (2004) 541 U.S. 36, 50-54.
Carr bases his argument on the Sixth Amendment to the Constitution, but the words of the Sixth Amendment create a barrier to his argument. The Sixth Amendment says it applies only to criminal prosecutions. (U.S. Const., 6th Amend. [“In all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him,” italics added].) Crawford itself recites this constitutional limitation – twice. (See Crawford v. Washington, supra, 541 U.S. at pp. 38, 42; see also, Rosenthal v. Justices of the Supreme Court of California (9th Cir. 1990) 910 F.2d 561, 565 [“We reject Rosenthal’s confrontation clause claim. The confrontation clause is a criminal law protection. Therefore, it does not apply to a disbarment case.”].) Carr’s case is not a “criminal prosecution.” If the Sixth Amendment does not apply here, then neither would Crawford. This barrier would be fatal to Carr’s argument.
To overcome this barrier, Carr cites one 38-year-old quotation. That single quotation is a dictum from Goldberg v. Kelly (1970) 397 U.S. 254, 270. Goldberg v. Kelly held the government must provide an administrative hearing before denying welfare benefits because denying payments necessary for life during the pendency of bureaucratic review would defeat the purpose of the benefits. (Id. at p. 264.) This single dictum is from a case whose reach was soon curtailed. (See Mathews v. Eldridge (1976) 424 U.S. 319, 333.) Carr’s support for his constitutional argument is thin to the point of heroic. Nonetheless, we are wary of making constitutional pronouncements when the issue does not matter to the case. Even assuming error here, it would have been harmless by any standard.
B
Carr’s constitutional argument does not matter to his case. We will assume for argument that Carr is right about Crawford, and further will assume the strictest form of harmless error analysis governs. Beyond a reasonable doubt, different evidence rulings about A. Carr’s statements would have made no difference to the results below. We take this harmless error analysis count by count.
1
Count 3 charged that, on July 12, 2002, while off duty, Carr became involved in a domestic violence incident with A. Carr. Recall that at the time of these events, Carr was 41 years old, A. Carr was 21, and Carr was five inches taller and some 50 or 65 pounds heavier than A. Carr. Recall also that Carr had been a police officer for 19 years, with all the training and experience that implies.
According to Carr, he did become involved with violence with his wife. Carr testified they got into an argument about his son’s mother. He also testified he was upset A. Carr purchased the new Navigator without consulting him. Carr admitted he grabbed his wife. “I turned her around, she was trying to get away again. I wrapped my arms around her chest holding her arms, and it was kind of a combination of her falling and me trying to lay her down.” Carr admitted “[we] ended up with me on top of her[,] her face facing the floor, my arms around her chest.”
The officers responding to the scene noticed a red indentation on A. Carr’s chest. The officers thought the redness and indentation came from some kind of pressure applied to the pendant necklace A. Carr was wearing around her neck.
Carr’s defense was “I was attacked.” Carr said his wife was the aggressor and he was the victim.
Whether Carr was the initial aggressor or instead a victim provoked into applying force against A. Carr is immaterial. The facts show Carr got into a verbal argument with A. Carr which turned into a physical altercation with A. Carr.
The Board of Rights rejected Carr’s claim of victimhood. The Board focused on Carr’s actions once the police arrived:
“Sergeant Lium attempted to persuade [Officer] P. Carr to exit the residence and P. Carr would not cooperate. This resulted in additional personnel resources of the Los Angeles Police Department being required, a command post being established, response of the Devonshire Area commanding officer as well as a patrol watch commander.”
“P. Carr advised Lium the reason for not exiting the residence as requested was this: He had done nothing wrong, he wanted to give his side of the situation, and it appeared that the officers wanted to arrest him. These clearly are the actions of a guilty person.” (Italics added.)
The Board of Rights also reasoned that “you allowed yourself to get involved in the incident of domestic violence,” and by so doing “you embarrassed yourself and you failed to maintain the high standards of the Los Angeles Police Department.” (Italics added.)
This logic is sound and its conclusions are valid. None of it turns on A. Carr’s hearsay. Carr told a tale of how, standing 6’1” and weighing 210 or 215 pounds, self defense required him to grab his wife and press her on the ground. The Board observed Carr’s demeanor while testifying, took in the whole of the situation, and drew sensible inferences from the direct observations of responding officers. It rejected Carr’s self-serving claim, because police directly witnessed Carr act like a guilty man when they arrived. By the Board’s account of its decision based on evidence Carr himself supplied, the Crawford issue is beside the point.
Carr fails even to begin to attack the Board’s logic in this court. Certainly it is unusual for a police officer to hole up when fellow officers plead with him to come out. The Board concluded the conduct showed Carr’s consciousness of guilt. There is a reasonable basis for this inference. Guilty people often hide from the law. It may not be smart, but it is common. This inference followed from evidence independent of A. Carr’s statements. Beyond a reasonable doubt, the inference would have been the same with or without A. Carr’s statements.
Moving from the Board of Rights to the superior court, Carr fails to suggest why hearsay peripheral for the Board was decisive for the court. The superior court ruled that “the weight of the evidence supports [counts] 3, 4, and 5 amply in every way that it can be.” Carr’s briefing on the issue of harmless error never distinguished between the Board of Rights and the superior court. The implication was that the same analysis should apply for each place. We agree. Excluding A. Carr’s statements would not have affected any of the results below.
2
Count 4 charged that Carr had “used physical force against A. Carr, during a domestic violence incident” on July 12, 2002, while off duty. This charge was largely cumulative to Count 3, which we have just reviewed. Count 3 said Carr “became involved in a domestic violence incident,” while Count 4 said Carr “used physical force.” The factual episode was the same for both counts, as was Carr’s defense of self-defense. Based on Carr’s testimony and the other evidence independent of A. Carr’s statements, the Board rejected Carr’s claim for both charges. By the same token, any Crawford error before the Board or the court likewise was harmless.
3
Count 5 charged that Carr “became involved in a domestic violence incident that resulted in your arrest by on duty Los Angeles Police Officers” on July 12, 2002. This count completely tracked Count 3, except for the charge of Carr’s arrest, which Carr admitted. The Crawford harmless error analysis remains the same.
4
Count 6 was about the second episode between Carr and this wife, the one on July 23, 2002. This count charged that Carr attempted to dissuade witness A. Carr from cooperating during an official investigation. Here the important witness was Officer Kevin Murphy who testified to hearing Carr yell at A. Carr, “Don’t fucking talk to them.” Crawford and hearsay from A. Carr had no relevance to this testimony, as Carr concedes.
C
In sum, we need not tackle the constitutional issue because Carr has failed to show that different treatment of this Crawford issue probably would have changed the result in his case. Crawford did not matter because other evidence amply supported both the Board’s decision to discipline Carr and the trial court’s decision to deny Carr’s writ.
III
Carr’s second argument is about the statute of limitations. Carr says the LAPD was too slow to notify him that his proposed suspension would be 44 days long. Assuming this statute of limitations argument has validity, Carr has forfeited it because he did not raise it before the Board of Rights.
Carr concedes he did not raise his statute of limitations argument before the Board of Rights. Carr likewise concedes that a recent decision from Division Five of this court “squarely” held that an officer cannot raise this statutory issue on appeal unless the officer first raised the point at the Board of Rights.” (See Moore v. City of Los Angeles (2007) 156 Cal.App.4th 373, 382-383.) In accord with the Moore forfeiture rule is a recent decision from Division Eight of this court: Chrisman v. City of Los Angeles (2007) 155 Cal.App.4th 29, 42.
“The reason for the [forfeiture] rule is clear. It is fundamental that the review of administrative proceedings provided by section 1094.5 of the Code of Civil Procedure is confined to the issues appearing in the record of that body as made out by the parties to the proceedings, though additional evidence, in a proper case, may be received. It was never contemplated that a party to an administrative hearing should withhold any defense then available to him or make only a perfunctory or ‘skeleton’ showing in the hearing and thereafter obtain an unlimited trial de novo, on expanded issues, in the reviewing court. The rule compelling a party to present all legitimate issues before the administrative tribunal is required in order to preserve the integrity of the proceedings before that body and to endow them with a dignity beyond that of a mere shadow-play.” (Moore v. City of Los Angeles, supra, 156 Cal.App.4th. at p. 383, quotation marks and citations omitted.)
Carr offers one argument, and one argument only, in response to Moore. Carr claims the Moore ruling conflicts with an earlier decision from Division Three of this court in Sanchez v. City of Los Angeles (2006) 140 Cal.App.4th 1069, 1078-1079. There is, however, no necessary conflict between Moore and Sanchez. The Sanchez decision noted that futility is an exception to forfeiture following failure to exhaust administrative remedies. (Id. at p. 1079.) But Carr has not attempted to satisfy the requirements of this futility exception. He did not mention the word “futile” in this appeal until the penultimate paragraph of his reply brief. There he does not suggest why it might have been futile for him to address this point to the Board of Rights. “The futility exception requires that the party invoking the exception can positively state that the agency has declared what its ruling will be on a particular case.” (Jonathan Neil & Associates, Inc. v. Jones (2004) 33 Cal.4th 917, 936, quotation marks, citation, and brackets omitted; see also id. at pp. 930-931 [reviewing the many basic reasons for requiring a party to exhaust administrative remedies].) Carr cannot invoke the futility exception because he has not met this burden.
A basic factual distinction thus reconciles the Sanchez and Moore decisions. In Sanchez, the court applied the futility exception to excuse Sanchez’s failure to exhaust his administrative remedies. In Moore, Moore failed to qualify for the futility exception. Carr is like Moore: both have failed to qualify for the futility exception. Moore thus is more like this case, and we apply its rule. We therefore need not explore any potential conflict between the Sanchez and Moore decisions. (Compare Sanchez, supra, 140 Cal.App.4th at pp. 1078-1079 with Moore, supra, 156 Cal.App.4th at pp. 386-387.)
Thus, the one argument Carr offers to rebut the Moore case is not valid. Following Moore, then, “the statute of limitations defense was forfeited by failure to raise it before the Board of Rights . . . .” (Moore, supra, 156 Cal.App.4th at p. 382.)
After filing his reply brief, Carr directed our attention to a decision from Division One of this court: Quihuis v. City of Los Angeles B196367 (issued Jan 28, 2008; modified Feb 26, 2008). The modified Quihuis decision might be read to suggest that Moore’s administrative exhaustion requirement does not apply to administrative hearings held before the date of the Moore decision: October 4, 2007. The Moore court did not describe the law as unsettled. Rather, Moore’s analysis was that “California law has long provided that a statute of limitations defense must be raised at an administrative hearing before relief may be sought on that ground under Code of Civil Procedure section 1094.5. (Moore, supra, 156 Cal.App.4th at p. 382, italics added.) Moore relied on authorities more than half a century old. (See id. at pp. 382-383 [citing and quoting Bohn v. Watson (1954) 130 Cal.App.2d 24, 36-37].) Carr has not argued in his case about supposedly unsettled law before Moore. By failing to raise any issue about unsettled law, Carr gave the LAPD no opportunity to address this point. We will not address arguments that neither side has advanced.
IV
The judgment is affirmed. We grant the LAPD’s motion to strike portions of Carr’s reply brief. The LAPD shall recover its costs of appeal.
We concur: WOODS, Acting P.J., ZELON, J.