Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County No. RIC461168 Stephen D. Cunnison, Judge.
Law Offices of Dennis J. Hayes, Dennis J. Hayes and Diana C. Boley for Plaintiff and Appellant.
Ferguson, Praet & Sherman and Jon F. Hamilton for Defendants and Respondents.
OPINION
Gaut J.
We decline to consider the unpublished case of Smith v. County of Riverside, E037260.
Luis Bolanos appeals from an order of the trial court denying his petition for writ of mandate, challenging an administrative decision upholding his termination from his position as senior district attorney investigator with the County of Riverside.
Bolanos’s principal argument for challenging his termination is his contention that the initial grounds for termination were improperly altered. The county responds that the arbitrator based his decision solely on misstatements made by Bolanos to the family law court and substantial evidence supports the trial court’s independent determination on this point.
The issue presented for this court’s review is whether substantial evidence supported Bolanos’s termination based on purported misstatements made by him in the family law case. We affirm, holding substantial evidence supports the trial court’s findings.
2. Factual and Procedural Background
Bolanos was employed by the county for 22 years, beginning in 1984 as a deputy sheriff. He was hired as a senior investigator for the district attorney in June 2002. Bolanos is a member of the Riverside Sheriffs’ Association, subject to the terms of a written Memorandum of Understanding.
Before his termination, Bolanos had an exemplary career and had never been previously disciplined. He received “Employee of the Month” awards in October 2003 and 2004 and commendation letters in November 2003 and September and October 2004. His evaluation for the period of December 2002 through June 2004 was highly favorable and included a recommendation that he receive the “2003 Investigator of the Year Pride Award and the 2003 Latino Peace Officer’s Association, Officer of the Year Award.” In the administrative hearing, many witnesses testified positively about his work, his honesty, and his ethical standards.
Bolanos married Jolie in May 2002. In September 2004, Bolanos and Jolie were having marital problems. He filed for divorce on October 12, 2004. Jolie accused Bolanos of domestic violence and perjury. She claimed he had grabbed her, pushed her down, and bruised her arm. She also contended he had made false statements in declarations submitted to the family law court and particularly concerning a telephone call on October 10, 2004.
After the county conducted a seven-month investigation, it issued a draft “Final Report of Internal Affairs Investigation,” finding the allegations of domestic violence and perjury were not sustained.
On July 13, 2005, the California Attorney General filed a criminal complaint against Bolanos, charging nine felonies: one count of corporal injury to a spouse (Pen. Code, § 273.5) and eight counts of perjury by declaration. (Pen. Code, § 118.)
On July 18, 2005, defendant was served with a “Notice of Proposed Termination,” to be effective August 17, 2005. The notice included a different, longer version of the Final Report and stated that the perjury allegations were sustained. In the draft version, the summaries of the interview with Bolanos were “redacted.” The final version included the summaries of Bolanos’s interview. The altered final report also included mention of the criminal charges filed by the Attorney General. The changes in the final report were made at the instigation of Bolanos’s immediate supervisor, Assistant Chief Bruce Bower, and Deputy Attorney General Mike Murphy who was handling the criminal prosecution against Bolanos. The actual termination occurred on August 20, 2005, effective August 31, 2005.
The superior court dismissed the criminal complaint at the preliminary hearing in December 2005.
The administrative hearing on Bolanos’s termination was conducted in May and June 2006 and the arbitrator issued his decision upholding the termination on October 31, 2006.
The superior court denied Bolanos’s petition for writ of mandate on August 20, 2007. The notice of appeal was timely filed on October 2, 2007. (Code Civ. Proc., § 904.1, subd. (a)(1)(C); Cal. Rules of Court, rule 8.104(a)(2).)
On December 10, 2007, the superior court granted Bolanos’s petition for a judicial finding of factual innocence.
We grant Bolanos’s unopposed request for judicial notice, filed January 10, 2008. (Evid. Code, §§ 452 and 459.) The superior court’s order granting the petition is now under review, People v. Bolanos, E044889.
3. Standard of Review
This court has held: “In reviewing an administrative agency decision, the trial court is required to exercise its independent judgment on the evidence presented in the administrative hearing and determine whether the weight of the evidence supports the agency’s decision, ‘which comes to the courts with a “strong presumption of correctness.’” [Fn. omitted.] ‘[T]he party challenging the administrative decision bears the burden of convincing the court that the administrative findings are contrary to the weight of the evidence.’ [Fn. omitted.] On appeal, our task is to determine whether the trial court’s findings are supported by substantial evidence. [Fn. omitted.]” (Mason v. Office of Admin. Hearings (2001) 89 Cal.App.4th 1119, 1130; Barber v. Long Beach Civil Service Com. (1996) 45 Cal.App.4th 652, 658; see also Code Civ. Proc., § 1094.5, subd. (c).) Additionally, “[t]he ultimate determination is whether a reasonable trier of fact could have found for the respondent based on the whole record.” (Kuhn v. Department of General Services (1994) 22 Cal.App.4th 1627, 1633.) The evidence presented in the record to the trial court is summarized below.
4. The Family Law Declarations of October 2004
The precipitating event was a family law declaration signed by Bolanos on October 12, 2004, in which he averred the following in support of his request for personal-conduct, stay-away, and move-out orders from the family law court: “On October 10, 2004, I was on duty and on call at my home. At or about 11 p.m., a call came to my home from a female law enforcement person [deputy district attorney, Traci Carrillo] to report a homicide behind the greyhound station in Indio to which I was required to respond to the scene. Respondent [Jolie] answered the telephone and began questioning the caller and accusing her of being my mistress, and cursing the caller out for calling our home. I took the phone from Respondent and assured the caller everything was okay, and had to take down the information for the investigation to meet the district attorney at the scene of the homicide. [¶] During my phone call, Respondent continued to escalate her behavior, getting louder, cursing and acting erratically.” In a subsequent declaration executed on October 27, 2004, Bolanos repeated the same information.
5. The Final Report of Internal Affairs Investigation
The Final Report considered the allegation that Bolanos had committed perjury in the family law declarations. Jolie provided a statement in which she said “she answered the telephone and just asked the female caller, ‘Who’s calling?’ [Bolanos] took the phone from her and completed the call.” Jolie maintained their argument occurred after the call and that she had been courteous to the caller. As part of the investigation, Jolie also provided a recorded statement in which she described the call more fully. She said the phone rang, the answering machine picked up, and she heard a woman’s voice. When Jolie answered, a woman asked for Bolanos saying she was with the district attorney’s office. Then Bolanos grabbed the phone away from Jolie who asked him what he was doing. He went into the bedroom to finish his call and they argued afterwards. Jolie’s account was far less incendiary than that given by Bolanos.
Carrillo agreed that Jolie had been cordial and did not accuse her of anything or cuss at her. Carrillo denied overhearing “any arguing, fighting, or harsh words while she was on the phone with [Bolanos].” Carrillo’s statements directly contradict what Bolanos said in his family law declaration, i.e., that Jolie had questioned, accused, and cursed Carrillo.
Bolanos offered a different account. He said the phone rang and the answering machine picked up the call. Jolie asked him, “Who the fuck is this?” Then she picked up the phone and said, “Hello.” He took the phone and went behind closed doors. But “[d]uring the call, Jolie was yelling and trying to enter the room.” Bolanos’s family law attorney, Carolyn Holt Marino, generally claimed responsibility for any errors in the court declarations prepared by her and executed by Bolanos. She believed any errors were not material and could easily have been corrected.
In the draft Final Report, the perjury allegation was not sustained: “As to the description of the late night phone call from Deputy District Attorney Tracy Carrillo, Jolie agrees that they argued after the phone was made and that Jolie accused Traci Carrillo of being [Bolanos’s] mistress during that argument.” The final version of the Final Report concluded the perjury allegation was sustained: “[B]oth Jolie and [Bolanos] agree that they argued after the phone call was made and that Jolie accused Traci Carrillo of being [Bolanos’s] mistress during that argument. [Bolanos] states that his attorney misunderstood or misinterpreted the information he provided regarding the phone call by preparing the court declarations in such a way as to lead this reader to believe the statements were made during the phone call itself. [Bolanos] states that his interpretation of the declaration about the phone call from Traci Carrillo is clear that the accusations from Jolie occurred after she made the call. My interpretation of the declaration indicates that [Bolanos] is saying the arguments and accusations took place while Traci was on the phone.”
Additional allegations in the final Tentative Report involved domestic violence against Jolie, other misstatements to the family law court, prohibited contact with Jolie, and excessive use of the county-issued cellular phone. All the allegations, except the one involving domestic violence, were sustained.
6. The Administrative Hearing
During the administrative hearing, Bolanos testified that when Carrillo called, the answering machine picked up and Carrillo was heard asking for Bolanos. Then “Jolie . . . started screaming, ‘Who the fuck is that? Who is that? Who the fuck?’” Bolanos tried to calm her but she grabbed the phone first and demanded, “‘Hello, who is this?’ Something to that effect.
“At that time, I put my—caught up to her, put my hand over the phone. I hadn’t taken it away from her. I said, ‘Jolie, relax. It’s work. Relax.’
“She said, ‘Are you fucking her? Are you fucking her?’ She starts saying that over and over again.
“I pull the phone back a little bit, and she started to get her mouth closer to the phone intentionally to let that person hear what’s going on between us.” He took the phone, grabbed a pencil and pad, and went into a bedroom with her following him and yelling at him during the call. He put his hand over the phone’s mouthpiece to prevent the caller from hearing Jolie.
In contrast, Carrillo testified that she recalled her conversation with Jolie as “fine, polite, professional, uneventful.” Jolie was not “agitated or angry in any manner.” There were no disturbances or yelling in the background and Jolie did not threaten, curse or accuse Carrillo of being involved with Bolanos.
Chief Clay Hodson testified that the investigation against Bolanos was initiated because of the domestic violence allegations by Jolie. The termination was based on Bolanos’s dishonesty because it would present a “Brady problem” in criminal prosecutions. The misstatements in the family law declarations were sufficient reason alone to terminate Bolanos. Sue Steding, the Brady compliance officer, also testified that Bolanos’s dishonesty in the family law case would create a Brady problem.
Brady v. Maryland (1963) 373 U.S. 83 [prosecution’s failure to disclose exculpatory evidence to a defendant is a denial of due process.]
The arbitrator stated the following in his decision: “Since [Bolanos] was engaged in law enforcement duties and had been and would be subject to the dictates of Brady, I have concluded that the most serious allegations of misconduct involved the October 12 declaration under penalty of perjury . . . . [¶] . . . [¶] the question before me is not whether any statement in [Bolanos’s] October 12 declaration constituted perjury under Penal Code Section 118 but rather whether [Bolanos’s] declaration constituted dishonesty because it included statements that he knew to be false or misleading.” Furthermore, “[g]iven [his] duties as a sworn law enforcement officer, the allegation that [he] engaged in dishonesty when he submitted a declaration under penalty of perjury that contained false and/or misleading information must be deemed to be extremely serious since [his] testimony during a criminal proceeding could lead to an individual’s incarceration. The trustworthiness of his reports and his credibility under oath while testifying cannot be subject to question. However, that would be the consequence of a finding that [Bolanos] knowingly made a false statement under penalty of perjury.”
Concerning the October 12 declaration about the October 10 phone call, the arbitrator said, “the declaration was offered to support [Bolanos’s] Request for Orders that would restrict Ms. Bolanos’ contact with [him] and her ability to use the residence. Therefore the veracity of what [he] alleged that Ms. Bolanos said and did during that telephone call had a direct link to whether the requested Orders would be granted by the Court, and accordingly, [his] assertions about the circumstances of that call were relevant and material.”
The arbitrator observed there were at least three different versions of what occurred during the October 10 phone call. The declarations by Bolanos cast Jolie in the worst light. Carrillo’s testimony was “essentially benign.” Bolanos’s testimony at the arbitration contradicted his declarations in trying to reconcile his version with Carrillo’s. But Bolanos never plausibly explained or corrected these differences. Therefore, the arbitrator found Bolanos was not credible and he knowingly submitted to the court false declarations under penalty of perjury that were material and relevant. “Notwithstanding [Bolanos’s] prior work history, I find that the nature of his misconduct was so egregious that it breached the trust that he had been given as an employee who had been sworn to enforce the laws. The issue of whether or not [he] would ever again engage in such misconduct is not relevant since the damage to his credibility has already occurred and the questions about the reliability and value of his testimony under Brady have already been posed. [¶] Given the seriousness of [his] misconduct, it is not necessary to address any of the other allegations. Had [his] dishonesty of submitting a false declaration under penalty been the only allegation, I would have concluded that his termination was warranted and for just and good cause.”
7. Superior Court Decision
In ruling on the petition for writ of mandate, the superior court applied the independent judgment test, determining “whether the administrative findings are supported by the weight of the evidence in the administrative record.”
In its statement of decision, the superior court confined itself to considering the sufficiency of the evidence on the charge of dishonesty as decided by the arbitrator. The court then denied the petition: “An independent review of the evidence concerning the charge of dishonesty shows that it sustains the findings that the charge is true. The statements in Bolanos’s declarations of October 12 and October 27, 2004, are irreconcilably inconsistent, not only with the testimony of Deputy District Attorney Carrillo, but also with Bolanos’ testimony before the arbitrator. Bolanos’ explanation that he did not believe he could correct the declarations is not credible.”
8. Discussion
As we stated previously, the arbitrator’s decision comes to the trial court with a strong presumption of correctness. The trial court conducts an independent review and the appellate court decides whether substantial evidence supports the trial court’s findings. (Mason v. Office of Admin. Hearings, supra, 89 Cal.App.4th at p. 1130.) Based on this record, we have no difficulty agreeing with both the arbitrator and the trial court that a reasonable trier of fact could find in favor of the county. (Kuhn v. Department of General Services, supra, 22 Cal.App.4th at p. 1633.)
In his court declarations, during the investigation, and at the arbitration, Bolanos presented constantly shifting versions of what happened during the phone call with Carrillo. Jolie and Carrillo, a presumably disinterested third party, offered a different version in which they agreed with one another but disagreed with Bolanos. Carrillo flatly contradicted Bolanos’s accusations that Jolie had confronted her directly. Based on their statements and testimony as compared with his, the arbitrator could reasonably find in favor of the county and the trial court could independently uphold that finding.
We reject the various other arguments offered by Bolanos to support his position. We agree with both the arbitrator and the superior court that, although the working draft of the Final Report found the perjury allegation to be unsustained, the Final Report could amend the finding on the perjury allegation and find it to be sustained.
We also do not agree the county violated Labor Code section 432.7, subdivision (b): “. . . a government agency employing a peace officer . . . shall not determine any condition of employment other than paid administrative leave based solely on an arrest report. The information contained in an arrest report may be used as the starting point for an independent, internal investigation of a peace officer . . . .” The county began to investigate Bolanos because of the domestic violence accusations but ultimately his termination was upheld by the arbitrator, and affirmed by the trial court, based on his dishonesty in court declarations and not because of his arrest for corporal injury to a spouse or for perjury.
Nor are we persuaded that the Notice of Proposed Termination did not give adequate notice about the reason for Bolanos’s termination. (Skelly v. State Personnel Board (1975) 15 Cal.3d 194.) The notice referred to dishonesty, conduct adverse to job performance, and making an unlawful or untruthful report. It also referred to “false statements included in . . . court documents” and “[k]nowingly filing with the court under penalty of perjury, a declaration that contained several material misrepresentations . . . open[ing] your credibility to challenge in all subsequent proceedings you are involved in—irrespective of how the criminal perjury charges are ultimately decided. [¶] In every case you can now expect to be cross-examined by defense counsel about the circumstances of your making a false declaration to the court . . . ma[king] your continued effectiveness as a Senior Investigator in this office impossible.” The attached Final Report included a detailed discussion of the October 10 phone call. There could be no question that his execution of the court declarations concerning this incident was one of the grounds for terminating Bolanos.
Furthermore, although we recognize that the criminal charges were dismissed and, ultimately, after the arbitration, Bolanos obtained a judicial finding of factual innocence, we again agree with the arbitrator and the trial court that the criminal case is not relevant to the arbitrator’s finding of dishonesty as grounds for termination. The administrative hearing and the subsequent writ petition are different proceedings from the criminal case. (In re Law (1973) 10 Cal.3d 21, 27; People v. Ortiviz (1977) 74 Cal.App.3d 537, 542.) The doctrines of res judicata and collateral estoppel do not apply in this administrative and civil action based on the dismissal of a related but distinct criminal case at the preliminary hearing: “‘[T]he doctrines of res judicata or collateral estoppel are inapplicable to orders dismissing criminal proceedings following preliminary hearings.’” (People v. Wallace (2004) 33 Cal.4th 738, 749, citing People v. Uhlemann (1973) 9 Cal.3d 662, 667-668.)
Additionally, the crime of perjury as defined by Penal Code section 118, subdivision (a), differs significantly from dishonesty as defined by section 400.04 of the Policy and Procedure Manual for the District Attorney’s Bureau of Investigation. Perjury is defined by the code as follows: “Every person who, having taken an oath that he or she will testify, declare, depose, or certify truly before any competent tribunal, officer, or person, in any of the cases in which the oath may by law of the State of California be administered, willfully and contrary to the oath, states as true any material matter which he or she knows to be false, and every person who testifies, declares, deposes, or certifies under penalty of perjury in any of the cases in which the testimony, declarations, depositions, or certification is permitted by law of the State of California under penalty of perjury and willfully states as true any material matter which he or she knows to be false, is guilty of perjury.” Section 400.04, section 1, subsection (1), provides far more simply: “Employees shall not make, either verbally or in writing, an unlawful or untruthful report.” An employee can be untruthful in violation of county policy without committing perjury. Even if Bolanos relied on his family law attorney and did not intend materially to deceive the family law court and even if his conduct did not adversely effect or otherwise impair his present ability to work, he still made an untruthful report and violated county policy.
9. Disposition
The record demonstrates that Bolanos, a criminal investigator, knowingly made false statements to the family law court for which action he was terminated from his employment. An arbitrator found the evidence supported the termination. The trial court, using its independent judgment reasonably found substantial evidence to support the arbitrator’s decision. The trial court did not abuse its discretion. We affirm the judgment.
We concur: Hollenhorst Acting P. J., King J.