Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Los Angeles County No. BS 108675, Dzintra Janavs, Judge.
Lackie & Dammeier, Lackie, Dammeier & McGill, Dieter C. Dammeier, John Bakhit, Zahra Khoury and Michael A. McGill for Plaintiff and Appellant.
Aleshire & Wynder, Glen E. Tucker and Pam P. Kotchavong for Defendants and Respondents Julius I. Davis and Mark Fronterotta.
ROTHSCHILD, J.
After admitting to interrogators that he had sexual intercourse with a prostitute while on duty, appellant Richard Correa received a notice of intent to terminate him from his employment as a police officer of the City of Inglewood. Correa sought a writ of mandate and an injunction to prevent the city from using any of the statements made during the interrogation at his forthcoming administrative appeal. He contended that the interrogation violated his rights under the Public Safety Officers Procedural Bill of Rights (Gov. Code, §§ 3300-3313). The trial court denied relief and Correa filed a timely appeal. We affirm.
All statutory references are to the Government Code.
FACTS AND PROCEEDINGS BELOW
The Inglewood police department first learned of the allegations of Correa’s sexual misconduct in January 2006. While on duty on January 10, 2007, at approximately 9:45 p.m., Correa received a call directing him to report to the department’s internal affairs division. When he arrived approximately 15 minutes later he received a written notice that he was under investigation for “CUBO,” conduct unbecoming an officer. The notice ordered Correa to appear the next day, January 11, at 4:00 p.m. for an internal affairs interrogation.
At approximately 11:00 p.m. that same evening, Correa contacted Detective Loyd Waters, vice-president of the Inglewood Police Officers Association and told Waters that he had been ordered to appear for an internal affairs interrogation the following day. Waters gave Correa the telephone number of the Association’s legal counsel, the law firm of Lackie & Dammeier. At approximately 2:00 a.m. on the morning of January 11, Correa spoke by telephone to a member of the firm, John Bakhit and asked Bakhit to represent him at the scheduled interrogation. Bakhit told Correa that he could not appear for him at the interrogation’s scheduled date and time because he had other commitments. He advised Correa to ask for a continuance. After speaking to Correa, Bakhit attempted to find another attorney in the firm to represent Correa at the interrogation but every other attorney had previous engagements. The record does not reflect whether Bakhit advised Correa regarding waiving his statutory right to have the investigation completed within one year in return for a continuance of the interrogation.
Section 3304, subdivision (d) provides in general that “no punitive action, nor denial of promotion on grounds other than merit, shall be undertaken for any act, omission, or other allegation of misconduct if the investigation of the allegation is not completed within one year of the public agency’s discovery by a person authorized to initiate an investigation of the allegation of an act, omission, or other misconduct.”
Before speaking with Correa, Bakhit had already spoken to Waters, at approximately 7:30 p.m. on January 10, who told him that the Inglewood police department intended to conduct five interrogations the following day. An hour later, at approximately 8:30 p.m., Bakhit received a call from Lieutenant Mark Fronterotta in the department’s internal affairs division. Fronterotta confirmed that five interrogations were scheduled for the following day but refused to give Bakhit the names of the interrogees. Bakhit informed Fronterotta that he had commitments to other clients on January 11 and would not be available to represent any of the five interrogees on that day.
The parties agree that Fronterotta offered to continue the interrogations to a date available on Bakhit’s calendar if the officers would waive the one-year statute of limitations and that Bakhit rejected that offer, telling Fronterotta that “the officers had no interest in waiving their statutory rights.”
The parties dispute whether Fronterotta offered Bakhit alternative dates for the interrogation in the absence of a waiver of the statute of limitations.
Bakhit testified that he asked Fronterotta if it would be possible to put two of the interrogations over one day, to January 12, a Friday, and hold the other three on Monday, January 15. Fronterotta, however, “would not budge” and insisted on conducting the interrogations on January 11 unless the officers waived the statute of limitations.
Fronterotta testified that in his first telephone conversation with Bakhit on the evening of January 10, Bakhit stated that January 12 would be acceptable to him for the interrogation of Correa. Fronterotta responded that he was willing to conduct the interview on January 12 or in the morning of January 13. After further conversation, however, Bakhit stated that he would not be available on January 12. He also told Fronterotta that he would not agree to January 13 and he would not waive the statute of limitations on behalf of the officers he represented. Fronterotta’s testimony is confirmed in part by Waters who testified that Fronterotta told him that the internal affairs staff might be willing to come in on Saturday morning, January 13, if someone from Lackie & Dammeier would be available.
Correa appeared for the interrogation on January 11 at 4:00 p.m. without a representative. The presiding officer, Sergeant Peter Friesen, asked Correa if he wished to speak to a union representative in order to obtain representation at the interrogation. Correa responded, “I want my attorney John Bakhit, okay? . . . That’s my attorney that I have chosen to represent me in this, and it’s part of my choice of representation that falls under my police officer bill of rights.” Friesen told Correa that if he signed a waiver of the one-year statute of limitations he could choose a date for the interrogation when Bakhit would be available. Correa refused to sign the waiver. He told Friesen, “I’ve chosen my attorney and I want him present here during my interview.” Over Correa’s objection, the department proceeded with his interrogation without the presence of Bakhit. Following the interrogation, the department served Correa with a notice of its intent to terminate his employment.
Upon receipt of the department’s notice of its intent to terminate him, Correa brought this action for a writ of mandate and injunctive relief to prevent the department from using any statements from the interrogation at an administrative appeal from the proposed termination and for ancillary relief. Correa contended the interrogation violated his rights under the Public Safety Officers Procedural Bill of Rights, primarily his “right to be represented by a representative of his . . . choice.” (§ 3303, subd. (i).)
The trial court denied mandamus and injunctive relief. Resolving the conflicting testimony of Fronterotta and Bakhit in favor of Fronterotta, the court concluded that Correa was not denied a reasonable opportunity to be represented at the interrogation by a person of his choice. The court found Correa’s remaining contentions “meritless.” We agree with the court’s conclusions.
DISCUSSION
I.
CORREA’S RIGHT TO BE REPRESENTED BY A PERSON OF HIS CHOICE
Section 3303, subdivision (i) provides that “whenever an interrogation focuses on matters that are likely to result in punitive action against any public safety officer, that officer, at his or her request, shall have the right to be represented by a representative of his or her choice[.]” In Upland Police Officers Assn. v. City of Upland (2003) 111 Cal.App.4th 1294, 1306, the court held that the officer’s statutory right to a representative of his or her choice “must be interpreted in a reasonable and commonsense manner by all parties.” The department cannot unfairly interfere with the officer’s opportunity to obtain representation of his choice by refusing a reasonable adjustment in the date and time of the proceeding to accommodate the officer’s chosen representative. (Id. at p. 1308.)
The trial court found that the city failed to afford Correa reasonable advance notice of the date and time of the hearing. Nevertheless, the court concluded, Correa did not suffer prejudice as a result of this short notice because he managed to obtain counsel and the city made considerable efforts to accommodate his counsel’s schedule including offering to postpone the interrogation for one or two days.
Correa challenges the court’s ruling on two grounds. First, the court erred in relying on Fronterotta’s declaration as the basis for its finding that the city made reasonable efforts to accommodate his counsel’s schedule because Fronterotta’s declaration is vague, ambiguous and inadmissible as hearsay. Second, even if Fronterotta’s version of events is accepted, his declaration shows that all the conversations he had with Waters and Bakhit occurred on the evening of January 10, before Correa retained Bakhit as his counsel in the early morning of January 11. Therefore, Correa argues, the city could not have made efforts to accommodate his counsel because he had not retained Bakhit as his counsel when those accommodations were discussed. Neither of these arguments has merit.
The evidentiary objections are directed to paragraph 8 of Fronterotta’s declaration in which he states: “[I]n a series of telephone calls to Detective Waters and Attorney John Bakhit over a period of approximately one hour on January 10, 2007, I stated that I was willing to have the interview conducted on January 12, 2007, and was also willing to have it conducted on Saturday morning, January 13, 2007.”
Correa argues the court could not rely on Fronterotta’s statement because it is vague and ambiguous as to whom he made the offer of a continuance to Friday or Saturday, Waters or Bakhit. Although the quoted statement may be ambiguous, Fronterotta made it clear later in his declaration that he made the offer to Bakhit. Fronterotta states: “Mr. Bakhit would not or could not agree to a Saturday interview and would not accept a waiver, and even stated he would not be available for the Friday, January 12, 2007, interview.”
Correa next argues that Fronterotta’s testimony in paragraph 8 is incompetent and hearsay. Correa has failed to support this argument with any discussion or citation of authority to explain why the testimony is incompetent or inadmissible hearsay. A claim of error asserted in such a perfunctory manner is waived. (Mission Shores Assn. v. Pheil (2008) 166 Cal.App.4th 789, 796.)
We turn now to the argument that the city did not attempt to accommodate Correa’s attorney’s schedule because Bakhit did not become Correa’s attorney until after the attempt at accommodation failed. The record shows that the city attempted to take Bakhit’s calendar into consideration in scheduling the five upcoming interrogations because it anticipated that Bakhit and his firm would be called upon for representation at those hearings. Although this effort failed with respect to Bakhit, the city’s effort to accommodate Bakhit’s schedule was reasonable. No more was required. Indeed, Correa does not argue that a continuance to January 11 or 12 was insufficient. Rather, his contention is that no such offer was made and that even if made it was not communicated to a person who had the authority to accept or reject it.
II. OTHER ISSUES
A. Intimidation by Fronterotta
Correa contends that he was intimidated by Fronterotta who sat facing him “two to three feet” to his right throughout the interrogation. Correa testified that Fronterotta “shifted in his seat several times, shook his head as if he was disbelieving my answers[,] . . . sighed[,] . . . crossed his legs and shifted in his seat while shaking his head every time my answers did not appear satisfactory to his liking.” This conduct on Fronterotta’s part, Correa argues, violated his right to have all questions at the interrogation “asked by and through no more than two interrogators at one time.”
Section 3303, subdivision (b) states in relevant part: “All questions directed to the public safety officer under interrogation shall be asked by and through no more than two interrogators at one time.”
The transcript of the interrogation shows that Fronterotta asked no questions, and Correa does not contend otherwise. Rather, Correa contends that Fronterotta displayed an “intimidating” demeanor which violated the spirit, if not the letter, of the two-interrogator limit. We reject this contention for two reasons. The transcript does not show that Correa complained about Fronterotta’s conduct to the hearing officer. Furthermore, the language of the statute is unambiguous in referring to questioning by no more than two interrogators at a time. The statute also recognizes that in addition to the interrogators and the interrogee “other persons [may] be present during the interrogation” and that there will be one officer “in charge of the interrogation.” (§ 3303, subd. (b).) These provisions suggest that the Legislature intended to leave it up to the presiding officer to control the behavior of persons present at the interrogation. In any case, the court’s implied finding that whatever Fronterotta did was not coercive is supported by the record.
B. Notification As To The Nature Of The Investigation
Correa maintains that the city violated his right to be advised of the nature of the investigation prior to being interrogated.
Section 3303, subdivision (c) states in relevant part: “The public safety officer under investigation shall be informed of the nature of the investigation prior to any interrogation.”
The record shows, however, that on the day preceding the interrogation Correa received a written notice that he was under investigation for an undisclosed incident involving conduct unbecoming an officer. Correa also admits that prior to the start of the interrogation Frieson advised him: “‘This may be criminal.’” We find Correa received sufficient notice to satisfy the statute.
C. Notification That An Investigation Was Beginning
Finally, Correa argues that the right to be “informed of the nature of the investigation prior to any interrogation” (§ 3303, subd. (c)) means that the internal affairs division had to inform him that it was beginning an investigation of his sexual misconduct before beginning the investigation. We find this interpretation of the statute implausible. We also reject Correa’s contention that the prostitute who called him at the request of the police department thereby initiated the interrogation and triggered the department’s duty to disclose the investigation. Section 3303 differentiates between an “investigation” and an “interrogation.” (See e.g. § 3303, subd. (b) [“The public safety officer under investigation shall be informed prior to the interrogation of the rank, name and command of the officer in charge of the interrogation . . .”]; § 3303, subd. (c) [“The public safety officer under investigation shall be informed of the nature of the investigation prior to any interrogation]”; § 3303, subd. (d) [“The interrogating session shall be for a reasonable period taking into consideration gravity and complexity of the issue being investigated”].) The prostitute’s telephone call was part of the investigation, not part of the interrogation. The cases cited by Correa are not on point.
DISPOSITION
The judgment is affirmed. Respondents are awarded their costs on appeal.
We concur: MALLANO, P. J., WEISBERG, J.
Retired Judge of the Los Angeles Superior Court assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.