Opinion
B159895.
7-14-2003
KEVIN HAWKINS, Plaintiff and Appellant, v. CITY OF LOS ANGELES, Defendant and Respondent.
Diane Marchant, for Plaintiff and Appellant. Rockard J. Delgadillo, City Attorney, Mark Burton, Assistant City Attorney, Matthew C. St. George, Deputy City Attorney, for Defendant and Respondent.
Kevin Hawkins, a Police Officer III and a training supervisor for the Los Angeles Police Department, was terminated by the chief of police, on recommendation of the Board of Rights. In two departmental complaints, Hawkins was charged with five counts of misconduct. On advice of his legal representative, at the administrative hearing, Hawkins changed his plea to guilty on the count alleging neglect of duty. The Board found true the other four counts.
In 1995, Hawkins was admonished for failing to appear in court and received a two-day suspension for failing to report a use of force to a supervisor. In 1996, he was reprimanded for failing to take custody of found property (a bottle of wine and some flowers). In 1998, he was admonished for taking an unauthorized meal break and failing to log it on his activity report. In the same year, he had a preventable traffic accident for which he received a two-day suspension and was charged with being discourteous and entering without a warrant or cause, for which he received no penalty.
The trial court denied Hawkins petition for writ of mandate (Code Civ. Proc., § 1094.5), attacking all the guilty findings. On appeal, Hawkins claims (I) the trial court erred when it denied his motion to supplement the administrative record and (II) no substantial evidence supported the Boards finding that he made a misleading statement to the investigating officers in connection with the domestic violence incident to which he and his probationary officer partner first responded on the night of January 8, 2000. Hawkins also contends (III) no substantial evidence supported the findings that he made two false statements in connection with the domestic violence incident and (IV) discharge was too harsh a penalty.
We conclude the trial court did not err when it denied Hawkins motion to supplement the administrative record and found that substantial evidence supported the finding that Hawkins made a misleading statement to the Internal Affairs investigators on March 14, 2000. We conclude that substantial evidence did support one of the findings that Hawkins made a false statement in his March 14 interview. We conclude that substantial evidence did not support the other finding that Hawkins made a false statement. We affirm the judgment.
BACKGROUND
After reporting for their January 9, 2000, midnight shift, Hawkins, a six-year veteran and three-year training officer in the Los Angeles Police Department, and Officer Myrna Cano, a probationary officer under Hawkins supervision, responded to a domestic abuse/battery radio call, giving a description of Darrell Redondo, the suspect, who had left the site of the incident — the apartment of Ana Huerta, Redondos girlfriend. As they drove to the location, the officers stopped Redondo, who matched the description, determined he was the suspect, handcuffed him and put him in their patrol car.
At the apartment, Hawkins spoke with Huerta. Cano interviewed Redondo, who remained handcuffed in the car, and filled out a field identification card. Redondo said he had been living with Huerta on and off for about four months. Both parties had been drinking and both were injured. A second unit was called to bring a camera to photograph the injuries. Two officers arrived shortly thereafter and left between five and seven minutes later.
About 30 minutes passed while Hawkins and Cano investigated what had happened. Both parties said they wanted to press charges. Hawkins decided to arrest both. Huerta was handcuffed for transportation to the station, along with Redondo, for further interviews.
At that point, the radio broadcast a call requesting backup for a stolen vehicle pursuit. Hawkins ran back to the car, told Cano they had to leave, took the handcuffs off Redondo and told him to "go and work it out" with Huerta. According to Redondo, Hawkins and Cano "peeled out." They saw the theft suspect pass by, run a red light, make two turns and enter the freeway. Apparently still on a surface street, the pursuing unit was approximately 200 yards behind the suspect as he went onto the freeway. Hawkins took over as the primary unit. Officers Chan and Coyle, who had been the primary unit, thus became the secondary unit. A supervisor and a helicopter joined the high speed freeway pursuit. Several minutes later, the helicopter told Hawkins to take a specific off-ramp to follow the suspect. The helicopter then told Hawkins to get back on the freeway. Hawkins lost control of the car and crashed as he tried to return to the freeway. He and Cano were injured, and the patrol car was badly damaged. Hawkins and Cano were taken to the hospital via ambulance, treated and released. According to Cano, they returned to the police station and prepared and filed a report on the car accident. Hawkins was off work for about 45 days and on light duty status for approximately another 45 days. At the administrative hearing, Hawkins testified he had never been told he had any kind of brain damage as a result of the accident.
During the investigation of the traffic accident, it was learned that Hawkins and Cano had left the domestic violence scene to join the pursuit. Additional investigation of both incidents led to the filing of charges.
In the first complaint (B.F. No. 19286), Hawkins was charged with two counts of misconduct for his actions in connection with the vehicle pursuit. Count 1 alleged he had improperly become involved in the vehicle pursuit. Count 2 alleged that, while on duty and driving a city-owned car, he became involved in a preventable traffic collision.
In the amended second complaint (B.F. No. 19297), Hawkins was charged with three counts of misconduct for his actions in connection with the domestic violence incident. Count 1 alleged that he had failed to properly maintain custody of a criminal suspect. Count 2 alleged that on March 14, 2000, Hawkins made a false statement to a department supervisor conducting an official investigation. Count 3 alleged that at the same interview, Hawkins made false statements to the department investigators.
Hawkins pled not guilty to all five counts. He later changed his plea to guilty on count 1 of the first complaint (failure to properly maintain custody of a criminal suspect). The Board found him guilty on the other four counts. The chief of police adopted the three-member Boards majority recommendation of discharge.
The essence of Hawkins appeal is that the Boards recommendation that he be discharged was the product of the Board majoritys findings on the allegations of misleading and false statements raised in counts 2 and 3 of the amended second complaint. He does not challenge on appeal the findings concerning his involvement in the vehicle pursuit. He points out that two months after the three-count amended second complaint was filed, the chief of police signed an order simply suspending him for 22 days on the two vehicle pursuit counts in the first complaint. Accordingly, the substantive portion of his appeal focuses on the allegations of misleading and false statements.
DISCUSSION
I
DENIAL OF REQUEST TO SUPPLEMENT ADMINISTRATIVE RECORD
Hawkins says the trial court improperly denied his motion to supplement the administrative record with testimony from Dr. Mohandi, a psychologist employed by the city. In his opening statement at the administrative hearing, Hawkins representative said he was going to call Mohandi as an expert and offer a newspaper article concerning "what happens to people who go unconscious for any period of time and have amnesia for any reason[,]" to make the point "that its not unusual for people who have been unconscious for any reason . . . to forget over a period of time some incidents."
When Hawkins prepared to call Dr. Mohandi, the Department Advocate requested an offer of proof. Hawkins representative said Mohandi would "be testifying as an expert that a head injury from a traffic accident and an individual not recalling something after the passage of time is not at all unusual" to refute the charges of "false" and "misleading." He answered "Yes" when a Board member asked if "all [Mohandi]s going to tell us about is that if I bump my head on something, its possible that I may have a short— or long-term memory loss[.]" Mohandi would not be able to testify specifically about the injuries to Hawkins because he had not examined or treated Hawkins. Hawkins testimony was the only evidence concerning his injuries. Hawkins had testified he suffered head, neck and spine trauma and memory loss. He had not seen his medical reports. No doctor ever told him he had a specific condition as a result of the car accident or that he had suffered brain damage. He had not been examined by Dr. Mohandi. Hawkins representative told the Board he did not have Hawkins medical records from the accident "because the hospital wouldnt give it to [him]." The Board concluded Dr. Mohandis testimony was unnecessary because he could provide no specifics as to Hawkins, was not a medical doctor, and the Board had Hawkins testimony of a head injury.
Although the Board left open the possibility that Dr. Mohandis opinion might be useful later in the hearing, it denied Hawkins request to have Mohandi testify. The Board later admitted into evidence an April 2, 2001, Los Angeles Daily News article about amnesia victims.
On February 5, 2002, Hawkins filed a request in the trial court that certain supplemental evidence be admitted into evidence in support of his mandate petition. He included two reports of Dr. David Scharf, a neurologist, to whom he had been referred by his primary treating industrial physician and orthopedic specialist in connection with his workers compensation case arising out of the car accident. The first Scharf report was dated July 9, 2001; the second was dated August 7, 2001.
Hawkins says it was error for the trial court to reject medical reports that did not exist at the time of the hearing before the Board (April 9 through April 11, 2001).
Code of Civil Procedure section 1094.5, subdivision (e) provides: "Where the court finds that there is relevant evidence that, in the exercise of reasonable diligence, could not have been produced or that was improperly excluded at the hearing before respondent, it may enter judgment . . . remanding the case to be reconsidered in the light of that evidence; or, in cases in which the court is authorized by law to exercise its independent judgment on the evidence, the court may admit the evidence at the hearing on the writ without remanding the case."
Hawkins lawyer argued to the trial court that because Hawkins plan at the administrative hearing had been to present Mohandis testimony, Hawkins opportunity to obtain "doctors reports . . . for the Board of Rights . . . was foreclosed[]" when late in the hearing, the Board decided not to hear Mohandis testimony. Counsel contended Dr. Scharfs reports should not be rejected out of hand, but should either be considered by the court or the matter should be remanded to the Board.
The record reflects that Hawkins did not mention any memory impairment in his first interview with the department investigators on March 14, 2000, and first mentioned memory problems during his second interview on April 5. Accordingly, Hawkins had at least from April 5, 2000, to April 9, 2001, to acquire medical evidence of his condition.
The trial court ruled, "Petitioner contends that the receipt of such evidence is authorized because the reports were not in existence when the administrative hearing was held or when the administrative decision was made. The timing of the reports in relation to the administrative hearing was controlled solely by petitioner, however, because he did not consult the psychiatrist until after the Board of Rights had decided to terminate his employment. The request to add the reports must be denied because petitioner does not show that in the exercise of reasonable diligence the reports could not have been produced in time to offer them at the administrative hearing. Petitioner also contends that the reports should be admitted because other medical evidence which Hawkins attempted to introduce to the Board on the same subject was rejected by the Board. [Citation.] Petitioner makes no attempt to offer said other evidence, however, and the refusal to admit evidence that was offered cannot be used as a justification for adding evidence that was not offered at the administrative hearing."
On appeal, Hawkins says there is nothing in the record to support the trial courts statement that the timing of the reports was controlled solely by Hawkins. He says he was being examined and treated through the workers compensation system and it "cannot be said that Hawkins had control over which doctors he would be referred to or when he would be examined and diagnosed." Hawkins contends there was "no evidence that [the reports] could have been produced any earlier than they were."
It is reasonable to conclude that Hawkins knew as of mid-September 2000, when the first complaint was filed, that a hearing and decision by the Board of Rights would occur. And ample time remained after his second internal affairs interview in April 2000, when he began to speak of a loss of memory, for Hawkins to obtain appropriate evaluations and diagnoses and a percipient witness thereto. Yet Hawkins does not tell us, and did not tell the trial court, that he made any attempt to obtain any such evaluation or diagnosis. Hawkins failed to show the trial court that the Scharf reports could not have been produced at the Board hearing or were improperly excluded.
LACK OF SUBSTANTIAL EVIDENCE TO SUPPORT FINDINGS
Standard of Review. The disciplinary proceedings against Hawkins affected a fundamental vested right in his employment. "The superior court was therefore required to exercise its independent judgment in its review" of the Boards findings. (Schmitt v. City of Rialto (1985) 164 Cal. App. 3d 494, 500, 210 Cal. Rptr. 788.) "When a court reviews an administrative determination such as the one at issue, . . . the court must exercise its independent judgment on the facts, as well as on the law . . . . [Citation.]" (Fukuda v. City of Angels (1999) 20 Cal.4th 805, 811, 816, fn. 8, 977 P.2d 693.) In exercising its independent judgment, "a trial court must afford a strong presumption of correctness concerning the administrative findings, and the party challenging the administrative decision bears the burden of convincing the court that the administrative findings are contrary to the weight of the evidence." (Id. at p. 817.)
Where the trial court properly performs its review, "the standard of review on appeal of the trial courts determination is the substantial evidence test." (Fukuda v. City of Angels, supra, 20 Cal.4th at p. 824.) We review the trial courts findings "to determine whether they are supported by substantial evidence on the whole record. [Citations.]" (Schmitt v. City of Rialto, supra, 164 Cal. App. 3d at p. 501.) "The determination of the trial court on conflicting evidence on the facts is binding on this court on appeal. [Citation.]" (Fukuda, supra, 20 Cal.4th at p. 812.) The substantial evidence standard applies "even where the evidence in the administrative record is undisputed, if that evidence is subject to conflicting inferences with respect to the crucial issue." (Yordamlis v. Zolin (1992) 11 Cal.App.4th 655, 660.)
The Trial Courts Ruling. The trial court ruled as follows. "The sequence of events that culminated in petitioners termination began on January 9, 2000, when petitioner, who had responded to a domestic violence call, released a suspect whom he had handcuffed and placed in the patrol car, because he heard on his police radio that a high speed chase was taking place. He then joined the chase, during which he overturned his police car, injuring himself to the extent that he was off duty for 45 days, and then spent another 45 days on light duty.
"The essence of the charges against him was that he improperly let the suspect go to join the chase, and that he drove his vehicle unsafely during the chase so as to cause an avoidable accident. When the police department interviewed him to investigate the accident, he made false and misleading statements to the investigator.
"The weight of the evidence shows that he was in fact guilty of the charges made against him. He did operate his police car in such a way as to overturn the car in a one vehicle accident. He did mislead the investigating officer as to whether photographs were taken at the scene of the domestic violence episode, by denying that he took any photographs and by also denying that any other police officers, except his partner, were present at the scene. He falsely stated that he let the suspect go because he did not have time to complete his investigation, whereas he determined that a misdemeanor had been committed outside his presence, he knew that another police unit had responded in order to take photographs of the crime scene, and he had handcuffed the suspect and placed him in the patrol car for the purpose of taking him to jail."
II
We reject Hawkins claim that no substantial evidence supported the Board finding that in the March 14 interview he made "a misleading statement to a Department supervisor who was conducting an official investigation.". The allegedly misleading statement was Hawkins answer, "No, sir," when asked if he had taken any photographs at the domestic violence/battery scene.
Sergeant Daniel Randolph and his partner first interviewed Hawkins on March 14, 2000. Hawkins was interviewed as an officer accused of neglect of duty, based on an earlier March interview of Cano, who had "vaguely" described what Randolph believed was a neglect-of-duty situation. Hawkins was also interviewed as a witness on another matter.
The neglect of duty was the failure to maintain control of a criminal suspect, to which Hawkins pled guilty.
At the administrative hearing, Randolph characterized the questions as "general-type questions as to what if anything [Hawkins] did prior to engaging in a pursuit on the night of" January 8/9, 2000. Before the Cano interview Randolph "knew absolutely nothing about what if anything [Hawkins had] handled prior to the pursuit[.]"
At the administrative hearing, Hawkins stipulated that he told Randolph and his partner there were no other units at the domestic scene, that there were no photographs taken, and that he left the scene without an arrest or field interview card. Randolph described Hawkins as "very confident" when he answered, "No, sir." He did not hesitate to answer or qualify his answer. He sounded sure of himself. At that point in his investigation, Randolph did not know officers in addition to Hawkins and Cano had been at the scene. At the March 14 interview, Randolph followed up by explaining to Hawkins that he was referring to photos documenting injuries, such as redness to the neck (Huerta) or bite marks (Redondo). Hawkins again said, "No." (Hawkins had indicated to the interviewers that he knew of "a bite mark.")) Randolph testified that when Hawkins answered "No" on March 14, Randolph took the statement at "face value." The answer became misleading because "although it may appear on word for word that when I asked him if he happened to take any photographs that . . . he didnt take any photographs . . . the Department feels that he should have volunteered that photographs were taken, if he knew. It was subsequent interviews that indicated that he should have known or did know."
On March 15, Randolph received a communications computer printout indicating another unit had been at the scene. He also talked with Officers Cavastany and David, who told him they had responded to the call for a camera. When Randolph interviewed Huerta, she told him she had been photographed four or five times by a female officer using a Polaroid camera. Redondo and Huerta both told Randolph that another unit had responded to the camera request. Cano had not recalled anyone having given her a camera or having taken any pictures of Huerta. The communications printout showed Hawkins requested the second unit.
As a result of this interview, Randolph and his partner submitted a preliminary investigation report. A charge was filed under Penal Code section 243, subdivision (d)(1) (misdemeanor co-habitant battery). Randolph said he was later told the district attorney had rejected the case because there were no photos.
At the second of two interviews of Hawkins, on April 5, 2000, Randolph advised Hawkins he was an accused officer. Hawkins denied the allegations. He said that since March 14, he had been thinking about the domestic violence/battery incident and had come to remember various pieces of what had transpired. He recalled that when he came out of Huertas apartment complex (after locating and locking her apartment door preparatory to transporting Huerta and Redondo), the responding unit had left and he did not know if they had taken any photos. Hawkins said that if Cano had taken photos, he was not present, and that he had never seen any photos.
At the administrative hearing, Hawkins testified he had no independent recollection of requesting an additional unit, no recollection of another patrol car responding, and no recollection of having spoken to other officers. He was not assigned a camera that night and did not recall having a camera or taking any photos. He did not recall Canos taking photos. Yet later, during the Advocates examination of Randolph, Hawkins stipulated that in response to a radio call, two other officers came to the scene with a camera and that either Hawkins or Cano took pictures.
On cross-examination, Randolph stated that, notwithstanding the accident or any memory loss, it would be possible for the photos to have been taken without Hawkins knowledge.
Randolph further characterized the misleading nature of Hawkins "No" answer. "The Department expected a response or for him to volunteer that photos were taken. The impression was there were no photos taken." Thus, as of March 14, Randolph believed Hawkins had misled him and had knowledge that photos might have been taken. His subsequent interview of Huerta led Randolph to believe photos had been taken. Officers Cavastany and David both told Randolph that Hawkins took photos. The camera was returned to Cavastany and David.
The Board found Hawkins "No, sir" answer misleading. In its finding on this count, the Board noted, "The defense stipulated that photos were taken, and Mr. Redondo testified that both Officer Hawkins and Cano looked in the trunk of the vehicle for a camera and discussed having another unit respond with a camera. [P] Although Officer Hawkins may not have taken the photos, he knew that another unit was at least requested to respond. His answer to Scott Randolph was self-serving. He withheld information and failed to provide a complete and accurate account of what happened that night."
The Board cited the relevant section of the department manual: "It is a violation of established Department policy for any employee to [P] . . . [P] make a . . . misleading statement as defined in this section. Any violation of this standard constitutes misconduct, which may lead to disciplinary action up to and including termination." A misleading statement is one in which the employee (1) "provides information in an inaccurate context[,]" (2)" provides information designed to lead the investigator astray or misdirect others[,]" (3) "intentionally withholds information which is known or reasonably believed to be relevant[,]" or (4) "intentionally fails to provide a complete or accurate account of matters which are known to the employee." (Emphasis omitted.)
The section also states that "providing partial truth about an incident does not satisfy an employees obligation for truthfulness when relevant information has been deliberately left out. Further, an employee who becomes aware that a statement has been misunderstood or misrepresented has an obligation to correct the misunderstanding or misrepresentation. Failure to do so may create an inference that the employee made the statement with the intention to mislead."
The sequence of events was thus as follows: Before interviewing Cano, Randolph knew nothing about what, if anything, Hawkins had handled before joining the vehicle pursuit. At his first interview, Hawkins confidently answered, "No," when asked if he had taken any photographs at the domestic violence scene. He again said, "No," when Randolph followed up with an explanation that he was referring to photos documenting injuries.
Randolph received the computer printout showing Hawkins had requested a camera, learned that a second unit had responded with a camera, and was told by Huerta that the female officer had taken her picture.
At his second interview, Hawkins said he had remembered requesting a unit for photos and that when he came out from locking Huertas door, he noticed the responding unit had left. He did not know if they had taken any photos. At the administrative hearing, Hawkins testified that he had no independent recollection of requesting an additional unit and no recollection of a second patrol car. He said he did not recall having a camera, having taken photos, or Canos having taken photos. However, Hawkins later stipulated that in response to a radio call, two other officers had come to the scene with a camera and that he or Cano had taken photographs.
Hawkins serpentine path on the question of the photographs, plus his first mention of memory lapses only at the second interview, the absence of any evidence from a physician or psychologist who evaluated or treated Hawkins concerning the asserted head injury and claimed memory lapses were sufficient to support the Boards explicit rejection of his claim of memory lapses and its determination that Hawkins had misled Randolph under the applicable manual section.
III
Hawkins claims that no substantial evidence supported the Boards findings that he made two false statements on March 14, 2000. We conclude that the finding that his March 14 denial that any other police units came to the domestic violence scene was supported by substantial evidence. However, we conclude that the department failed to show that Hawkins made a false statement with respect to his reason for leaving the domestic violence/battery scene.
There originally were three allegedly false statements. The Board found for Hawkins on the allegation that he made a false statement when he told the department investigators there was only a dating relationship between Redondo and Huerta.
The departments manual defines a false statement as one in which the employee "knew or should have known the statement was false at the time it was made or the employee fails to correct the statement upon learning of its falsity." (Emphasis omitted.)
The first allegedly false statement, found true by a Board majority, was Hawkins March 14 response of "No" to the question whether there were other units at the scene of the domestic violence/battery incident. The Board found that Hawkins knew or should have known that a second unit responded, noting the defense had stipulated to that fact.
The second finding was that Hawkins made a false statement "when he stated the investigation was incomplete because of a lack of time to investigate." The Board noted that "no one directed Hawkins to leave the scene of the domestic violence incident or stop the investigation. He was in control and could spend the time he believed was necessary."
The Board noted the defense argument that Hawkins suffered head trauma and could not remember. It also noted the absence of any other evidence concerning the specifics of the injury. The Board expressed its suspicions of Hawkins credibility, stating Hawkins had been able to answer questions clearly and in detail when the facts tended not to show his guilt and was not responsive to many questions that tended to show guilt.
The civilian member of the Board dissented from the majoritys true findings on count 3 (the false statements). (He agreed with the majoritys finding that insufficient evidence supported the charge that Hawkins knew when he left the domestic scene that Huerta and Redondo were cohabiting.) He found the lack-of-time statement was not false because Hawkins cut short his investigation to engage in the pursuit. The dissenter also found de minimis Hawkins March 14 denial that any other unit had been present at Huertas apartment.
We conclude substantial evidence supported the finding that Hawkins March 14 denial that another police unit had been at the domestic scene was false. At the April 5 interview, Hawkins revised his "No" response. After denying the allegation that he had made a false statement, he said he remembered he had requested a unit for photos, but did not remember it showing up. He also said he remembered that on leaving Huertas apartment he noticed the second police car had left and did not know whether any pictures had been taken.
At the administrative hearing, Hawkins testified he had no independent recollection of a second patrol cars presence and then stipulated that when he returned from locking Huertas door, he noticed the responding unit had left.
Thus, the evidentiary path Hawkins took on this charge was almost identical to that taken on the charge that he misled the investigators by denying he had taken any photographs of Huerta and Redondo (Part II, supra).
Expressing its suspicion of Hawkins ability to answer in detail when facts did not tend to show his guilt and his lack of response to questions which would tend to show guilt, the Board emphatically rejected Hawkins claims of head trauma and resulting memory lapses and noted the absence of medical or psychological evidence specifically addressing Hawkins injuries and condition. These were decisions the Board, as finder of fact, was entitled to make. These conclusions, combined with Hawkins pattern of denial, recollection, denial, and contrary stipulation, were sufficient to support the finding that his March 14 denial of the presence of a second patrol car was false.
The manuals definition of "false" is presented in the alternative. An employee is guilty of a falsehood if he either (1) makes a statement that he "knew or should have known" was "false at the time it was made" or (2) "fails to correct the statement upon learning of its falsity." In this case, the Board impliedly found Hawkins knew or should have known when he first denied the presence of another police unit that the statement was false. Thus, contrary, to his argument on appeal, his "correction" at the April 5 interview was not based on his having "learned" of his initial statements falsity after March 14.
With respect to the charge that Hawkins falsely told Randolph he left the scene because he lacked time to complete investigation of the domestic violence incident, at the administrative hearing Randolph was asked if he recalled what Hawkins told him about Hawkins response to the domestic violence call. Randolph responded that Hawkins had said "he didnt really have enough time to determine what if any crime had occurred at that incident . . . ."
On appeal, Hawkins asserts, without opposition from the city, that the "only direct evidence of what Hawkins actually said on the subject is taken from the tape-recorded interview:
"Randolph: If you had spent more time at that call, do you think that the truth would have come out; or if another unit had gone back and done a follow-up, the story would have become clearer?
"Hawkins: I believe that they would have had no need for police services, from my police experience.
"Mann: Did you establish a crime had occurred that night?
"Hawkins: I established a possible misdemeanor had occurred not in my presence, and I gave the option as to whether to press charges. Then I heard my fellow officers needed a radio call for help, and I decided to stop, quote, monkeying around with these two immature individuals and help my officers, and thats how I am." Randolph confirmed that the foregoing quoted material was "a close approximation" of what he believed occurred in the March 14 interview.
Hawkins, Cano and Redondo described what happened after Redondo and the two officers arrived in front of Huertas apartment complex. In sum, the testimony amounted to a description of a scene where both parties had been injured (Huerta had a red mark on her neck; Redondo said Huerta had bitten him on the arm and leg). Both parties had been drinking. Huerta told Hawkins that Redondo was her boyfriend but did not live with her, giving rise to Hawkins reaction that the incident was a misdemeanor battery situation and not a domestic violence scene. At first, each party wanted to press charges against the other. When Hawkins expressed an intent to arrest both of them, Huerta said she did not want to press charges against Redondo, and Redondo changed his mind about wanting Huerta arrested. Then came the radio call asking for back-up in a pursuit which would be passing near Huertas apartment.
In sum, the picture presented by the evidence was that Hawkins concluded he did not have time to complete the investigation because the radio call for back-up compelled him to leave Huerta and Redondo in order to aid fellow officers. Under the circumstances, we find insufficient evidentiary support for the finding that a statement by Hawkins that he lacked sufficient time to complete the investigation was false.
While we disagree with the one finding, we see no legitimate purpose to be served by remanding the matter to the Board of Rights for a reevaluation of the penalty.
DISPOSITION
The judgment is affirmed. The parties are to bear their own costs.
We concur: SPENCER, P.J. and VOGEL (Miriam A.), J.