Opinion
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County No. BS119135, James C. Chalfant, Judge.
Green & Shinee, Richard A. Shinee and Deborah Schild for for Plaintiff and Appellant.
Burke, Williams & Sorensen and Richard R. Terzian for Defendants and Respondents.
MANELLA, J.
Appellant Karin White was a police officer for the Pasadena Police Department (the Department), employed by the City of Pasadena (the City), from 1996 until her termination on August 29, 2007. The termination was the result of an incident on June 25, 2006, in which appellant was shot. The shooting occurred in appellant’s home. The only other person present was her 18-year old son, Kamron Williams. Williams told the 911 operator, as well as deputies who arrived on the scene, that his mother had shot herself. Appellant, badly injured, was not interviewed until July 7, 2006. She denied having attempted suicide, and told a sheriff’s investigator that she had been accidentally shot while struggling with Williams in an attempt to prevent him from shooting himself. The Department concluded appellant had provided false information regarding the shooting incident to the Department and to the Los Angeles County Sheriff’s Department (LACSD), and that the appropriate discipline was termination. Prior to imposition of the disciplinary action, appellant was provided an administrative hearing before an arbitrator, who rendered an advisory opinion in favor of appellant. The Pasadena City Manager reviewed the arbitrator’s opinion and rejected his conclusion that (a) the City had failed to meet its burden of proof, and (b) that the one-year statute of limitations in Government Code section 3304, subdivision (d), precluded the City from taking the proposed disciplinary action against appellant.
Williams’s first name is sometimes spelled “Kameron.” We adopt the spelling used in appellant’s brief.
Appellant sought review of the decision to terminate by filing a petition for writ of administrative mandate, brought under Code of Civil Procedure section 1094.5. The trial court conducted an independent review and concluded that appellant shot herself and lied to the Department and LACSD about doing so. The court found that the statute of limitations had been waived by appellant’s failure to raise it until her closing arbitration brief, and further found that the statute had been tolled until August 2006 by LACSD’s investigation of the shooting incident.
On appeal, appellant contends the trial court’s conclusion was not supported by substantial evidence because the physical evidence presented at the administrative hearing proved that it was impossible for appellant to have shot herself. Additionally, appellant contends the court erred in determining that she had waived the statute of limitations and that it had been tolled by the LACSD’s investigation. We conclude substantial evidence supported the court’s determination on the merits, and that the City’s action was not barred by the statute of limitations. Accordingly, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
A. 911 Calls
The shooting occurred in the bedroom of appellant’s condominium. Appellant was shot with her off duty handgun just above her lip on the right side of her face. The bullet angled downward into her jaw. After the shooting, Williams called 911 and told the operator that his mother had just shot herself “on purpose.” When the 911 operator transferred Williams to the paramedics, Williams repeated his statement that appellant had shot herself. The operator and paramedics lost contact with Williams for approximately 30 seconds. Williams called again and said appellant “got shot in the face.” When asked if he knew any reason appellant would shoot herself, he repeatedly said “no.” Williams broke the connection although the operator had asked him to stay on the line. In a third call, approximately two minutes later, Williams was hysterical and said he would not leave appellant, although the operator told him the paramedics were outside the gate, waiting to be let in.
The 911 calls were recorded and the recordings were played at the hearing.
B. LACSD Investigation
The deputies who interviewed Williams at the scene reported that he gave the following statement. Shortly before the shooting, appellant arrived home and asked Williams if he knew where her gun was. Williams searched for it around the house and in the interior of appellant’s vehicle. When he reentered the house, he saw appellant in her bedroom, praying and getting into bed. He returned to his room. While on the cell phone with his girlfriend, he heard a gunshot. He ran into appellant’s bedroom, where he found her bleeding and her gun on the floor. He went to retrieve the gun and a struggle ensued, during which appellant said “I should kill you” or “I should have killed you when I had the chance” and that she should also kill herself. Williams reported to the deputies that appellant had been talking about suicide for several weeks and that she had been under a great deal of stress due to illness and a pending lawsuit against the Department.
One report stated appellant was lying on the bed, the other stated she was lying on the floor.
Appellant had been diagnosed with multiple sclerosis in 1999. Various members of the Department expressed concern over her ability to do her job and for a brief period in 2001, appellant was declared unfit for duty. In 2003, appellant was the subject of an internal investigation for maintaining an association with Williams’s father, a felon. The Department discharged appellant in 2004. However, she was reinstated in 2005. Subsequently, appellant filed suit against the City for disability discrimination and illegal wiretapping. In 2007, she won a substantial judgment, but it was reversed on appeal.
The deputies also spoke with Williams’s girlfriend, Marissa Lenon. Lenon said she was on the phone with Williams when she heard a loud noise in the background and the phone drop. She then heard what appeared to be the sounds of arguing. Williams returned briefly and said appellant had just shot herself. Prior to the shooting, Williams had mentioned to Lenon that White was stressed and depressed and had talked about killing herself.
The deputies found appellant’s gun, a Glock 26, on the floor of the bedroom. They also found a shell casing on the floor, near the bed. The deputies conducted a gunshot residue test on Williams’s hands. The results were consistent with Williams having “handl[ed] or discharg[ed] a firearm, being in close proximity to a discharging firearm, or otherwise having been in contact with an environment of gunshot primer residue.” No gunshot residue test was performed on appellant.
On July 7, 2006, Detective Danny Coon interviewed appellant on behalf of LACSD. At the time, appellant was still in the hospital and was having difficulty speaking due to the injuries to her jaw. Appellant denied trying to kill herself. She said when she got home that evening, she noticed that her gun was missing. She asked Williams if he had seen it. Williams denied seeing it and suggested she had left it at work. Later, after appellant had gotten ready for bed, Williams walked into her bedroom with the gun and said something that caused her to believe he intended to shoot himself. Appellant, who was on her bed at the time, lunged toward him, grabbing for the weapon, and the gun went off as they struggled for control. She continued to struggle with Williams after being shot. Williams gained control of the weapon and called 911. Appellant told Detective Coon that Williams was depressed due to the death of his grandparents and his father’s life imprisonment, and had talked about suicide in the past. Detective Coon also learned that Williams had been hospitalized earlier that day (the day of the interview) on a 72-hour hold.
Detective Coon’s report stated that appellant said Williams walked in waving the gun. He later explained that appellant did not use those words, but moved her arm in a way that suggested Williams had been waving the gun.
Appellant’s parents, the grandparents to whom she referred, died in 1998.
On July 7, Detective Coon also interviewed appellant’s friend, Gemma George. George said she and appellant had been together from 5:30 to 10:30 p.m. on the day of the incident. Appellant had been in good spirits. George had never heard appellant mention suicide. George had been present earlier in the day when Williams had been hospitalized for a mental evaluation. On that occasion, George heard Williams say he did not want to live anymore.
In a subsequent interview, appellant’s sister, Lydia White-Manual, told Detective Coon that appellant had never mentioned suicide or shown any indication she was considering it. According to White-Manual, Williams had a history of depression and had made statements about suicide. White-Manual had contacted school counselors about the problem.
Detective Coon attempted, without success, to re-interview Williams and Lenon. He subsequently learned from appellant that Williams was refusing to talk further to law enforcement personnel about the incident on advice of counsel. On or about August 24, 2006, Detective Coon ended his investigation, reaching the conclusion that appellant had attempted suicide.
Lenon was subsequently interviewed by the Department in conjunction with its internal investigation and appeared and testified at the administrative hearing. After the initial interviews at the scene, Williams never again discussed the incident with law enforcement personnel. In addition, he refused to testify at the hearing.
Detective Coon’s report is dated July 7, 2006. However, in it he refers to receiving the crime lab report of the gunshot residue test performed on Williams on August 24, 2006. Accordingly, it could not have been completed prior to that date.
C. Internal Investigation
In December 2006, the Department, having been informed of the contradictory statements concerning the shooting incident provided by Williams, Lenon and appellant, sent a memorandum to appellant alleging that she had provided false information to LACSD and directed her to give a statement to Department investigators. On January 8, 2007, appellant was interviewed by Sergeant Chris Russ and Lieutenant Darryl Qualls. Appellant told them that she kept her off duty gun in a bag, which she used to transport the gun between home and work. When the bag was at home, she kept it under her bed. When she arrived home on the night of the incident, she noticed the bag was at the foot of her bed and open. The gun was not in it. Earlier that day, she had taken her ID out of the bag and the gun had been there. She asked Williams if he had seen the gun. Williams said she had probably left it in her truck. She briefly looked for the gun in her room before changing out of her clothes and getting into bed. Williams came into the bedroom and started apologizing for “messing up.” Appellant did not see a gun. When Williams raised his arm, Appellant leaped up and swung at him. A gun discharged and fell to the ground. Appellant fell back on the bed, but she immediately got on the floor to retrieve the gun and keep it from Williams. Williams appeared to be searching for it as well, which led appellant to hit him with the bedside lamp. Before losing consciousness, appellant dialed 911, but did not complete the call. She heard Williams say into the handset, “my mom just shot herself.”
Appellant denied ever talking to anyone about committing suicide and specifically denied telling Williams she was under stress due to her pending lawsuit or wanted to kill herself. She denied asking Williams to help look for the gun. She denied saying “I should kill you” to Williams or “I should have killed you when I had a chance, ” or expressing a desire to kill herself. She denied that when Williams returned to the bedroom, he was waiving the gun. She stated that years before, Williams had discussed suicide or sad thoughts in a ledger or journal he kept and she sought counseling for him beginning in the 9th or 10th grade. In addition, Williams had discussed suicide with one of his cousins.
Lenon was re-interviewed in connection with the internal investigation. Lenon stated she had been talking with Williams on the phone prior to the incident. She heard yelling in the background, indicating appellant had come home. Appellant called Williams’s name and Williams put down the phone. After a brief period, Williams returned and said: “‘Oh my god. My mom, she just shot herself.’” Williams immediately hung up and did not talk to Lenon again that night. In a later conversation, Williams told Lenon that on the night of the incident, appellant had asked him to go out to her vehicle to look for her gun. When he returned to the house, appellant was on her bed, holding the gun to her mouth. Prior to the incident, Williams had told Lenon that he was worried about appellant because she had made comments about being tired of her life and wanting to end it. Williams told Lenon that appellant’s feelings were due to her illness and her pending lawsuit. Williams said when he tried to talk to appellant about her comments, she claimed to have been joking.
The investigators also spoke with appellant’s friends and co-workers who had visited her in the hospital prior to her interview with Detective Coon. According to Officer Salvador Vidales, appellant said she had not shot herself, but that Williams had accidentally shot her. Appellant told Officer Vidales that Williams had been upset and angry earlier in the day about not getting into a specific college and expressed concern about ending up like his father. When she arrived home that night, she found Williams in her room with her gun pointing at his mouth. She jumped on him to get the gun away and was shot during the struggle. She told Williams to call the police or an ambulance, but he waited several minutes before doing so.
According to Officer Vidales, appellant’s jaw was “wired up” during this conversation and she transmitted much of this information by writing on a dry erase board. Appellant told Officer Vidales he was the first person she had told about the incident.
According to appellant’s friend, Officer Arlene Ramos, appellant denied shooting herself, initially by writing “I didn’t do it” on a dry erase board. Subsequently, appellant told Officer Ramos that the shooting occurred after appellant saw Williams with the gun, intending to take his own life, and struggled with him for possession of it. Appellant told another friend, Officer Mary Hooker, that she had not been able to find her gun when she came home and that Williams had gone out to her vehicle to look for it. Later, he came into her bedroom with the gun in his hand and started to put it to his head. She leapt out of bed and reached for the gun and it went off. She continued to fight for the gun. Appellant also told Officer Hooker that Williams had tried to kill himself before and that she was worried that he would get his hands on her gun. Prior to speaking to appellant, Officer Hooker had spoken to Williams about the incident. Williams told Officer Hooker that he had been on the phone with his girlfriend when he heard a shot. He threw the phone down and went into appellant’s bedroom and struggled with her for control of the gun after she had shot herself.
Officer Ramos had been surprised when she heard appellant had tried to kill herself because she and appellant had been getting ready for an upcoming work-related trip to Palm Springs.
Officer Hooker had gone to appellant’s home on the night of the incident, after appellant was taken to the hospital. She observed blood spattered on the end table next to the bed, the phone, the corner of the bed, the wall and a nearby dresser. There was a large amount of blood on the floor next to the bed. The end table lamp was broken. Williams’s cell phone was lying on the floor in the entry to his bedroom.
The investigators re-interviewed appellant’s friend, Gemma George and received the following information. Appellant had told George that on the night in question, she came home and looked for her gun. She mentioned to Williams that she had been unable to find the gun. He went outside to look for it. When he returned to her bedroom, he said something about killing himself and she jumped at him. Appellant told George she had been shot trying to wrestle the gun away from Williams. Appellant had previously told George she was worried that Williams was depressed. George, who went to the same church as appellant and Williams, recalled an incident in which their bishop had asked people in the congregation who were depressed or contemplating suicide to come forward and Williams had gone forward to pray. Earlier on the day of the incident, George and appellant had attended church. Afterward, they stopped by the Department so appellant could leave a note for her partner. They then went out to a restaurant.
After completing the investigation, on or about July 25, 2007, the Department issued a Notice of Disciplinary Action. According to the Notice, the following two allegations were made and found true: “[Appellant] provided the [LACSD] false information regarding the shooting incident that occurred at her residence... on Sunday, June 25, 2006” and “[appellant] provided the Pasadena Police Department false information regarding the shooting incident that occurred at her residence... on Sunday, June 25, 2006.” The Notice stated that appellant had violated “Pasadena Police Policy and Procedure B-5, Code of Conduct, ” and recommended termination of employment.
D. Arbitration and Arbitrator’s Advisory Opinion
Appellant denied the allegations and asked for a hearing. At the hearing, the four deputies who had observed and/or interviewed Williams on the night of the shooting were called to testify. Their assessments of Williams’s emotional state varied. One deputy testified Williams appeared calm. Another described Williams as hysterical, distraught and confused. A third said he was nervous and shaken up. A fourth, Deputy Anthony Meraz, described him as detached. Deputy Meraz also recalled being in front of the location for several minutes, yelling and banging on the door, before Williams appeared to let the deputies and paramedics in. Several of the deputies and Detective Coon testified they did not consider the location a crime scene, did not believe a crime had been committed that night, and did not believe they were engaged in a criminal investigation. Detective Coon testified he had been assigned the case on July 7, the same day he interviewed appellant. Appellant’s jaw was wired shut and she had difficulty communicating.
Appellant and George both testified, giving further details about their activities on the day of the shooting. They met at morning church service, which lasted until 1:30 p.m. After services, they attended a jazz festival. They talked about appellant’s plan to attend a jazz festival in Houston and the preparations she had made. Appellant had put a deposit on a hotel room, paid for airline tickets and purchased new clothing. Appellant’s hair and nails had been done in anticipation of the trip. Appellant and George returned to church that evening and afterward, dropped by the Department. They stopped at a restaurant and shared appetizers and a drink.
Concerning the shooting incident, appellant essentially testified in accordance with her internal affairs interview. The one significant difference was her testimony that she had been sitting on her bed removing her jewelry, rather than lying in bed, when Williams came into the bedroom. She further testified that Williams later admitted to her that he had lied to the deputies and others about what happened. Appellant’s brother, William White, testified that a day after the incident, Williams had said he had tried to hurt himself that night. Williams did not say why, but he complained to his uncle that appellant would not let him do what he wanted to do.
Lenon testified at the arbitration. Her account differed from her earlier statements to the deputies and the investigators. She testified that before Williams put down the phone, she recalled hearing appellant’s voice in the background, talking, not yelling. She denied hearing a gunshot or loud noise at any time and testified that she did not recall hearing anything after Williams put the phone down until he returned to say his Mother had been shot. At the hearing, Lenon did not recall Williams saying appellant had shot herself. She denied having a later conversation with Williams in which he told her about looking for his mother’s missing gun or saying that when he returned to the bedroom, appellant had the gun pointed toward her mouth. She testified that in discussing appellant’s mood prior to the incident, Williams had not said his mother was “tired of life, ” but “tired of the situation.” She stated for the first time that at some point after the shooting, Williams told her he had tried to kill himself that night.
Appellant called Dr. Frederick Stafford, the trauma surgeon who treated her. Dr. Stafford testified that he had worked on 1500 gunshot victims and was familiar with stippling and with the appearance of a contact wound. He would have mentioned stippling or the presence of a contact wound in his report if he had observed evidence of either. His report on appellant’s injuries did not mention stippling or a contact wound.
Lance Martini, a ballistics expert, testified that he had conducted experiments on the weapon used in the shooting. He had discharged it into a target in contact with the barrel of the gun and toward targets located three inches, six inches, nine inches, 12 inches, and 18 inches away from the end of the barrel. The targets were constructed of porous paper which simulated skin for purposes of measuring the stippling that would result from being shot at each of those distances. There was no stippling when the barrel was held against the target, but a shooting at that distance would have resulted in a distinctive contact wound. Based on the fact that Dr. Stafford did not mention stippling in his report and the inference that no stippling was present, Martini expressed the opinion that the barrel of the gun must have been 18 inches or more from appellant’s face when the gun was fired. Martini then demonstrated, using a replica of the gun and an 18-inch steel rod, that for a self-inflicted wound to travel the path of the bullet that went through appellant’s face, the gun would have to have been held in a way that would have precluded operating the trigger with the forefinger. Appellant would have had to hold the gun in a reverse grip and pull the trigger with her thumb. In that situation, she could not have held the gun securely. Martini further explained that if the gun had not been held securely and the trigger pulled in a firm manner, it would have been unlikely for the slide mechanism to have worked properly and ejected the casing found at the scene. Moreover, if appellant had held the gun in that fashion and used her thumb to pull the trigger, the barrel could not have been more than 17 inches from her face, based on the length of her arm. Martini expressed the opinion that the wound could not have been self-inflicted because it would have been unlikely for no stippling to be present on appellant’s face at any distance she could have held the gun or for the trigger to have been pulled in a firm enough manner to allow the casing to be ejected.
Martini defined stippling as the “physiological response on living tissue to being damaged by the impact of the particulates associated with a firearm discharge.”
Dr. Park Dietz, a forensic psychiatrist, reviewed reports of psychological evaluations of appellant from 1996 and 2001, and one conducted in 2006, four to five months after the incident. He also interviewed appellant just prior to the hearing, in 2008. He found no evidence of suicidal ideation or depression. He expressed the opinion that Williams was more likely than appellant to be suicidal. However, he neither examined Williams nor reviewed his medical records and obtained most of his information concerning Williams’s state of mind from appellant.
The arbitrator prepared an advisory opinion in which he concluded the City failed to meet its burden of proving that appellant made false statements. In so doing, the arbitrator erroneously stated that the applicable standard was proof by “clear and convincing evidence.” The arbitrator further concluded that the discipline imposed was untimely under the one-year statute of limitations of Government Code section 3304, subdivision (d) because the incident occurred on June 25, 2006 and appellant’s interview with LACSD took place on July 7, 2006, but the notice of discipline was not served on appellant until July 31, 2007.
Appellant raised the statute of limitations issue for the first time in her closing brief, filed simultaneously with the City’s closing brief.
E. City Manager’s Findings and Decision
The City Manager reviewed the advisory opinion and reached a different conclusion. He gave particular credence to Williams’s contemporaneous and spontaneous statements that appellant had shot herself intentionally. He found it implausible that Williams could have come up with a false story so quickly. He found that appellant’s version of events did not make sense, particularly her statement that she decided to go to bed without finding her missing gun although she allegedly had concerns about Williams’s suicidal tendencies. He found appellant’s version of events further undercut by Lenon, who was in contact with Williams all evening and did not report that he was depressed or distraught. Moreover, the fact that Williams kept the phone line with Lenon open as events unfolded made more sense if Williams was surprised by what happened than if he had been planning to shoot himself in appellant’s bedroom. With respect to Martini, the City Manager stated: “All he could really say was that he thought it unlikely [appellant] could have shot herself with the gun in question. That does not make it physically impossible. In addition, he could not say how the shooting actually happened.” With respect to Dr. Dietz, the City Manager pointed out that his opinion regarding appellant’s psychological state at the time of the hearing “does not prove what happened months or years earlier.”
The City Manager also considered appellant’s statute of limitations defense. He concluded the statute did not begin to run until LACSD completed its investigation in August 2006 because the Department had no reason to know there had been possible misconduct prior to that point. He further concluded that even if the Department had become aware of potential misconduct prior to that point, causing the statute to begin to run, the statute was tolled until the LACSD’s investigation was complete.
F. Mandate Proceedings
Appellant filed a petition for writ of mandate under Code of Civil Procedure section 1094.5, seeking to overturn the City’s decision. The trial court reviewed the evidence, exercising its independent judgment, and concluded the City was justified in terminating appellant. Preliminarily, the court found that the evidence supporting appellant’s motivation to commit suicide was stronger than the evidence supporting Williams’s motivation. Appellant suffered from a debilitating disease and had experienced serious friction with the Department, her employer. On the other hand, “[t]here was little evidence from persons other than [appellant] that Williams had a motive to commit suicide.” And the reasons appellant gave for his suicidal depression either did not appear to be recent events -- the death of his grandparents, the imprisonment of his father -- or were not supported by evidence of significance to Williams -- not getting into the college of his choice.
Next, the court concluded that Williams’s version of events was more plausible than appellant’s. “First, he was on the telephone with Lenon at the time of the incident. He says so, and so does Lenon.... The cell phone also was found outside his door where he would have dropped it upon hearing the gunshot. This is the single most important fact in the case. There is simply no reason for Williams to be on the phone with his girlfriend, put the phone down, walk into his mother’s room and try and kill himself.... [¶] Second, the gun belonged to [appellant]. It does not make sense that she would see that her gun was missing (the implication being that her son took it), perform a search, and then go to bed when the gun was not found. [Appellant] had an obligation as a police officer to know where her weapon was at all times and to keep it secure. Yet, she came home and found the empty gun bag on the floor. She had to believe that Williams had taken her gun. There is no other inference from her testimony. Yet, she merely asked him if he knew where it was and performed a search. This makes no sense at all. No loving parent, and all indications are that [appellant] loves Williams, would just let the matter go and go to bed without a searching inquiry for the truth from her child. [¶] Third, Williams’s version was relayed to the 911 operator and later law enforcement within moments or hours of the incident. As such, he had little time to fabricate a story. It is for such reasons that 911 calls are admitted into evidence as spontaneous statements or excited utterances. They generally tend to be the truth. White’s version, on the other hand, was given for the first time in the hospital two weeks after she was shot. While she was in a coma for a portion of that time, she did have time to think about what to say. [¶] Fourth, the notion that Williams came into his mother’s room in order to kill himself in front of her seems completely inconsistent with rational behavior. Unless he blamed his mother for all that was wrong in his life, and there is no evidence of that, Williams had no reason to inflict the observation of his suicide upon her.... [¶] Fifth, the fact that [appellant] was lying on the bed, saw Williams with the gun, and was able to leap off the bed in order to struggle with him for it makes little sense. He was standing and should have been able to easily move out of the way as she leapt off the bed. Under her version, the struggle should have taken place as she chased him, not right there at the bed. [¶] Quite clearly, the most plausible version of events is that [appellant] shot herself.” (Fn. omitted.)
The court expressed its awareness that some of the physical evidence was supportive of appellant’s story. The court was “troubled” by the fact that Williams apparently left the gun on the floor near appellant. The court further noted that Williams had gunshot residue on his hands. However, these facts did not persuade the court that appellant’s version of events was more plausible. The court also considered Martini’s expert testimony in conjunction with Dr. Stafford’s testimony concerning the absence of a reference to stippling in the latter’s report. The court deemed this inconclusive, noting that Dr. Stafford had no actual recollection of having treated appellant and was not shown any photographs of her face as it appeared following the incident. The absence of a reference to stippling in Dr. Stafford’s report, the court noted, “does not mean that there was no stippling on [appellant’s] face, only that [Dr.] Stafford, who was busy dealing with the blood, the lost teeth, and the fractured jaw of a victim, did not see it and report it.”
Turning to the statute of limitations, the court concluded that appellant had waived the issue by failing to raise it until filing and serving her closing arbitration brief. Alternatively, the court concluded that the statute was tolled until Detective Coon finished his investigation of the shooting in August 2006. The court explained that although suicide is not a crime, until Detective Coon completed the investigation and concluded it was an attempted suicide, he was investigating a shooting which was potentially a crime.
Based on these findings, the court denied the petition for writ of mandate. This appeal followed.
DISCUSSION
A. Statute of Limitations
Government Code section 3304, subdivision (d), provides that with certain exceptions, “no punitive action... shall be undertaken for an act, omission, or other allegation of misconduct [of a public safety officer] 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.” Unless an exception applies, the agency is required to notify the public safety officer of the intended discipline “by a Letter of Intent or Notice of Adverse Action articulating the discipline that year, ” although the statute specifically provides that the agency is not required to impose the discipline within that year. The statute is tolled “[i]f the act, omission, or other allegation of misconduct is also the subject of a criminal investigation or criminal prosecution, ” during the time the criminal investigation or criminal prosecution is pending. (Gov. Code, § 3304, subd. (d)(2)(A).)
There is no dispute that the notice specified by the statute was not served on appellant until August 2007, more than a year after both the June 25, 2006 shooting incident and appellant’s July 7 interview with Detective Coon, but less than a year after her January 2007 formal interview with the Department. Initially, we conclude the statute of limitations was tolled with respect to the misrepresentations to LACSD until LACSD completed its investigation of the shooting incident in August 2006 and that the disciplinary action based on these misrepresentations was, therefore, timely. Additionally, we conclude that insofar as appellant’s termination was based on her false statements to her own Department, the statute of limitations had not run.
We reject, as did the trial court, the City’s contention that it had no reason to know of appellant’s possible misconduct until the investigation was complete and that therefore the statute did not begin to run until that date. As the trial court stated in its ruling: “[Lieutenant] Qualls knew that [appellant] told [Detective] Coon in her interview that she had not attempted suicide. He also knew that Williams told a different version of events. Thus, he had reason to suspect that someone was lying. This is all that is necessary to start the section 3304(d) clock ticking.”
1. Waiver/Forfeiture
Preliminarily, we address the trial court’s conclusion that the statute of limitations defense was “waived” because appellant did not raise it until her closing arbitration brief. The trial court relied for its conclusion on Moore v. City of Los Angeles (2007) 156 Cal.App.4th 373. The court in Moore held that where relief is sought under Code of Civil Procedure section 1094.5, the statute of limitations defense is forfeited if not raised at the administrative hearing. (156 Cal.App.4th at pp. 382-383.) Appellant raised the defense at the administrative hearing -- in her closing brief. The Department did not object or seek permission to re-open the hearing or file additional briefing. The statute of limitations was fully considered by both the arbitrator and the City Manager. On appeal, respondents do not contend they were prejudiced by the timing, or that there was relevant evidence that could have been presented had advance notice been given. Nor do respondents contend that appellant violated the procedures for conducting the arbitration by presenting an affirmative defense in a closing brief. Accordingly, we find no basis for waiver or forfeiture.
The arbitration was governed by the Memorandum of Understanding between the City and the Pasadena Police Officers Association.
2. Tolling
“Section 3304 is part of the Public Safety Officers Procedural Bill of Rights Act ([Government Code] § 3300 et seq.). [Citation.] The act is primarily a labor relations statute cataloging the basic rights and protections that must be afforded to all peace officers by the public entities that employ them. One such protection -- codified in section 3304 -- is the speedy adjudication of conduct that could result in discipline. [Citations.] The one-year statute of limitations set out in section 3304(d) seeks to balance competing interests -- the public interest in maintaining the integrity and efficiency of the police force and the individual officer’s interest in receiving fair treatment.” (Bettencourt v. City and County of San Francisco (2007) 146 Cal.App.4th 1090, 1098-1099 (Bettencourt).)
The issue before us requires interpretation of Government Code section 3304, subdivision (d)(2)(A) and specifically, the term “criminal investigation.” The City Manager and the trial court both concluded the term covered Detective Coon’s investigation of the shooting, although the responding deputies and Detective Coon did not believe a crime had been committed. “To the extent that an issue on appeal requires the interpretation of statute, it raises pure questions of law that we determine de novo. [Citations.]” (Bettencourt, supra, 146 Cal.App.4th at p. 1100.) “[W]e are not bound by a legal interpretation made by the [agency] or the trial court. Instead, we make an independent review of any question of law necessary to the resolution of this matter on appeal.” (Breslin v. City and County of San Francisco (2007) 146 Cal.App.4th 1064, 1077 (Breslin).)
“When construing the meaning of the language of section 3304, we apply basic principles that apply in all statutory construction cases. We seek to ascertain the Legislature’s intent so that we may effectuate the law’s purpose. Our goal is to interpret the language of the statute -- not to insert what has been omitted or omit what has been inserted. We look first to the language of the statute itself, read as a whole, seeking to harmonize parts of a statutory scheme. If the words contained in the statute are reasonably free from ambiguity and uncertainty, we look no further than those words to ascertain the provision’s meaning. [Citations.]” (Bettencourt, supra, 146 Cal.App.4th at p. 1100.) “‘[W]e give the words of the statute “‘their ordinary and usual meaning, ’” construing them in their statutory context.’” (Parra v. City and County of San Francisco (2006) 144 Cal.App.4th 977, 994.)
Government Code section 3304, subdivision (d)(2)(A) is straightforward. “The act requires the tolling of the one-year statute of limitations while a criminal investigation is pending if the misconduct is the subject of that investigation.” (Breslin, supra, 146 Cal.App.4th at p. 1078.) Appellant contends there was no criminal investigation because the deputies who arrived at the scene and Detective Coon believed from the beginning that appellant had attempted suicide, which is not a criminal offense. However, the initial beliefs of the investigators are not determinative of the character of the investigation. “The question of what constitutes a criminal investigation logically focuses on whether the conduct at issue is potentially criminal, not whether the resulting charges amount to crimes.” (Crawford v. City of Los Angeles (2009) 175 Cal.App.4th 249, 255.) The deputies and Detective Coon were investigating a shooting, questioning witnesses and gathering evidence in order to determine under what circumstances appellant had sustained severe facial gunshot wounds. Until all the pertinent witnesses, including appellant, had been questioned and the physical evidence reviewed, LACSD could not determine whether a crime had been committed. The fact that Detective Coon, the assigned investigator, suspected from the outset that appellant had shot herself does not change the nature of the investigation. It was a criminal investigation that encompassed the activities of appellant and therefore came within the terms of Government Code section 3304, subdivision (d)(2)(A).
Appellant contends that because neither of the two versions of events offered to explain the shooting constituted crimes, there could be no criminal investigation. We disagree. There was evidence that appellant attempted to shoot herself; she claimed Williams attempted to shoot himself. It was entirely possible that neither version was true, and that appellant was attempting to conceal an intentional shooting. Moreover, even if unintentional, the shooting could have been the result of criminal negligence. Either of these latter scenarios would have constituted criminal conduct, but until LACSD completed its investigation there could be no dispositive determination.
Our conclusion that the statute of limitations set forth in Government Code section 3304, subdivision (d) is tolled during an investigation of suspicious activity despite the investigators’ ultimate determination that no crime was committed is supported by the court’s decision in Breslin, supra, 146 Cal.App.4th 1064. The facts were as follows: On May 13, 1998, four police officers were surveilling a known fugitive. Two of them fired into the car in which he was attempting to escape, killing an innocent girl. The officers claimed they had acted in self-defense. Two criminal investigations followed: one by the city’s Office of Citizen Complaints (OCC) in response to a complaint filed on June 10, 1998, and the other by the district attorney, which commenced on the day of the shooting and concluded on February 10, 1999. Ultimately, the two officers who shot at the vehicle were charged with murder and attempted murder. All four officers were the subject of disciplinary action. The trial court and the department concluded that the statute of limitations contained in Government Code section 3304 was tolled by the investigation, even with respect to the two officers who had fired no shots and were charged with no crime. The appellate court agreed: “The facts relating to the criminal investigation tolling provision are undisputed. From May 13, 1998, until February 10, 1999, the district attorney conducted a criminal investigation into the conduct of all four of the officers involved in this shooting incident. The same incident was the subject of the June 10, 1998 complaint to the OCC. As all the requirements of the criminal investigation tolling provision are met, we find that this statute required that the one-year period for filing disciplinary charges against each of the four officer be tolled from the time that the OCC investigation began on June 10, 1998, through February 10, 1999, when the criminal investigation formally ended.” (Breslin, supra, at pp. 1078-1079.)
A similar issue was raised in Parra v. City and County of San Francisco, supra, 144 Cal.App.4th at p. 994, where two men complained they had been attacked by three off-duty police officers. The department and the district attorney commenced investigations into the actions of the three officers and numerous others in the department who had allegedly mishandled the original complaint. When the investigations were complete, the chief of police and six additional members of the department were indicted for conspiracy to obstruct justice. More than a year after the alleged offenses, disciplinary action was taken against the six officers, and a seventh officer who had not been the subject of criminal charges. The Court of Appeal concluded that the investigation tolled the statute of limitations, even with respect to the officer who was charged with no crime. (144 Cal.App.4th at p. 994.) Here, as in Breslin and Parra, appellant was charged with no crime. However, the events of the evening of June 25, including appellant’s conduct, were the subject of the LACSD investigation. Accordingly, the tolling provision of Government Code section 3304, subdivision (d)(2)(A) applies.
Additional support for our conclusion that the LACSD investigation must be deemed a criminal investigation for purposes of the POBRA statute of limitations is found in Lucio v. City of Los Angeles (2008) 169 Cal.App.4th 793, 800, which involved the interpretation of the similar limitation provisions of Los Angeles City Charter section 1070(c). A police officer’s girlfriend accused him of making threats against her. Approximately five months later, it was determined that there was no basis for a criminal charge, but the department proceeded with internal discipline. The officer was served with the requisite “‘complaint and relief from duty’” more than one year after discovery of the alleged threat. In finding the disciplinary action timely, the court stated: “The tolling provision recognizes that investigation of a case for possible criminal prosecution, in which guilt must be established by proof beyond a reasonable doubt, normally would be more time-consuming than an ordinary investigation into noncriminal misconduct. The criminal investigation should not have to bear the pressure of being rushed to completion because of the one-year deadline for disciplinary investigations....” (Lucio v. City of Los Angeles, supra, at p. 800.) Here, although the investigation into the shooting incident was a brief one, the reasoning of Lucio confirms our belief that the term “criminal investigation” should be defined broadly enough to prevent those investigating shootings involving police officers from feeling rushed or reaching hasty conclusions. In enacting the tolling provision of Government Code section 3304, subdivision (d)(2)(A), the Legislature recognized that imposition of internal discipline on peace officers must take second place to criminal investigations. By inserting the tolling provision of subdivision (d)(2)(A), the statutory scheme allows those primarily concerned with discipline to await the results of investigations into possible criminal conduct without forfeiting the opportunity to deal appropriately with conduct that violates internal rules.
Los Angeles City Charter section 1070(c)(1) provides: “‘Limitations Periods. No member shall be removed, suspended, demoted in rank, or suspended and demoted in rank for any conduct that was discovered by an uninvolved supervisor of the department more than one year prior to the filing of the complaint against the member, except in any of the following circumstances: [¶] (1) If the act, omission, or allegation of misconduct is also the subject of a criminal investigation or criminal prosecution, the time during which the criminal investigation or criminal prosecution is pending shall toll the one-year time period.’” (Lucio v. City of Los Angeles, supra, 169 Cal.App.4th at p. 797, fn. 2.)
Appellant points out that the internal allegations against appellant were based not on the shooting itself, but on her statements to Detective Coon -- and later the Department’s investigators -- and contends that these statements were “never part of the investigation, criminal or otherwise.” With respect to the statements to LACSD, we disagree. Appellant’s statements to Detective Coon arose out of and were directly related to the shooting incident. After regaining consciousness, appellant stated that she had not attempted suicide and provided an explanation of what had transpired. Her statements directly conflicted with those of Williams and Lenon. In order to determine the nature of the shooting, Detective Coon was compelled to evaluate who was telling the truth and what actually occurred on June 25. Under these circumstances, appellant’s statements -- ultimately determined to be false -- concerning the underlying incident were an integral part of the criminal investigation.
The officer in Lucio raised a similar contention, arguing that only one of the three allegations against him -- making threats -- was a potential crime. As the other two allegations -- converting an on-duty contact into a romantic relationship and conducting personal business while on duty -- did not allege criminal wrongdoing, the officer contended they could not have come within the criminal investigation tolling provision. (Lucio v. City of Los Angeles, supra, 169 Cal.App.4th at p. 801.) The court rejected the argument, concluding that the allegations were sufficiently related to the investigation that the tolling provision applied. (Id. at p. 802; see also Parra v. City and County of San Francisco, supra, 144 Cal.App.4th at pp. 987 [POBRA statute of limitations tolled during criminal investigation for officer’s noncriminal disciplinary charges of “neglect of duty for failing to conduct a prompt and proper investigation” and “for engaging in selective enforcement of the law and department procedure”].)
3. False Statements to the Department
Apart from our tolling analysis, we conclude that the statute of limitations had not expired for an independent reason. There were two allegations against appellant which led to the recommended discipline: (1) providing false information to LACSD and (2) providing false information to the Department. While appellant was interviewed by LACSD’s Detective Coon on July 7, 2006, her statements to her own Department were made on January 8, 2007. Assuming arguendo that with respect to appellant’s misrepresentations to LACSD the statute began to run on July 7 and was not tolled, the other basis for her termination occurred well within the one-year period preceding the Notice of Disciplinary Action. Appellant has never suggested that lying to her own Department would not constitute ample grounds for her termination. And while appellant was compelled to appear at her Department’s investigation, she was not compelled to provide false information.
Courts have expressed different views on whether, for purposes of statute of limitations analysis, misrepresentations about misconduct made during an internal investigation should be considered separately or be deemed merged with the underlying misconduct. In Alameida v. State Personnel Bd. (2004) 120 Cal.App.4th 46, decided by the Third District, the agency argued that the officer’s false denials of having engaged in sexual misconduct, which occurred during an interview initiated by the agency several years after the alleged misconduct, should be deemed a separate offense from the misconduct itself for purposes of determining whether the statute of limitations had run. The court disagreed: “[T]he denial in these circumstances does not constitute separate actionable misconduct but in effect merges with or is derivative of the alleged underlying misconduct.... [T]he dishonesty charge flows directly from the investigation of the assault.... To allow the employer to prove the underlying charges in order to demonstrate that an employee was dishonest in denying the underlying charges would defeat the purpose of the Act....” (Id. at p. 62.)
Applying a similar statute of limitations to a case involving a correctional officer accused of participating in a pyramid scheme and later lying about it during an internal investigation, the Fifth District both distinguished and implicitly disagreed with the reasoning of Alameida. (See Department of Corrections & Rehabilitation v. California State Personnel Bd. (2007) 147 Cal.App.4th 797.) There, the court concluded that “[l]ying is a separate and distinct offense from the underlying offense” and that nothing in the language of the applicable statute of limitations supported a finding that “extensive lying during investigatory interviews merges with the underlying misconduct that is being investigated.” (Id. at pp. 804-805, 806.)
The statute of limitations at issue, Government Code section 19635, provides that “[n]o adverse action shall be valid against any state employee for any cause for discipline... unless notice of the adverse action is served within three years after the cause for discipline, upon which the notice is based, first arose.”
In Crawford v. City of Los Angeles, supra, 175 Cal.App.4th 249, Division Five of this District also noted the limited applicability of Alameida. In Crawford, the officer’s employment was terminated after his department’s board of rights found him guilty of numerous acts of misconduct, including making a false statement during an investigation. Relying on Alameida, the officer argued that the false statement charge was time-barred because the statement concerned misconduct as to which the statute of limitations had run. The court rejected the argument. First, it noted that Alameida was factually distinguishable, as it involved false statements made two years after the conduct under investigation, when it was too late to impose discipline for that conduct. In contrast, “Crawford’s false statements which were the basis for the charge... were made before the one-year statute of limitations expired as to [the underlying misconduct].” (175 Cal.App.4th at p. 257, italics deleted.) Additionally, the Crawford court cited “a sound policy reason” for limiting the holding in Alameida: “False statements by an officer during the course of an investigation can result in a delay in the investigation and a resulting statute of limitations violation as to the underlying conduct.” (Ibid.) Noting that “[t]ermination based upon a false statement by a peace officer is indisputably within the City’s power, ” the court concluded that “[a]n extension of Alameida to the scenario presented here, in which the false statement is alleged to have been made before expiration of the statute of limitations on the underlying conduct, would deprive the City of the power to discipline an employee for making false statements during an investigation.” (Ibid.)
Here, we discern no basis for insulating appellant from the consequences of false statements made during an internal investigation of an incident which occurred only a few months earlier. The concern identified by the Alameida court -- that an employer might attempt to revive an expired charge or extend a soon-to-expire statute of limitations by extracting a false statement -- is not present here. Appellant’s false statements to the Department were made long before any statute of limitations could have run. Accordingly, there is no question that appellant received the requisite notice within the statutory period and the discipline imposed was not barred by the statute of limitations.
Appellant argues that any attempt to rely on her January 2007 statements to her own Department to support the discipline imposed would constitute an improper attempt to “prolong” the one-year limitation period. We disagree. The Department conducted its first (and only) interview of appellant in January 2007; her misrepresentations to her Department constituted an independent basis for the discipline, of which she received notice less than a year later. We decline to hold that an officer who lies to his or her own department may rely on a limitations period applicable to other misrepresentations made to another agency.
B. Substantial Evidence
Having concluded that the discipline was imposed in a timely manner, we turn to the merits. Appellant contends substantial evidence did not support the trial court’s findings. We disagree.
In reviewing administrative decisions that affect the grievant’s vested fundamental rights, the trial court exercises independent judgment on the evidence. (Bixby v. Pierno (1971) 4 Cal.3d 130, 143.) The right to practice a trade or profession is a fundamental vested right. (Golde v. Fox (1979) 98 Cal.App.3d 167, 173.) In exercising independent judgment, the trial court makes its own credibility determinations and draws its own inferences, but at the same time affords a strong presumption of correctness to the administrative decision. (Fukuda v. City of Angels (1999) 20 Cal.4th 805, 811-812; Morrison v. Housing Authority of the City of Los Angeles Bd. of Comrs. (2003) 107 Cal.App.4th 860, 868.) The burden of proof rests on the complaining party to convince the court that the agency’s decision is contrary to the weight of the evidence. (Fukuda v. City of Angels, supra, at pp. 817, 820.)
In our review of the trial court’s exercise of independent judgment under Code of Civil Procedure section 1094.5, we determine whether the record provides substantial evidence supporting the court’s factual findings. (Breslin, supra, 146 Cal.App.4th at pp. 1077-1078.) “[W]e may not reweigh the evidence, but consider that evidence in the light most favorable to the trial court, indulging in every reasonable inference in favor of the trial court's findings and resolving all conflicts in its favor.” (Id. at p. 1078.) We may not uphold a finding based on “inherently improbable evidence” or “evidence that is irrelevant to the issues....” (Ibid.) “‘“Although an appellate court will not uphold a judgment or verdict based upon evidence inherently improbable, testimony which merely discloses unusual circumstances does not come within that category. [Citation.] To warrant the rejection of the statements given by a witness who has been believed by the [trier of fact], there must exist either a physical impossibility that they are true, or their falsity must be apparent without resorting to inferences or deductions. [Citations.] Conflicts and even testimony which is subject to justifiable suspicion do not justify the reversal of a judgment, for it is the exclusive province of the trial judge or jury to determine the credibility of a witness and the truth or falsity of the facts upon which a determination depends. [Citation.]”’” (People v. Barnes (1986) 42 Cal.3d 284, 306.)
Appellant contends the physical evidence -- primarily the absence of stippling -- established that it was impossible for appellant to have attempted suicide. We disagree. Although Dr. Stafford’s report did not mention stippling, this did not establish that the findings on which the trial court relied in reaching its conclusions were physically impossible. The court credited Martini’s testimony that stippling would have been present if the gun had discharged within 18 inches of appellant’s face, but determined that Dr. Stafford’s report was not conclusive of the presence or absence of stippling. We find no error in the court’s reasoning. As the court noted, Dr. Stafford’s testimony regarding appellant’s injuries was based on his report, prepared two years earlier, not on his current recollection. Nor did he see photographs of her. It was undisputed, however, that as the trauma surgeon who treated appellant for severe facial gunshot wounds, his primary responsibility was to attend to her injuries, not to document them. In short, the trial court was not required to treat the absence of a notation in Dr. Stafford’s report as conclusive evidence of the absence of stippling.
Nor was the court required to conclude that the cartridge could not have been ejected from the gun had appellant shot herself. While Martini opined that it was “unlikely” the slide mechanism would have operated properly and ejected the cartridge if appellant had fired the gun holding it away from her face, he did not testify that ejection of the cartridge under that scenario was impossible.
Appellant contends the trial court improperly concluded that Williams and Lenon were “actively talking” on the phone when the shooting occurred, when Lenon said that the line was open, but they were not conversing with each other at that moment. Appellant’s assertion is based solely on Lenon’s testimony at the hearing. As discussed, her testimony differed from her statements to the deputies on the night of the incident that she and Williams were on the phone when the shooting occurred. They were also contradicted by Williams’s statement that the two were conversing when the shot was fired. The trial court was not required to credit testimony contradicted by earlier statements and other evidence.
Appellant contends the court improperly concluded, based on the judge’s “personal opinion, ” that appellant’s version of events was suspect because she stated she got ready for bed without resolving the whereabouts of the gun or determining whether Williams had it. Appellant essentially argues that the trial court was compelled to credit her testimony that she did not put the “puzzle pieces” together and never thought about the possibility that Williams had the gun. The trier of fact is entitled to draw reasonable inferences from the evidence and to base credibility questions on those inferences. The court’s conclusion that a concerned mother would not go to bed with a missing weapon and a depressed teenager in the house and that appellant’s version of events was not plausible was reasonable.
Appellant contends the court improperly concluded that appellant had more time to invent a version of events than Williams because the evidence clearly established that appellant denied having shot herself as soon as she regained consciousness. Several witnesses testified that appellant began denying the allegation of attempted suicide when they saw her after she awakened, but the record does not conclusively establish when she awoke in relation to when she began telling visitors that she did not shoot herself.
Appellant contends Williams’s statements were not credible due to the inconsistencies in his story and his “suspicious behavior” during the 911 call. As the trial court concluded, Williams’s behavior in repeatedly hanging up on the operator and failing to immediately come to the door when the deputies and paramedics arrived could be explained by the trauma he experienced in seeing his mother shot and seriously injured. The inconsistencies in his story were relatively minor and his version of events was supported by Lenon’s original statements. Moreover, the court was not required to find Williams completely truthful in order to conclude that appellant had been deceptive about the events surrounding the shooting.
Appellant contends the trial court’s conclusion that Williams would not have attempted suicide in appellant’s bedroom was not supported. Appellant points to Dr. Dietz’s testimony that those contemplating suicide may do so in the presence of others in order to punish those parties or in the hope that the other parties will prevent the suicide from succeeding. Dr. Dietz’s testimony was hardly conclusive on this point and, as the trial court noted, his opinions regarding Williams lacked any foundation, as he had neither examined Williams nor reviewed any of his medical records. In short, the trial court was not required to treat any opinion Dr. Dietz offered regarding Williams as conclusive or binding. (See Howard v. Owens Corning (1999) 72 Cal.App.4th 621, 636; People v. Gentry (1968) 257 Cal.App.2d 607, 611.)
Finally, appellant faults the trial court for basing its decision that appellant’s story was implausible in part on her recollection of where the struggle took place. The court’s conclusion that if Williams had been holding the gun, he could have backed away when appellant leapt off her bed to grab him was reasonable. Moreover, it represented only one part of the court’s rationale in rejecting appellant’s version of events in favor of Williams’s. The court reached a reasonable conclusion based on its independent review of the administrative record. That conclusion was supported by substantial evidence, and we find no basis to overturn it.
DISPOSITION
The order denying the petition for writ of mandate is affirmed. Respondents are awarded their costs on appeal.
I concur: EPSTEIN, P. J.
SUZUKAWA, J.
I concur with the majority’s conclusion that substantial evidence supports the trial court’s findings and the discipline imposed was not barred by the statute of limitations. Because I agree that appellant’s false statement to her employer, Pasadena Police Department, on January 8, 2007, properly constitutes a separate basis for her termination and there is no dispute she received a notice of intent to discipline her for that statement within the one-year period defined by Government Code section 3304, subdivision (d)(1), I deem it unnecessary to determine whether the statute was tolled with respect to appellant’s statement to Detective Coon on July 7, 2006.