Court of Appeal of California,
Plaintiff and Appellant,
City of Los Angeles et al.,
Defendants and Respondents.
2003 Cal. App. Unpub. Lexis 7260
41 (2023) G.E.R.R. (BNA) 867
July 29, 2003, Filed
Miriam A. Vogel, J. Concur: Spencer, P.J., Mallano, J.
An officer was fired by the Los Angeles Police Department after a Board of Rights sustained domestic violence and unprofessional conduct charges. The officer filed a petition for a writ of mandate in which he challenged the Board’s findings and claimed the penalty was “too harsh.” The trial court denied the petition and the officer appeals. We affirm.
Officer Christopher Soldo met Valerie Garcia in April 1999, and she subsequently moved in with him. At the end of his duties on the afternoon of December 2, 1999, Soldo went to the home of his partner and friend, Officer Patrick McCarthy, where he drank six or seven beers and two or three large shots of tequila. Soldo was very intoxicated, and McCarthy drove him home. Soldo went to use the bathroom and McCarthy followed. When the door cracked open, McCarthy saw Garcia was in the bathtub and on the phone. McCarthy was embarrassed and left.
According to Garcia, Soldo was upset and argued with her. She ran out of the bathroom and into a bedroom and closed the door. Soldo kicked the door in, and Garcia ran into a spare bedroom. She tried twice to call 911, but Soldo took the phone from her hand, slapped her, and she fell. Garcia pretended she was “knocked out,” and Soldo left the room. Garcia ran into the living room, got her keys and ran out.
One of the 911 calls connected briefly, and the emergency operator heard a female voice say, “Get off me,” followed by a male voice saying, “Stupid Bitch.” Sergeant Donni Ellison, a field supervisor, went to Soldo’s house, parked half a block away, and was waiting for the first responding unit when Garcia drove up and identified herself as the caller. She appeared to be upset and to have been crying, and she said her boyfriend, an LAPD officer, had hit her. Sergeant Ellison believed her.
Officers Kevin Gruner and Carlos De La Riva arrived next and saw Sergeant Ellison talking to Garcia. Sergeant Ellison, who stayed with Garcia, told them to bring Soldo out of the house. Officer De La Riva knocked on the door. Soldo did not answer immediately, but then opened and closed the side door several times. Additional units arrived, including Officers Fernando Carrasco and Thomas Wong.
After about 15 minutes and repeated orders to exit the house, Soldo came out and walked down the driveway. He appeared to be under the influence of alcohol. When asked to put his hands up and turn around, Soldo said “okay,” but had to be asked three times before he complied. Officer Gruner handcuffed Soldo, and Officers Carrasco and Wong took custody of him while the others went into the house. Soldo said his weapon was inside, and that Garcia was in the house, and he invited the officers to talk to Garcia. Soldo’s demeanor was that of a “very drunk, very agitated” and confused person.
Officers told Soldo to sit on a wall by the driveway but he kept getting up and had to be told to remain seated. Sergeant Ellison asked Soldo, “do you know where you are” and “do you know why we’re here,” but Soldo did not respond and appeared not to know what was going on. According to Officer Wong, Soldo was at times cooperative and at times belligerent and agitated. Although the officers spoke quietly to Soldo and tried to calm him, Soldo said things that were “unprofessional.” He told Officer Wong, “Take off your glasses. I can kick your butt.” In a raised voice, he told Officer Carrasco, “I’ll kick your butt. Take off the handcuffs.” Sergeant Ellison saw damage to a door, and photographs were taken of the door (with black marks, presumably from Soldo’s boot). There were no other signs of a struggle. Another supervisor, Sergeant Lewis Charles Wiggins, arrived at the scene. He spoke first to Sergeant Ellison and then to Garcia, who said she had suffered “some type of battery” and had a bruise on her arm. Sergeant Wiggins approached Soldo, who was “voicing his displeasure,” and Sergeant Wiggins told him to sit down and “relax, because you are making this worse.” Soldo kept saying “okay, Officer Wiggins.”
Officers Carrasco and Wong took Soldo to the Northeast Station, with Soldo complaining on the way about the handcuffs. At the station, Sergeant Wiggins inquired about the continuing need for handcuffs, but the officers felt they were necessary because Soldo had not calmed down and was instead tossing himself back and forth. Meanwhile, Officers Gruner and De La Riva took Garcia to the station. On the way, Garcia told them what had happened, and said Soldo had slapped and kicked her. At the station, Garcia was interviewed by Sergeant Donna Cox, a Domestic Violence team member from Internal Affairs (who found the crying and distraught Garcia credible). Garcia answered questions without appearing to consider her answers and told basically the same story she had told the other officers. She said Soldo had never before hit her or raised his voice or used profanity toward her. Sergeant Cox observed an “egg-shaped knot” on Garcia’s leg, and photographs were taken. Based on the interview, Soldo was arrested.
Detectives Craig Kaul and Jane Stabler, also members of the Domestic Violence team, took Soldo from the station to Parker Center. In the car, Soldo put his feet on the console between the front seats; when Detective Stabler told him to put them down, Soldo became very upset and started yelling, “Why are you treating me like this” and “you don’t know what you’re doing.” According to the detectives, Soldo was very intoxicated, very upset, and “unprofessional.” He had periods of calm and periods of agitation, during which he would stand when asked to sit and offer an “onslaught” of comment. He challenged Detective Kaul to fight, referred to Detective Stabler as a “cunt” and “lesbian” who “[hid] behind that skirt,” and called her “sweetie” or “hon.” Soldo had to be asked to “shut his mouth.”
A breathalyzer test showed Soldo’s blood alcohol level was .25 percent (at least four hours after the incident). Soldo’s comments continued as he was taken upstairs for photographs (he had a scrape on his left shoulder). When asked to disrobe, Soldo complied but said to Detective Kaul, “You like what you’re looking at? You must be a faggot.” Back downstairs at the booking cage, he told the detective not to put him in a cell with “a Black guy” because he would have “to kill him.” The officers placed Soldo in the office of an African American lieutenant to await bail arrangements, and Soldo was heard referring to the “dude’s” office and pictures. Soldo was released that night after a bond was posted.
Soldo had almost no recollection of the events, and asked others what happened. He learned the unprofessional nature of his conduct, and called Detective Kaul the following day to apologize. On December 6, Soldo voluntarily sought out an LAPD drug and alcohol counselor. On December 13, Garcia met with Sergeant Cox and recanted her earlier statements. The District Attorney and the City Attorney decided not to file charges against Soldo, but the City Attorney held a hearing in January 2000 and referred him to 52 weeks of domestic violence counseling. He completed that program, plus 52 weeks of substance abuse counseling.
In December 2000, Soldo was served with a formal complaint listing 10 charges. Six counts were related to the domestic violence incident with Garcia, including slapping Garcia several times (count 1), grabbing her wrist and holding her down against her will (count 2), trying to prevent her from placing an emergency call (count 3), kicking her (count 4), kicking open a door that struck Garcia and caused her to fall (count 5), and striking Garcia with his knee (count 6). The remaining four counts were based on Soldo’s allegedly unprofessional conduct, including causing officer response, which resulted in his arrest (count 7), failing to cooperate with on-duty officers conducting an official investigation (count 8), making improper remarks to Officers Carrasco and Wong, and Detectives Stabler and Kuhl (count 9), and making improper ethnic remarks regarding Blacks (count 10).
A Board of Rights hearing was held in April 2001. The Department offered evidence of the facts summarized above through the testimony of witnesses, the arrest report, the transcript of Garcia’s 911 call, follow-up investigation reports, and photographs. Garcia did not testify. [n1] Sergeant Sally Joe MacArthur, who conducted in-service training for domestic violence, testified that 80 percent of domestic violence victims minimize rather than embellish events, and that it is not unusual for a victim to recant. Soldo conceded that, because he could not recall the events, he could not deny them, but he defended by challenging Garcia’s credibility. [n2]
In its decision, the Board of Rights noted that “while Ms. Garcia clearly was not completely forthcoming with the investigating officers, all of the experienced officers who had contact with her believed her to be candid and truthful” regarding the domestic violence. The Board found Garcia was truthful “when she originally reported the incident as documented in [the arrest report],” not when she recanted, and the Board found Soldo guilty of the domestic violence counts. The Board also found Soldo guilty of the unprofessional conduct counts based on the evidence of his arrest, his failure to cooperate, and his inappropriate comments.
The Board considered Soldo’s personnel package and character witnesses in deciding the appropriate penalty, and found that Soldo had used poor judgment in drinking to excess, particularly in light of his prior alcohol-induced blackouts, and that his behavior had “compromised [his] capacity as a police officer. Clearly both domestic violence and bias fall within the types of conduct that may be used to attack credibility should [he] be placed in a position to testify as a material witness. The Department has an obligation to victims of crimes that prosecutions will not be jeopardized by the history of officers who may be called to testify as a witness; similarly, the Department has an obligation to protect the city’s liability [for such things as negligent retention].” The Board unanimously recommended that Soldo be removed from his position as a police officer for his “unnecessary, improper, criminal, and clearly unbecoming conduct.” The Chief of Police accepted the recommendation and ordered Soldo removed.
Soldo then filed a petition for a writ of mandate, claiming the administrative decision was invalid. (Code Civ. Proc., § 1094.5; Gov. Code, § 3309.5.) In his supporting memorandum, Soldo contended the guilt findings on the domestic violence counts had impermissibly been based solely on hearsay, that Sergeant MacArthur’s “expert” testimony about recanting was irrelevant and should not have been considered, that no evidence supported the finding that he failed to cooperate, and that the penalty of removal was too harsh. The Board filed opposition and a hearing was held.
The trial court found that direct evidence supported Soldo’s termination, that hearsay evidence was admissible to explain or clarify the direct evidence, and that there was no manifest abuse of discretion in the Department’s decision to terminate Soldo’s employment. The petition was denied, and Soldo appeals from the judgment thereafter entered.
Soldo contends the allegations in counts 1, 2, 4 and 6 were supported only by the hearsay statements Garcia made to various police officers, and that this evidence is insufficient to support the Board’s findings. We disagree. n3
Section 363.40 of the Department’s Board of Rights Manual (11th ed. 2000, pp. 49-50) states that “hearsay evidence may be used for the purpose of supplementing or explaining any direct evidence but shall not be sufficient in itself to support a finding unless it would be admissible over objection in [a] civil action. If the hearsay would be inadmissible over objection in a civil action, the Board may not rely on it to make a finding of ‘Guilty.’ To do so would likely result in a ruling that it had abused it’s discretion.”
There was much more than hearsay evidence. Direct evidence of the domestic violence included the transcript of the 911 call and photographs of the damaged door and of a welt on Garcia’s leg, all of which suggested an altercation. There was also the testimony of numerous officers, sergeants, and detectives concerning their own observations of Garcia’s injuries, appearance, and distraught demeanor (upset, scared, and with red face and swollen eyes, discoloration of the arm or wrist, and an “egg-shaped knot” on her leg), and of Soldo’s aggressive demeanor and behavior. We agree with the trial court that hearsay was admitted by the Board to supplement or explain the direct evidence. Accordingly, substantial evidence supports the trial court’s findings. (Barber v. Long Beach Civil Service Com. (1996) 45 Cal.App.4th 652, 659-660.)
We reject Soldo’s claim that no substantial evidence supports the charge that he failed to cooperate with on-duty officers conducting an official investigation (count 8). He had to be asked numerous times to exit the house, to put his hands up, to sit down, to calm down, and to “shut his mouth.” Although certain officers considered Soldo largely compliant, they were not always within earshot. Those officers charged with Soldo’s custody during his detention and arrest, including Officer Wong and Detectives Kaul and Stabler, testified to specific examples of Soldo’s uncooperative and unprofessional conduct (his feet on the console, rocking back and forth in handcuffs, and his stream of loud and insulting remarks). Substantial evidence supported the Board’s and the trial court’s findings. (Barber v. Long Beach Civil Service Com., supra, 45 Cal.App.4th at pp. 659-660.)
Soldo contends the penalty of removal from his position as a police officer is too harsh, given that his conduct is not likely to recur and did not result in “harm to the public service” (Skelly v. State Personnel Bd. (1975) 15 Cal.3d 194, 217-218, 124 Cal. Rptr. 14, 539 P.2d 774). We disagree. The argument is premised on his claim (rejected above) that “there was no competent evidence” supporting the domestic violence charges. Moreover, the patently valid concerns and reasons stated by the Board at the time it announced the penalty demonstrate the Board’s overriding concern for the public interest and for the City and confirm that there was no abuse of its broad discretion.
The judgment is affirmed.
Miriam A. Vogel, J.
1. The Department did not subpoena Garcia because it did not know where to find her and the defense had represented that she would attend the hearing.
2. Soldo testified that when he spoke to Garcia about what had happened that night, she told him that he was breaking up with her and kicking her out of the house. She responded by threatening to call 911 to get him in trouble. He became irate, and she ran into the bedroom and locked the door. He kicked in the door, and the door hit her leg. During cross-examination, Sergeant Cox admitted that Garcia had provided incorrect information and had failed to provide critical information. For example, she gave wrong phone numbers, misidentified her mother, failed to identify her longtime friend “Tammy” (with whom she was speaking that night and who may have been the only witness to events), claimed not to know Tammy’s number, claimed to be engaged to Soldo (pointing to a ring he said she bought herself), and claimed a prior girlfriend of Soldo, Laura Mercado, told her that Soldo had assaulted her during the relationship. Mercado denied this.
3. We summarily reject Soldo’s related claim that inadmissible hearsay is not made admissible by the fact that a witness is credible. The Board did not permit the hearsay because the witnesses were credible – what it said was that the witnesses observed Garcia to be credible and those observations, in the Board’s view, weighed in favor of finding Garcia’s original complaints credible.
Notice: Not to be published in official reports. California Rules of Court, Rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by Rule 977(b). This opinion has not been certified for publication or ordered published for the purposes of Rule 977.