COURT OF APPEAL OF
FOURTH APPELLATE DISTRICT
Plaintiff and Respondent,
County of Riverside et al.,
Defendants and Appellants.
March 21, 2006, Filed
Richli, J.; Ramirez, P.J., Gaut, J. concurred.
Three sheriff’s deputies, including Anthony Smith and Raymond Verdugo, were in a foot pursuit of a fleeing suspect. Just as the suspect was about to jump over a wall, Verdugo’s gun went off. It now seems to be agreed that the discharge was accidental. In his report, however, Verdugo claimed that he fired in self-defense because the suspect pulled out a knife. Verdugo was fired for dishonesty.
When Smith was interviewed, he stated a’a’ truthfully a’a’ that he did not see anything in the suspect’s hands when Verdugo’s gun went off, though later, after arresting the suspect, he found an auto stereo faceplate in his left pants pocket and a knife in his right pants pocket. Once Smith was reinterviewed and re-reinterviewed, however, there were minor discrepancies between his statements about (1) whether the interaction between Verdugo and the suspect could be described as a “struggle”; (2) whether the interaction lasted a “millisecond” or “several seconds”; (3) whether he found the knife and the faceplate while the suspect was lying down or in a sitting position; and (4) whether he found the faceplate in the suspect’s hand or in his pocket. As a result, Smith, too, was fired for dishonesty.
The trial court found insufficient evidence
that these discrepancies were the result of dishonesty rather than innocent misrecollection. The
A. The Underlying Incident.
The suspect ran toward a block wall. Verdugo was right behind him. Smith was behind them and to their left; Farley was behind them and to their right. Verdugo and Farley were yelling, “Stop. Get on the ground.”
Verdugo was holding his gun in his right hand. As the suspect put one hand on the wall, getting ready to jump over, Verdugo grabbed with his left hand toward the suspect’s right shoulder. Nevertheless, the suspect jumped over the wall. Just as he did so, Verdugo’s gun went off. The suspect screamed or yelled, “Ahhhhh.”
Smith and Farley followed the suspect over the wall. They found that he had tripped and fallen. They forced him down onto his stomach, forced his hands behind his back, and handcuffed him. Smith then searched the suspect. In his left front pants pocket, he found an auto stereo faceplate; in his right front pants pocket, he found a knife. Verdugo said something like, “I shot at him. He went for a knife.”
Because there had been an officer-involved shooting, Lieutenant Tucker, an internal affairs investigator, arrived at the scene. Tucker told Smith, however, that the shooting appeared to be accidental; he described it as a “no-brainer” and “no big deal.”
1. Concerning the Interaction at the Wall: Smith said, “I saw Verdugo approach the [suspect] as the [suspect] went to jump the wall.”
He was asked:
“Q. As the suspect approaches the wall, explain to me real clear now what you saw Verdugo do prior to the guy jumping over the wall.
“A. It just looked like the suspect a’a’ the subject was going to jump the wall. And it looked like [Verdugo] was going to almost like grab him and pull him back.”
When asked to “keep going,” he said, “Well, that’s basically what I saw. . . . I didn’t see anything in the subject’s hands. I didn’t see [Verdugo] even have his gun out. It appeared that he was going to grab the subject and pull him back.”
He was asked:
“Q. Did [Verdugo] actually have his hands up, extended to the guy? . . . Was he doing something to make you think he was trying to detain him?
“A. . . . I know that the subject was at the wall, [Verdugo] was behind him, there was hand movement . . . .”
Finally, he was asked:
“Q. But you felt pretty comfortable that there was a struggle of some type and that [Verdugo] was trying to detain this guy at the wall?
2. Concerning the Pat-Down Search: Smith also stated: “I left [the suspect] on the ground, on his stomach. Then sat him up into a sitting position so I could pat him down for any kind of weapons.” He said he found the faceplate in the suspect’s left front pants pocket and the knife in the suspect’s right front pants pocket.
Bolanos concluded that Smith’s statements supported charging the suspect with assault with a deadly weapon on a peace officer.
After interviewing Smith, Bolanos also interviewed Farley. Farley said, among other things, that after the suspect was handcuffed, neither Smith nor Verdugo talked about the incident.
At that point, Bolanos did not consider Farley’s account inconsistent with Smith’s. However, he did want to clarify whether the discharge had been accidental. He therefore reinterviewed Smith briefly. Bolanos asked Smith, among other things, whether he had talked to Verdugo after the arrest. Smith replied: “[Verdugo] just said that . . . the suspect . . . pulled a knife on him and he, I think he made a comment that ‘I think I shot him’ . . . .”
C. Smith’s Written Report.
D. Verdugo’s Written Report.
Investigator Jeff Buompensiero was the lead investigator on the criminal case against the suspect. He determined that the suspect should be booked on charges of possession of a deadly weapon (Pen. Code, § 12020, subd. (a)(1)), drawing a deadly weapon to prevent arrest (Pen. Code, § 417.8), and assault with a deadly weapon on a peace officer (Pen. Code, § 245, subd. (c)). In Buompensiero’s opinion, these charges were based, at least in part, on Smith’s statements.
During this interview, Smith made the following statements:
1. Concerning the Interaction at the Wall: Smith said, “ . . . I saw the subject at the wall, Verdugo kind of behind him and maybe possibly a little bit to his right . . . . [P] . . . [P] And . . . there was commotion going on between Verdugo and the suspect . . . .” He was asked:
“Q. You said that there was some kind of commotion. Did they stop at one point?
“A. Yeah, . . . they were stopped just several . . . seconds at the bottom of the wall.” He added, “I continued towards the wall and they were still going . . . .”
Later, he was asked:
“Q. Did you ever see [Verdugo] try to grab the guy on the wall? Did you see where their hands were at any time?
“A. At one point I believe that the suspect’s left hand was on the wall, and he was more like in a bladed . . . position.
“Q. His feet were still on the ground?
“A. Still on the ground. And . . . I recall that [Verdugo]’s left hand was going up to a’a’ I guess an attempt to prevent him from going over the wall.”
Smith was also asked:
“Q. . . . Did they stop at some point?
“A. Yeah, they were a’a’ they were stopped just several . . . seconds at the bottom of the wall. And then a’a’ and I was still in motion as I was running towards the wall. And a’a’
“Q. Go ahead. You continued towards the wall.
“A. I continued towards the wall and they were still going . . . .”
2. Concerning the Pat-Down Search: Smith stated: “When I finally got [the suspect’s] left hand behind his back, I noticed he had . . . a stereo faceplate in his left hand. [P] . . . [P] So I took that and I just threw that a couple of feet away from us. Then I got him handcuffed, I patted him down, and then I sat him up into a sitting position . . . and started patting him down, and located a knife in his right front pocket.”
Smith also stated: “ [Verdugo] said that a’a’ I can’t recall exactly his exact words, but it was either ‘He had a knife and I think I shot him,’ or ‘I think I shot him, he had a knife.’ [P] . . . [P] You know, ‘He came at me with it’ or something.”
In Buompensiero’s opinion, Smith’s statements on April 16 supported the charges against the suspect.
Chad Bianco, an internal affairs investigator, reviewed Smith’s April 8 and April 16 interviews. Because Smith had made inconsistent statements, Bianco ordered Smith to appear for a further interview.
According to Bianco, he sent Smith audiotapes of both interviews. He also sent Smith a memo stating that the upcoming interview would be concerned with “the different information learned during the two interviews . . . .” Smith admitted receiving and reviewing the tapes, but he denied receiving Bianco’s memo.
The interview, on
1. Concerning the Interaction at the Wall: Smith said, “ . . . I can’t tell you exactly the distance, but they were getting in close proximity. Almost like the subject had his left hand on the wall . . . . [Verdugo]’s gonna reach up and just like grab him with his left hand or like almost a’a’ the guy’s to the wall, but he hasn’t hit a’a’ he hasn’t made the attempt to . . . jump up yet, but he’s getting closer, it’s almost like, you know, ‘Whoa.’ So, it’s like a’a’ he kind of grabs hold. “
Smith also said, “They run up perhaps the subject grabs the wall. [Verdugo] comes up a’a’ it seems like they were a’a’ they were really close. They were running. Runs up. I don’t know. Almost like he’s going to reach up and like pull him back, or he’s going just [sic] reach out and grab him. And then he puts his a’a’ the subject puts his hand on the wall. It’s almost like [Verdugo]’s gonna grab him . . . .”
Later, Smith said: “Subject was almost like he was putting his hand like a’a’ it could have been hey, I’m running too fast, oh I better stop. . . . It seemed like at the same time that he was getting there, it just seem a’a’ it just comes to mind that [Verdugo]’s like going to a’a’ like he’s reaching with his left hand up to grab him and pull him back. And then a’a’
“INVESTIGATOR BIANCO: Pull him back from where?
“ANTHONY SMITH: I assume to prevent him from jumping the wall. [P] . . . [P]
“INVESTIGATOR BIANCO: . . . Where did you see a’a’ when did you see . . . his hands? What were you thinking when you saw his hands up there?
“ANTHONY SMITH: He was gonna go over the wall.
“INVESTIGATOR BIANCO: And what happened from that point on? What . . . did you see [Verdugo] doing?
“ANTHONY SMITH: It was almost, like I said before, it’s almost like he’s gonna grab him, and wind up a’a’ it looks like he’s going to go to [sic] over the wall. The other one (inaudible) grab him with his left hand or a’a’ or pull him back or just a’a’ just you know, grab him. [P] . . . [P]
“ANTHONY SMITH: It didn’t appear so. It was almost just a a’a’ one trying to flee and the other one trying to prevent that.
“ANTHONY SMITH: No.” [P] . . . [P]
“INVESTIGATOR BIANCO: At any point in there, did they stop?
“ANTHONY SMITH: No. I don’t a’a’ I don’t think so. I don’t think they stopped until they got to the wall.
“INVESTIGATOR BIANCO: Did they stop at the wall?
“ANTHONY SMITH: Yes.
“INVESTIGATOR BIANCO: For how long?
“ANTHONY SMITH: It seemed like when I was running, it was like a millisecond. It just seemed like, you know, bing, bing. Pop.” [P] . . . [P]
“INVESTIGATOR BIANCO: . . . So [the suspect] has forward movement that is taking him to get away.
“ANTHONY SMITH: Yes.
“INVESTIGATOR BIANCO: Did he ever stop that forward movement?
“ANTHONY SMITH: Well, when they a’a’ yeah, when they hit the wall, it wasn’t a’a’ you know, like they’ll ever a’a’
“INVESTIGATOR BIANCO: Did he stop at the bottom of the wall?
“ANTHONY SMITH: Yes.
“INVESTIGATOR BIANCO: For how long?
“ANTHONY SMITH: Very short period of time. I a’a’ a second, maybe half a second, second and a half. It didn’t seem like it was that long.”
“ANTHONY SMITH: . . . They got to the wall and it seemed like his hand a’a’ the individual’s hand hit, it looked like [Verdugo] was trying to reach with his left hand and then, you know, he went over.
“INVESTIGATOR BIANCO: So there wasn’t a hesitation from him going over?
“ANTHONY SMITH: Well, there was a brief one, but it wasn’t a’a’ he hadn’t stopped for ten minutes and then a’a’ and then a’a’
“INVESTIGATOR BIANCO: Did he hit the wall, as soon as he reached the wall, did he jump up on the wall and go over?
“ANTHONY SMITH: No.
“INVESTIGATOR BIANCO: How long was he a’a’ how long did he stop and not go over the wall?
“ANTHONY SMITH: Like I said, I don’t know. It was very brief. It wasn’t a’a’ maybe a second, maybe two seconds, maybe half a second. I don’t know . . . .” [P] . . . [P]
“INVESTIGATOR BIANCO: Okay. Back to the point where you see him getting to the wall. You see his hand. Where did you see the subject’s hand?
“ANTHONY SMITH: On the wall.
“INVESTIGATOR BIANCO: Where?
“ANTHONY SMITH: Almost like it was just like going out, like straight out. It was like he was a’a’
“INVESTIGATOR BIANCO: To give up?
“ANTHONY SMITH: No. He was like reaching for the wall.
“INVESTIGATOR BIANCO: So a’a’ what a’a’ what was he reaching for?
“ANTHONY SMITH: Quite possibly that he was gonna, you know, brace himself to a’a’ well, I guess get momentum and go over it.” [P] . . . [P]
“INVESTIGATOR BIANCO: Okay. When his hand went on the wall, did he go up on the wall? Did you see him go up on the wall?
“ANTHONY SMITH: No. Not at that time.
“INVESTIGATOR BIANCO: Did you see him stop?
“ANTHONY SMITH: I would say yes.” [P] . . . [P]
“INVESTIGATOR BIANCO: [If he stopped,] why didn’t you change your direction to go to where they were in case they were involved in a a’a’ in some type of confrontation?
“ANTHONY SMITH: Because it’s not that he stopped for an extended period of time and there was a threat that he was threatening Deputy Verdugo, or they were gonna go physical. It a’a’ when I say he stopped, it was, bang, you know, time flies by, and then over the wall.
“ANTHONY SMITH: Yes.
“INVESTIGATOR BIANCO: So he didn’t stop to give up, in your mind a’a’
“ANTHONY SMITH: No.
“INVESTIGATOR BIANCO: a’a’ he stopped because you can’t run through a wall.
“ANTHONY SMITH: If you do, I’m not chasing him.”
When pressed to explain the discrepancy between a “millisecond” and “a few seconds,” Smith said, “They’re the same thing.” He added, “You’re trying to get me to say something I’m not a hundred percent sure about, and I’ve stated that.”
Smith also said: “From the time that the pop went out, to over the wall, I mean it was just a matter of seconds. If even that. I don’t know. I’m not the best of estimating time.”
2. Concerning the Pat-Down Search: Smith stated: “While [the suspect] was on his stomach on the ground, handcuffed, I did a pat down search. . . . [P] I sit him up. I start on his left side . . . .”
Smith also stated: “His pants, in his left front pants pocket, there was a a’a’ you could see sticking out just a little bit . . . was the stereo.”
“He’s still on his stomach. I just do a quick pat down search of his back side, and sit him into a sitting position. Or, no, was it a sitting position? Roll him over. He might have been on his back. There would have been no way (inaudible) pat him down, started from one side, stereo, top down.”
“While he was on his back, or his stomach, . . . then I did the search. . . . I think I left him on his back. He was laying on his back, . . . I think I started on his left side, with my left hand, and that’s when the stereo came into play, I pulled it out . . . .”
When asked why he had previously said that the suspect was in a sitting position when searched, Smith answered: “Thinking about it, and then slowly playing it out in my head and then step by step, that created a better . . . image of what had happened.”
Smith admitted that his statement on April 16 that he had found the faceplate in the suspect’s hand was incorrect. When asked to explain the discrepancy, he said he just “forgot.” He explained: “I think the whole searching [a’a’] my left hand, [his] left side. I was just securing his left, and . . . my memory got a little distorted, . . . and I just got left side . . . on the brain.” He added: “It was . . . just kind of relaxed, and I wasn’t really thinking about it. Just kind of . . . joking around . . . . I didn’t really do what I was supposed to do, and really take it seriously at that time. And . . . when we did it, it was kind of let’s go here to here to here to here, instead of stepping back, like what we’ve . . . done today, about starting from this point, and then retracing all my steps . . . .”
On or before
G. “You Fucked Me.”
A month or a month and a half after the incident, Smith phoned Farley. He said “he [had] spoken to people” and “he had transcripts from the incident.” In that context, he said, “You fucked me.” Smith “didn’t say about what,” and Farley did not ask him; Farley “just kind of laughed it off.”
A. The Administrative Proceeding.
The stated factual basis for termination was
One of the regulations allegedly violated was General Orders Section 202.02 (General Order), which provided: “Department members shall speak the truth at all times . . . .”
After a Skelly hearing, n1 Smith was terminated. Smith appealed his termination in accordance with the memorandum of understanding between the Riverside Sheriff’s Association and the County, which called for the matter to be submitted to an arbitrator.
After a hearing, the arbitrator sustained the termination. Preliminarily, the arbitrator ruled that, regardless of whether the charge was dishonesty or a violation of the General Order, the speaker had to know that his or her statement was false. The arbitrator found that Smith’s contradictions concerning (1) the location of the faceplate, (2) the suspect’s position when searched, and (3) the interaction between Verdugo and the suspect at the wall all manifested dishonesty rather than “innocent recollection.” He found Smith’s explanations for the discrepancies “unconvincing.” He also found that Smith’s statement, “You fucked me,” demonstrated consciousness of guilt.
B. The Trial Court Proceeding.
The trial court began by noting that it had to apply the independent judgment standard of review, and hence it had to determine whether the findings were supported by the weight of the evidence. It added: “In this context, ‘weight of the evidence’ . . . authorizes the reviewing court to reexamine and reweigh the evidence in support of the findings of fact. In such reexamination, the trial court should apply the same standard of proof as utilized by the administrative agency, namely a ‘preponderance of the evidence.’“ The trial court rejected the County’s contention that the arbitrator’s assessment of credibility was “entitled to great weight, if not completely controlling . . . .” It determined that it had to “reweigh the evidence” rather than “rubber stamp” the arbitrator’s decision.
The court then ruled that the arbitrator’s decision was against the weight of the evidence in three respects. First, the trial court rejected the arbitrator’s finding of materiality, because it found no evidence that Smith’s statement that the suspect had something in his hand caused the district attorney to prosecute the suspect. It relied on Smith’s “unrebutted testimony that he was unaware of the pending charges against [the suspect] and did not write charging information on the facepage of his report . . . .”
Second, the trial court found no “substantial evidence” that Smith intended to deceive, as opposed to being innocently mistaken. It rejected the County’s contention that Smith could be disciplined for violating the General Order, even absent an intent to deceive.
Third, the trial court found that “the weight of the evidence does not support the conclusion that [Smith] was engaged in a continuing course of deceptive conduct which brought harm to either the Riverside County Sheriff’s Department or the public’s perception of the integrity of the Department’s agents or employees.”
THE TRIAL COURT’S STANDARD OF REVIEW
“Where, as here, a case involves a police officer’s vested property interest in his employment, the trial court is required to exercise its independent judgment. [Citations.]” (Barber v. Long Beach Civil Service Com. (1996) 45 Cal.App.4th 652, 658.) “When a trial court applies the independent-judgment test . . ., it determines whether the administrative agency’s findings are supported by the weight of the evidence. [Citation.]” (International Brotherhood of Electrical Workers v. Aubry (1996) 42 Cal.App.4th 861, 868; see also Code Civ. Proc., § 1094.5, subd. (c).)
“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.” (Fukuda v. City of Angels (1999) 20 Cal.4th 805, 817.) “The presumption provides the trial court with a starting point for review a’a’ but it is only a presumption, and may be overcome. Because the trial court ultimately must exercise its own independent judgment, that court is free to substitute its own findings after first giving due respect to the agency’s findings.” (Id. at p. 818.)
The County contends that the trial court applied an incorrect standard of review in two respects. First, it quotes the trial court’s remark at the hearing that: “There is some kind of presumption that the arbitrator did his job correctly. What weight I give that presumption really depends on what my impression is after I’ve reviewed the entire record . . . .” (Italics added.) It argues that the trial court erroneously failed to begin its review with a strong presumption of correctness. That is not at all how we understand the trial court’s comment. As we read it, the trial court acknowledged the presumption of correctness, then pointed out, correctly, that the presumption can be rebutted a’a’ i.e., given no weight a’a’ based on the court’s review of the entire record.
In any event, the trial court also said, “I
have not made up my mind on this matter, and . . . no party should assume which
way the Court is leaning based on the kind of questions that I posed to
counsel.” It asked the parties to submit further briefs; it then took the
matter under submission. Eventually, it issued a written statement of decision.
The trial court’s tentative remarks during oral argument cannot be used to
impeach its final written decision. (Hirshfield v.
Schwartz (2001) 91 Cal.App.4th 749, 767; In re Marriage of Ditto (1988) 206
Second, the County also claims that the trial court erroneously disregarded the arbitrator’s determination that Smith was not credible. However, “an exercise of independent judgment does permit (indeed, it requires) the trial court to reweigh the evidence by examining the credibility of witnesses. In exercising its independent judgment ‘the trial court has the power and responsibility to weigh the evidence at the administrative hearing and to make its own determination of the credibility of witnesses.’ [Citation.]” (Barber v. Long Beach Civil Service Com., supra, 45 Cal.App.4th at p. 658, quoting Guymon v. Board of Accountancy (1976) 55 Cal. App. 3d 1010, 1016, 128 Cal. Rptr. 137; accord, Morrison v. Housing Authority of the City of Los Angeles Bd. of Comrs. (2003) 107 Cal.App.4th 860, 868.)
We conclude that the trial court did not apply an incorrect standard of review.
THE TRIAL COURT’S FINDING THAT SMITH LACKED THE INTENT TO DECEIVE
The County challenges all three of the trial court’s findings: that Smith’s misstatements (1) were not material, (2) were not intended to deceive, and (3) did not harm the public service. We will conclude that the trial court did not err in finding insufficient evidence that Smith intended to deceive. For this reason alone, it could properly grant the writ petition. We therefore do not discuss the County’s other contentions.
A. The Relevance of Culpable Intent.
Preliminarily, the County argues that the trial court ignored the General Order, which, according to the County, holds sheriff’s deputies to a stricter standard of truthfulness. The County does not explain, however, precisely what this stricter standard is; it merely argues that the trial court’s standard was so low that it could not be violated except by a confession of deliberate untruthfulness.
At trial, the County argued that the General Order could be violated unintentionally. The trial court disagreed; it ruled that untruthfulness, whether charged as dishonesty or as a violation of the General Order, required an intent to deceive. This was correct. Admittedly, the General Order merely provided that “Department members shall speak the truth at all times . . . .” To be subject to discipline, however, Smith had to “willful[ly] violate . . . an employee regulation . . . .” (Italics added.) He could not be untruthful “willfully” unless, at a minimum, he knew what he was saying was false. Thus, the trial court correctly ruled that, if Smith was innocently mistaken, he was not subject to discipline.
“‘Where a superior court is required to make . . . an independent judgment upon the record of an administrative proceeding, the scope of review on appeal is limited. An appellate court must sustain the superior court’s findings if substantial evidence supports them. [Citations.] In reviewing the evidence, an appellate court must resolve all conflicts in favor of the party prevailing in the superior court and must give that party the benefit of every reasonable inference in support of the judgment. When more than one inference can be reasonably deduced from the facts, the appellate court cannot substitute its deductions for those of the superior court.’ [Citation.]” (Hansen Brothers Enterprises, Inc. v. Board of Supervisors (1996) 12 Cal.4th 533, 578, quoting Pasadena Unified Sch. Dist. v. Commission on Professional Competence (1977) 20 Cal.3d 309, 314, 142 Cal. Rptr. 439.)
The issue before us, then, is whether there is substantial evidence that Smith was innocently mistaken. We will consider his statements in chronological order.
The County suggests that Smith was dishonest in the April 8 interview because he said there was a “struggle” or “hand movement” at the wall. In light of the whole record, however, clearly there was hand movement: the suspect put one hand on the wall, and Verdugo reached out his left hand to grab him. Moreover, it was Investigator Bolanos, not Smith, who first used the word “struggle.” Trying to summarize what Smith had already told him, he asked, “But you felt pretty comfortable that there was a struggle of some type and that [Verdugo] was trying to detain this guy at the wall?” Smith answered, “Yes.” It was not unreasonable to describe the interaction at the wall as a “struggle . . . to detain” the suspect.
The County cites Smith’s supposed admission, on April 25, that there was no struggle. Actually, he was asked, “Did you see any kind of a struggle between the suspect and [Verdugo]?” He answered, “It didn’t appear so. It was almost just a a’a’ one trying to flee and the other one trying to prevent that.” (Italics added.) This did not really contradict his previous statement that there was a “struggle . . . to detain” the suspect. In any event, at both interviews, his description of what Verdugo and the suspect actually did was the same; he just changed his mind about characterizing it as a “struggle.”
The County also cites Farley’s testimony that he would not characterize the interaction at the wall as a “struggle” or a “commotion.” Obviously, reasonable minds could differ over whether the interaction rose to the level of a “struggle.” But Farley’s differing opinion is not proof that Smith lied.
2. Smith’s Written Report.
The County argues that Smith’s written incident report was dishonest because he listed Verdugo as “victim” and indicated that a knife had been “brandished.”
Preliminarily, even assuming the written report was dishonest, we could not uphold Smith’s termination on that basis. The notice of intent to terminate him charged him with providing untruthful information in “two criminal interviews.” Absent notice that he was also charged with providing untruthful information in the incident report, he could not be terminated on this ground. (Cf. Paoli v. Civil Service Com. (1993) 12 Cal.App.4th 1073, 1078 [employee could not be terminated when notice merely proposed to suspend him].) Moreover, the list of Smith’s supposedly contradictory statements that the County gave the arbitrator did not include any of the statements in the written report.
In any event, the evidence did not compel the conclusion that the written report was dishonest. Presumably Smith was relying on Verdugo’s statement, “I shot at him. He went for a knife.” When the suspect was at the wall, Smith could not see whether the suspect had a knife in his right hand or not. If Smith had already decided, at this point, to lie to protect Verdugo, one would expect him to say, in the narrative section of his report, that the suspect did, in fact, go for the knife. Instead, the narrative section did not mention either brandishing or a knife. In fact, Smith never claimed to have seen the suspect holding the knife.
It could be argued that Smith was essentially truthful in the April 8 interview and got into trouble only because he decided belatedly, at the April 16 interview, to try to cover up for Verdugo. Contrary to that position, however, the County has persistently argued that Smith started lying in the April 8 interview by using the word “struggle.” The County cannot have it both ways. Basically, if Smith had already decided to lie, he would have told the same story at both the April 8 and April 16 interviews. Conversely, if it did not occur to him to lie until the April 16 interview, he would have realized that he had already gone on record with the truth on April 8. Moreover, Farley had seen the whole thing, and he, too, had already been interviewed. Thus, by April 16, even if Smith wanted to lie to protect Verdugo, he would have known it was too late to do so.
In addition, it is fairly inferable that Smith did not know that Verdugo needed any protection. Lieutenant Tucker told Smith that the shooting appeared to be accidental; he described it as a “no-brainer” and “no big deal.” There is no evidence that Smith had seen Verdugo’s written report. Between April 8 and April 16, he did not even talk to Verdugo. Thus, again, even if Smith wanted to lie to protect Verdugo, he did not know what lie to tell.
Verdugo was claiming that a bystander had yelled, “He has a knife.” Indeed, one of the reasons why Investigator Buompensiero reinterviewed Smith on April 16 was to determine whether this actually happened. Smith, however, did not support Verdugo on this issue. Investigator Buompensiero asked him, “Had anybody yelled that [the suspect] had a weapon?,” he answered, “I don’t recall anything said.” Surely, if Smith had decided to lie, he would have picked up on the suggestion and agreed that someone had yelled this.
In the April 16 interview, Smith referred to a “commotion” at the wall. Again, like the word “struggle,” this was not an unreasonable way to describe the interaction. After all, the suspect did scream while it was going on. Smith then went on to describe precisely what the “commotion” consisted of a’a’ that Verdugo reached for the suspect “to prevent him from going over the wall.” Thus, his use of the word “commotion” was not misleading. Had Smith really wanted to protect Verdugo, presumably he would have said he saw a knife in the suspect’s hand.
On April 16, Smith said that Verdugo and the suspect stopped “several . . . seconds.” Supposedly, on April 25, he contradicted this by saying that they stopped “a millisecond.” However, he never purported to be using these words literally; he simply meant a very short time. Thus, he said, “It was like a millisecond. It just seemed like, you know, bing, bing. Pop.” (Italics added.) He also said, “Very short period of time. I a’a’ a second, maybe half a second, second and a half. It didn’t seem like it was that long.” “It was very brief. It wasn’t a’a’ maybe a second, maybe half a second. I don’t know . . . .” He also observed, “I’m not the best of estimating time.”
He made it clear that the time a’a’ however measured a’a’ was simply as long as it took for the suspect to put a hand on the wall, getting ready to jump over, and for Verdugo to grab toward him. Certainly his interlocutors understood what he was saying. As Sergeant Wales put it, “He just hesitated to get into position to go over the wall[.]” Or, as Investigator Bianco put it, “He stopped because you can’t run through a wall.”n2 The investigators could decide for themselves whether this was best described as “seconds” or “milliseconds.”
Smith supposedly also contradicted himself about the position the suspect was in when searched. On April 8, he had said, “I left [the suspect] on the ground, on his stomach. Then sat him up into a sitting position so I could pat him down . . . .” On April 16, he said, “ . . . I got him handcuffed, I patted him down, and then I sat him up into a sitting position while he was still on the ground, and then started from the a’a’ I believe the top down and started patting him down . . . .” Finally, on April 25, he said he started searching the suspect while he was on his stomach, then rolled him over and continued the search. At first, he said that, when he rolled the suspect over, he put him in a sitting position; after thinking about it, however, he corrected himself and said the suspect was on his back.
But Smith had no reason to lie about this. Whether the suspect was lying down or sitting up when searched had no bearing on any misconduct by Verdugo. It was precisely the sort of minor detail that could have been hazy in Smith’s memory. After all, it appears that he tackled the suspect, wrestled with him, handcuffed him, and then pat-searched him in one hectic and continuous sequence of events. Moreover, if it was worth lying about, Smith would hardly have corrected himself midway through the April 25 interview. On April 8, April 16, and, at least initially, on April 25, he had said that the suspect was in a sitting position; he could have just gone on saying that. For these reasons, the trial court could reasonably conclude that any discrepancy was the result of innocent misrecollection.
This brings us to the only genuinely serious misstatement. On April 8, Smith said that, when he patted the suspect down, he found the stereo faceplate in his pants pocket. On April 16, however, he said that, as he pulled the suspect’s hands behind his back to handcuff him, he found the faceplate in the suspect’s left hand. The location of the faceplate was relevant to whether Verdugo fired in self-defense a’a’ if it was in the suspect’s hand, Verdugo could have mistaken it for a weapon. Thus, it was not unreasonable for the arbitrator to conclude that Smith misstated the location of the faceplate intentionally. The trial court, however, could reasonably find that this conclusion was against the weight of the evidence.
On April 25, Smith promptly and frankly volunteered that there were “discrepancies” between the two earlier interviews. n3 He also admitted that, in fact, he found the faceplate in the suspect’s pants pocket. He explained: “I think the whole searching [a’a’] my left hand, [his] left side. I was just securing his left, and . . . my memory got a little distorted, . . . and I just got left side . . . on the brain.” He added that he was “tired,” he had not taken any notes he could review,n4 and he “didn’t take the time necessary to really recount exactly in my memory all my steps.” He concluded that he just “forgot.” This constituted substantial evidence that his misstatement concerning the location of the faceplate was, at worst, negligent rather than intentional. (See Kolender v. San Diego Co. Civil Service Com. (Salenko) (2005) 132 Cal.App.4th 1150, 1155 [trier of fact could believe officer’s claim that his notes were disorganized, and he “lost track” of which witness said what].)
4. “You Fucked Me.”
Finally, the County argues that Smith’s statement to Farley, “You fucked me,” proves that Smith lied deliberately. Unfortunately, Farley did not ask Smith what he meant, nor was Smith asked this at the administrative hearing.
Supposedly, Smith was referring to Farley’s statements to investigators. Farley’s statements, however, were largely consistent with Smith’s. Investigator Bolanos, who interviewed them both on April 8, did not consider Smith’s account inconsistent with Farley’s. Farley did not contradict Smith about where the faceplate was found; in fact, Farley did not even mention the faceplate.
The only inconsistency worth mentioning is that, when Smith was asked if he talked to Verdugo after the arrest, he said, “[Verdugo] just said that . . . the suspect . . . pulled a knife on him and he . . . made a comment that ‘I think I shot him’ . . . .” However, when Farley was asked if he talked to Smith or Verdugo after the suspect was handcuffed, he said, “No one was . . . talking about it.”
Farley, however, later contradicted himself. On April 15, he told investigators that, after the suspect was handcuffed, and after Smith found the knife: “I don’t know who made the comment or . . . who said it between Smith or Verdugo, [but] someone said like ‘That’s what he was going for’ or ‘that’s what he was reaching for.’“
As already noted, when Smith described Verdugo as the “victim” of a “brandishing,” he was probably relying on Verdugo’s statement to that effect. Farley, by denying that anybody said anything at all, made Smith look like a liar. But it was Farley, not Smith, who was misstating the facts; Farley eventually agreed that either Verdugo or Smith did say something about the suspect pulling a knife. Thus, Smith could correctly (if hyperbolically) claim that Farley “fucked” him.
The bottom line is that Smith’s statement was consistent with a belief that he had told the truth and that Farley had somehow lied. Thus, it did not necessarily prove consciousness of guilt. Moreover, the trial court could reasonably conclude that it was impossible to tell what Smith was referring to and hence impossible to draw any relevant inference from the statement.
The judgment is affirmed. Smith is awarded costs on appeal against the County.
1 A Skelly hearing is a pretermination opportunity for the
employee to respond to the charges against him or her. (See Skelly
v. State Personnel Bd. (1975) 15 Cal.3d 194, 215, 124
2 Nevertheless, a few minutes later, Investigator Bianco badgered Smith about the supposed discrepancy: “You estimated milliseconds when you said to me. . . . But yet, to the criminal investigators, you went into detail that there was a commotion for a few seconds . . . . It can’t be either or.”
This is typical of the way Investigator Bianco appeared, throughout the interview, to have prejudged Smith’s guilt.
3 The County seems to think it was not enough for Smith to admit that there were discrepancies; it faults him for not adding immediately that there was a discrepancy specifically concerning the faceplate, and even for not describing how he felt when he discovered the discrepancy.
At the administrative hearing, Smith explained that he “wasn’t asked” about these matters. And, as the transcript of the April 25 interview confirms, he was not. Yet the County concludes, “That comment alone would be sufficient for [the arbitrator] to thereafter completely distrust any testimony provided by Smith.” We disagree. In fact, we consider the County’s comment sufficient to show that the County is determined to find fault with everything Smith did.
4 Investigator Bianco’s reaction to this gives some of the flavor of the interview:
“INVESTIGATOR BIANCO: Does it take notes and a notepad to help you remember a factual object or a factual situation that is the truth?
“ANTHONY SMITH: It could.
“INVESTIGATOR BIANCO: You need something to remind you of what’s the truth and what’s not the truth?
“ANTHONY SMITH: Well, it’s two different interviews and I’m trying to remember how it happened a’a’ [P] . . . [P]
“INVESTIGATOR BIANCO: Okay. Do you need a notepad to tell the truth?
“ANTHONY SMITH: No.”