City of Chula Vista
Service Commission
Filed 8/3/12 Rodriguez v.
City of Chula Vista Civil Service Commission CA4/1
NOT TO BE
PUBLISHED IN OFFICIAL REPORTS
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and parties from citing or relying on opinions not certified for publication or
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COURT
OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION
ONE
STATE
OF CALIFORNIA
MOISES RODRIGUEZ,
Plaintiff and Appellant,
v.
CITY OF CHULA
VISTA CIVIL SERVICE COMMISSION et al.,
Defendants and Respondents.
D059694
(Super. Ct. No. 37-2009-00089925-
CU-WM-CTL)
APPEAL from
a judgment of the Superior Court
of
County, David B. Oberholtzer, Judge. Affirmed.
Moises
Rodriguez, a former police officer for the City of Chula Vista (City), appealed
his termination to the City of Chula Vista Civil Service Commission (the
Commission), which affirmed the termination.
Rodriguez petitioned for a writ of mandate in the Superior Court of the County
of San
Diego seeking to set aside the Commission's decision. The Commission and the Chief of Police of the
City of Chula Vista, Richard
Emerson (together respondents), responded.
The superior court denied the petition and we now affirm.
FACTUAL AND
PROCEDURAL BACKGROUND
name="_ftnref1" title="">[1]
A. Overview
and Investigation of Misconduct
On May 24, 2008, Rodriguez assisted with
the arrest of Robert Carlton.
Intoxicated and belligerent, Carlton made verbal threats to Rodriguez
and Officers Bryan Maddox and Kristy Voshell, who also participated in the
arrest and search incident to arrest of the suspect. Carlton told the officers, "Fuck you,
fuck you and your tin badge," and "I'm going to kick your ass,"
among other things. Rodriguez's
involvement in Carlton's arrest was captured by a video surveillance camera
mounted on the exterior wall of a convenience store.
The
surveillance video was included in the administrative
record and was viewed by this court.
The video shows Carlton handcuffed and bent over the hood of a police
car during a search incident to arrest conducted by Maddox. As the search continued, the video shows
Carlton's head being "forcefully" struck at least twice on the hood
of the police car, causing the hood to buckle slightly. Not caught on video was the burst of pepper
spray Rodriguez directed at Carlton's face as Maddox was placing Carlton into
the backseat of the patrol car for transport to jail.
After
Carlton was secured in the back of the police car, Rodriguez completed a use of
force form as required by department policy and gave it to Maddox. Because Maddox was uncomfortable with the
force Maddox had observed Rodriguez use on Carlton during the search incident to
arrest, Maddox told Rodriguez he would finish the form after taking Carlton to
the police station.
While at
the station, Maddox finished the booking paperwork and his own use of force
form. Maddox sent his use of force form,
but not the one completed by Rodriguez, to Lieutenant Scott Arsenault, the
on-duty watch commander. In that form,
Maddox disclosed some pushing and pulling of Carlton and Rodriguez's use of
pepper spray on Carlton while the suspect was being placed in the backseat of
the patrol car.
Arsenault
determined that Maddox's use of force form raised some "flags"
because it is "very rare[]" that an officer needs to use pepper spray
after a suspect is cuffed. Arsenault
contacted Maddox and arranged a face-to-face meeting. Arsenault also contacted Sergeant Mark Jones,
who had been at the scene of the contact with Carlton but had left before the
search incident to arrest. Jones and
Arsenault together interviewed Maddox at the police station.
After some
"prodding," Maddox informed Arsenault and Jones that he could not
explain why Carlton had been pepper sprayed by Rodriguez. When Arsenault asked Maddox if Rodriguez had
said anything to explain why he had used pepper spray, Maddox said Rodriguez
"smiled at him" and said, "I thought he [Carlton] was going to
bite you [Maddox]." In response to
Arsenault's question why Rodriguez had said that, Maddox told Arsenault and
Jones that he felt Rodriguez was "covering his tracks as far as the use of
force."
Maddox also
informed Arsenault and Jones for the first time that Rodriguez had slammed
Carlton's face on the hood of the police car and had used what Maddox believed
was excessive force in applying a wrist twist too tightly to Carlton's hands,
which left an abrasion or cut on Carlton's wrist. Maddox stated that Rodriguez's comments and
demeanor toward Carlton suggested Rodriguez used excessive force for
"personal gratification," and recommended that Arsenault determine
whether the incident had been caught on video by cameras mounted on the
exterior of the convenience store.
name="_ftnref2" title="">[2]
Arsenault
immediately commenced an internal investigation regarding the use of force in
the arrest and search of Carlton.
Arsenault directed Jones to go to the convenience store and determine
whether there was in fact a video recording of the incident. As discussed in more detail
Jones went to the convenience store the same day of Carlton's arrest and
obtained from the store's manager a copy of the video. After reviewing the video, Arsenault
determined there was a problem with an "officer using excessive
force" involving Carlton.
Arsenault
also directed Sergeant David Nellis to check on the condition of, and take
pictures of any injuries to, Carlton.
Nellis found Carlton alone in a jail cell. After a few minutes, Carlton allowed Nellis
to take some pictures and told Nellis he would see the officers in court after
he sued for what Carlton described was an "ass whooping." Nellis observed that Carlton had an abrasion
on his wrist, which Nellis described as a "line type bruising that went
along . . . [Carlton's right] wrist."
Nellis also observed a small red mark above Carlton's right eyebrow.
Arsenault
contacted Captain Gary Wedge, and together they viewed the convenience store
video. Wedge agreed with Arsenault that
the video showed an excessive force issue.
Wedge in turn contacted Sergeant Vern Sallee, who was in charge of
internal affairs, to conduct an investigation.
Wedge also instructed Arsenault to have Rodriguez prepare another use of
force form.
As
Arsenault told Rodriguez to prepare his own use of force form, Arsenault told
Rodriguez that Maddox was unable to explain the reason for the need for force
against Carlton. In Rodriguez's form,
Rodriguez stated he "grab[bed] Carlton by the head and pull[ed] it into
his left shoulder to stop [Carlton] from striking his [own] face into the
hood" of the patrol car.
The day
after Carlton's arrest, Jones inspected and took pictures of the police car
involved in the incident. After
confirming the police car had not been washed, Jones found on the passenger
side of the car what appeared to be "some smudges" and a "slight
indentation of the hood" of the car.
Sallee
commenced his investigation the day following Carlton's arrest. As part of his investigation, Sallee reviewed
the convenience store video, the use of force forms prepared by Maddox and
Rodriguez and memoranda and various reports.
He also conducted multiple witness interviews, including with Carlton,
Maddox, Voshell and Rodriguez, among many others.
Sallee's investigation
led to a 52-page report. Sallee in his
report found that Rodriguez had lied in his use of force form by stating
Carlton had banged his own head on the hood of the police car. Sallee also found that Rodriguez used
"excessive force on Carlton when [Rodriguez] pushed his head into the hood
of the patrol car two times" and sustained the findings that Rodriguez
used excessive force on Carlton when wrist locking Carlton and when pepper
spraying him.
Rodriguez
was placed on administrative leave. Based
on the internal investigation, Rodriguez was given notice of recommended
disciplinary termination of employment.
Rodriguez participated with Emerson in a predisciplinary "
Cal.3d 194). Emerson sustained the
allegations underlying the notice of intended termination and terminated
Rodriguez effective July 29, 2008.
B. The
Hearing and the Commission's Decision
Rodriguez subsequently appealed
Emerson's decision to the Commission.
The hearing before the Commission took place over several days,
beginning in mid-December 2008 and concluding in early February 2009. The Commission finished deliberating on
February 11, 2009, and issued its four-page opinion on February 18, 2009.
As discussed
in more detail post in connection
with the remand of the Commission's decision following the trial court's
partial grant of writ of mandate, the Commission unanimously found that
Rodriguez was dishonest in the use of force form and in his May 28, 2008 interview
with Sallee, when Rodriguez claimed Carlton had struck his own face and head on
the hood of the police car. The
Commission also found Rodriguez made these dishonest statements "for the
purpose of minimizing or covering up the amount of force used during the
incident."
The
Commission by a 3-2 vote found that Rodriguez used excessive force in slamming
Carlton's head on the hood of the police car.
The Commission also found this conduct brought discredit on the police
profession and the department.
Finally, by
a 4-1 vote the Commission affirmed the termination of Rodriguez.
C. Rodriguez's
Petition for Writ of Mandate
Rodriguez filed a verified
petition for writ of mandate to compel the Commission to vacate its factual
findings of dishonesty and use of excessive force, set aside his termination
and reinstate his employment with the City.
Rodriguez in his petition alleged that the Commission improperly
admitted the convenience store video because there allegedly was no proper or
adequate foundation established for its admissibility; that the Commission
improperly overruled his objection to the testimony of an unqualified witness
(Sallee) regarding the reliability of the convenience store video; that
Sallee's testimony and 52-page report, based in part on the convenience store
video, was admitted without the proper foundation; that the Commission
disregarded the exonerating testimony of Voshell and Rodriguez, and further
disregarded the testimony of Rodriguez's expert witness; and that the Commission
made factual findings not supported by competent evidence.
The trial
court granted the petition in part, ruling to set aside the decision of the
Commission and to remand the matter in order for the Commission "to
reconsider its factual findings that Petitioner [Rodriguez] used unreasonable,
unnecessary or excessive force, in light of the statements and testimony
provided by Officer Voshell." The
trial court's ruling did not address the finding of the Commission regarding
dishonesty by Rodriguez. In any event,
the trial court noted that in reconsidering its findings, the Commission could
consider the "entire record before it and anything that is appropriately
before it," and thus was not limited on remand to revisiting only
Voshell's testimony.
The trial court
further ordered the Commission to reconsider the level of penalty in light of
the testimony of Officer Voshell and if, on remand, the Commission again
sustained Rodriguez's termination, the trial court ordered the Commission to
"prepare a statement of findings and decision that provides an explanation
of and justification for termination."
D.
The Commission reconsidered its
decision in light of the trial court's order.
A quorum of the commissioners who participated in the original hearing
and decision reviewed transcripts of the original hearing and met on two
separate days to deliberate. The
Commission updated its findings of fact and issued a new decision, set forth in
part as follows:
"[2a]
. . . Dishonesty.
"After
evaluating the testimony of the various witnesses and reviewing the materials
admitted into evidence, the Commission, by an original vote of 5-0 (reaffirmed
3-0 by a quorum of the Commission on November 4, 2010), finds that Appellant
[Rodriguez] made dishonest statements in a Use of Force form (Exhibit 5N) that
he prepared on May 24, 2008, and that he was dishonest during an interview with
Sergeant Sallee of the Professional Standards Unit on May 28, 2008 (Exhibit
5R). This finding is based upon Rodriguez's
statement in the Use of Force Form that 'Carlton began to pound his [own] face
into the hood of the police car. I had
to grab Carlton by the head and pull it into his left shoulder to stop him from
striking his face into the hood.'
Rodriguez made a similar statement in his May 28, 2008 interview with
Sergeant Sallee, with regard to Carlton 'bringing his own head down on his own
on the hood' and 'I . . . got him by the hair and pulled his head into his left
shoulder so he could stop banging his face on the hood.'
"The
Commission finds that Appellant's statements that Carlton was banging his own
face and head on the hood of the police car are not truthful. This description of the incident is not
consistent with the actions that are shown on the surveillance camera video of
the incident, and is not consistent with the opinion of the City's use of force
expert regarding the incident. Although
evidence was presented by Appellant that called into question the quality and
reliability of the videotape, the Commission finds that the portion of the
videotape showing the 'head slams' is sufficiently reliable evidence in order
to be a basis for this finding. The
portion of the video tape showing the two 'head slams' was complete and did not
have any missing data. Additionally, the
Commission rejects the argument that Appellant's actions were made to appear
more aggressive or jerky due to the slow frame speed of the video, because
other persons shown in the video appear to be moving in a slower and more fluid
manner.
"In
finding Appellant's statements about the 'head slam' incident dishonest, the
Commission also considered the timing of the statements. Appellant's preparation of the Use of Force
Form, and his May 28, 2008 interview, both occurred at a time when Appellant
was aware that the incident was under investigation. Therefore, the Commission finds that the
statements were made for the purpose of minimizing or covering up the amount of
force used during the incident.
"In
making this finding on the charges of dishonesty, the Commissioners did not
rely on the testimony of Officer Maddox.
The Commissioners find that Maddox's testimony about the incident is not
credible, because Maddox himself was not truthful in reporting his own use of
force, and did not timely report the use of force by Officer Rodriguez. [¶] . . . [¶]
"[2b] . . . Violation of an
official regulation (use of force policy).
"After evaluating the testimony of the various
witnesses and reviewing the materials admitted into evidence, the Commission,
by a vote of 3-2 (reaffirmed 3-0 by a quorum of the Commission on November 4,
2010) finds that Appellant used unreasonable and excessive force for the
situation, based upon facts showing that on May 24, 2008, Officer
Rodriguez grabbed Mr. Carlton by the hair and slammed his head on the hood of
the police car twice. The Commission
finds that this level of force was not reasonable or necessary under the
surrounding circumstances. The
Commission bases its findings on the videotape evidence of the incident, and on
the testimony and written report of the City's expert, Force Options Specialist
Don Partch. Mr. Partch wrote in his
report to the City, and stated in his testimony, that the 'head slam' incident
constituted excessive force under the circumstances. The Commission gave great weight to Mr.
Partch's opinion regarding excessive force because of his extensive training
and experience. The Commission also
found Mr. Partch's testimony credible, because he was not in complete agreement
with the City's findings regarding excessive force in this case, and in fact
disagreed with the City's findings that the use of a wrist lock and [pepper
spray] was excessive force.
"The
Commission finds that by grabbing Carlton's hair and slamming his head on the
hood of the police car twice, Appellant violated the department's Use of Force
Policy, No. 2.05 (Exhibit 5Z) that prohibits officers from using force that is
unreasonable, unnecessary, or excessive.
"The
Commission finds that Appellant's use of a wrist lock and the use of [the
pepper spray] during this incident did not constitute excessive force. The Commission's finding of excessive force
in this matter does not include those actions.
This finding is based on Mr. Partch's testimony, and also the fact that
the videotape does not clearly show what was happening or what Mr. Carlton was
doing at the time of those actions. The
Commission finds that the testimony of Officer Maddox regarding the wrist lock
and the use of [pepper spray] is not credible, for the reasons previously
stated.
"The
Commission gives no weight to the testimony of Officer Voshell, in making its
findings regarding unreasonable, unnecessary or excessive force on the part of
Officer Rodriguez . . . .
Officers Rodriguez and Voshell testified that they had a personal
friendship and had vacationed together, and it appeared to the Commission that
Officer Voshell was reluctant to give testimony that would be damaging to
Officer Rodriguez. Officer Voshell also
testified that her attention during the incident was not focused on Officer
Rodriguez and Mr. Carlton, but instead on the items of personal property that
she was processing. She testified that
her view of the incident was with her peripheral vision. She stated that she was not paying enough
attention to have an opinion one way or the other about excessive force. She stated that she did not remember aspects
of the incident, such as whether she heard any sounds. Based on Officer Voshell's testimony
regarding her lack of attention to the incident, lack of memory, and the
appearance that she was withholding information about the incident in order to
protect Rodriguez, the Commission did not give weight to her testimony in
making its findings regarding unreasonable, unnecessary or excessive force.
"[2c] . . . Conduct
that causes discredit to the agency or the employee's position.
"After
evaluating the testimony of the witnesses and reviewing the material admitted
into the evidence, the Commission finds by a 4-1 vote (reaffirmed 3-0 by a quorum
of the Commission on November 4, 2010) that the Appellant committed conduct
that reflects discredit on the police profession and the Chula Vista Police
Department. The Commission finds that
Officer Rodriguez's dishonesty regarding the May 24, 2008 incident, including
his dishonesty in filling out a Use of Force form, and his dishonesty in
subsequent interviews about the incident, was conduct that discredits the
Department. Additionally, for those
Commissioners who found that Officer Rodriguez used excessive force toward Mr.
Carlton, those Commissioners also found that this use of excessive force, which
occurred in a public place, is conduct likely to harm the reputation of the
profession and the Chula Vista Police Department. Those Commissioners noted that police
brutality is one of the most serious forms of misconduct that an officer can
commit, and that such misconduct can do significant damage to a police
department's reputation." (Bold and
underscore omitted.)
As a result
of these findings, the Commission initially voted 4-1—and reaffirmed that vote
3-0 on remand on November 4, 2010—to affirm the recommendation of termination
of Rodriguez. In reaching its decision,
the Commission found as follows:
"[3] . . . It
is essential for a police officer for the City of Chula Vista to meet the
standards of performance required by the City, including honesty, the use of
reasonable force, and conduct towards the public that is professional. It is inappropriate for a police officer to
be dishonest about his [or her] actions, to use more force than is reasonable
for a situation, or to interact with the public in a way that has the potential
to incite violence. The nature and
repetition of Appellant's conduct makes it appropriate for the Department to
terminate Appellant from his position as a Police Officer. The Commission also finds that Appellant's
dishonesty alone was sufficient grounds for termination, based on the
importance of honesty when serving as a police officer in a position of
trust. Additionally, the Commission
finds that it would have affirmed Appellant's termination in this matter based
on the finding of dishonesty, regardless of the Commission's findings with
regard to excessive force." (Bold
omitted.)
E. Supplemental
Motion for Writ of Mandate and Order Denying Petition
Following the Commission's
reconsideration of its decision as ordered by the trial court, Rodriguez filed
a supplemental motion in support of his petition, arguing the Commission abused
its discretion in dismissing Voshell's statements and testimony and in
upholding his termination.
The trial
court denied the petition. In so doing,
it ruled in part as follows:
"Standard
of Review
"The
parties agree Rodriguez's employment as a Chula Vista police officer is a
fundamental vested right. Therefore,
exercising its independent judgment,
the court is to review the administrative record to determine if the decision
is supported by the weight of the evidence.
Code of Civil Procedure § 1094.5.
The Petitioner has the burden of proof, and the court is not to disturb
the administrative finding unless the Commission has abused its
discretion. Id. (An independent review, weighing the evidence
to find if there has been an abuse of discretion, is an oxymoron, but clearly,
the court is to review the process, not the outcome.)
"The
Commission's Findings
"The
officer's testimony [e.g., Voshell] favored Rodriguez; as noted, this court has
already found she was in the best position to observe his actions. Nevertheless, [the] Commission gave that
testimony little weight because the officer was friends with Rodriguez and
reluctant to testify against him.
Applying that standard, no patrol officer in a small police department
would ever testify convincingly, but the Commission had other reasons as well.
"The
officer testified she was concentrating on processing the arrested person's
personal property, which was spread out on the hood in front of her. She was not paying attention to what
Rodriguez was doing, which she could see only in her peripheral vision; she had
no opinion whether Rodriguez used excessive force and could not recall details
of the incident. To put it another way,
while she may have been in the best position to observe the incident, she did
not, which validates the Commission's choice to disregard her testimony.
"Rodriguez'[s] Veracity
"The Commission offers an alternative ground for
terminating Rodriguez in its amended Statement of Findings and Decisions, that
he was untruthful during the investigation of the incident. The court finds this conclusion is supported
by the weight of the evidence as well.
Rodriguez'[s] explanation he was trying to stop the suspect from banging
his own head was implausible to begin with, and the videotape plainly shows
otherwise.
"Conclusion
"In
its original writ, the court directed the Commission to explain why it
disregarded an officer's testimony, and it has.
The court previously rejected Rodriguez'[s] other grounds for
overturn[ing] the Commission's decision to terminate him from the Chula Vista
Police Department. The amended Statement
of Findings and Decisions is supported by the evidence, and Rodriguez'[s]
application for a second writ of mandamus is denied."
Judgment on
the order was entered in March 2011.
DISCUSSION
I
Administrative Mandamus
This is an
action for administrative mandamus under Code of Civil Procedure
1094.5. This statute provides in
part: "(a) Where the writ is issued
for the purpose of inquiring into the validity of any final administrative
order or decision made as the result of a proceeding in which by law a hearing
is required to be given, evidence is required to be taken, and discretion in
the determination of facts is vested in the inferior tribunal, corporation,
board, or officer, the case shall be heard by the court sitting without a
jury. . . . [¶] (b) The
inquiry in such a case shall extend to the questions whether the respondent has
proceeded without, or in excess of jurisdiction; whether there was a fair
trial; and whether there was any prejudicial abuse of discretion. Abuse of discretion is established if the
respondent has not proceeded in the manner required by law, the order or
decision is not supported by the findings, or the findings are not supported by
the evidence. [¶] (c) Where it is claimed that the findings are not supported
by the evidence, in cases in which the court is authorized by law to exercise
its independent judgment on the evidence, abuse of discretion is established if
the court determines that the findings are not supported by the weight of the
evidence. In all other cases, abuse of
discretion is established if the court determines that the findings are not
supported by substantial evidence in the light of the whole record." (§ 1094.5.)
(c) of section 1094.5 provides that when the petitioner claims the
administrative agency's findings are not supported by the evidence, as
Rodriguez does in the instant case, the trial court's review of an adjudicatory
administrative decision depends on the nature of the right involved. (Wences v. City of Los Angeles (2009)
177 Cal.App.4th 305, 313.)
substantially affects a fundamental vested right, the trial court must exercise
its independent judgment on the evidence."
(Ibid., citing Strumsky v.
San Diego County Employees Retirement Assn. (1974) 11 Cal.3d 28, 32.)
In such instances, the
trial court must exercise its independent judgment "upon the weight of the
evidence produced or which could not, in the exercise of reasonable diligence,
have been produced before the administrative agency and any evidence which
might have been improperly excluded by the administrative agency." (Bixby v. Pierno (1971) 4 Cal.3d 130, 143, fn. 10; see
also SP Star Enterprises, Inc. v. City of
Los Angeles (2009) 173 Cal.App.4th 459, 469 ["If the administrative
decision involved or substantially affected a 'fundamental vested right,' the
superior court exercises its independent judgment upon the evidence disclosed
in a limited trial de novo in which the court must examine the administrative
record for errors of law and exercise its independent judgment upon the
evidence."].) This review by the
trial court requires it to reweigh the evidence and make its own determination
of the credibility of the witnesses. (
45 Cal.App.4th 652, 658.)
Here, the parties agree
that the Commission's decision substantially affects a fundamental vested right,
viz. Rodriguez's interest in continued employment with the City. (See Civil
Service Com. v. Velez (1993) 14 Cal.App.4th 115, 121.) Thus, the trial court properly applied the
independent judgment standard of review to the administrative record. (See Wences v. City of Los Angeles, supra, 177 Cal.App.4th at p.
313.)
"Regardless
of the nature of the right involved or the standard of judicial review applied
in the trial court, an appellate court reviewing the superior court's
administrative mandamus decision always applies a substantial evidence
standard." (JKH Enterprises,
Inc. v. Department of Industrial Relations (2006) 142 Cal.App.4th 1046,
1058.) When, as here, a fundamental
vested right is involved and the trial court therefore exercised independent
judgment, "it is the trial
court's judgment that is the subject of appellate review" and the
appellate court reviews the record to determine whether substantial evidence
supports the judgment. (
In applying
"independent judgment," a trial court "must accord a '
"strong presumption of correctness" ' to administrative
findings" (Fukuda v. City of Angeles,
supra, 20 Cal.4th at p. 817), and the
burden rests on the "complaining party to show that the administrative '
"decision is contrary to the weight of the evidence." ' [Citation.]" (Ibid.)
Moreover,
when the issue on review concerns the nature or degree of an administrative
penalty, the appellate court reviews the penalty to determine whether the
agency abused its discretion. (California
Real Estate Loans, Inc. v. Wallace (1993) 18 Cal.App.4th 1575, 1580.) "[N]either a trial court nor an
appellate court is free to substitute its discretion for that of an
degree of punishment imposed." (Anserv
Insurance Services, Inc. v. Kelso (2000) 83 Cal.App.4th 197, 204–205.)
II
Analysis
Here, the trial court found the
weight of the evidence supported the findings of the Commission that Rodriguez
used unreasonable, unnecessary or excessive force and lied about the need to use such force in his use of force form
and during the subsequent internal investigation. The court determined that each finding
separately supported the decision of the Commission to terminate Rodriguez from
employment.
Rodriguez's
main argument on appeal is there is insufficient evidence to support the trial
court's determination that the weight of the evidence in the administrative
record supported the findings of the Commission because the convenience store
video, which he claims is the basis
for the findings of the Commission and the trial court, should not have been
considered because it was not authenticated, was a duplicate of poor quality
and was thus inadmissible.
However, as
Rodriguez correctly notes in his briefing, adherence to the technical rules of
evidence is not required in an administrative appeal hearing. (See e.g., Gov. Code, § 11513, subd. (c)
["The hearing need not be conducted according to technical rules relating
to evidence and witnesses, except as hereinafter provided. Any relevant evidence shall be admitted if it
is the sort of evidence on which responsible persons are accustomed to rely in
the conduct of serious affairs, regardless of the existence of any common law
or statutory rule which might make improper the admission of the evidence over
objection in civil actions."]; see also MacDonald v. Gutierrez (2004) 32 Cal.4th 150, 158-159 [noting that
in "an administrative hearing, '[a]ny relevant evidence shall be admitted
if it is the sort of evidence on which responsible persons are accustomed to
rely in the conduct of serious affairs . . . .' [Citation.]"; Big Boy Liquors, Ltd. v. Alcoholic Bev. etc. Appeals Bd. (1969) 71
Cal.2d 1226, 1230 [observing that the "[t]echnical rules of evidence do
not apply to administrative hearings."]; Hildebrand v. Department of Motor Vehicles (2007) 152 Cal.App.4th
1562, 1569 [citing Government Code section 11513, subdivision (c) in noting
that "[a] 'police officer's report, even if unsworn, constitutes "the
sort of evidence on which responsible persons are accustomed to rely in the
conduct of serious affairs." '
[Citations.]")
In
(1967) 248 Cal.App.2d 478, 488, the court rejected the argument of petitioner
physician that a state agency erred in admitting the testimony of a witness
because that testimony was hearsay and unreliable. Specifically, the witness (King) "sat in
a car listening to transmissions from electronic equipment carried on the
persons or in the effects of the several witnesses while they were in
[petitioner's] doctor's office. King
caused transcripts to be made of recordings of conversations on [various dates]
and these were received in evidence. He
produced what purported to be a transcript of a conversation he heard June 21st
when [witnesses] were in the doctor's office.
Only about 60 percent of the transmission was intelligible and King
completed a transcript from his recollection.
He was asked by the Attorney General to make use of the transcript and
to relate the conversation he had heard.
It was apparent to defense counsel that in preparing the transcript King
had added descriptions of the movements of the persons in the office which he
could not have observed from his position in the car. Objection was made that the testimony would
be based in part upon a transmission of a conversation that was to a great
extent unintelligible and that it would include statements that could not have
been within the personal knowledge of King.
The objection was overruled and, using the transcript, the witness
testified to facts of which he could have had no personal knowledge and to what
he had added to the transcript from memory.
This is the hearsay testimony which appellant contends was erroneously admitted. The objection was to the entirety of the
testimony sought to be elicited from the witness, not merely to the parts which
would be hearsay."
In
rejecting petitioner's claim of error, the court noted the hearing officer
correctly allowed the admission of King's testimony because petitioner's
"objection went to the weight of the testimony, rather than to its
admissibility." (
was corroborated by other witnesses and that "in administrative
hearings[,] more freedom in the receipt of evidence is permitted than in court
trials." (Ibid.)
Here, the
video came from a neutral source: a
convenience store that was adjacent to where Carlton was arrested and searched
incident to arrest. The police obtained
the video on the same day Carlton was
arrested, after Arsenault spoke to Maddox and determined there might be an
issue regarding the use of force in connection with the arrest and search of
Carlton.
We
independently conclude the trial court did not err when it—like the Commission
and others (e.g., Sallee) involved in investigating the incident—relied on the
video to support the finding that Rodriguez used unreasonable, unnecessary or
excessive force on Carlton when he twice slammed Carlton's head on the hood of
the police car during the search incident to arrest. In view of Whitlow v. Board of Medical Examiners and similar cases (e.g.,
139 Cal.App.2d 78, 85), we conclude Rodriguez's objection to the convenience
store video went to weight and not admissibility, as the video (viewed by this
court) contains evidence that was highly relevant on the use of force issue and
is the type of evidence on which " 'responsible persons are accustomed to
rely in the conduct of serious affairs . . . .' " (See MacDonald
v. Gutierrez, supra, 32 Cal.4th
at pp. 158-159.)
We also
conclude the admission of the convenience store video did not prevent Rodriguez
from receiving a fair trial before the Commission. (See Code Civ. Proc., § 1094.5, subd.
(b), ante; see also
Hills (2003) 108 Cal.App.4th 81, 87.)
As noted by the Commission in its decision, Rodriguez vigorously
attacked the quality and reliability of the convenience store video in that
hearing, including offering the testimony of an expert. The Commission, however, found the portion of
the video showing the "head slams" was sufficiently reliable, which
the trial court also (tacitly) found when it noted the videotape
banging his own head against the hood of the police car, as Rodriguez had
claimed (a finding we conclude is amply supported by evidence in the
administrative record).
Moreover, even if strict adherence
to the rules of evidence was required, we would have little difficulty in
ruling the trial court properly exercised its discretion when it admitted the
video into evidence in connection with its independent review of the administrative
record. (See Dart
Industries, Inc. v. Commercial Union Ins. Co. (2002)
28 Cal.4th 1059, 1079 [ruling by the trial court as to the
Here, there is substantial,
reliable evidence in the record showing how police initially came to possess
the video and the chain of custody of the video, both of which support its
admissibility as secondary evidence.
[e.g., the videotape] is a counterpart produced by the same impression as the
original . . . by mechanical or electronic rerecording, . . . or by other
equivalent technique which accurately reproduces the original."]; People
v. Phillips (1985) 41 Cal.3d 29, 78 [secondary evidence is admissible even
if it is " 'not . . . completely
intelligible . . . as long as enough is intelligible to be
relevant without creating an inference of speculation or unfairness.' [Citation.]"]; People v. Bowley
(1963) 59 Cal.2d 855, 859 [observing "the testimony of a person who was
present at the time a film was made that it accurately depicts what it purports
to show is a legally sufficient foundation for its admission into
evidence. [Citations.]"].) The trial court did not err in admitting the
videotape into evidence.
Finally, even without the
convenience store video we would still conclude there is sufficient evidence in
the record to support the finding of the trial court that Rodriguez used
unreasonable, unwarranted or excessive force when he twice slammed Carlton's head
on the hood of the police car during the search incident to arrest. Such evidence includes the testimony of Maddox, who witnessed
the incident and prepared a use of force form that alerted his superiors to the
use of force issue.
Although Maddox initially neglected to mention the "head slams" in his
use of force form and was disciplined as a result, the record shows that
Maddox, when questioned by Arsenault after arriving back at the station, told
how he had observed Rodriguez slam Carlton's head on the hood of the police car
and how he could not explain why Rodriguez had used pepper spray on Carlton
when Maddox was placing Carlton in the backseat of the police car.
Significantly, Maddox also was the
individual who alerted Arsenault that the incident might have been captured on video by cameras mounted on the outside
of the convenience store. (See
45 Cal.App.4th 652, 658 [a trial court in its independent review of the record not only reweighs
the evidence but also considers the credibility of witnesses anew]; see also
on Professional Competence (1983) 146 Cal.App.3d 964, 977 [under
independent review standard, a trial court may reweigh the credibility of
witnesses].) We conclude Maddox's
testimony also supports the finding of the trial court that the weight of the
evidence in the administrative record shows Rodriguez used unreasonable,
unwarranted or excessive force when Rodriguez twice slammed Carlton's head on the
hood of the police car during the search incident to his arrest.
Besides the testimony of Maddox,
there is additional evidence in the record supporting the finding of
unreasonable use of force by the trial court, including the expert testimony of
Partch and the statements by Carlton that he received an "ass
whopping," which was corroborated in part by the red mark police observed
on Carlton's forehead that same night and by the small indentation in the hood
of the patrol car involved in the incident.
That there may also have been
substantial, credible evidence in the record that Rodriguez did
excessive force during the incident does not alter our decision: we do not reweigh the evidence but instead,
review the administrative record and evaluate whether the findings of the trial
court are supported by substantial evidence.
(See JKH Enterprises, Inc. v. Department of Industrial
Relations, supra, 142
Cal.App.4th at p. 1058.)
Our review of the administrative
record—with or without the convenience store video—shows it contains
substantial evidence supporting the trial court's finding that Rodriguez used
unreasonable, unnecessary or excessive force on Carlton during Carlton's arrest
and search.
title="">[6]
DISPOSITION
Judgment affirmed.
Respondents to recover costs of appeal.
BENKE, Acting P. J.
WE CONCUR:
McDONALD,
J.
McINTYRE,
J.
evidence review of the trial court's judgment, discussed post, we present the conflicting evidence from Rodriguez's
administrative hearing in the light most favorable to affirmance. (See Fukuda v. City of Angels (1999)
20 Cal.4th 805, 824 [applying substantial evidence review]; Vanderkous v.
Conley (2010) 188 Cal.App.4th 111, 121 ["When we review a judgment
that is said to be unsupported by substantial evidence, we review the record in
the light most favorable to the judgment and will draw all permissible
inferences and presumptions in favor of its validity."].)
for improperly and inadequately completing the use of force form he initially
gave Arsenault.
