Hernandez v. County of Riverside

Filed 10/30/09 Hernandez v. County of Riverside CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

APPEAL from the Superior Court of Riverside County. Gloria Connor Trask, Judge. Affirmed.

Stone Busailah, Michael P. Stone, Muna Busailah and Marc J. Berger for Plaintiff and Appellant.

Ferguson, Praet & Sherman and Kelly R. M. Irwin for Defendants and Respondents.

On April Fools Day 2006, Michael Hernandez and his ex-wife Dana were both at a T-ball game that their sons were playing in. Hernandez was a sheriffs deputy; during their divorce, Dana had repeatedly filed complaints about Hernandez with his superiors.

Hernandez chose this occasion to ask Dana to have her lawyer stop calling him. According to Dana and other witnesses, he added loudly that, if her lawyer called him again, he would disclose certain discreditable and unprofessional conduct by her (the accusation). Hernandez denies making the accusation at this point.

Dana called the police. According to one of the responding officers, Hernandez admitted having made the accusation earlier. Hernandez then repeated the accusation directly to the officers, but loudly and in the presence of other parents and children.

According to Hernandez, he did not admit having made the accusation earlier; the officer must have misunderstood him. He did make the accusation directly to the officers, but quietly, and only because he felt it was relevant to their investigation.

Dana promptly complained to Hernandezs superiors. After an investigation, they terminated him. He appealed the termination, but after a hearing, an arbitrator affirmed it. He then challenged the termination in superior court. The trial court, however, ruled that the termination was justified.

The question before us is not whether, if we were Hernandezs bosses, we would have terminated him. Neither is it whether, if we were the trial court, we would have upheld the termination. Only one narrow question is before us: Whether the trial courts ruling upholding the termination is supported by substantial evidence. It is. Hence, we will affirm.

I

FACTUAL BACKGROUND

A. Background.

At all relevant times, Hernandez was a Deputy in the Riverside County Sheriffs Department (the Department). In 1995, he married Dana. As of 2002, their marriage was on the rocks; they were in marriage counseling. At that point, Dana a high school teacher admitted to Hernandez that she had had sex with a student, although she claimed that he was 18 at the time.

In 2003, Dana filed for divorce. During the divorce proceedings, she filed about a half a dozen complaints about Hernandez with the Department. She sent complaints about him to government officials, including the mayor of Temecula, State representatives, [the] State assembly, [and] Congresswoman Bono. She also distributed to his neighbors what Hernandez called hate packets containing false allegations about him. In October 2005, the divorce became final.

Meanwhile, around May 2004, Hernandez went to the Murrieta Police Department to have Dana charged with child concealment. As proof, he brought along a tape recording of a telephone conversation he had had with Dana. Because Dana had not consented to the recording, Hernandez was charged with eavesdropping. (Pen. Code,  632, subd. (a).) He pleaded guilty to the lesser offense of disturbing the peace (Pen. Code,  415, subd. (2)), a misdemeanor, and was placed on probation. One condition of his probation was that he have no negative contact with Dana. (Capitalization omitted.) In addition, the Department took disciplinary action against him, finding that he had committed a misdemeanor with a job nexus and imposing a 220-hour reduction in pay.

Hernandez reported to his Department that Dana had had sex with a student. As a result, Detective Reciel Burchett carried out an investigation. He determined that the student had been 18 years old at the time, and therefore no crime had been committed. In January 2006, according to Detective Burchett, he told Hernandez that the investigation had been closed. Hernandez, however, denied this and claimed that he thought the case was still open.

B. The April Fools Day Incident.

On April 1, 2006, Hernandezs twin sons were playing in a Little League T-ball game at Hunt Park in Murrieta. Dana was there, along with her new husband, Johnny Coogan; her mother; and her sister. Hernandez was also there. He was the coach of the T-ball team.

At one point, Hernandez left the game briefly. While he was gone, Julann McKay, a team mom, asked Coogan to go out on the field to help out. When Hernandez got back, Coogan was just going out on the field. Hernandez asked, [W]here do you think youre going . . . ? (According to Hernandez, he merely said, [C]an I help you?) Coogan explained that he had been asked to help out. Hernandez said he didnt need [Coogan]s help, and Coogan left the field.

Danas mother remarked that Hernandez was either an ass or an asshole. According to Dana, Hernandez started walking toward her. He said, loudly, [I]f your lawyer ever calls me again, we will be in court talking about how you sleep with all your students. Dana testified that he was out by the pitchers mound, and she was behind the dugout. Danas mother, however, testified that they were only about five feet apart. Dana replied, [Y]oure on probation and you really shouldnt be doing this, this is going to get you in trouble.

Team mom McKay testified that she heard Hernandez say to Dana out loud and in front of the kids that she had slept with her student four years ago.^[1] On direct, she did not remember whether she heard this before or after the police arrived; on cross, however, she testified that it was before. She then heard Dana say, [H]es really going to get in trouble for this one.

Leanne Gatrell did not testify at the hearing, but the transcript of an interview with her was admitted into evidence. In it, she stated that, immediately after Hernandez asked Coogan to leave the field, he was making remarks to [Dana] about her sleeping with her students . . . loud enough that everybody could hear . . . .

Dana called 911. According to her mother, she asked if she should call the police, and her mother said that she should. However, Hernandezs girlfriend^[2]testified that, while Dana was on the phone, she overheard Danas mother asking, Why would you do this? Dana replied, Well, if I can prove it.

In the 911 call, Dana reported that her ex-husband was a sheriffs deputy, that he was threatening her, that he was on probation, and that he was violating a restraining order.^[3]

Within about five minutes, Officer Steven Whittington arrived; Officer Matthew Mozingo arrived seconds later. First, the officers spoke to Dana. She told them about Hernandezs confrontation with Coogan. According to Officer Whittington, she also told them that Hernandez had accused her of having sex with students. Officer Mozingo, however, only remembered her telling them that Hernandez had made threats. When they asked her what kind of threats, he recalled her saying they were something about . . . not having [her] attorney call [him] . . . . She also told them that Hernandez was on probation and that there was a restraining order against him, but they were unable to confirm either assertion through their computer.

Next, the officers spoke to Hernandez. He admitted that he was on probation. According to Officer Whittington, Hernandez said that he told [Dana] to tell her attorney to stop calling him. He also stated he was going to tell her attorney . . . that she was sleeping with some of her students . . . . Dana and her mother testified that, while Hernandez was talking to the officers, he pointed at Dana and said loudly, [S]hes a teacher and she sleeps with her students.

According to both officers, while they were interviewing Hernandez, Dana came over, and she and Hernandez began arguing back and forth.^[4] According to Officer Mozingo, [I]t was . . . an argument for everybody else. . . . [I]t was like for everyone to see. At this point, they were right in the middle of everybody; other people were six or eight feet away. Hernandez scream[ed] that [Dana] was being investigated by his department for sleeping with her students. According to Officer Whittington, he was accusing her of constantly having her attorney call, and she was complaining that he was telling everybody that she was sleeping with students.

It was later determined that other parents did overhear Hernandez telling the officers that Dana had had sex with a student.

Hernandez disputed certain aspects of this account. He testified that, some five or ten minutes after Coogan had already left the field, he noticed that Dana was standing nearby. He then asked her to please not have her attorney call [his] cell phone or [his] home phone [and] not to give [his] home phone number out to anybody. He denied saying anything at that point about her having sex with a student. He did admit that later, when he was talking to the officers, he told them that Dana was under investigation for having sex with a student. He explained that he did so to show her mental status . . . , the type of individual they were dealing with and her hostile unreasonable . . . nature.

The officers did not write a report because they concluded that there had been no crime. Dana protested, Youre not going to do anything? They indicated that, if she could produce proof that Hernandez was on probation, she could file a report.

Accordingly, on Monday, April 3, Dana went to the Murrieta Police Department and filed a report. It was an information report rather than a crime report, because she said she did not want to press charges. She also called the court to find out how to get Hernandez prosecuted for violating his probation.

C. Hernandezs Termination.

Dana then filed a complaint against Hernandez with the Department; so did her mother and sister.^[5] As a result, Sergeant Erick Schertell was assigned to conduct a personnel investigation.

Sergeant Schertell interviewed Julann McKay by telephone. In that interview, she denied hearing anything that Hernandez had said to Dana. However, she did remember hearing Dana say, [H]e is bringing up stuff that was four years ago. She also denied hearing Danas mother say that Hernandez was an ass.

In a follow-up interview, however, McKay admitted that she had not been completely honest. She explained that the previous interview had taken place when Hernandez came over to her house; Sergeant Schertell was already on Hernandezs cell phone, and he handed it to her: I had [Hernandez] standing right there with me, so I couldnt really answer the questions . . . .

In the follow-up interview, McKay said that, after asking Coogan to leave the field, Hernandez said [Dana] slept with a student four years ago . . . . He said it loud enough for the children to hear. However, when asked, [Did a]ny other children react to it? . . . Or were they just pretty much in their own little private . . . , she agreed, Yeah, pretty much in their own little world . . . .

Sergeant Schertell concluded that there had been a negative conduct in violation of Hernandezs probation.

Chief Deputy Peter Labahn decided to terminate Hernandez. He agreed that the April 1 incident, standing alone, most definitely would not have resulted in his termination. However, in light of his record of previous discipline, Labahn regarded it as the only appropriate action to be taken given [the] failure of past efforts to [e]ffect change in his behavior . . . .

Hernandez had received the following prior discipline:

Hernandez conceded that only two of these disciplinary actions involved a complaint by Dana. The July 2004 discipline arose, at least in part, out of Danas report that Hernandez had accidentally discharged his firearm at home twice. The May 2005 discipline arose out of Hernandezs tape recording of a conversation with Dana, as mentioned earlier.

Hernandez had also received the following honors and commendations:

In addition, his personnel file contained a number of congratulatory handwritten notations.

In his 2004-2005 performance evaluation, Hernandez was rated Below Standard in four areas, Exceeds Standard in one area, and Meets Standard overall. In his 2005-2006 performance evaluation, he was rated Below Standard in six areas, Exceeds Standard in one area, and Meets Standard overall.

II

PROCEDURAL BACKGROUND

The Department sent Hernandez a notice of intent to terminate him. The stated grounds were:

1. Willful violation of an employee regulation;

2. Discourteous treatment of the public; and

3. Conduct . . . which adversely affects the employees job performance or operation of the department in which they are employed.

The stated factual basis was that: On April 1, 2006 you made discourteous and unprofessional statements toward Dana Coogan, while at a childs T-ball game. You made the inappropriate statements in a manner likely to be overheard by the public. The statements were made while you were on probation, and were of such a nature as to be reasonably considered a violation of probation, i.e., that you have no negative contact with Dana Coogan. The statements involved the business of the Department and placed the Department in a negative light. Your actions and omissions in this matter constitute a violation of Department General Orders.

The notice then cited the following general orders:

1. Department members shall conduct their private and professional lives to avoid bringing discredit to the Department.

2. Department members, whether on or off duty, shall be governed by the ordinary and reasonable rules of good conduct and behavior.

3. Department members shall at all times be civil, orderly, courteous and quiet in their conduct and deportment. They shall maintain an even disposition and remain calm regardless of the provocation by any person.

4. While on or off duty, Department members shall obey all federal, state, and local laws and ordinances . . . .

After an administrative hearing, Hernandez was terminated. He appealed, but after an evidentiary hearing, an arbitrator upheld his termination. The arbitrator found that Hernandez did, in fact, make the accusation before the police arrived, as well as loud[ly] and gratuitously after they arrived. He further found that Hernandez misrepresented the situation to the police when he indicated that there was an on-going investigation of Dana. He found that Hernandez had adequate notice that his conduct could lead to discipline. Finally, he found that termination was the appropriate form of discipline.

Hernandez sought review by filing a petition for writ of administrative mandate. (Code Civ. Proc.,  1094.5.) After hearing argument, the trial court denied the petition.

III

THE SUFICIENCY OF THE EVIDENCE

Hernandez contends that the arbitrator relied improperly on hearsay. He further contends that, leaving aside the challenged hearsay, there is insufficient evidence that he made the accusation before officers arrived, and loudly enough for surrounding children to hear.

A. The Arbitrators Reliance on Hearsay.

The transcript of an interview with Leanne Gatrell was admitted into evidence, with the caveat that [its] not introduced for the truth of the matter therein.

In finding that Hernandez made the accusation before the officers arrived, the arbitrator cited the testimony of Officer Whittington and Julann McKay; however, he found additional support for [his] conclusion in Leanne Gatrells hearsay statements.

The relevant memorandum of understanding^[6]provides that, in an appeal from departmental discipline, [h]earsay evidence shall be admitted and may be used for the purposes of supplementing or explaining any direct evidence, but shall not be sufficient in itself to support disciplinary action . . . , unless it is the type of hearsay admissible over objection in a civil action. (Memorandum of Understanding, 2005-2007, County of Riverside and the Riverside Sheriffs Association of Riverside County, art. XII,  16(B), p. 51, at [as of June 18, 2009].)

Here, however, as the arbitrator found, there was ample other nonhearsay evidence that Hernandez made the accusation before the police arrived:

1. Officer Whittington testified that Hernandez admitted having stated, before he arrived, that [Dana] was sleeping with some of her students . . . .

2. Julann McKay testified that she heard Hernandez say to Dana, before the police arrived, that [Dana] had slept with her student four years ago.

3. Danas mother testified that, before the police arrived, Hernandez said that you slept with all your students and Ill take it to court . . . , and if you ever try to control my children again, . . . Ill tell them all about how you sleep with all your students, and he was very loud.

4. And, of course, Dana testified that, before the officers arrived, Hernandez said loudly, [I]f your lawyer ever calls me again, we will be in court talking about how you sleep with all your students. Admittedly, the arbitrator did not find the testimony of Dana (nor of Hernandez) to be completely credible and accurate. Nevertheless, in deciding whether it was Dana or Hernandez who was telling the truth, he could reasonably rely on Gatrells hearsay statements; because those statements supported Dana, the arbitrators finding was based on direct evidence from Dana and not solely on hearsay from Gatrell.

We also note if only out of an excess of caution that making the accusation before the officers arrived was not the sole ground for discipline. The arbitrator found that Hernandez also repeated the accusation loud[ly] and gratuitously after the officers arrived, and that this was also grounds for discipline. Moreover, the arbitrator found that he misrepresented the situation to the police by stating falsely that there was an on-going investigation of Dana, when he knew that the investigation had been closed, and that this, too, was grounds for discipline. Accordingly, even assuming, for purposes of argument, that there was insufficient evidence that Hernandez made the accusation before the police arrived, there would still be sufficient evidence to support the superior courts denial of the petition.

We therefore conclude that the arbitrator did not improperly rely on hearsay.

B. Hernandezs Challenges to the Nonhearsay Evidence.

Hernandez therefore argues that the testimony of Officer Whittington, Julann McKay, Danas mother, and Dana herself did not constitute substantial evidence.

1. Standard of review.

Where, as here, a case involves a police officers 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.) Under the independent judgment test, the trial court independently examines the administrative record for errors of law and exercises its independent judgment upon the evidence. [Citation.] (Melkonians v. Los AngelesCounty Civil Service Com. (2009) 174 Cal.App.4th 1159, 1167-1168.)

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 courts 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.)^[7]

2. Testimony of Officer Whittington.

Hernandez citing his own testimony claims that the first time he mentioned Dana having sex with a student was when he was talking to the officers. Officer Whittington, of course, testified that Hernandez admitted having already made the same accusation earlier. Hernandez argues, however, that Officer Whittingtons testimony is not substantial evidence because he misconstru[ed] what Hernandez was telling him. This is asking us to resolve a conflict in the evidence; that is not our job. He also argues that, when Officer Whittington first interviewed Dana, she did not mention the accusation; rather, she complained that Hernandez had yelled at Coogan. But this is not conclusive proof that the accusation was not made or that Hernandez did not admit making it.

3. Testimony of Julann McKay.

Hernandez argues that Julann McKay was not credible because, when first interviewed, she said she had not heard any of the conversation between Hernandez and Dana (and also because she made various other conflicting statements). However, a trier of fact is entitled to accept or reject all or any part of the testimony of any witness or to believe and accept a portion of the testimony of a particular witness and disbelieve the remainder of his testimony. [Citation.] (Friddle v. Epstein (1993) 16 Cal.App.4th 1649, 1659.)

[N]either conflicts in the evidence nor testimony which is subject to justifiable suspicion . . . justif[ies] the reversal of a judgment, for it is the exclusive province of the [trier of fact] to determine the credibility of a witness and the truth or falsity of the facts upon which a determination depends. [Citations.] Testimony may be rejected only when it is inherently improbable or incredible, i.e., unbelievable per se, physically impossible or wholly unacceptable to reasonable minds. [Citation.] (Kolender v. San DiegoCounty Civil Service Com. (2005) 132 Cal.App.4th 1150, 1155.)

McKays testimony was neither physically impossible nor inherently incredible. Moreover, the arbitrator found that, initially, she lied to protect Hernandez, and therefore her subsequent statements, which were unfavorable to him, were all the more credible. This reasoning is perfectly sound.

4. Testimony of Dana and her mother.

Hernandez argues that the testimony of Dana (and also of Danas mother) was unreliable, due to extreme bias and faulty recall. Again, the arbitrator did acknowledge that Danas testimony was not completely credible and accurate. Nevertheless, he was entitled to accept portions of Danas testimony, while rejecting other portions. More to the point, the trial court, exercising its independent judgment, was entitled to accept any or all of Danas testimony. That testimony was not physically impossible or inherently incredible.

Hernandez points to instances in which Danas testimony was contradicted by the testimony of one of the responding officers or a similar disinterested witness. The trier of fact, however, was not required to believe even a disinterested witness. Moreover, in each of the instances cited, Danas version of events is not necessary to support the judgment; even assuming Dana was lying about those particular matters, the judgment would stand. Dana could still have been truthful about any other matters that were necessary to support the judgment. Falsus in uno, falsus in omnibus is merely a guide for the trier of fact; it is not a rule enforceable on appeal. (See People v. Rodriguez (1959) 169 Cal.App.2d 771, 777.) The same is true with respect to the testimony of Danas mother.

Finally, Hernandez criticizes the following statement by the arbitrator: I just do not believe that Dana would have called the police merely because Hernandez had asked Coogan to leave the field or because Hernandez calmly mentioned to her that he did not want her attorney to call him. Instead, I believe that Danas call was motivated by a threat made to her by Hernandez, and I doubt whether any threat, other than one relating to her sexual conduct with a student, would have motivated her to call the police.

According to Hernandez, this overlooks Danas apparent determination to get him fired. But not so. The arbitrator could properly reason that, even assuming Dana wanted to get Hernandez fired, it would serve her purpose better to call the police about some serious misconduct that had actually happened than about something trivial or made up. This is also shown by the evidence that, when her mother asked her why she was calling the police, she replied, Well, if I can prove it.^[8]

In any event, the arbitrators conclusion was not irrational; moreover, the trial court, exercising its independent judgment, ultimately agreed that the accusation was made, and there is substantial evidence to support that finding.

IV

LACK OF NOTICE REQUIRED BY DUE PROCESS

Hernandez contends that the general orders he was found to have violated were too vague to give adequate notice, in violation of due process. He further contends that there was insufficient evidence to support the arbitrators finding that he did have adequate notice.

It is important to note that these arguments assume that Hernandez was terminated solely for making the accusation truthfully, quietly, and after the officers arrived. He states that he had no prior notice that he could be terminated for quietly mentioning this fact to officers . . . , to help them understand [Danas] mental status. He adds that he did not have constitutionally sufficient notice that he could be terminated for mentioning to the . . . officers true information bearing on their task. [He] acknowledges that . . . it would be conduct unbecoming an officer if without provocation^[[9]] he publicly accused [Dana] of [sleeping with a student] in a way that young children could hear it. But there is no evidence that he did that. (Italics added.) Thus, he concedes that he had constitutionally sufficient notice that he could be terminated for making the accusation either loudly or before the officers arrived.^[10]

As we held in part II.B, ante, there was sufficient evidence that Hernandez did, in fact, make the accusation both loudly and before the officers arrived. Separately and alternatively, however, there was also sufficient evidence that, when he made it again to the officers, he did so loudly and gratuitously, as well as falsely, as follows.

According to Officer Mozingo, Hernandez scream[ed] that [Dana] was being investigated by his department for sleeping with her students. This was in front of all the kids and spectators. It was his impression that Mr. Hernandez was trying to get everybody to see. Dana and her mother testified that, when Hernandez was talking to the officers, he pointed at Dana and said loudly, [S]hes a teacher and she sleeps with her students. Two or three parents later reported overhearing Hernandez making this accusation to the officers.^[11]

Hernandezs only justification for bringing this up to the officers is that it was supposedly relevant to Danas mental status and reliability. We fail to see any such relevance. (Indeed, if anything, it tended to show that they had a history of marital disharmony and, hence, to show that her report that he was threatening her might be true.) Even assuming there was some such arguable relevance, the arbitrator explicitly found that Hernandezs explanation was not . . . credible. He concluded that Hernandez simply lashed out in anger in the most hurtful possible way.

Finally, there was substantial evidence that the accusation was false, at least in part. As the arbitrator found, while it was true that Dana had had sex with a student, it was not true that she was still the subject of an ongoing investigation. Hernandez claimed he did not know that the investigation had ended; however, he was contradicted by Detective Burchett, who testified that he had told Hernandez this. Moreover, Hernandez accused Dana of having sex with students, plural. Admittedly, the arbitrator did not rely on the plural nature of the accusation in finding that it was false. Nevertheless, the trial court, exercising its independent judgment, was entitled to consider this aspect of it.

Accordingly, Hernandezs entire lack-of-notice argument is directed at a straw man. He concedes that he knew he could be terminated (1) for making the accusation before the officers arrived, or (2) for making it loudly, gratuitously, and falsely after the officers arrived. He was not terminated for making the accusation to the officers, quietly and truthfully, to assist them in the performance of their duties; the arbitrator did not uphold the termination on this ground. Accordingly, even assuming, for purposes of argument, that he did not have notice that making the accusation in the latter manner would be grounds for termination, that lack of notice is completely irrelevant.

V

THE APPROPRIATENESS OF TERMINATION AS THE PENALTY

Finally, Hernandez contends that termination was an excessive penalty.

Although the trial court is required to reweigh the evidence supporting the finding of misconduct, it may not exercise its independent judgment when reviewing the penalty. (Spanner v. RanchoSantiagoCommunity College Dist. (2004) 119 Cal.App.4th 584, 591.) Judicial review of an agencys assessment of a penalty is limited, and the agencys determination will not be disturbed in mandamus proceedings unless there is an arbitrary, capricious or patently abusive exercise of discretion by the agency. [Citation.] Neither a trial court nor an appellate court is free to substitute its discretion for that of an administrative agency concerning the degree of punishment imposed. [Citations.] [Citation.] If reasonable minds may differ with regard to the propriety of the disciplinary action, no abuse of discretion has occurred. [Citation.] An appellate court conducts a de novo review of the trial courts determination of the penalty assessed, giving no deference to the trial courts determination. [Citation.] (Flippin v. Los AngelesCity Bd. of Civil Service Commissioners (2007) 148 Cal.App.4th 272, 279.)

In considering whether [abuse of discretion] occurred in the context of public employee discipline, we note that the overriding consideration in these cases is the extent to which the employees conduct resulted in, or if repeated is likely to result in, [h]arm to the public service. [Citations.] Other relevant factors include the circumstances surrounding the misconduct and the likelihood of its recurrence. [Citation.] The public is entitled to protection from unprofessional employees whose conduct places people at risk of injury and the government at risk of incurring liability. [Citation.] (County of Santa Cruz v. Civil Service Commission of Santa Cruz (2009) 171 Cal.App.4th 1577, 1582.)

In this context (see fn. 9, ante), Hernandez argues that he committed misconduct, if at all, only in response to provocation by Dana and her mother. However, he first made the accusation, before the officers arrived, in response to either Coogan being on the field or Danas mother calling him an ass. Coogans presence did not constitute provocation; Hernandez does not even argue that it did. While Danas mothers insult was some minimal provocation, police officers get called far worse things every day; nevertheless, they are expected to control themselves. The Department could reasonably conclude that this did not mitigate or excuse Hernandezs misconduct.

Hernandez made the accusation again, after the officers arrived, in response to Dana having called 911. At that point, however, he had already violated his probation by making the accusation the first time. Hence, Dana was within her rights to call the police. The Department could reasonably conclude, once again, that this was not provocation that could excuse misconduct.

Hernandez also cites cases in which termination was held to be an excessive penalty for misconduct even worse than his. For example, in Blake v. State Personnel Board (1972) 25 Cal.App.3d 541 [Fourth Dist., Div. Two], a male state employee, while attending a convention, pointed a gun at two male coworkers and told them to stay away from a certain female coworker. (Id. at pp. 546-547.) This court held that termination was an excessive penalty, in light of the employees long record of exemplary service, the lack of evidence of any impact on the parties work relations, the fact that the whole group had been drinking, and the fact that the employee had apologized and taken steps to prevent any recurrence. (Id. at p. 554.)

Similarly, in Yancey v. State Personnel Bd. (1985) 167 Cal.App.3d 478, a correctional officer was terminated for wearing female underwear in public while off-duty. (Id. at p. 481.) The appellate court held that this was an excessive penalty, given that the officer did not commit a criminal act, he was not wilfully disobedient, he did not violate any rule or regulation of the department, he was not dishonest, everyone agreed he was cooperative and completely candid in his disclosures, he was not insubordinate, and his prior work record was exemplary. . . . Furthermore, . . . the sole reason for [his] behavior appears to be medical, and may have been caused in some degree by the job itself. It also appears to be transitory in nature. (Id. at p. 487.)

Unlike the employees in Blake and Yancey, however, Hernandez does not have an unblemished record. Chief Deputy Labahn agreed that Hernandez would not have been terminated for his conduct on April 1, 2006, standing alone. Rather, he was terminated because, in light of his lengthy record of previous misconduct, it did not appear that he was ever going to correct his misbehavior. (Cf. People v. Stone (1999) 75 Cal.App.4th 707, 715 [life sentence under three strikes law is not cruel and unusual punishment because it is based not only on the current offense, but also on the defendants recidivism].) Unlike Mr. Blake, Hernandez has not taken any steps to prevent a recurrence. Unlike Mr. Yancey, he has demonstrated that his behavior is not merely transitory.^[12] We cannot say that the Departments reasoning was irrational, arbitrary, or capricious.

Hernandez therefore argues that his prior record of discipline has been overemphasi[zed], for two reasons: First, most of the past incidents were not similar to the present incident; second, to the extent that some past incidents were similar, they were supposedly fomented by Dana. We fail to see why either point is exculpatory. Assuming the past incidents were dissimilar, that just means that he has persisted in committing various and sundry forms of misconduct, even when Dana is not involved. On the other hand, assuming that Dana was involved, the past incidents suggest that his festering relationship with her makes him unable to do his job properly. Actually, only two of the past instances of discipline involved Dana.^[13] In one, she reported that he had accidentally discharged his firearm twice and had not reported it. In the other, she reported that he had tape-recorded a phone conversation without her consent. Danas involvement in no way excuses these instances of genuine misconduct.

Finally, Hernandez notes that he had also received a number of commendations. Nevertheless, his overall evaluation of Meets Standards suggests that he was not unusual or outstanding in this respect. It would not be irrational for the Department to conclude that his instances of good conduct were within the range of what it would expect from its officers, whereas his instances of misconduct were outside the range.

We therefore conclude that, regardless of whether we would have terminated Hernandez if we were in the Departments shoes, we cannot say that termination was an excessive penalty.

VI

DISPOSITION

The judgment is affirmed. In the interests of justice, each side shall bear its own costs on appeal.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

RICHLI

J.

We concur:

HOLLENHORST

Acting P.J.

KING

J.

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^[1] McKay was a reluctant witness on this point. She testified, I dont like doing this and I just have to be truthful and Im sorry. She said she care[d] about Hernandez; she apologized for getting upset.

^[2] In 2007, Hernandez married witness Jennifer Hernandez. On April 1, 2006, she was with him at the game, presumably as his girlfriend.

^[3] There had been a restraining order against Hernandez, but it had expired in 2004.

^[4] Dana denied arguing with Hernandez. Later, she testified, when the officers were talking to her again, it was Hernandez who walked back by . . . and tried to say more things. Her mother backed up her account.

Similarly, Hernandez denied arguing with Dana. Rather, he testified, while he was talking to the officers, it was she who kept interjecting. His girlfriend and one unrelated bystander backed up his account.

^[5] Hernandez makes much of the fact that, in September 2004, during the divorce proceedings, Dana had been ordered not to contact [his] employer with regard to this case. There was substantial evidence, however, that that order was interlocutory, and thus had no force or effect once the divorce became final in October 2005. Moreover, Danas contacts with the Department were not about this case i.e., the divorce. Thus, as Dana testified, when she contacted the Department, she was not violating the order.

^[6] Hernandez repeatedly cites the memorandum of understanding, even though it is not in the record. On our own motion, we hereby take judicial notice of it.

^[7] In his statement of facts, Hernandez, citing the trial courts oral remarks at the hearing on the petition, complains that it supposedly [m]isconstru[ed] the record. However, he does not raise this as a distinct assignment of error. (See Cal. Rules of Court, rule 8.204(a)(1)(B) [appellate brief must state each point under a separate heading].)

In any event, we may not impeach the trial courts ultimate judgment with its remarks at the hearing on the petition or in announcing its ruling from the bench. [Citations.] (Smith v. City of Napa (2004) 120 Cal.App.4th 194, 199.) [W]here the trial court was not required to prepare a statement of decision or explain its reasons . . . , it is especially important to refrain from using the courts oral comments as a basis for reversal. In that situation, reviewing the trial courts oral comments would in effect require the trial court either to prepare a statement of decision where none is required or to say nothing during argument to avoid creating grounds for impeaching the final order. We decline to place the trial courts in such an untenable position. (Whyte v. Schlage Lock Co. (2002) 101 Cal.App.4th 1443, 1451.)

^[8] Hernandez draws the opposite inference from this comment he concludes that Dana was unsure about whether she had sufficient proof, and she was prepared to embellish and escalate the incident, if necessary. We find this inference far less plausible than that Dana felt she already had proof. In any event, when there is more than one possible inference, we must draw the one that supports the judgment.

^[9] Without provocation appears to be a mere rhetorical flourish. We do not understand Hernandez to be arguing that provocation was relevant to whether he had adequate notice. To the contrary, he concedes that an officer can properly be required to control his temper and emotions in the face of outrageous provocation. He does argue that provocation is relevant to whether termination was the appropriate remedy; we discuss this contention in part V, post.

^[10] Similarly, in arguing that there was insufficient evidence to support the arbitrators finding that he did have notice, Hernandez claims that he had no notice that his comment to police officers responding to a call . . . would be considered discourteous and unprofessional under the circumstances in which the statement was made. . . . [It] was pertinent to inform the police of true facts that showed that [Danas] report was unreliable . . . . He claims that the arbitrator relied on his assumption that the statements were made loudly and were likely to be overheard by the public. The evidence does not support th[is] assumption . . . .

Accordingly, this argument, too, assumes that he was terminated solely for making the accusation truthfully, quietly, and after the officers arrived. Even if it purported to be more broadly aimed, however, it would still be defeated by his concession in connection with his void-for-vagueness argument.

^[11] Although this evidence was arguably hearsay, Hernandez did not object to it on this ground. Indeed, he scarcely could have, as it was contained in one of his own exhibits.

^[12] We also note that again, unlike Mr. Yancey Hernandez did violate criminal probation and did violate Department rules and regulations. Moreover, inasmuch as his testimony differed greatly from that of the responding officers and others, it would appear that he was not completely candid.

^[13] The March 2003 discipline for sleeping on duty came about because Hernandez had to pick his son up from school during the day, even though he was working the graveyard shift. Thus, he claims that it was indirectly related to the divorce. Even if so, he can hardly claim that Dana was responsible for it or that he was not.