Lazaro v. >Ventura>
County>
Civil Service Commission

















Filed 1/14/13 Lazaro v. Ventura County Civil Service Commission CA2/6











NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115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



SECOND
APPELLATE DISTRICT



DIVISION
SIX




>

PABLO LAZARO, Plaintiff and Appellant, v. VENTURA COUNTY CIVIL SERVICE COMMISSION, Defendant and Respondent; VENTURA COUNTY SHERIFF'S DEPARTMENT et al., Real Parties in Interest and Respondents.

2d Civil No. B233381 (Super. Ct. No. 56-2008-00326712-CU-PT-VTA) (Ventura County)

Real
parties in interest Ventura County Sheriff's Department (Sheriff's Department)
and County of Ventura (County) terminated Pablo Lazaro's employment as a deputy sheriff
after he failed to pass field patrol training.
The Ventura County Civil Service Commission (Commission) upheld his
termination. Lazaro appeals from the
trial court's denial of his petition for writ
of mandamus. We conclude substantial
evidence supports the trial court's decision and affirm.





FACTS AND PROCEDURAL BACKGROUND

Pablo
Lazaro was a reserve peace officer for two years before becoming a deputy
sheriff in 2000. After completing the
Sheriff's Department's basic training program, Lazaro was assigned to duties as
a custodial deputy at various jails run by the County, a routine assignment for
a deputy fresh out of the Sheriff's academy.
He remained in that status until he was assigned to patrol duties in
September 2006. The Sheriff's
Department's policy is to reassign all custodial deputies to patrol as part of
their career path. Captain Ron Nelson,
who oversaw the Sheriff's Department's headquarters and patrol unit in Ventura, testified
that deputies "start off in the jail right out of the academy. You do your time. And then you work your way out to a patrol
station. You complete your patrol
training. As members of our department
promote, they are sent back into the jails."

Before
qualifying for patrol duty, Lazaro had to successfully complete a field
training program prescribed by the Commission on Peace Officer Standards and
Training (POST). (See Cal. Code Regs.,
tit. 11, § 1005, subd. (a)(1) [minimum standards for training of entry level
peace officers].) The Sheriff's
Department's field training program, which is largely on-the-job training,
ordinarily lasts 19 weeks, nearly twice as long as the 10-week minimum required
by POST regulations. After a period of classroom
training, the trainee must complete four separate training phases, each under
the supervision of a field training officer (FTO). Each phase lasts approximately a month, and
at the end of the fourth phase, the trainee is expected to be able to perform
as a patrol deputy without supervision.
Ordinarily, a trainee shows consistent improvement throughout the
phases, and remedial extensions are necessary in fewer than 10 percent of
cases. Only a small fraction of that 10
percent fails to successfully complete the program.

Lazaro
experienced performance difficulties in the first phase, which was extended
from four to seven weeks. At the end of
the fourth phase, Lazaro was deemed incompetent to function on his own as a
patrol officer. Ultimately, the
Sheriff's Department extended his training for three additional phases. First, it granted him a remedial four-week
phase and assigned him to a fourth FTO.
After he continued to display deficiencies in the performance of his
duties, he was assigned to a second remedial four-week extension with his fifth
FTO. When Lazaro again failed to meet
acceptable performance standards, the Sheriff's Department afforded him a third
remedial four-week extension, assigning him to a very experienced FTO. After seven full training phases, totaling 31
weeks and involving six FTOs, Captain Nelson, as the head of the patrol unit,
deemed Lazaro incompetent to work as a solo patrol deputy and recommended his
termination in June 2007. Lazaro was
dismissed following a Skellyhref="#_ftn1" name="_ftnref1" title="">>[1]> hearing. He appealed to the Commission.

Over a
total of 10 days, the Commission heard testimony from 12 witnesses, including
Lazaro's six FTOs and his expert, and reviewed the daily, weekly and monthly
evaluations documenting his field training.
Lazaro contended the Sheriff's Department caused his poor performance,
partly because of errors in the administration of the field training
program. The Sheriff's Department and
County rebutted this evidence by demonstrating Lazaro's deficiencies in field
training were nearly identical to the problems he had displayed during his
first attempt to complete the Sheriff's Department's basic training academy and
also during his probationary period as a deputy sheriff.

The
Commission upheld Lazaro's termination, concluding that he was not competent to
work as a patrol deputy and that any flaws in the training program were
outweighed by his deficiencies. The
Commission stated: "Even if the
FTOs had been properly trained in the use and application of the new POST
manual, and had conducted all training exactly as specified, Petitioner still
would have failed his training because he lacks the abilities needed to be a
patrol deputy. His shortcomings were
magnified by his continued denial that he had any such deficiencies."

Lazaro
petitioned the trial court for a writ of administrative mandamus reversing the
Commission's decision. On reviewing the
entire record, the trial court denied the petition, determining Lazaro's
deficiencies were his alone and that the Sheriff's Department had done all it
could do in terms of remediation. The
trial court observed: "Although the
training program did not strictly comply with POST standards, there is ample
evidence in the record that Mr. Lazaro's FTO's worked hard with him on a daily,
and on a one-on-one basis to give him the skills he needed to be a patrol
deputy. . . . None of this, however, was
successful. To argue that the County
should have done more to get Mr. Lazaro qualified ignores the considerable time
and effort that was invested in him without discernable effect." Lazaro appeals.

DISCUSSION

Standard of Review

In
administrative mandamus actions involving the termination of public employees,
the "trial court exercises its independent judgment on the evidence and
examines the entire administrative record . . . ." (Deegan
v. City of Mountain View (1999) 72 Cal.App.4th 37, 45.) It "resolves evidentiary conflicts and
is required to assess witnesses' credibility and to arrive at its own
independent findings of fact." (>Ibid.)

Lazaro
contends our review on appeal is de novo, and that we must "determine if
[he] was a borderline patrol deputy" and "weigh the reasonableness of
giving [him] a 'second chance' at patrol training . . . ." That is not our function. Where, as here, there are factual and
evidentiary conflicts, the trial court's "determination of culpability is
conclusive and binding on the reviewing court." (Deegan
v. City of Mountain View, supra,
72 Cal.App.4th at p. 45.) "On
appeal, we review the record to determine whether substantial evidence supports
the trial court's conclusions, and we resolve all conflicts and indulge all
reasonable inferences in favor of the prevailing party." (Ibid.) We do not substitute our reasonable
inferences for those drawn by the trial court.
(Ibid.; Barber v. Long Beach Civil Service Com. (1996) 45 Cal.App.4th 652,
659.) Nor do we redetermine the
credibility of witnesses. (>Deegan, at p. 45.)

Substantial Evidence Supports the Judgment

Lazaro's
writ petition raised two issues: the
adequacy of the field patrol training program and his performance within that
program. Lazaro asserts that if the
program was not properly administered, his performance cannot be properly
evaluated. We disagree. Substantial evidence supports the trial
court's conclusion that even if the training had been conducted exactly as
specified in the POST regulations, Lazaro still would have failed because he
lacks the abilities necessary to perform as a patrol deputy.

The job
of a deputy sheriff is not an easy one.
The risks in deploying an unqualified deputy are obvious. "Such officers are the guardians of the
peace and security of the community, and the efficiency of our whole system,
designed for the purpose of maintaining law and order, depends upon the extent
to which such officers perform their duties and are faithful to the trust
reposed in them." (>Christal v. Police Commission (1939) 33
Cal.App.2d 564, 567.) "POST is a
state-funded organization designed to insure professional standards in law
enforcement. Penal Code section 13500 et
seq. describes POST's role in setting standards and guidelines pertinent to the
selection and training of peace officers."
(Diffey v. Riverside County
Sheriff's Department (2000) 84 Cal.App.4th 1031, 1034, disapproved on other
grounds in Colmenares v. Braemar Country
Club, Inc. (2003) 29 Cal.4th 1019, 1031, fn. 6; see also Pen. Code, §
13510.) The Sheriff's Department has
adopted these standards.

The
Sheriff's Department acknowledges Lazaro's training did not strictly comply
with POST standards. Among other things,
POST requires that trainee performance be documented through daily observation
reports prepared by the FTO and then reviewed with the trainee. (Cal. Code Regs., tit. 11, § 1004, subd.
(a)(6)(A).) This did not always occur
here. At times, the daily reports were
delayed or not reviewed with Lazaro.

This
may have been an issue if Lazaro's field training did not proceed beyond the
minimum 10-week period prescribed by POST or even the typical 19-week period
adopted by the Sheriff's Department.
(See Cal. Code Regs., tit. 11, § 1004, subd. (a)(1).) To address the various performance
deficiencies, the Sheriff's Department extended Lazaro's training to a total of
seven months. During that period, six
different FTOs observed, quantified and documented his performance in nearly
1,000 pages of reports. As the trial
court noted, "[s]ome [FTOs] were probably better than others. Some had a better understanding of POST
standards than others. All testified
that their aim was [to] see Mr. Lazaro successfully complete his
training."

Lazaro
was unable to succeed in his field training because he could not expeditiously
write informative reports, had difficulty multi-tasking, exercised poor
judgment and lacked familiarity with the Penal and Vehicle Codes. As the Commission observed: "While [these] deficiencies may have
been acceptable in the custodial atmosphere of a jail with ample support
available from fellow deputies, such is not the case for a deputy alone in a
patrol car."

Lazaro's
fourth FTO, Deputy Steven Hanie, testified that on their first day of training,
Lazaro created a dangerous situation by failing to broadcast his location and
then running after suspects with his gun in hand. Hanie also described a basic high-speed
driving error in which Lazaro nearly caused an accident with the lead patrol
vehicle. Other FTOs observed Lazaro
coercing consent to search, aggressively questioning an innocent person,
trashing a vehicle during a search, violating basic traffic laws and destroying
evidence. Lazaro compounded these
problems by denying any deficiencies in his performance. Captain Nelson testified that instead of
concentrating on learning the material, Lazaro seemed "more interested in
complaining about the people that were trying to teach him versus taking it
upon himself to go out and actually trying to apply this stuff and getting
through the training."

The
trial court correctly determined that no authority exists for the proposition
that the lapses in POST training standards invalidated the training program
itself, requiring Lazaro to be retrained in a fully compliant program. Errors in the process of terminating a
permanent employee generally are subject to a harmless error analysis. (See Hinrichs
v. County of Orange (2004) 125 Cal.App.4th 921, 928; Galland v. City of Clovis (2001) 24 Cal.4th 1003, 1040.) Lazaro has not demonstrated his termination
was so fraught with error that we must disregard his incompetence in performing
patrol duties over the course of seven months.
To the contrary, the record reflects the Sheriff's Department made
extraordinary efforts to qualify him for such duties. As the trial court remarked, "[t]o argue
that the County should have done more to get Mr. Lazaro qualified ignores the
considerable time and effort that was invested in him without discernable
effect."

Lazaro
contends the trial court spent insufficient time analyzing the voluminous
administrative record. The record does
not support this contention. The trial
court noted the record is "unusually lengthy, running in excess of 2500
pages," and stated "[t]he court has read and reviewed all of
it." The trial court's detailed
ruling reflects its understanding of the testimony and evidence presented at
the hearing.

Lazaro suggests his termination was the result
of a conspiracy spearheaded by Sergeant Mike Hasty, and requests that we remand
the matter for discovery on this "new theory." This claim was not raised in either the
administrative proceeding or trial court, and thus is waived on appeal. (Feduniak
v. California Coastal Com. (2007) 148 Cal.App.4th 1346, 1381 [failure to
raise issue in trial court forfeits the point on appeal].) Moreover, Lazaro presents no facts supporting
this theory other than a lengthy, first-person narrative in his opening
brief. His attempt to supplement the
record with additional "evidence" is improper. We do not consider facts outside the record
on appeal. (Cal. Rules of Court, rule
8.204(a)(2)(C); Lona v. Citibank, N.A.
(2011) 202 Cal.App.4th 89, 102.)

We have
reviewed Lazaro's remaining contentions, many of which were not raised in the
trial court, and conclude he has not shown error.

DISPOSITION

The
judgment is affirmed. Real parties in
interest shall recover their costs on appeal.

NOT
TO BE PUBLISHED.



PERREN,
J.

We concur:





GILBERT,
P. J.



YEGAN,
J.

>



Henry J. Walsh, Judge



Superior Court County of Ventura



______________________________



Pablo
Lazaro, in pro. per., for Appellant.

No appearance
for Respondent Ventura County Civil Service Commission.

Leroy
Smith, County Counsel, Thomas W. Temple, Assistant County Counsel, for Real
Parties in Interest.