Don't
shoot!
CHRISTOPHER
DORNER, Plaintiff and Appellant, v. LOS ANGELES POLICE DEPARTMENT et
al., Defendants and Respondents.
No.
B225674.
Court
of Appeals of California, Second District, Division Four.
Filed
October 3, 2011.
Carmen
A. Trutanich,
City Attorney, Claudia
McGee Henry,
Assistant City Attorney, and Gregory
P. Orland,
Deputy City Attorney, for Defendants and Respondents.
NOT
TO BE PUBLISHED IN THE OFFICIAL REPORTS
WILLHITE,
Acting P. J.
Appellant
Christopher Dorner, an officer with the Los Angeles Police Department
(LAPD), made a complaint against his field training officer, Sergeant
Teresa Evans, accusing her of kicking a suspect, Christopher Gettler
(Gettler). The Los Angeles Police Department Board of Rights (Board)
found that appellant’s complaint was false and therefore terminated
his employment for making false statements. Appellant filed a
petition for a writ of administrative mandamus in the superior court
pursuant to Code of Civil Procedure section 1094.5, seeking to
overturn the decision of the Board. The superior court denied his
petition, and he now appeals. We affirm.
FACTUAL
AND PROCEDURAL BACKGROUNDAppellant
was charged in a formal written complaint with three counts: count 1,
on August 10, 2007, making false statements to Sergeant D. Deming,
who was conducting an official investigation; count 2, on October 9,
2007, making false statements to Detectives S. Gallegos and T. Lai,
who were conducting an official investigation; count 3, on August 10,
2007, making a personnel complaint that he knew or should have known
was false. The Board held a series of hearings at which the following
witnesses testified: appellant, Captain Donald Deming, Sergeant
Evans, Sergeant Leonard Perez, Sergeant Eddie Hernandez of the Los
Angeles Port Police, Sergeant Phil Jackson, Sergeant Julie McInnis,
Detective Shelly Villanueva (formerly Gallegos), Christopher Adrid,
Ashlye Perez, Christopher Gettler, and Richard Gettler.
Testimony
of Captain Deming1
In
August 2007, Captain Deming was a sergeant assigned as an assistant
watch commander at the Harbor Division of the LAPD. On August 10,
2007, appellant spoke with Captain Deming about an incident on July
28, 2007, involving the use of force during Gettler’s arrest at a
DoubleTree Hotel in San Pedro.
Appellant
told Captain Deming he had something bad to report, and he “expressed
remorse that he failed to report what he believed to be misconduct
(unnecessary kicks applied to an arrestee) that he witnessed
approximately two weeks prior.” Appellant said that he had
handcuffed the suspect and was struggling with him when Sergeant
Evans (Officer Evans, at the time) kicked the suspect twice in the
left shoulder area and once in the face. Appellant had not told
Sergeant Jackson about the kicks when Sergeant Jackson conducted a
use of force investigation, and Sergeant Evans later discouraged
appellant from disclosing she had kicked the suspect. Appellant was
unsure what to write about the incident on the arrest report, so
Sergeant Evans completed the report, “omitting any reference to the
kicks.” Appellant was visibly upset when he spoke with Captain
Deming, and Captain Deming believed this was caused by fear of
repercussions for reporting misconduct by a training officer. Because
of his fear of repercussions, appellant told Captain Deming, “Promise
me you won’t do anything.” Appellant testified that the reason he
asked Captain Deming not to do anything was that he knew Sergeant
Evans had a child to support and he did not want her to lose her job.
After
Captain Deming retired from the LAPD, appellant called to tell him he
was being investigated for false statements. Captain Deming expressed
surprise, and appellant told him, “No matter what happens, I just
want you to know I never lied to you.” Captain Deming testified
that appellant’s performance was satisfactory while he was under
his supervision.
Following
appellant’s complaint about Sergeant Evans, appellant believed
someone urinated on his equipment bag at the police station.
Appellant thought this was in retaliation for his complaint against
Sergeant Evans and filed a complaint about this incident. However, an
analysis of the unknown substance on appellant’s jacket revealed
that the substance was not urine.
Testimony
of Sergeant Evans
Sergeant
Evans was the field training officer assigned to train appellant, who
was a probationary employee. She testified that appellant had
expressed to her the need for reintegration training because he had
been away for a long time during his military deployment.2
Sergeant
Evans and appellant responded to a call around 8:46 a.m. on July 28,
2007. When they arrived, they saw the subject sitting on a bench
outside the main door of the hotel. Based on the subject’s demeanor
and gaze, the officers thought he was either suffering from mental
illness or under the influence, so they discussed a plan to isolate
him from the numerous pedestrians in the area.
Appellant
told the subject to stand up, but he did not comply, so appellant
placed his hand on the subject’s arm and helped him stand. When
appellant and the subject were walking near a planter box on the
sidewalk, the subject suddenly swung at appellant and said, “fuck
you.” Sergeant Evans took a taser from appellant’s duty belt and
called for backup.
While
appellant was trying to gain control of the suspect, Sergeant Evans
told the subject to stop or she would use the taser. Appellant and
the suspect fell into the bushes in the planter box, and the
suspect’s arm was wedged against a wall. After Sergeant Evans shot
Gettler twice with the taser, appellant was able to control Gettler’s
left wrist and place handcuffs on him. Sergeant Evans went behind the
bushes and crouched down to help appellant control Gettler’s right
arm. After about 30 seconds of struggling, Gettler let the officers
handcuff him and said, “Is that what you wanted? Here you go.”
Sergeant Evans denied kicking Gettler in the face or the shoulder
area.
Appellant
then helped Gettler stand and placed him in a police car. Sergeant
Evans noticed that Gettler had a laceration on his cheek, but no
other injuries. There were no boot marks on Gettler’s face or shirt
and no bruising on his face. When Gettler was taken to the police
station, he did not tell the watch commander or a physician, who
treated his facial injuries, that he was kicked in the face.
After
Gettler was in custody, other officers arrived, including Sergeant
Phil Jackson. Sergeant Jackson interviewed Sergeant Evans about the
use of force and interviewed other witnesses at the scene.
Sergeant
Evans and appellant discussed the incident so appellant could write
the arrest report, but she stated that appellant took too long to
write the report. Appellant asked Sergeant Evans several questions
about how to complete the use of force section, which underwent about
three revisions by Sergeant Evans and Sergeant Jackson. Sergeant
Evans testified that the revisions were mainly to articulate what
specific actions the officers took during the incident because
appellant was unfamiliar with the “specific verbiage” used to
describe their actions. Appellant reviewed the report before it was
turned in to Sergeant Jackson for approval. The use of force report
stated that Gettler’s injury was consistent with the use of force
involved in arresting him and did not state that Sergeant Evans
kicked Gettler.
Sergeant
Evans previously had told appellant that he needed to take less time
in writing arrest reports. She also had indicated in an evaluation
that appellant needed to improve in the areas of officer safety and
common sense and good judgment. Appellant received the evaluation on
August 9, 2007.
Testimony
of Christopher Adrid
Adrid
was working as a bellman at the DoubleTree Hotel on the date of the
incident. He saw Gettler on a bench in the lobby, talking to himself,
so he asked Gettler if he was a hotel guest. When Gettler said he was
not staying at the hotel, Adrid asked him to sit on a bench outside
the hotel.
When
appellant and Sergeant Evans arrived, Adrid saw them ask Gettler to
take his hands out of his pockets and approach them. Gettler stood up
and walked toward the officers, but when he tried to run away,
appellant tackled him. Adrid testified that he saw Gettler and
appellant fall into the bushes, which were about four feet high,
although in an earlier interview, he had said he did not see
appellant tackle Gettler. Adrid testified that Sergeant Evans was
telling Gettler to put his hands behind his back or else she would
use the taser. Gettler did not comply, so Sergeant Evans shot him
with the taser, and then he complied and was handcuffed. Sergeant
Evans stepped into the planter and helped appellant and Gettler get
up. Adrid did not see Sergeant Evans crouch in the bushes or kick
Gettler. He said that Sergeant Evans had one foot in the planter and
one on the sidewalk and never had both feet in the planter. Adrid saw
the cut on Gettler’s nose but did not see any other injuries.
Testimony
of Sergeant Perez
Sergeant
Perez met appellant in 2004 or 2005, when they were both in the
United States Navy Reserves. While appellant was in the police
academy, he told Sergeant Perez that a classmate had used a racial
epithet against him (appellant is black) and continued doing so after
appellant asked him to stop. Appellant reported the incident to a
supervisor.
In
August 2007, Sergeant Perez was camping at a lake when he noticed he
had received several phone calls from appellant; he tried calling him
back, but service was intermittent. Over a series of five or six
calls, appellant told Sergeant Perez that he was not getting along
with Sergeant Evans and that Sergeant Evans had kicked a suspect who
was either handcuffed or had one handcuff on. Appellant asked
Sergeant Perez if he needed to report the incident, and Sergeant
Perez said appellant needed to tell a supervisor immediately or else
Sergeant Perez would do it himself. Sergeant Perez asked appellant
about the arrest report, and appellant alluded to Sergeant Evans
having changed the report or told appellant to change it. When
appellant started telling Sergeant Perez about the incident, Sergeant
Perez stopped appellant because Sergeant Perez knew he might become a
witness in any investigation. A few days later, appellant told
Sergeant Perez he had reported the incident to Captain Deming.
Testimony
of Sergeant Hernandez
Sergeant
Hernandez was an officer with the Port Police at the time of the
incident. He responded to the DoubleTree Hotel when he heard a call
that an officer needed help. When Sergeant Hernandez arrived, he saw
“two officers crouched over, half in the bush and half not,”
struggling with a suspect and trying to handcuff him. As he ran up to
them, he saw them get the second handcuff on the suspect and saw
appellant pick the suspect up. Sergeant Hernandez testified that
appellant was wearing a dress uniform with a tie that was messed up,
so he told appellant to fix his tie while he held the suspect for
him. It was subsequently established that appellant was not wearing a
dress uniform or a tie, based on testimony and a photo.
Sergeant
Hernandez thought that Sergeant Evans had one foot in the planter and
one on the sidewalk, and he never saw her in or behind the bushes.
Sergeant Hernandez did not see Sergeant Evans taser Gettler or kick
him.
Testimony
of Ashlye Perez
Ashlye
Perez was working at the DoubleTree as a bellhop on July 28, 2007.
She was in the lobby of the hotel when she saw appellant and Sergeant
Evans arrive at the hotel. The hotel doors were open, so she heard
the officers ask Gettler to stand and ask if he was a guest at the
hotel. After Perez went outside to try to usher hotel guests inside,
she heard Gettler start yelling and saw the officers grab him to stop
him from running away. She did not remember exactly what happened,
but she saw Sergeant Evans use the taser, and she saw Gettler fall
headfirst into the bushes. She noticed that some branches were broken
when Gettler hit the bushes. Perez did not see Sergeant Evans go into
the bushes or kick Gettler. Perez went back into the hotel, so she
did not see the officers handcuff Gettler, but she saw Gettler
struggling while the officers tried to get him out of the bushes. She
noticed that Gettler had a cut on his face, which she thought was
from hitting his face on the bushes.
Testimony
of Sergeant Jackson
When
Sergeant Jackson arrived, he saw appellant, Sergeant Evans, Sergeant
Hernandez, a few other officers, and Gettler in custody inside the
police car. After learning from Sergeant Evans that use of force was
involved, Sergeant Jackson began to interview people regarding the
use of force. He interviewed the officers and the other witnesses
individually and did not recall any of the witnesses reporting that
kicks were used. When he inspected Gettler’s injury, he saw blood
on Gettler’s face that he thought was from the bushes, but he did
not see any bruising or other indication that Gettler had been
kicked. Sergeant Jackson read several revisions of the arrest report
prepared by appellant and Sergeant Evans, and he noticed Sergeant
Evans becoming frustrated with the amount of time it was taking to
prepare the report.
Testimony
of Appellant
Appellant
testified that he graduated from the police academy in February 2006,
but he left for a 13-month military deployment in November 2006. When
he returned to the LAPD in July 2007, he was still on probation and
was assigned to the San Pedro area with Sergeant Evans.
On
July 28, 2007, appellant and Sergeant Evans received a call about a
man refusing to leave the DoubleTree Hotel. When they arrived, they
saw Gettler sitting on a bench, and appellant noticed a lot of people
standing in front of the hotel. Appellant wanted to move Gettler away
from the other people, so he asked Gettler to come speak with him,
but he got no response. After asking Gettler several times, appellant
placed his hand onto Gettler’s wrist and pulled Gettler up from the
bench.
Appellant
and Gettler walked about 15 feet away, with Sergeant Evans a little
behind them and on Gettler’s left side. Gettler suddenly stopped,
turned to Sergeant Evans and yelled at her, at which point Sergeant
Evans took appellant’s taser. Appellant thought Gettler was about
to hit Sergeant Evans, so he tried to drag Gettler to the ground and
ended up pushing Gettler toward the bushes. Gettler turned around and
started pushing appellant in an attempt to get away, so appellant
pushed back, and they both fell in the planter box. Appellant was
trying to straddle Gettler to gain control of his hands, and after he
got Gettler’s left hand he heard two taser bursts.
Appellant
was trying to grab Gettler’s right arm, which was pressed against
the wall, but Gettler did not comply. Sergeant Evans went into the
bushes, between the bushes and the wall, lifted Gettler by his hair,
and told him to give appellant his arm. Appellant testified that
Gettler did not have blood on his face at that point. Sergeant Evans
then stood up and kicked Gettler twice in the left clavicle. Gettler
yelled, and then Sergeant Evans kicked him on the left cheek, causing
him to start bleeding. Gettler said, “Is this all you want?” and
gave appellant his right arm to be handcuffed. Sergeant Hernandez
then drove up, got out of his car, asked if they needed help, and
helped pick Gettler up.
Sergeant
Jackson arrived and began his investigation. He asked what appellant
did during the use of force, so appellant told him that force was
used to try to gain control of the suspect’s hands and that he
thought he heard Sergeant Evans use a taser. Appellant did not report
the kicks by Sergeant Evans because Sergeant Jackson asked him only
what his own involvement was.
Appellant
testified that Sergeant Jackson spoke with Sergeant Evans first and
that after Sergeant Jackson spoke with appellant, appellant heard him
say that appellant’s story was consistent with Sergeant Evans’s.
When appellant heard Sergeant Jackson say that his story was
consistent with Sergeant Evans’s, he knew that Sergeant Evans had
not reported the kicks, so he thought about saying something then,
but he did not. He did not feel comfortable speaking with Sergeant
Jackson because Sergeant Jackson and Sergeant Evans got along well.
Appellant
also testified that he was hesitant to report the kicks because when
he was in the police academy, he had reported an incident in which
two recruits were using a racial epithet against another recruit. He
had been shunned by other recruits after that, so he did not want to
speak up again.
Appellant
stated that he did not think the kicks were necessary and that he
would not have kicked the suspect, but he thought they might have
fallen within the use of force policy. Appellant was not sure if the
kicks were wrong because he had been away for over a year during his
military deployment and had not received reintegration training,
despite his request for the training.
After
Gettler was arrested, Sergeant Evans and appellant presented him to
the watch commander, Lieutenant Andrea Grossman. Appellant did not
report the kicks to Lieutenant Grossman because he was not asked and
he knew that probationary officers did not speak to Lieutenant
Grossman unless spoken to. He also was hesitant because he knew that
Sergeant Evans and Lieutenant Grossman were friends. Gettler did not
report being kicked. The medical form filled out by appellant asked
if the arrestee had any injuries or medical problems, and appellant
had written that Gettler had a minor scratch on his face.
When
appellant and Sergeant Evans were in the car later, Sergeant Evans
asked appellant if he was comfortable with the use of force, and
appellant replied that he was. Sergeant Evans then stated that they
would not mention the kicks in the report. Appellant did not reply
because he was trying to avoid conflict with her. He said that
Sergeant Evans previously had told him she was trying to limit the
number of use of force incidents she had because she was on a list to
become a sergeant.
When
they began writing the use of force report, appellant felt that he
was struggling with an ethical dilemma about the use of force, but he
had forgotten some of the use of force policies because of his long
military deployment. He acknowledged writing the first part of the
arrest report but testified that he and Sergeant Evans disagreed
about the report and that she deleted what he had written and wrote
it herself. Appellant also acknowledged that he reviewed the report
but reiterated that he was hesitant to report misconduct because he
was afraid of retaliation. When he realized the kicks were not in the
report, he decided to report them to Sergeant Perez.
Appellant
testified that he called Sergeant Perez because he wanted to speak
with someone who worked in Internal Affairs before reporting the
incident. Sergeant Perez stopped him from telling him about the
incident and instead urged him to report it to his supervisor,
telling appellant that he would report it if appellant did not.
Sergeant Perez followed up by calling appellant to be sure he had
reported it.
Appellant
had asked Sergeant Evans several times for reintegration training
after his deployment and had spoken with other officers about it, but
he was told that probationary officers did not receive reintegration
training. On July 28, 2007, appellant gave Lieutenant Grossman a
request for the training, and she said that he could attend.
Appellant asked to go to reintegration training at the academy
because he did not want to work with Sergeant Evans any more.
Appellant
testified that Sergeant Evans had not given him unsatisfactory
evaluations, but he thought that personal issues she had told him
about were affecting her work and causing her to be angry and
difficult to approach. For example, he said that Sergeant Evans had
slapped his hand on two occasions. Sergeant Evans had told appellant
that she was having difficulties at home regarding a domestic
violence incident and was having financial difficulties. Appellant
did not report the difficulties in his relationship with Sergeant
Evans because he was still on probation and did not want to cause
problems.
Appellant
received a weekly evaluation report dated July 29 to August 4, 2007,
in which Sergeant Evans indicated that appellant needed to improve in
the areas of report writing, officer safety, suspects, prisoners, and
use of common sense and good judgment. He testified that the
evaluation did not bother him because he had received similar reports
from other officers but had never received an unsatisfactory
evaluation, which he described as “a silver bullet.”
Testimony
of Richard Gettler
Richard
Gettler testified that his son was schizophrenic with severe
dementia. He explained that his son sometimes was verbal and able to
respond, but other days he was not responsive. Gettler sometimes
wandered from home, but his father usually did not report him as
missing because he knew the police always brought him home.
Gettler’s
father stated that when the officers brought his son home on July 28,
2007, he asked Gettler if he had been in a fight because his face was
puffy. Gettler told him that he was kicked at the hotel, so they
drove around until Gettler directed his father to the DoubleTree,
where Gettler pointed to the wall and indicated the incident happened
near there. Gettler told his father he was kicked in the chest twice
by a police officer, but his father decided not to report it because
he assumed it was an accident and Gettler was not hurt.
Testimony
of Detective Villanueva
Detective
Villanueva worked in the Internal Affairs Criminal Section of the
LAPD and investigated the excessive force complaint against Sergeant
Evans. During her investigation, she tried to interview Gettler, but
she was told by Gettler’s grandmother and father that Gettler
probably would be unable to answer simple questions because of his
severe mental illness. She did not ask Gettler’s father about the
incident at the DoubleTree Hotel.
Based
on Detective Villanueva’s interviews of three DoubleTree employees
and Sergeant Evans, she concluded that appellant falsely accused
Sergeant Evans of kicking Gettler. Her investigation did not reveal
any evidence to support appellant’s allegation that Sergeant Evans
intentionally kicked Gettler.
Testimony
of Christopher Gettler
The
Board brought Gettler in to question him during the administrative
hearing, but his responses generally were incoherent and
nonresponsive. A videotaped interview of Gettler, taken on December
8, 2008, was shown at the administrative hearing.
Decision
of the Board
The
Board stated that the primary issue in the case was whether Sergeant
Evans actually kicked Gettler or not. After reviewing all the
evidence, the Board stated that it could not find that the kicks
occurred. The Board pointed out that, although Gettler’s clothes
were soiled, consistent with testimony that he and appellant fell in
the bushes, there was no “visible dirt transfer” on Gettler’s
white shirt to support the allegation that Sergeant Evans kicked him
in the shoulder or chest area.
The
Board reasoned that, although there were inconsistencies in the
testimony, the testimony of Adrid, Sergeant Perez, and Sergeant
Hernandez was consistent with the original report by appellant and
Sergeant Evans. Although Richard Gettler’s testimony supported
appellant’s assertion that Sergeant Evans kicked Gettler, the Board
found his testimony not credible because it was inconsistent with his
son’s testimony. The Board also noted that Gettler’s mental
illness affected his ability to give an accurate account of the
incident and found that Gettler’s videotaped statement, alleging
one kick, was not credible.
The
Board found that appellant had failed to report the alleged kicks,
despite numerous opportunities to do so, and that his testimony
regarding his reasons for not reporting the kicks was not credible.
The Board also found that the injury to Gettler’s face was caused
when he fell into the bushes.
The
Board found there was evidence that appellant had a motive to make a
false complaint, citing Sergeant Evans’s testimony that appellant
was going to receive an unsatisfactory probationary rating if he did
not improve his performance and that the kicks were reported the day
after appellant received an evaluation. The Board concluded that
appellant was not credible and found him guilty of the charges
against him.
Decision
of the Trial Court
Appellant
filed a petition for writ of administrative mandamus, which the trial
court denied. The court stated that, after an independent review of
the administrative record, the court was “uncertain whether the
training officer kicked the suspect or not.” Because the court was
not convinced that the administrative findings were wrong, the court
found that appellant failed to carry his burden of establishing that
the administrative findings were contrary to the weight of the
evidence. The court also rejected appellant’s contention that the
Board shifted the burden of proof by requiring him to prove the
training officer kicked the suspect. Finally, the court rejected
appellant’s contention that the Board members were biased. The
court reasoned that no other witness testified that Sergeant Evans
kicked Gettler and that the issue came down to a determination of the
relative credibility of appellant and Sergeant Evans. The court thus
denied appellant’s petition for writ of mandate and entered
judgment in favor of respondents. Appellant filed a timely notice of
appeal.
DISCUSSION“Pursuant
to Code of Civil Procedure section 1094.5, when the trial court
reviews an administrative decision that substantially affects a
fundamental vested right, the trial court `not only examines the
administrative record for errors of law but also exercises its
independent judgment upon the evidence . . . .’ [Citations.]”
(Sarka
v. Regents of University of California
(2006) 146
Cal.App.4th 261,
270 (Sarka).)
The right to practice one’s trade or profession is a fundamental
vested right. (Bixby
v. Pierno
(1971) 4
Cal.3d 130,
143; see also Barber
v. Long Beach Civil Service Com.
(1996) 45
Cal.App.4th 652,
658 [stating that the trial court is required to exercise its
independent judgment where a case involves a police officer's vested
property interest in his employment].)
“Under
the independent-judgment standard, `the party challenging the
administrative decision bears the burden of convincing the court that
the administrative findings are contrary to the weight of the
evidence.’ [Citation.] `[The] trial court must accord a “`strong
presumption of . . . correctness’” to administrative findings . .
. .’ [Citation.] The trial court begins its review with the
presumption that the administrative findings are correct, and then,
after according the respect due these findings, the court exercises
independent judgment in making its own findings. [Citation.] . . .
[¶] On appeal, we review a trial court’s exercise of independent
review of an agency determination for substantial evidence.
[Citation.]” (Sarka,
supra,
146 Cal.App.4th at pp. 270-271.) “`[O]ur review of the record is
limited to a determination whether substantial evidence supports the
trial court’s conclusions and, in making that determination, we
must resolve all conflicts and indulge all reasonable inferences in
favor of the party who prevailed in the trial court. [Citations.]‘”
(Wences
v. City of Los Angeles
(2009) 177
Cal.App.4th 305,
318.) We review independently any legal interpretations made by the
administrative agency and the trial court. (Breslin
v. City and County of San Francisco
(2007) 146
Cal.App.4th 1064,
1077 (Breslin).)
I.
Burden of Proof
Appellant’s
first contention is that the trial court erred in rejecting his
argument that the Board improperly shifted the burden of proof from
the employer to him. Whether the Board shifted the burden of proof is
a legal question reviewed de novo. (Breslin,
supra,
146 Cal.App.4th at p. 1077.) We conclude that the Board did not
improperly shift the burden of proof.
The
parties agree that respondents had the burden of proving the charges
against appellant. (See California
Correctional Peace Officers Assn. v. State Personnel Bd.
(1995) 10
Cal.4th 1133,
1167 [explaining that a public employee's interest in his employment
is protected by due process, which requires an administrative hearing
at which "`the burden of proving the charges rests upon the
party making the charges'"].) Thus, here, the LAPD was required
to prove that appellant made a complaint he knew or should have known
was false and that he made false statements during the investigation.
In
arguing that the Board improperly shifted the burden of proof,
appellant focuses on the Board’s statement that, after reviewing
all the evidence, it could not “make a factual finding that the
kicks occurred.” Neither this statement nor anything else in the
Board’s decision indicates that the Board shifted the burden to
appellant.
In
order to prove that appellant made false statements and a false
complaint, the LAPD needed to prove that Sergeant Evans did not kick
Gettler. The LAPD accordingly presented witnesses and other evidence
tending to show that the kicks did not occur, and the Board found its
evidence persuasive. The Board’s statement that it could not find
evidence to support appellant’s claim that Sergeant Evans kicked
Gettler does not mean that appellant had the burden of proving his
statements were not false. Rather, it indicates that the LAPD bore
its burden of convincing the Board that the kicks did not occur. The
trial court did not err in rejecting appellant’s argument.
II.
Substantial Evidence
Appellant’s
second contention is that the trial court erred in upholding the
Board’s factual findings because they were not supported by
substantial evidence.3
As stated above, on appeal, “we may not reweigh the evidence, but
consider that evidence in the light most favorable to the trial
court, indulging in every reasonable inference in favor of the trial
court’s findings and resolving all conflicts in its favor.”
(Breslin,
supra,
146 Cal.App.4th at p. 1078.)
Appellant
argues that the trial court did not understand that it was required
to exercise its independent judgment, pursuant to Fukuda
v. City of Angels
(1999) 20
Cal.4th 805
(Fukuda),
and that the court instead merely “rubber-stamped” the Board’s
decision. Contrary to appellant’s claim, the trial court
specifically stated that it had independently reviewed the
administrative record and, based on that review, it was uncertain
whether Evans had kicked Gettler. Appellant therefore had failed to
carry his burden of convincing the court that the administrative
findings were contrary to the weight of the evidence. (Fukuda,
supra,
20 Cal.4th at p. 817; Breslin,
supra,
146 Cal.App.4th at p. 1077.) The trial court did not fail to exercise
its independent judgment.
Appellant
further contends that the findings made by the Board were so lacking
in evidentiary support as to be inherently improbable and
unreasonable. We disagree.
The
Board’s findings relied on physical evidence and the testimony of
several eyewitnesses who testified that they did not see Sergeant
Evans kick Gettler. Sergeant Hernandez and the two DoubleTree
employees who witnessed the incident, Adrid and Perez, did not see
any kicks. The Board also noted that the photo of Gettler did not
show any dirt on his white shirt that would have indicated he was
kicked in the clavicle area. The Board also relied on appellant’s
failure to report the kicks despite several opportunities to do so,
citing Sergeant Jackson’s testimony that appellant did not report
the kicks when he was first interviewed about the use of force, as
well as appellant’s failure to report the kicks to Lieutenant
Grossman. In addition, the Board found that appellant had a motive to
make false allegations against Sergeant Evans, based on her testimony
that appellant would receive an unsatisfactory rating if he did not
improve his performance.
Even
if the Board had not found the evidence listed above persuasive,
Sergeant Evans herself testified that she did not kick Gettler. Her
testimony alone would have been sufficient to support the Board’s
findings. (See People
v. Fierro
(2010) 180
Cal.App.4th 1342,
1347 (Fierro)
[stating that "`unless the testimony is physically impossible or
inherently improbable, testimony of a single witness is sufficient to
support a conviction'"].)
There
is substantial evidence in the record to support the Board’s
finding. The Board simply found appellant not credible and thus
implicitly found Sergeant Evans credible. Credibility determinations
are within the province of the trier of fact. (Fierro,
supra,
180 Cal.App.4th at p. 1347.)
DISPOSITION:
The
judgment of the trial court, denying appellant’s petition for a
writ of administrative mandamus, is affirmed. Respondents shall
recover their costs on appeal.
MANELLA,
J. and SUZUKAWA, J., concurs.
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