Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
APPEAL from the Superior Court of Riverside County. Gloria Connor Trask, Judge. Affirmed. Super.Ct.No. RIC490692
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.
OPINION
RICHLI J.
On April Fool’s 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 sheriff’s 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 Hernandez’s 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 Hernandez’s 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 court’s 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 Sheriff’s 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 Fool’s Day Incident.
On April 1, 2006, Hernandez’s 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 you’re 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 “didn’t need [Coogan]’s help,” and Coogan left the field.
Dana’s 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 pitcher’s mound, and she was behind the dugout. Dana’s mother, however, testified that they were only about five feet apart. Dana replied, “[Y]ou’re on probation and you really shouldn’t 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.” 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]e’s really going to get in trouble for this one.”
McKay was a reluctant witness on this point. She testified, “I don’t like doing this and I just have to be truthful and I’m sorry.” She said she “care[d]” about Hernandez; she apologized for getting “upset.”
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, Hernandez’s girlfriend testified that, while Dana was on the phone, she overheard Dana’s mother asking, “‘Why would you do this?’” Dana replied, “Well, if I can prove it.”
In 2007, Hernandez married witness Jennifer Hernandez. On April 1, 2006, she was with him at the game, presumably as his girlfriend.
In the 911 call, Dana reported that her ex-husband was a sheriff’s deputy, that he was threatening her, that he was on probation, and that he was violating a restraining order.
There had been a restraining order against Hernandez, but it had expired in 2004.
Within about five minutes, Officer Steven Whittington arrived; Officer Matthew Mozingo arrived seconds later. First, the officers spoke to Dana. She told them about Hernandez’s 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]he’s 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.” 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.”
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.
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, “‘You’re 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. Hernandez’s Termination.
Dana then filed a complaint against Hernandez with the Department; so did her mother and sister. As a result, Sergeant Erick Schertell was assigned to conduct a personnel investigation.
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, Dana’s 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.
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 Dana’s 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 Hernandez’s cell phone, and he handed it to her: “I had [Hernandez] standing right there with me, so I couldn’t 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 Hernandez’s 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:
Date
Misconduct
Penalty
1
Nov. 1996
Preventable traffic collision
Written reprimand
2
May 1998
Conducting an improper investigation
8-hour pay reduction
3
May 1998
Being tardy to work
Written reprimand
4
Nov. 1998
Rude and discourteous conduct
Written reprimand
5
Dec. 2000
Inefficiency and negligence of duty
No discipline
6
Apr. 2002
Conduct unbecoming
24-hour pay reduction
7
Jun. 2002
Accidental firearm discharge on duty
24-hour pay reduction
8
Oct. 2002
Sleeping on duty
8-hour pay reduction
9
Jan. 2003
Being tardy to work
Memorandum of counseling
10
Feb. 2003
Preventable traffic collision
24-hour pay reduction
11
Mar. 2003
Sleeping on duty
24-hour pay reduction
12
Jul. 2004
Neglect of duty; two instances of discourteoustreatment; two unreported accidental firearmdischarges off duty
45-hour suspension
13
May 2005
Misdemeanor with job nexus and discourteousconduct
220-hour pay reduction
14
Jul. 2005
Failure to properly perform duties
8-hour pay reduction
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 Dana’s report that Hernandez had accidentally discharged his firearm at home twice. The May 2005 discipline arose out of Hernandez’s tape recording of a conversation with Dana, as mentioned earlier.
Hernandez had also received the following honors and commendations:
Date
Conduct
Honor
1
1998 or 1999
High number of arrests and convictions
“‘Officer of theQuarter’” award
2
Apr. 2003
Participation in rescuing child from “theline of fire”
“Medal of Courage” award
3
June 2003
Participation in successful response to burglaryin progress
Commendation memo
4
May 2005
Successful investigation and handling of possiblechild abuse incident
Commendation memo
5
June 2005
Investigation of kidnapping, rape, and vehicletheft
Commendation
6
Aug. 2006
Participation in successful investigation of“‘Chop Shop’”
Commendation memo
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 employee’s 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 child’s 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 Arbitrator’s Reliance on Hearsay.
The transcript of an interview with Leanne Gatrell was admitted into evidence, “with the caveat that [it’s] 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 Gatrell’s hearsay statements.
The relevant memorandum of understanding 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 Sheriff’s Association of Riverside County, art. XII, § 16(B), p. 51, at [as of June 18, 2009].)
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.
Here, however, as the arbitrator found, there was ample other non hearsay 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. Dana’s mother testified that, before the police arrived, Hernandez “said that you slept with all your students and I’ll take it to court..., and if you ever try to control my children again,... I’ll 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 Gatrell’s hearsay statements; because those statements supported Dana, the arbitrator’s 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 court’s denial of the petition.
We therefore conclude that the arbitrator did not improperly rely on hearsay.
B. Hernandez’s Challenges to the Nonhearsay Evidence.
Hernandez therefore argues that the testimony of Officer Whittington, Julann McKay, Dana’s mother, and Dana herself did not constitute substantial evidence.
1. Standard of review.
“Where, as here, a case involves a police officer’s vested property interest in his employment, the trial court is required to exercise its independent judgment. [Citations.]” (Barber v. Long Beach Civil Service Com. (1996) 45 Cal.App.4th 652, 658.) “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 Angeles County 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 court’s findings if substantial evidence supports them. [Citations.] In reviewing the evidence, an appellate court must resolve all conflicts in favor of the party prevailing in the superior court and must give that party the benefit of every reasonable inference in support of the judgment. When more than one inference can be reasonably deduced from the facts, the appellate court cannot substitute its deductions for those of the superior court.’ [Citation.]” (Hansen Brothers Enterprises, Inc. v. Board of Supervisors (1996) 12 Cal.4th 533, 578.)
In his statement of facts, Hernandez, citing the trial court’s 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].)
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 Whittington’s 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 Diego County Civil Service Com. (2005) 132 Cal.App.4th 1150, 1155.)
McKay’s 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 Dana’s mother) was unreliable, due to “extreme bias and faulty recall.” Again, the arbitrator did acknowledge that Dana’s testimony was not “completely credible and accurate.” Nevertheless, he was entitled to accept portions of Dana’s testimony, while rejecting other portions. More to the point, the trial court, exercising its independent judgment, was entitled to accept any or all of Dana’s testimony. That testimony was not physically impossible or inherently incredible.
Hernandez points to instances in which Dana’s 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, Dana’s 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 Dana’s 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 Dana’s 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 Dana’s 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.’”
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.
In any event, the arbitrator’s 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 arbitrator’s 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 [Dana’s] 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 provocationhe 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.
“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.
Similarly, in arguing that there was insufficient evidence to support the arbitrator’s 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 [Dana’s] 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....”
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]he’s a teacher and she sleeps with her students.” Two or three parents later reported overhearing Hernandez making this accusation to the officers.
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.
Hernandez’s only justification for bringing this up to the officers is that it was supposedly relevant to Dana’s “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 Hernandez’s 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, Hernandez’s 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. Rancho Santiago Community College Dist. (2004) 119 Cal.App.4th 584, 591.) “Judicial review of an agency’s assessment of a penalty is limited, and the agency’s 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 court’s determination of the penalty assessed, giving no deference to the trial court’s determination. [Citation.]” (Flippin v. Los Angeles City 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 employee’s 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 Dana’s mother calling him an ass. Coogan’s presence did not constitute provocation; Hernandez does not even argue that it did. While Dana’s mother’s 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 Hernandez’s 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 employee’s 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 defendant’s 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. We cannot say that the Department’s reasoning was irrational, arbitrary, or capricious.
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.
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. 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. Dana’s involvement in no way excuses these instances of genuine misconduct.
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.
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 Department’s 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.
We concur: HOLLENHORST Acting P.J.KING J.
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.
In any event, “we may not impeach the trial court’s 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 court’s oral comments as a basis for reversal. In that situation, reviewing the trial court’s 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.)
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.