Professional Documents
Culture Documents
Dorner California Appeals Court Brief
Dorner California Appeals Court Brief
B225674
IN THE
COURT
OF APPEAL SECOND
OF THE
STATE DISTRICT 4
OF CALIFORNIA
APPELLATE DMSION
CHRISTOPHER Appellant,
V
DORNER,
Superior
Court
) ) )
POLICE)
Hon. David P. Yaffe, Judge of the Los Angeles County Superior Court
Respondent
) ) ) ) )
APPELLANT'S
OPENING
BRIEF
LAW OFFICE OF DAVID J. DUCHROW David J. Duchrow, State Bar No. 105617 Jill A. Piano, State Bar No. 193930 501 Santa Monica Boulevard, Suite 505 Santa Monica, California 90401 Telephone (310) 395-5511 Fax: (310) 395-6677 Attorneys for Appellant CHRISTOPHER DORNER
CASE
NUMBER
B225674
IN THE
COURT
OF
APPEAL
OF
THE
STATE DISTRICT 4
OF
CALIFORNIA
SECOND
APPELLATE DMSION
CHRISTOPHER Appellant,
V
DORNER,
County 120439
Superior
Court
) ) )
POLICE)
Hon. David P. Yaffe, Judge of the Los Angeles County Superior Court
Respondent
) ) ) ) )
APPELLANT'S
OPENING
BRIEF
LAW OFFICE OF DAVID J. DUCHROW David J. Duchrow, State Bar No. 105617 Jill A. Piano, State Bar No. 193930 501 Santa Monica Boulevard, Suite 505 Santa Monica, California 90401 Telephone (310) 395-5511 Fax: (3 I0) 395-6677 Attorneys for Appellant CHRISTOPHER DORNER
TABLE
OF CONTENTS
Table
ii 1 2 24 24 24 26 26
I. INTRODUCTION II. STATEMENT III. PROCEDURAL IV. V. VI. STATEMENT STANDARDS SUMMARY
VI. ARGUMENT
The
Superior
Court
Erred
in
Denying
the
for of 26
Court
Findings So
of Rights
Support
30 38 COUNT 39
CERTIFICATE
-i-
TABLE
Cases Antelope Breslin Valley Press v. Poizner
OF AUTHORITIES
(2008)
25
v. City and County of San Francisco 146 Cal. App. 4th 1064 v. City of Los Angeles v. City of Orinda (1980) (2002) (2000)
Brown
DiMartino Estate
of Larson
Kemp Bros. Const., lnc. v. Tital Elec. Corp. (2007) 146 Cal. App. 4th 1474 Kuhn v. Dept. Lopez of General Services (1994) O_ce 22 Cal. App. 4th 1627 (2008)
31 31
v. lmperial County Sheriffs 165 Cal. App. 4th 1 v. City of Fountain v. Superior Fletcher,
Valley (1981)
Court (1991)
Corp. (2003)
v. City of Rialto
Statutes California California Code of Civil Procedure Evid. Code 500 904.1 (a)(1) 1, 24 27
-ii-
APPELLANT'S
OPENING
BRIEF
AND
STATEMENT
OF THE denying
he sought of Rights.
Department
Board
Court judgment.
The matter
is an
Christopher
Police
as an officer] earning
during his
many honors
with his mentor he came forward Dorner was accused the arrest;
sergeant)
and a sergeant
from Intemal
the use of force. false statements, Affairs; first to the sergeant in a personnel
investigating complaint.
second,
to Internal
and third,
of Rights
hearing
was conducted.
the
its decision
the Board or
of Rights not.
stated that it could not determine contends that in sustaining the Board
Appellant
the charges
misapplied
the burden
Record of Facts,
will be detailed
essentially
requiting
Appellant
contrary
to
of the charges
also contends
findings it relied
by substantial improbable,
evidence, which
negates
of substantial
of law. Appellant contends that the Superior Court erred by of proof; the factual by and by findings;
burden
regarding
Court's
seeks reversal
to his
OF FACTS 2
with LAPD
after
guilty of three charges: "Count 1. On or about August statements to sergeant 10, 2007, D. Deming, you, while on who was
false
an official 2.
"Count
Record [volume,
numerals]/[page]/[lines] In addition to the testimony, Appellant will lodge a single volume containing the documents from the administrative hearing, including all exhibits and the Rationale of the Board of Rights for its decision. -2-
duty, made false statementsto Detectives S. Gallegos and T. Lai, who were conducting an official investigation. "Count 3.
duty, made known a personnel
On or about August
complaint
10, 2007,
you, while
on
or should
have
was false."
(AR I/5/10-21)
Officer
Christopher Appellant
LAPD
began
in February,
He was relieved
Southwest which
Division.
Before
February,
in May, 2006,
returning unit.
the Board
considered
personnel active
which
included
"a certificate
of release
or discharge
Chris Domer
in the or Global
Declaration authorized
Citations
Service
Medal,
Service Forces
Medal, Reserved
Overseas Pistol
Inservice Pistol as
Marksman
- Special
Marksman." well.
(AR V/219/17
- 220/2)
(AR V/221/7-14) When he retumed under from military training Officer service, Teresa Domer Evans. was assigned (AR III/96/22 to -
Harbor 97/8)
Division,
Domer Evans.
in the patrol
car,
received a radio call for a man refusing to leave the Doubletree Hotel. Domer and Evans discussedthe tools available to them, including a Taser andpepper spray. (AR 1II/99/1-23) Upon arrival they observedthe suspect,Christopher Gettler. Domer approachedthe suspect. When they were about 15 feet from the suspect,he noticed him sitting on a wooden bench,just staring straight ahead. (AR II1/100/7- 101/4) Dorner testified that he tried to talk to the suspect,but he was not responding. He usedhis right hand to grip the suspect's right wrist, and askedhim to stand up. They startedto walk northbound away from the bench. The suspectwas between Domer andEvans. Evans was standing on the suspect's left side. (AR II1/101/13 - 102/11) The suspectsuddenly stopped and stiffened up. The suspectlooked at Evans and swore at her. Evans then grabbedthe Taser from Dorner. The suspect's left hand clenched into a fist. Domer believed the suspectwas going to strike Evans, so he tried to drag the suspectto the ground. The suspectonly went down to a knee, so Dorner pushedhim forward toward, but not in, the bushes. The suspectbeganto pushDorner, saying something unintelligible. Domer usedhis body weight to psuh him down becausehe was trying to control his hands. (AR 111/102/12 104/2) Dorner testified that he and the suspectfell into the curb near the planter box. Dorner tried to straddle the suspectto control his hands,but the suspectwas flailing. Dorner was able to grab the suspect's left hand. (AR 111/104/12-23) At that point, Dorner heard two Taser bursts. He did not seewhere Evans Tased the suspect.(AR III/120/11-14) all to being Tased.
himself (AR Ili/120/15023) (AR II1/105/1-4; -4-
Domer was able to control the suspect's left ann and cuff it, while the right arm was under the suspect. (AR IIU105/5-17) Domer recalled Evans going around the bushes,and getting between the bushesand the hotel wall, as shehad testified. Sheyelled at the suspect to give Domer his right arm. Shegrabbedhim by the back of his hair and yelled at him. At the time, the suspecthad no blood on his face. (AR III/106/2-10) At that point, Evans tried to get up. Domer could not did not want to get up, becausehe had an advantagewhere the suspectwas on the ground, with one hand cuffed. At that point, Domer saw Evans kick the suspect with her right foot, in the left clavicle. Shortly thereafter, shekicked him again with a harder kick to the left clavicle. (AR III/106/11-19; III/125/1424) The suspectturned and yelled at Evans. Shethen kicked the suspect in the face, on the left cheek. (AR IIU106/20-25) With the third kick, Domer felt the suspect's body jerk. (AR III/130/10-20) Domer testified that although he did not think the kick was necessary,it did fall within the useof force policy. (AR III/141/16-24) At that time, Domer had been gone from the Department for over a year, and hadnot beento reintegration training as he had requested. (AR III/142/1-6) It was stipulated that Domer had requestedreintegration training after his military service. (AR V/19/2-6, Accused Ex. E) At that point, Domer testified, he saw blood on the suspect's
under his cheek, which he attributed to Evans' kick to the suspect's compliant III/126/8-10) face face.
III/126/2-6) to cuff.
The suspect
became
(AR III/107/3-10;
handcuffed
Dorner
Officer
Hernandez arrive. Hernandez askedifDorner neededhelp. Hernandez helped get the suspectout of the bushes. (AR Ili/131/21 - 132/2) Dorner further testified that when Sgt. Jacksonarrived, he asked Dorner what he did, and Dorner answered. He did not tell Jacksonabout the kicks becauseJacksonaskedwhat he, Dorner, did during the use of force. (AR V/29/12-18) He also told Jacksonhe had heard Taser bursts. By the time Dorner thought he should mention the kicks, Jacksonwas alreadytalking to Evans. (All II1/136/17 - 137/15) Dorner believed at the time that Evanswould tell Jacksonaboutthe kicks. (AR V/32/5-11) Dorner did not tell Evans at the sceneto tell Sgt. Jacksonabout the kicks, becausehe had previously reported misconduct against someoneelse at the Department.
recruit a "nigger." While Dorner, in a van, two other recruits who is African-American Dorner were calling another told
by the (AR
He believed
and
friends.
W34/20-24) After the incident, asked Dorner She responded (AR III/151/1-3) kicks. would. as Evans and Dorner were driving away, Evans He stated yes.
He didn't
checked
room later and he started writing the report. Evans came in, andthe two had a disagreement. Dorner had written to the point where the suspect swore at Evans, and had written three sentencesafter that. They disagreed about whether the suspectwas trying to hit Dorner or Evans. Evans pressed the "delete" key and deleted several sentences,all the way back to where Dorner had written about the suspectswearing. (AR III/157/1 - 158/1) Dorner testified that Evans took over writing the report at that point. (AR III/2-7) Dorner doesnot believe the arrest report is accuratebecauseit does not mention the kicks. (AR III/16 I/11-18) Dorner wanted to speakwith someonein Internal Affairs, so on August 9, 2007, he called Sgt. Perez. He consideredPerezto be a mentor. (AR V/67/12-18) He told Perezabout three kicks. Pereztold him to "Stop right there." Perez instructed Dorner to go speakto a supervisor. (AR III/164/2-24; III/165/18 - 166/8) Dorner testified that when he spoketo Sgt. Perez, he told the truth. (AR V/8/15-17) He also told the truth to Deming when he spoketo him. (AR V/8/22-24) Also, in his administrative interview, Dorner told the truth. (AR V/9/8-12) Dorner also testified that he had spokento Evans several times after he returned from military service aboutreceiving reintegration training. He was told by one officer in the training trailer that probationary officers do not receive reintegration training. (AR III/168/l 1-19) When askedabout the evaluation which Evans had just completed for him, Dorner testified that althoughhe learnedthat someof his ratings were "improvement needed," he was more focusedon the overall "satisfactory" evaluation, which was what he neededto passprobation. (AR III/191/5-24) Dorner never received
-7any "unsatisfactory" rating from
any "unsatisfactory"
ratings
(AR V/70/1-3)
testified
that when
Sgt. Perez had testified 3 that Dorner with Evans, that he had hands. (AR
personal
problems in which
an incident
slapped
his (Dorner's)
she
that Long
police
had detained
violence
(AR V/12/2-24)
Department
had responded
violence
(AR V/142/9
with Evans,
which
he did not sure if it was warranted. into custody taken V/69/6 by dragging treatment
testified
that on the day of the incident, A" uniform, as Port Police Officer
short
sleeves, testified.
not a "Class
a tie.
(AR V/28/8-10) is
He is depicted wearing
3
short sleeves.
(AR V/28/11-29/9,
before
Dorner
did; Perez's
Hernandez testimony
had already
testified
before
Dorner
did.
Hernandez's
is summarized
below. -8-
Richard
Gettler, Richard
Sr. Gettler, Sr., testified. (AR IV/13/15-24) He is the father of the arrestee, He testified that his son, as a He described other
Gettler.
Sr., testified
"[G]ood
and always,
home.
(AR IV/15/4-11) Sr., testified that when he saw his son's you looked face when he
and he had a little line down here (indicating). Did you get in a fight?
asked him what happened. 'Then how did that happen? That's When when
he responded, where
he asked
it happened,
Christopher
(AR IV/16/21-24)
confirmed
pointed
he was sitting,
had happened
over there.
- 18/1) -9-
Christopher was also able to describeto his father that he had been kicked by an LAPD officer. (AR IV/18/2-14) Gettler, Sr., deniedto Christopher that he had beenkicked by an LAPD officer, andtold Christopher, "You got to tell me what were you doing wrong." (AR IV/18/15-17) Eventually he decidednot to go to police authorities to report the incident, since "they've been good to us all thoseyears and it's obviously just an accident." (AR IV/19/20-25) Gettler, Sr., said "I was scolding him after I found out about the secondtwo kicks. And I just told him, it's LAPD and we're not going to do anything." (AR IV/112/21-25) Mr. Gettler and Christopher went to Domer's trial counsel's office on December 8, 2008. A photograph of Christopher was taken. (AR IV/22/3 - 23/2, Accused Ex. F) The photograph depicted a quarter-inch mark on Christopher's face, on the spot on which he had been injured at the Doubletree. (AR IV/23/18-25; Accused Ex. F) Mr. Gettler was presentwhen Dorner's trial counsel interviewed Christopher on December 8, 2008. Christopher was having a good day, and was more lucid than he normally was. (AR IV/24/15-22) Eventually it was decided that the Board would have LAPD officers go to the Gettler home and bring Christopher in to testify. (AR IV/33/7-18) During the hearing, Gettler, Sr., respondedto a call that he received from home, and learnedthat Christopher was not at home. (AR IV/39/8-15) Eventually, Christopher Gettler was located, and was brought to the hearing and was questioned. (AR IV/84/10-22) When that questioning proved ineffective (seesummary of Christopher Gettler testimony, below), Gettler, Sr., continued his own testimony. (AR IV/100/15) Get-tier,Sr., testified that before Appellant's trial counsel interviewed Christopher, there was no coaching at all, and the only conversation betweentrial counsel and Christopher was an introduction. (AR IV/100/16-10-
25)
He further testified that when officers puffiness brought Christopher home
trial counsel
Sr., demonstrated
him that he had come out of the front of the hotel, bench to the left of the entrance, and west of the entrance. When incident, Gettler, and that something
north of the
entrance,
(AR IV/I 1I/i-17) by Det. Villanueva (AR IV/I 15/15-25) about the
he "just totally
Christopher
Gettler of the Board of Rights, "[W]e have seen that being able
As stated by a member even if you asked the questions, to say it is what 8) Gettler,
of [Christopher]
it is or it is what
(AR IV/96/4-
Sr., characterized
of Christopher, twenty
allowed audio/video 8,
of an interview
Gettler - 140/1)
recorded
December
and
played
In the recording,
Christopher
recalls -11-
having
contact
at the Doubletree
Hotel with police and being taken into custody. He recalled a struggle, and that during that struggle, he was kicked once in the face. He was kicked by a female officer. (ARV/145/1 - 147/7)
(AR 1/49/7-14) While Dorner was on probation, in his performance. Teresa ("Terri") his ratings were satisfactory and he
showed
improvement
officer
On that date, Evans Pedro about a man creating Evans observed testified
a disturbance.
(AR 1/68/19-23) arrived at the call, they to the hotel. - 124/1) from mental She
the subject
on a bench
adjacent
the subject
the influence."
Evans I1/126/2-3)
to Evans,
Dorner
made
initial contact,
The subject
comply
with Dorner's
walked
on a sidewalk,
- 79/10)
to Evans,
stopped 129/18)
AR I1/127/12
-12-
Evans further testified that the subjectswore at Domer, and swung his fight arm at Domer. Evans then unlaolsteredthe Taser which Domer
was wearing the Taser, "officer subject handcuff I1/129/19 and requested back up. (AR 1/80/2) After Evans unholstered
assistance"
(AR I1/141/1-7)
As Dorner
against (AR
testified
The suspect
on the ground
she deployed
in "close
(AR 1/85/17-19) that she then repositioned "in a crouching position" herself, and went into the
Evans bushes
testified
in the planter
controlling planter
the suspect.
box which
contained
were.
(AR I1/138/4-7)
after being
(AR I1/156/5-11)
in the planter
and assisted
in moving
it to the handcuffs.
(AR 1/88/15-20)
Evans circumstances, also testified would that a kick to the suspect's head, under the (AR
and "appropriate."
II/165/3-15) Evans also testified that after the suspectwas in custody, Sgt. Phil Jacksonarrived. (AR 1/89/10-20) Evans noticed that the suspecthad a laceration on his left cheek,and that blood was trailing toward his nose. (AR 1/90/1-17;
Evans Officer noticed, after the suspect was in handcuffs, Dept. Ex. 6) that a Port Police
arrived. Evans
(AR 11/140/21-25) that when Dorner she and Dorner believed were completing had swung the at
testified
use of force.
(AR I/105/5
only changes
to specific
during
also testified
about some of her evaluations Evans was Dorner's she completed required;"
Around
She testified
an evaluation August
as "improvement complained
to another
supervisor
However,
that evaluation
to Dorner
"satisfactory." as using
also describes
(AR 1/123/15-25) was upset about the complaint at a desk and restricted although Dorner made, since it caused with other
employers,
(AR 1/118/12-24)
reported
(AR I/119/6-8)
Christopher
Christopher Bellman
At the time
City Fire
1/132/6-8) on July 28, 2007 because the Doubletree. problems," Adrid a man was The
"mental
including
him to a
outside Adrid
(AR 1/133/17-25) arrive, although he failed to recognize (AR 1/134/15-21) Dorner and the suspect. (AR Domer
described tackle
between
Adrid
described
the bushes
(AR 1/141/18-24) and the suspect commands fell into the (AR
to Adrid,
to the suspect.
Taser came from "somewhere know how many times repeatedly suspect testified Evans
- 146/1)
that Evans
was "no more than five feet away" (AR 1/146/9-13; -151/180/25
when
- 181/2)
said that after the Taser was used,Evans went into the bushesto help.
Adrid bushes was told that Evans testified that she had gone between said he never the
(AR 1/181/11-15) After the suspect had a cut on his face. Although tape recorded "better," Adrid stating, shows changed "I would Adrid Adrid interview was handcuffed, (AR 1/147/17-21) testified that he saw Domer tackle the suspect, was his according to Adrid, the suspect
of October seeing
missed
(AR 1/149/4
- 151/24)
that he "did not have a clear and unobstructed (AR 1/152/23 - 153/1) Despite having Adrid what he
an "unobstructed"
could not
he
(Evans)
(AR 1/146/19
- 147/8; 1/170/13-17)
Sgt. Leonard
Perez Perez testified that he knew Dorner Perez through the U.S. to the
was instrumental
(AR I1/38/1-4) Perez recalled hearing Dorner describe -16an incident while Dorner was
in training. In that incident, Domer heard a classmateuse a racial epithet, and, when the classmaterefusedto stop using the epithet, Dorner reported the incident to a superior. (AR II/10/19 - 11/5) Pereztestified that on August 9, 2007 - the day before Dorner made the complaint about Evans - he had received messages, nd had returned the a messages and had spoken to Dorner. (AR I1/84/7 - 86/7, II/88/2-9; 11/92/28; Accused Ex. B2) They also spokeover the next several days. (All 11/90/5-14) Sgt. Perez said Dorner told him, beginning on August
an "incident" involving Evans; that Evans "had kicked 9, 2007, about either cut
while handcuffed,
the "kick,"
he could
since Perez
he could become
he needs
to tell a supervisor,
commander
or a supervisor,
(AR 11/13/1-13) that Dorner was telling him the truth. (AR II/35/20-
24) Perez I1/13/9-12; also recalled 11/17/1-9) the time when issues Perez knew Domer, about things. he never knew Dorner (AR 1I/31/3-9) Center, to that Evans had changed Dorner's report. (AR
or to embellish
Perez had a
during
ride-along
before
and conversations
(AR 1I/31/5-11)
-17-
Sgt. Eddie Hernandez Los Angeles become a sergeant Port Police five months Sgt. Eddie Hernandez before the hearing; testified that he had at the
he was an officer
when he heard the call at the Doubletree. he saw both officers crouched
(AR II/47/10-25)
he arrived, not.
As he got out of his car, the suspect up by Dorner. that Dorner (AR I1/50/2-9; had his "Class up."
handcuffed
recalled
(AR I1/50/13-19)
However, that
the Department
stipulated
short
(AR I1/72/2-19i
Accused
Hernandez 74/8)
that "Class
A" uniforms
Hernandez 5; II/62/8-13;
(AR 11/51/1-6;
11/60/1-
11/63/12-14) did not see Mr. Adrid when agreed that, if there he arrived. (AR I1/65/9-11)
had been _
(AR 11/67/16-25)
talking
Ashlye
Perez Ashlye Perez testified that she was employed (AR Ill/6/5-9, at the Doubletree 111/7/19-21) employees had seen the on
the date when the events Ms. Perez testified suspicious person in town
occurred.
who was "sweating," and shebelieved he was under the influence of alcohol or drugs, and that he was "mumbling to himself." (AR III/8/7-14) Ms. Perez said she stayedinside until after the officers f'trst contactedthe suspect,then she went outside andwas "worried about the guests" who were outside. (AR III/11/10 -12/13) Shedescribedthe suspectas being uncooperative, and the officers' attemptsto handcuff him. "Then all I remember after that - I don't know within how - the time frame, but they Taseredhim." (AR III/17-25) Then, the suspectfell to the ground, where the busheswere. (AR III/12/24 - 13/4) Ms. Perez testified that Evans usedthe Taser on the suspect"before" they were down in the bushes;andthat shewas "a distance away" when she did so. (AR III/36/3-13) Evans was "six feet away" from the subject at the time of the Tasing. (AR III/37/13-18) Shesaw "something fly out [sic;
of?.]the Taser and strike the subject." (AR III/36/14-16) Shesaw two objects fly from the Taser and strike the subject, both striking the subject at the sametime. (AR III/37/3-12) Ms. Perez testified that shedid not seeEvans kick the suspect. (AR III/20/10-15) In fact, "She wasn't anywherenearhim at that time." (AR III/20/l 5) She "never" observedEvans behind the bushes. (AR III/28/1113)
Ms. Perez being did not see the subject to the patrol in handcuffs, car. nor did she see him AR III/28/14back into see to get
16) She did not see the subject the hotel, trying them actually guests to get guests because so I didn't
being cuffed
she walked
as she testified,
"I didn't
cuffhim
see them cuff him and take him to the car. he was already in the car." (AR
-19-
Ms. Perezdid, at somepoint, seeblood on the suspect's face. (AR III/21/1-13) Shetestified that shesaw the suspect'shead hit a specific branch on the bushes. (AR 111/28/22 29/6) -
Sgt. Phil Jackson Sgt. Jackson time of the heating, testified that he was close to 37 years with LAPD were as a supervisor. at the
22 years of which
(AR Ili/40/3-6)
He was on duty on July 28, 2007, Doubletree other officers already Hotel. He arrived
to the call at the along with two or three The suspect was
when
Dorner,
Officer
(AR 111/40/10-22) first to Evans. then began She disclosed that she and Dorner had
Jackson
investigating
report
had
the
(AR 1II/48/17-
on Mr. Gettler's
He did not see any boot prints have appeared to have come
He saw some dirt on Mr. Gettler but "no boot or shoe marks." testified that he saw Evans report,
to be from
(AR II1/63/3-9) viewed photographs, showing that Dorner was wearing Ex. A) short
Accused
Jacksontestified that if a kick had beenused, it would have been justified, but not to the head. (AR II1/75/19-25) Jacksondid not believe the blood on the suspect's face was consistentwith being kicked. (AR Ili/77/16-22) But he could not be sure that a kick could not have causedthat cut to the cheek. (AR Ili/83/3-11)
Sgt. Julie Mclnnis Sgt. Mclnnis the hearing, Appellant's was employed by the LAPD for 14 years at the time of She had been 2007. (AR 1II/85/22 (AR -
(AR III/85/2-8)
86/3) She was also one of Evans's II1/86/7-19) Sgt. Mclnnis Domer military while testified
Evans
telling
her about
and assertive.
Evans officers.
in which
Evans
discussing
to the contrary,
a conversation
Sgt. Mclnnis
told her that he felt that the LAPD going to sue the Department Nor did Sgt. Mclnnis Dorner having "confiding" to Evans
was a "racist
after he retired.
(AR 1/119/7
with Evans
problems
adjusting
been deployed.
(AR II1/89/19-25)
Det. Shelly
Villanueva Villanueva for LAPD, testified holding that she is a Detective that position -21II working in
the heating. Sheis formerly known as Shelly Gallegos. (AR IV/36/23 37/20) Villanueva investigated the complaint madeby Dorner, in which he was accusedof making false statements. (AR IV/38/15-25) Villanueva spoketo witnessesbut did not speakto Christopher Gettler. (AR IV/41/13-25) Sheunderstoodthat Christopher would not be able to answer simple questionsand had mental issues. (AR IV/42/1-8) Shedid speakto Gettler, Sr., who was thankful toward her and saidthat every time the LAPD has come in contact with his son, that he knows his son is difficult to deal with, andknows that they bring him home when he's missing. Villanueva did not tell Gettler, Sr., that the investigation had anything to do with the kicking of his son. (AR IV/44/12-16) Villanueva also interviewed Ms. CaseyNixon, who had worked at the Doubletree Hotel, but who was found to be "unavailable" for the hearing. (AR IV/45/9 - 49/10) Over objection, Villanueva testified that Nixon told Villanueva that she did not seeeverything, and did not seeany kicks. (AR IV/49/19-25) Ms. Nixon had observedthe suspectbeing When Villanueva interviewed
Nixon, Nixon said shewas outside the entranceof the hotel but did not say exactly where she was standing during the incident. (AR IV/58/21-24) Villanueva never askedNixon if shesaw Evans between the wall and the bushes,or behind the bushes. (AR IV/62/15 - 63/8) Nothing in the written paraphrasingof the interview, which Villanueva was using to refresh her recollection, indicated that Nixon said anything about Evans standinginside the bushes. (AR IV/9-19) Villanueva also testified that Nixon said that the Port Police Officer drove away prior to the incident occurring. (AR IV/70/4-7) -22-
Villanueva testified that in her opinion, Dorner had made a false statementabout whether Evans had kicked the suspect;that was the only
false statement she had an opinion about. (AR IV/54/5-14)
Capt. Donald
A. Deming testified that on August Watch 10, 2007, Dorner Dorner contacted told Deming
s the Assistant
Commander.
delivered
face.
(AR 1/35/11
at having
to report
the misconduct
Deming
to promise believed
to Evans.
Deming
(AR 1/52/3-7) that he learned that within two to three months urinated on his lot. after
the misconduct
to Deming,
someone
in the parking
Sgt. Joel Sydanmaa Sgt. Joel Sydanmaa "penalty" phase. testified in support of Dorner during the (AR to
Sgt. Sydanmaa
was Dorner's
officer.
V/225/15-20)
He testified officers
in relation
other probationary
of time on
Deming
Lompoc Police Department, following his retirement as a Sergeant LAPD, the rank he held at the time of the events described herein. -23-
the job, it was his opinion that Dorner was "either averageor above average in all areas .... " (AR W226/13-18) He never believed that Dorner was upset about criticism, but insteadthat Dorner "was probably one of the more inquisitive Pl's that I ever had.... He was constantly asking
questions as to how he could improve, I believe he neededto improve on." (AR V/227/3-14) There was never any issueregarding Dorner's integrity. (AR V/226/13-19)
Administrative findings of Rights The Board found Appellant also recommended guilty of all three charges. termination from
(AR V/233)
III. Appellant Court. Yaffe, Superior of Entry The matter Judge timely
HISTORY for Writ of Mandate, 26, 2010 argument, in Department on May in the Superior 86, David P.
presiding. adopted
Court
its tentative
decision,
denying
the Petition.
of Judgment
was served upon the parties. filed a Notice of Appeal on July 7, 2010.
Appellant
timely
STATEMENT
appeals
V. The Court
STANDARDS reviews
OF REVIEW de novo the question of proof as a matter of law of whether of law. "In
of Appeal
the burden
-24-
disciplinary
administrative
of proving
the charges
rests upon the party making (2002) question 102 Cal. App. presented.
v. County de novo
We review
(Breslin
146 Cal. App. 4th 1064, (2008) 165 Cal. App. The Court review
1077.)"
v. lmperial
of Appeal
"We uphold
based
on inherently before
that is omitted]
to the issues
us." [emphasis
added, (2007)
of San Francisco
Review
imposed
by an administrative abused
agency
the agency
v. Poizner
(2008)
that of the trial court. 494, 500. The ultimate was procedurally are questions Court (1991) (2002)
v. City of Rialto
question unfair
of whether
or whether
an agency's
Rosenblit
3d 1434,
4th 155.
-25-
VI. SUMMARY OF ARGUMENT Appellant respectfully submitsthat the Board of Rights, and Superior Court, erred in incorrectly placing the burden of proof upon Appellant; and that the factual findings are not supportedby substantial evidence, since the evidence is inherently improbable or comesfrom witnesses who admittedly did not seewhat happened.
VI.
ARGUMENT
A.
The
Superior
the Petition
for
found
against
Domer.
In explaining
its
"The
Board
understands
issue
whether
kicks by Officer
Christopher occurred
a factual
to support of witnesses,
presented
to the Board.
(AR V/211/20
evidence
review
in an administrative whether
mandamus
case body
the administrative
committed errors of law in applying the facts before it. (See City and
County of San Francisco v. Board of Permit Appeals (I 989) 207 Cal. App. (2007) 146
of San Francisco
1078, fn.14. question of whether the trial provided proceedings by the agency were unlawful v. Superior
unfair
or whether
an agency's de novo
of law to be decided
on appeal.
Rosenblit
as otherwise
of to
proof
or nonexistence
is essential Evid.
that he is asserting."
Code
the charges
v. Merit System
Commission
in
employee'
make
Department burden
of the evidence. i.e., that the kicks the kicks did not
occurred;
to prove
Occur.
Court
on the part,
states in relevant
by petitioner
the suspect,
[Appellant 4 - p.
to prove
otherwise." added)
(Appellant's
Appendix,
p. 9 paragraph
1, emphasis
was alleging
as the error.
He alleged
that they did not occur. During argument in the Superior officer Court, the Court [Evans] kicked stated, "I don't I
the female
she did."
Thus,
the burden
of disproving
reversal. one court has stated: of key terms: Attorneys, burden and they of proof
of proof,
"We begin with a discussion and burden commentators represent. of producing evidence.
judges,
As the United
two distinct
used to refer to what we now call the burden notion that if the evidence of persuasion is evenly
persuasion--the party
balanced,
party's obligation to come forward with evidence to support its claim.' (Director, Office of Workers'Compensation
Greenwich Evidence Collieries (1994) Programs v.
512 U.S. 267, 272; see 2 McCormick, of Proof, 8 336, p. 409.) of persuasion are of
of proof
and burden
(1 Witkin,
Cal. Evidence
8 3, p. 157; 2 McCormick,
Evidence, usage
of Proof, we
8 336, p. 409.) Because use that term here. "'Except of proof essential Code,
the California
is 'burden
of proof,'
as otherwise
provided
8 500.)
To prevail,
evidence
degree
of the evidence).
(Evid.
8 500; v. Santa
Dept.
97 Cal .App. 4th 546, 569; 2 McCormick, of Proof, 8 336, pp. 409-410.)" 110 Cal. App. 4th 1658, at
supra,
Burden
1666-1667. The Department did no_.._!t occur, repeated error. failed to meet its burden upheld the charges. of proving that the kicks Court based upon that
that error.
respectfully
requests
-29-
B.
Court
Erred
of the Board
of Rights
Court
evidence"
if the findings
evidentiary
the fmdings
decision
substantial
supporting omitted]
findings.
[footnote
and citations
substantial evidence,
indulging
in favor of the [citations reveals the trial the the that they
findings
and resolving
in its favor.
The question
on appeal is whether
the evidence
conclusion
fmdings findings
We uphold support
based
on inherently
evidence
to the issues
us." [emphasis
citation
of San Francisco
evidence"
with "any"
evidence. The
v. City of Orinda
substantial evidencerule "does not meanwe must blindly seizeany evidencein support of the respondentin order to affirm the judgment. The Court of Appeal was not created.., merely to echothe determinations of the trial court. A decision supportedby a mere scintilla of evidence need not be affm-ned on review." Kuhn v. Dept. of General
Cal. App. 4th 1627, The "substantial trial court actually actually resolved 1633. evidence" rule is based on the assumption the evidence that the and thus Services (1994) 22
of weighing
demonstrates
otherwise,
merely
the trial court might have ruled against Inc. v. Tital Elec. evidence Corp. (2007)
Const.,
146 Cal. App. 4th 1474, when factual the trial issues.
all relevant
evidence
of Larson
(1980)
of Fukuda
of weighing
of the administrative
"I'm
supposed
that the administrative I can find something that they didn't, wrongly,
tribunal in the
got it right,
to indicate
to to go
satisfied
here under
the Supreme
-31-
The Department has, andwill likely, argue that although the Superior Court was required to exercise its independentjudgment in this case,that the administrative decision is "presumed correct," citing to Fukuda
of Angels (1999) 20 Cal.4th 805. But one must be careful v. City
to mean
is sufficient
evidence
below.
is that a petitioner
has a responsibility
to point out to the reviewing objectionable Supreme search sifting Court findings
therefore.
in Fukuda
conclusion, be entitled
under
which at
determinations
would
in Drummey, supra,
in Dare,
implicitly
the Legislature numerous independent of correctness challenging convincing the weight Fukuda, 20 Cal.4th judgment the challenged or conclusion judgment
in section
reaffirmed
opinions
including
Bixby,
In exercising a strong
judgment, concerning
findings,
the administrative
the court that the administrative of the evidence. at 817. Thus, the Superior
are contrary
Court's Rather,
its has
is erroneous,
to exercise by the
independent
unrestricted
agency'sprior decision. There is no requirement that the Superior Court give any preferential or deferential treatment to the agency's findings. "On factual issues,the trial court had a duty to weigh the evidence andto exercise its independentjudgment on the facts. In so doing, it was assistedby the commission's work in sifting the evidence and making its findings, which cameto the trial court with a strong presumption of correctness.[citations omitted] In the trial court, the officers had the burden of proof to show that the commission's decision was not supportedby the weight of the evidence--that is, that the decision was not supportedby the preponderanceof the evidence. [citations omitted] The presumption of correctnessis the starting point for the trial court's review, but this rebuttable presumption may be overcome by the evidence. When applying the independentjudgment test, the trial court may reweigh the evidence and substitute its own f'mdings for those of the commission, after first giving due respectto the commission's findings." [citations omitted]
Breslin 1077. Against evidence, provide because that legal background, it must be concluded and Christopher that the Gettler, does not and to v. City and County of San Francisco (2007) 146 Cal. App. 4th 1064,
Evans
because
it is inherently
improbable
the witnesses,
see anything,
or were not on the location does not rely simply testimony should
to show that
be afforded means
Evans, it will be recalled, testified that sheunholstered the Taser which Dorner was wearing andrequestedback up. (AR 1/80/2) She testified that she twice usethe Taser on the subject. (AR 1/84/7-19, 1/85/38) The suspect I1/154/10-12) contact." was already on the ground when she Tased she deployed him. (AR in "close
the Taser
(AR 1/85/17-19) Adrid, the Bellman who became person, a firefighter, testified " (AR
Christopher that the Taser 1/180/8-11) feet away" 1/180/25 issue. Although tape recorded "better," Adrid stating, shows
that Evans
- 181/2)
His testimony
Adrid interview
testified
tackle
his
of October seeing
his memory
- "I missed
missed
Adrid's
is inherently
according
missed
missed
the tackle
His testimony
evidence"
evidence" testified
kicked
and picked
He was not on the scene at the time. kicks prior to his arrival,
agreed
had been _
he would
-34-
I1/67/16-25) Hernandez never askedif anyonehad been kicked. (AR I1/68/1-3) It is also at least questionablewhether Sgt. Hernandez knew who or what he was seeing. He was very clear aboutDorner's tie being "messed up" at the scene. (AR II/50/13-19) However, during cross examination of Hernandez,the Department stipulated
sleeves. uniforms Dorner (AR 11/72/2-19; - the uniforms would Accused that Domer was wearing agreed short A"
Ex. A) Hernandez
that "Class
Sgt. Jackson
another
Doubletree
Ms. Perez's
testimony
does not rise to the level of being improbable nature. According to Ms.
at the time of the Tasing. said that she administered Ms. Perez further
(AR II1/37/13-18)
fly out [sic; of?.] the Taser and strike the fly from the Taser and
refutes
(AR 111/28/11-
Ms. Perez
in handcuffs,
being led from the bushes 16) Thus, gone, to the extent
(AR 1II/20/16-24;
or not paying
attention
The Department also presentedhearsaytestimony l_om Internal Affairs Detective Villanueva, who interviewed another Doubletree employee. Even that testimony is not "substantial," sufficient to sustainthe Board's findings. Over objection, Villanueva testified that Nixon told Villanueva that she did not seeeverything, and did not seeany kicks. (AR IV/49/19-25)
ground.
Ms. Nixon
the suspect
(AR IV/50/2-8)
Villanueva
interviewed
the entrance
during
the incident.
Det. Villanueva
between
or behind of
- 63/8)
Nothing
paraphrasing
standing
(AR IV/9-19)
herself,
went into the bushes. Police Officer There Evans kicked drove were
also testified
Gettler,
and two of them said Evans accused it. which with using
Gettler.
the force in an
has no direct
bearing
on
Evans
schizophrenia, records
relationship receipts,
between
telephone
prior
and subsequent
of retaliation,
shrubbery, evidence
of whether
of Dorner
and Gettler.
of whether
Usually, when a person is accusedof assaultinganother,there are two stories: the story by personwho did the hitting, andthe story by the person who was hit. In that situation it can be very difficult to decidewhat really happened. But this caseis different. In this case,there is a witness, one who might be expectedto automatically take the side of his superior: the probationary subordinate, Officer
silent, became Dorner. When Dorner holding initially remained
but soon knew that it was wrong. too much, and at the urging Dorner
in that knowledge
of his mentor,
was accused
of making
the suspect
a hearing
the Board
It would officer's
by the victim
subordinate
about Gettler
and being
a poor witness.
to the Department. and with police. had to lie low. Better of Rights showed evaluation
But Gettler
be more
in the future. by
need to antagonize
the police
some areas where in some areas, even knew he needed Reserve, that
Dorner's though
was "Satisfactory."
Dorner
after he returned
from his tour of duty with the Naval Also, Dorner had not even received Evans's kicks. reverse
Appellant Court,
respectfully
findings -37-
the evidence, and grant the petition for administrative mandamus. VIII. CONCLUSION
Appellant respectfully requeststhis Court to reversethe Superior Court's decision denying the petition for writ of administrative mandamus for the reasonsset forth above. Dated: January 27, 2011 LAW OFFICE OF DAVID J. DUCHROW
BY: ___uc_ow_'J
Attorneys for Appellant
-38-
COUNT 14(c)(1))
The WordPerfect
text X3
of this word
brief
consists
words
as coumed the
processing
to generate
Dated:
January
27, 2011
BY: DAVID
-39-
PROOF
OF SERVICE
I am employed in the County of Los Angeles at 501 Santa Monica Boulevard, Suite 505, Santa Monica, California 90401-2443. On the date of mailing, I am over the age of eighteen, described action. On January APPELLANT'S 28, 2011, I served and not a party to the above-
OPENING
thereof
I am "readily familiar" with the firm's practice of collection and processing correspondence for mailing. Under that practice it would be deposited with U.S. postal service on that same day with postage thereon fully prepaid Los Angeles, California in the ordinary course of business. I am aware on motion of the party served, service is presumed invalid if postal cancellation date or Postage meter deposit for mailing in affidavit. at that
Executed on January 28, 2011, at Santa Monica, California. I declare under penalty of perjury under the laws of the State of California that the above is true _t_d correct.
/ /
c o4.
David J. Duci[row
/q
-40-
ATTACHMENT
DORNER To the Respondent: Gail D. Peterson, Esq.
TO PROOF OF SERVICE
Office of the City Attorney 201 N Los Angeles St #301 Los Angeles, CA 90012 To the Appellant: (confidential To the Trial address provided Court: to counsel)
Hon. David P. Yaffe Los Angeles Superior 111 N. Hill Street Los Angeles, Four Copies Court
CA 90012 to:
Clerk, California Supreme Court 350 McAllister Street San Francisco CA 94102-7303
-41-