Filed 7/9/15 Johnston v. City of L.A. CA2/3
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION THREE
KEVIN JOHNSTON, B256396
Plaintiff and Appellant, (Los Angeles County
Super. Ct. No. BS139869)
v.
CITY OF LOS ANGELES et al.,
Defendants and Respondents.
APPEAL from a judgment of the Superior Court of Los Angeles County, Luis A.
Lavin, Judge. Affirmed.
Fullerton & Hanna and Lawrence J. Hanna for Plaintiff and Appellant.
Michael N. Feuer, City Attorney, and Paul L. Winnemore, Deputy City Attorney,
for Defendants and Respondents.
_________________________
Appellant Kevin Johnston was discharged from his position as a Los Angeles
Police Department (L.A.P.D. or Department) officer after a Board of Rights (Board)
found him guilty of two counts of misconduct: (1) writing an inaccurate report, and
(2) making false statements during an official investigation. Johnston filed a petition for
administrative mandate in the trial court, alleging, inter alia, that the weight of the
evidence did not support the Board’s conclusions. The trial court denied Johnston’s
petition, and he appeals its ruling. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
1. The traffic stop and seizure of marijuana
Officers Johnston and Howard Lu worked in the L.A.P.D.’s Hollywood division.
On February 15, 2011, the officers were assigned to work together for the first time.
Johnston had been an L.A.P.D. officer for approximately five years.
At approximately 9:10 a.m., the officers were on patrol in West Hollywood, with
Johnston driving. They observed a Honda Civic driven by Dilzia Newman. After
determining that the vehicle’s registration was expired, the officers pulled the Honda
over. Alphnia Boone, Newman’s fiancée, was a passenger in the Honda. Johnston
approached the driver’s side, discussed the expired registration with Newman, and
returned to the police car. Lu then issued Newman a citation for the expired registration,
while Johnston moved to the vehicle’s passenger side, acting as the “cover” officer.
Johnston told Boone he smelled marijuana in the car. Boone volunteered that she was in
possession of marijuana. Johnston ordered Boone out of the car, handcuffed her, issued
her a citation for marijuana possession, and released her. She remained handcuffed for
approximately 30 minutes. Johnston seized a prescription-style bottle containing
marijuana from Boone.
2. The citizen complaint and investigation
While the foregoing facts were undisputed, Johnston’s treatment of Boone during
the stop, and the circumstances of his seizure of the marijuana, were not. After the traffic
stop, Johnston prepared a “property report” documenting the incident. It stated in
pertinent part: “I contacted the front passenger who advised me that she was in
2
possession of a small amount of marijuana. The passenger then produced an orange
plastic bottle from her left front pants pocket containing less than one ounce of
marijuana. I recovered the bottle from her and cited her” for possession of less than 28.5
grams of marijuana, an infraction. (Health & Saf. Code, § 11357, subd. (b).) Johnston
“held the marijuana as evidence” and booked it at the Hollywood station.
Within an hour of the traffic stop, Boone and Newman went to the Hollywood
L.A.P.D. station to complain about Johnston’s treatment of Boone. According to
Boone’s subsequent testimony at the Board hearing, Johnston, among other things,
conducted a pat search of Boone’s person while she was handcuffed, including her breast
and thigh area, and remarked that she did not “feel like a man.” He retrieved the
marijuana container from her pocket while she was handcuffed.
L.A.P.D. Internal Affairs Detective Christina Frus investigated Boone’s
allegations of biased policing and discourtesy. Frus interviewed Johnston, Boone,
Newman, and Lu. As a result of Frus’s investigation, the allegations of biased policing
and discourtesy were apparently determined to be unfounded, but Johnston was charged
in a formal complaint with two counts: writing an inaccurate report while on duty on
February 15, 2011, and making false statements to Frus during the official investigation.
3. The Board of Rights hearing and Johnston’s discharge
Johnston’s Board of Rights hearing1 commenced on July 16, 2012. The following
evidence was adduced at the hearing.
1
A “ ‘Board of Rights’ is an administrative tribunal charged under the Los Angeles
City Charter . . . with the adjudication of charges of police officer misconduct. [Citation.]
At the conclusion of a Board of Rights hearing, the board is required to make a finding of
‘guilty’ or ‘not guilty’ on each charge and to prescribe, for any positive finding of
misconduct, a penalty from a specified range of disciplinary options including reprimand,
suspension, demotion, and dismissal. [Citation.] The Los Angeles Chief of Police . . .
has the discretion to accept or reduce, but not to increase, any punishment recommended
by the Board of Rights. [Citation.]” (Mays v. City of Los Angeles (2008) 43 Cal.4th 313,
317.)
3
a. Boone’s testimony
Boone testified as follows. She saw the officers stopping another car, and made
eye contact with Johnston. The officers then pulled Newman’s car over. Johnston asked
Boone for her identification, and Boone ignored him. When Johnston repeated his
request, Boone asked why he needed her information. Johnston replied, “ ‘Because I said
so.’ ” Boone gave him her driver’s license. When Johnston returned to the passenger
side window, Boone asked for her license back. Johnston replied that he would return it
when he was ready, and asked Boone if she had “ ‘an attitude.’ ” He told her she “should
learn how to talk to men.” After some additional discussion along the same lines, Boone
rolled up her window. Johnston knocked on the window, asked why Boone was
“harassing” him, and queried, “ ‘Well, did I harass your wife when I smelled weed in the
car[?]’ ” Boone volunteered that she had medical marijuana in her pocket, and touched
her left pants pocket. Johnston told her to exit the car and placed her in handcuffs.
Boone was upset and agitated, and may have responded with profanity. Johnston then
conducted a pat search of the outside of Boone’s clothing, including her breast and thigh
area, and stated that she did not “feel like a man.” Johnston did not detect the marijuana
during the search, and Boone told him it was in her pocket. Either Lu or Johnston then
retrieved the bottle from her pocket. Boone did not remove the marijuana from her
pocket while she was seated in the car, and did not place it anywhere within the interior
of the car. She never handed the marijuana container to Johnston. However, she did
reach into her pocket and remove a medical marijuana recommendation form while
seated in the car.
b. Newman’s testimony
Newman testified that after Boone volunteered she was in possession of medical
marijuana, Johnston ordered Boone out of the car, handcuffed her, and conducted a pat
search of Boone’s waist or pocket area. Newman saw Johnston reach into Boone’s left
pants pocket and retrieve the marijuana bottle. Boone did not place the marijuana on the
car’s center console or give it to Johnston before getting out of the car. Newman did not
4
see Johnston pat search any part of Boone’s body except the pocket area from which the
marijuana was recovered.
c. Lu’s testimony
Officer Lu testified that after he issued Newman the citation for the expired
registration, Boone became “belligerent” and stated that she had medical marijuana in her
possession. When Johnston asked her to step out of the car, Boone swung her arms and
cursed. Lu did not see Johnston conduct a pat search of Boone, except to pat her left
front pocket, from which Johnston retrieved the marijuana container. Lu did not see
Johnston pat Boone’s breast area, or any other area of her body. Johnston had already
handcuffed Boone outside the car when Johnston retrieved the marijuana container from
her pocket.
d. Frus’s testimony and Johnston’s interview
When Frus interviewed Boone, Newman, and Lu, all three stated that Johnston
had recovered the marijuana from Boone’s pants pocket.
Frus conducted a recorded interview of Johnston on July 15, 2011, five months
after the traffic stop.2 During the interview, Johnston stated that while Boone was still
seated in the car, she either pointed to the marijuana in the car or told him where it was in
the car. She did not hand it to him. He had Boone exit the car, handcuffed her when she
became uncooperative, and then retrieved the marijuana from the car. When Frus asked
whether it was possible that he had retrieved the marijuana from Boone’s pocket,
Johnston replied, “From what I remember, I got it from the car.” He unequivocally
denied doing a pat-search. When Frus asked whether he was “positive” he did not
retrieve any marijuana from Boone’s person, Johnston replied: “From what I remember, I
got the marijuana just from the car. Other than that, I don’t remember.”
During the interview, Frus realized that Johnston had completed the written
property report. She retrieved it and Johnston reviewed it. When the interview resumed,
Johnston indicated that the report had refreshed his memory. Based on his refreshed
2
A transcript of the interview was admitted into evidence at the hearing.
5
recollection, he stated: “when I contacted the passenger, I walked up to the passenger
side door, where I could smell the marijuana. I asked if there was marijuana in the car,
and she said yes. And then at that point she reached into her left front pants pocket and
produced an orange plastic bottle containing what appeared to be marijuana. At that
point I told her something along the lines of ‘just set that down and then . . . go ahead and
step out to the sidewalk.’ ” Detective Frus asked: “So with all the information now, are
you absolutely positive that you did not give her a pat-down and that you did not reach in
her pocket to retrieve the marijuana?” Johnston answered, “Yes.”3
e. Johnston’s testimony at the Board of Rights hearing
At the Board hearing, Johnston testified that he smelled marijuana in the car and
asked Boone about it. Boone replied that she had marijuana and showed him the bottle.
He told her to set it down. He had Boone step out of the car and stand by a wall. She
was agitated, loud and somewhat uncooperative, so Johnston handcuffed her. Johnston
acknowledged that he had told Frus he retrieved the marijuana from the Honda, but after
reviewing the statements of the other witnesses in preparation for the hearing, he believed
it was “more than likely” that he patted Boone’s left front pocket, reached into the
pocket, and seized the marijuana. However, he still did not recall doing so. His
recollection at the hearing was that Boone did reach into her pocket and show him the
marijuana bottle while she was seated in the car; however, he presumed she must have
put the container back in her pocket. He told the truth during the Frus interview based on
his recollection at the time, but was mistaken. He denied performing a pat-search of
Boone.
3
Johnston denied being rude or discourteous, knowing of either Newman’s or
Boone’s sexual orientation, referring to Newman as Boone’s wife, asking whether Boone
had an attitude, stating that Boone did not “feel like a man,” referencing Boone’s sexual
orientation, or stating that she was harassing him. Neither Boone’s nor Newman’s race
or sexual orientation were a factor in his decisions to make the traffic stop or issue the
citation.
6
f. Evidence regarding Johnston’s knowledge of Boone’s complaint
Boone and Newman both testified that after the traffic stop, they went to the
Hollywood L.A.P.D. station to complain about Johnston.4 Boone testified that they
arrived at the Hollywood station 45 minutes to an hour after the traffic stop. Boone told
the person behind the counter, “ ‘I was just cited a ticket . . . and . . . I believe that I was
assaulted by the police officer’ ” who had given her the citation. She asked to speak to a
watch commander. The person behind the counter giggled, walked to the back, returned
to the counter, and told Boone and Newman that “he was here to entertain [them.]”
Boone, who was “livid” at this point, replied: “ ‘Oh, so you think it’s entertaining . . . that
you have male police officers rubbing down female openly gay people telling them how
their body don’t feel like a man.” She asked for his serial number. He walked away from
the counter and returned moments later. He apologized and told her, “ ‘they want us to
take a statement from you, but it has to be recorded.’ ” Boone stated she did not trust
him, refused to provide a recorded statement, and left. Given the foregoing, Boone was
under the impression she did not actually make a complaint at the Hollywood station.
She therefore contacted the Office of the Inspector General later that day to complain.
Both Boone and Newman testified that they saw Johnston at the Hollywood
station while they were making the complaint. Either Johnston or another officer gave
Boone a receipt for the seized marijuana while she was at the station.
In fact, a complaint was taken at the Hollywood station. The parties stipulated that
Sergeant Montelibano completed a preliminary intake form regarding Boone’s
complaints. It stated that on February 15, 2011, at approximately 11:30 a.m., Boone
spoke to Montelibano at the Hollywood station front desk. Boone complained that
“Officer Johnston was discourteous during the entire incident. When complainant asked
for her identification back from Officer Johnston, he stated, ‘I’ll give back your
identification when I want to give it back to you.’ Complainant was upset that Officer
4
Boone testified that they initially went to a sheriff’s station, mistakenly believing
that Johnston and Lu were deputy sheriffs. Personnel at the sheriff’s station informed the
women that they could make a complaint at the L.A.P.D. station.
7
Johnston, being a male officer, conducted a pat down search on her.” After completing
the complaint form, Montelibano notified Johnston and Lu that a complaint had been
made about the traffic stop.
Lu testified that after the officers returned to the station, between 10:20 a.m. and
12:20 p.m. a supervisor notified him that Boone and/or Newman were alleging Johnston
committed misconduct during the traffic stop. Lu did not recall whether Johnston was
present during the conversation with the supervisor. Lu saw Boone at the station and
believed she was making a complaint, because she had stated during the traffic stop that
she was going to make a complaint.
Johnston did not recall speaking with a sergeant regarding Boone’s complaint, but
a log entry indicated he spoke with him on the telephone. He admitted seeing Boone at
the Hollywood station, but did not recall whether he saw her before or after he wrote the
property report.
g. The Board’s ruling and Johnston’s discharge
The Board unanimously found Johnston guilty of both counts. It concluded that
the property report was “vague and inaccurate as to [the] location of the property at the
time of recovery” and was “inaccurate as to the actual process of the recovery of the
evidence . . . .” The Board reasoned that the only interpretation of the property report
was that Boone removed the bottle from her pants pocket and handed it to Johnston. Yet
Johnston repeatedly made statements to Frus that contradicted the property report, and his
account at the hearing contradicted the property report and his earlier statements to Frus.
The Board rejected the argument that Johnston simply made a mistake. “Had this matter
gone to a court of law the potential for false testimony by Officer Johnston could have
posed liability for the City and the Department, and he would have in essence committed
perjury.”
As to count 2, which the Board considered to be “the most serious,” the Board
found Boone, Lu, and Newman credible in regard to where the marijuana was located. It
found “Officer Johnston’s credibility has been challenged by the inconsistent statements
provided during this hearing, and in his attempt to change his statement to fit the
8
overwhelming testimony given by witnesses.” Johnston had been given the opportunity
to clarify where he located the marijuana but failed to do so, and provided no credible
reason for the contradiction between his description of the incident and that of the other
witnesses. Johnston had acknowledged that his statements to Frus during the
investigation were inaccurate. His attempt to correct his statements “only after he heard
the witnesses’ testimony and reviewed the documents” did not constitute the correction of
a falsity and “in fact further erode[d] his credibility.” The Board therefore concluded
Johnston made false statements that amounted to misconduct within the meaning of the
relevant provisions of the Department’s policy manual.
After considering Johnston’s otherwise positive employment history, which
included numerous commendations and no sustained personnel complaints, and the
favorable testimony of a character witness, the Board recommended that Johnston be
discharged. Pointing to the Department’s “core value of integrity” and the requirement
that officers demonstrate “ ‘honest, ethical behavior,’ ” the Board concluded that
Johnston’s words and actions “failed to meet the trust. His actions whether intentional or
not, not only damaged his credibility and usefulness as an individual officer, but also
damage[d] the integrity of the Department.”
Chief of Police Charlie Beck adopted the Board’s penalty recommendation and
ordered Johnston discharged effective March 10, 2012.
4. Denial of Johnston’s petition for administrative mandamus and appeal
On October 17, 2012, Johnston filed a verified petition for a peremptory writ of
mandate pursuant to Code of Civil Procedure section 1094.5, challenging his discharge.
He argued, inter alia, that the weight of the evidence failed to support either count.5 He
sought issuance of a writ of mandate requiring the Board’s decision to be set aside and
ordering restoration of his employment and reimbursement for lost wages.
5
Johnston also argued that the Board abused its discretion because the penalty of
removal was “a radical departure from recent past discipline for similar or more severe
conduct of other officers charged with analogous” misconduct. Johnston does not
advance this argument here, and we do not consider it.
9
On March 18, 2014, the trial court denied Johnston’s petition. Exercising its
independent judgment, the court concluded the weight of the evidence supported the
Board’s findings. As to count 1, the court rejected Johnston’s argument that the report
was accurate. The court explained: “There is no credible evidence in the record that the
‘passenger . . . produced an orange plastic bottle from her left front pants pocket’ ”
because none of the witnesses, other than Johnston, testified that Boone “ever removed
the marijuana from her pocket” before Johnston recovered it. “At a minimum, the
property report is vague and inaccurate as to the location of the marijuana at the time it
was recovered by” Johnston. The trial court agreed with the Board that Johnston’s “ever-
changing accounts of the incident” undercut his credibility, and the Board was justified in
not accepting Johnston’s version of the incident, given that he did not admit he removed
the marijuana until after he heard the other witnesses testify at the hearing.
As to count 2, the trial court rejected Johnston’s argument that he did not
affirmatively or intentionally make false statements, because he qualified his statements
during the interview with the phrase “ ‘from what I remember’ ” or similar words. The
court reasoned that Johnston repeatedly told Frus he retrieved the marijuana from the car
and changed his account after hearing the testimony of other witnesses. Johnston’s
attempts to qualify his answers did “not shield Petitioner from being found to have made
false statements to Detective Frus during an official investigation. This is especially true
in light of the fact that Petitioner was provided numerous opportunities by Detective Frus
to change his account of how he retrieved the marijuana” but persistently maintained that
he did not remove the marijuana from Boone’s pocket. The court reasoned that the Board
was not required to accept the explanation that Johnston “simply could not correctly
recall how the incident occurred.”
Furthermore, in the court’s view, Johnston did have a motive to write an
inaccurate property report and make false statements to Frus. “Given the passenger’s
testimony that she got to the Hollywood Division station about 45 minutes after the
traffic stop, and that the property report was prepared around 11:00 a.m., the Court finds
that Petitioner saw the passenger at the Hollywood Division station before he wrote the
10
property report. In fact, the passenger and Petitioner exchanged words at the station.
Besides seeing the passenger at the station, Petitioner was informed on February 15, 2011
that the passenger had complained he improperly conducted a pat down search to retrieve
the medical marijuana. Specifically, the passenger made a formal complaint because she
wanted Petitioner’s supervisor to know that Petitioner had improperly patted her down
for a ‘cheap thrill of [her] body, [and] told [her she] didn’t feel like a man.’ Further, the
passenger testified that Petitioner made comments to her before and during the pat down
search that could be construed as homophobic or sexist,” including that she had to learn
how to talk to men and that she did not “ ‘feel like a man.’ ” Therefore, Johnston’s
“inaccurate property report and false statements to Detective Frus . . . would protect
Petitioner from the passenger’s allegations that he committed misconduct in the course of
the pat down. Petitioner’s inaccurate property report and false statements would also
undermine the passenger’s credibility if her complaint was pursued through litigation or
the Department’s investigation.”
Johnston filed a timely notice of appeal from the trial court’s ruling. He contends
that the trial court’s findings were not supported by substantial evidence. He urges that
the evidence, fairly judged, showed only that he made “mistakes of memory” due to the
passage of time, rather than intentional acts of misconduct. Respondents the City of
Los Angeles and Chief of Police Charlie Beck, on the other hand, urge that substantial
evidence supported the trial court’s findings.
DISCUSSION
1. Standard of review
Code of Civil Procedure section 1094.5 governs judicial review by administrative
mandate of any final decision or order rendered by an administrative agency. (Wences v.
City of Los Angeles (2009) 177 Cal.App.4th 305, 313; Pedro v. City of Los Angeles
(2014) 229 Cal.App.4th 87, 98-99.) Where an administrative agency’s decision
substantially affects a fundamental vested right, the trial court exercises its independent
judgment on the evidence. (Wences, supra, at p. 313; Melkonians v. Los Angeles County
Civil Service Com. (2009) 174 Cal.App.4th 1159, 1167 (Melkonians).) “The trial court
11
must not only examine the administrative record for errors of law, but must also conduct
an independent review of the entire record to determine whether the weight of the
evidence supports the administrative findings.” (Wences, supra, at p. 313; Melkonians,
supra, at p. 1167.) Because the termination of Johnston’s employment affected a
fundamental right, the trial court here properly exercised its independent judgment in
rendering its decision. (Wences, supra, at pp. 314, 316; Melkonians, supra, at p. 1167.)
We review the trial court’s decision for substantial evidence. (Fukuda v. City of
Angels (1999) 20 Cal.4th 805, 824; Pedro v. City of Los Angeles, supra, 229 Cal.App.4th
at p. 99; Melkonians, supra, 174 Cal.App.4th at p. 1168.) Substantial evidence is that
which a rational trier of fact could find to be reasonable, credible, and of solid value.
(Pedro v. City of Los Angeles, supra, at p. 99.) We view the evidence in the light most
favorable to the judgment, resolve all conflicts in the evidence in favor of the party that
prevailed below, and accept as true all evidence tending to support the judgment,
including facts that reasonably can be deduced from the evidence. (San Diego Unified
School Dist. v. Commission on Professional Competence (2013) 214 Cal.App.4th 1120,
1141-1142; Pedro v. City of Los Angeles, supra, at p. 99; Melkonians, supra, at p. 1168.)
The trial court has discretion to make its own credibility determinations, but cannot act
arbitrarily or capriciously; “there must be some basis in the record for disbelieving the
witness’s testimony.” (Morrison v. Housing Authority of the City of Los Angeles Bd. of
Comrs. (2003) 107 Cal.App.4th 860, 868 (Morrison).) We must sustain the trial court’s
factual findings if supported by substantial evidence. (San Diego Unified School Dist. v.
Commission on Professional Competence, supra, at p. 1142; Jackson v. City of
Los Angeles (2003) 111 Cal.App.4th 899, 902.)
2. The trial court’s findings were supported by substantial evidence.
a. The property report
Substantial evidence supports the trial court’s finding that the property report
authored by Johnston was inaccurate. The report stated, in pertinent part: “The passenger
then produced an orange plastic bottle from her left front pants pocket containing less
than one ounce of marijuana. I recovered the bottle from her and cited her . . . .” Fairly
12
read, the report gave the impression that Boone took the bottle from her own pocket and
handed it to Johnston. Based on the evidence at the hearing, this was inaccurate. No
witness testified that Boone handed the bottle to Johnston. Rather, both Newman and Lu
testified that Johnston retrieved it from Boone’s pocket while she was handcuffed.6
Johnston admitted as much at the hearing. The report omitted any information about
Johnston’s actions of ordering Boone from the car, handcuffing her, and taking the bottle
from her pocket. Johnston prepared the report shortly after the traffic stop occurred,
eliminating any concern that the inaccuracy was the result of forgetfulness. The evidence
was thus sufficient to show the report was inaccurate.
Johnston avers that because he did, in fact, recover the marijuana from Boone, the
report was accurate and consistent with the evidence presented at the hearing. He urges,
“[t]he wording of the property report does not specifically spell out when or where
Johnston recovered the vial, but the wording of the report is true. Johnston did, in fact,
recover the vial of marijuana from Boone.” We are not convinced. Even though the
report was not affirmatively or expressly inaccurate in this respect, the report’s
omissions, coupled with the material that was included, gave a false sense of what
transpired.
Johnston further contends that the “extraneous statement” that Boone removed the
bottle from her pants pocket before Johnston seized it “is of little consequence and does
not detract from the ultimate fact that the marijuana was recovered from Boone.” We
disagree. The statement was not extraneous; it gave the false impression that Boone
handed over the bottle, therefore potentially shielding Johnston from allegations he
conducted an improper pat search.
Nor are we persuaded by Johnston’s argument that the evidence showed Boone
did produce the bottle from her pants pocket, as stated in the report. Johnston testified at
the hearing that Boone pulled the bottle from her pocket and displayed it before she
6
As noted, Boone could not recall whether Johnston or Lu actually took the bottle
from her pocket.
13
exited the Honda, and then presumably replaced it in her pocket. He points out that
Boone testified she removed a document from her pocket while in the Honda, but neither
Lu nor Newman mentioned seeing her do so; therefore, she could have pulled out the
marijuana bottle and displayed it to Johnston without the other witnesses noticing. But
Boone testified she did not remove the bottle from her pocket, and the trial court’s
assessment that she was credible, while Johnston was not, was supported by substantial
evidence. (See Morrison, supra, 107 Cal.App.4th at p. 868 [in exercising its independent
judgment, the trial court has the power to make its own determinations as to witness
credibility].) Boone’s account that she did not pull the bottle from her pocket was
corroborated by the testimony of Newman and Lu that they did not see her do so.
Johnston, on the other hand, changed his story several times. (Ibid. [factors that weigh on
witness credibility include the making of a statement inconsistent with the witness’s
hearing testimony].) We cannot say the trial court’s credibility determination was
arbitrary or capricious. (Ibid.)
Johnston also complains that both the trial court and the Board found the evidence
showed his report was “ ‘vague and inaccurate,’ ” whereas he was only charged with
writing an “ ‘inaccurate’ ” report. Johnston is correct, but his contention does not warrant
relief. Based on the record, it is apparent the point made by both the Board and the trial
court was that the report was so vague, in its omission of key facts, as to be inaccurate.
Moreover, both the Board and the court found the report was vague and inaccurate, not
simply vague.
b. The false statements to Frus
The trial court’s conclusion that the evidence showed Johnston made a false
statement during an official investigation was likewise supported by the evidence. The
manual of the Los Angeles Police Department, volume 3, section 828, which was entered
into evidence, defines false statement as follows: “A false statement is any manner of
communication, including but not limited to oral, written and electronic, which a
Department employee makes when he or she knew or should have known the statement
was false at the time it was made or the employee fails to correct the statement upon
14
learning of its falsity.” Here, Johnston repeatedly told Frus that he retrieved the
marijuana from the Honda. As discussed, the evidence at the hearing showed this was
untrue. The evidence thus supported the trial court’s findings.
Johnston urges that the weight of the evidence did not demonstrate he knowingly
made false statements to Frus. The crux of his argument is that at the time of the
interview, he had “virtually no memory” of the incident, and repeatedly qualified his
answers with “I suppose,” “I might have,” “I think,” “probably,” “from what I
remember,” or similar words. (Original italics.) He points out that the Frus interview
transpired on July 15, 2011, five months after the traffic stop. He stated in the interview
that the stop had “seemed like a normal stop” and nothing caused it to stand out in his
mind. He notes that Frus, at the Board hearing, observed: “It’s a traffic stop. I don’t
expect the officers to remember all the details . . . .” When questioned about her failure
to note certain inconsistencies in Lu’s account, Frus stated, “If you were to point out
every single statement, it would be nothing but inconsistencies in a report. As an
investigating officer, I try to point out the main ones that are in reference to the specific
allegations.” Johnston also points out that Newman, Lu, and Boone had an admittedly
hazy recollection of certain facts,7 apparently in an attempt to suggest that his failure of
recollection was understandable and unintentional. He argues that many times during the
Frus interview, he stated he was unsure of various details about the stop.8
7
Lu, for example, told Frus in his interview that he only ran Newman’s
identification information through the computer, whereas a report suggested he had run
both women’s information; Boone recalled the marijuana container was removed from
her pocket by one of the officers, but was not sure which one; and Newman did not recall
whether or not she told Johnston she knew why he had stopped her car.
8
For example, Johnston told Frus he was unsure whether he or Lu first noticed the
expired registration; did not know whether the Honda’s windows were tinted or whether
they were up or down; could not recall the precise nature of his conversation with Lu
before they pulled the Honda over; could not recall the precise nature of his conversation
with Newman, whether she handed him her insurance paperwork, or whether she
discussed her smog certificate with him; did not remember the color of the marijuana pill
container, whether it had a label, or whether Boone told him she had “paperwork for
prescription marijuana”; did not recall how Boone was dressed, except that she may have
15
We are not persuaded. First, the record does not bear out the contention that
Johnston had “virtually no memory” of the traffic stop at the time of the Frus interview.
To the contrary, the record demonstrates he adequately recalled the incident. When
asked to give a narrative account of what transpired, he readily did so.9 Moreover, he
was able to recall many details about the incident.10 While Johnston was unable to recall
some details, the record does not suggest he was simply guessing or was entirely unable
to recall the circumstances of the stop. When he lacked sufficient recall to allow him to
answer a question, he did not hesitate to say he did not remember.
been wearing baggy clothing; and did not recall what businesses were in the area of the
stop.
9
Johnston stated: “I believe we were in the area of Highland and Santa Monica,
going southbound. We observed a vehicle, which was a ’93 Honda Civic, red, had
expired registration. It was in front of us, heading southbound. For that violation, my
partner and I decided to conduct a traffic stop . . . [¶] The vehicle pulled over in the area
of Santa Monica and Orange. . . . My partner contacted the driver, obtained her driver’s
license. I contacted the passenger. Upon contacting the passenger in the vehicle, I
smelled a strong odor of marijuana emitting from inside the vehicle. I asked the
passenger if there was any marijuana in the car. She said yes. She pointed to where it
was, either in the center console or somewhere in that area. I then got her I.D. and had
her step out of the car. [¶] And I believe my partner ran both of their identifications
through our computer. And then he cited the driver for the expired registration. And
then I cited the passenger for the marijuana, less than one ounce, and recovered it. And
she signed the citation and – actually they both signed their citations and basically got
back in their car, and they left.” Later he clarified that he initially contacted the driver,
and later moved to the passenger side.
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For example, Johnston unequivocally recalled that on February 15, 2011, he was
assigned to patrol car 6A49; he did not make eye contact with the occupants of the Honda
when he first observed them; the Honda turned right on Santa Monica Boulevard; he
could not see who was in the Honda and did not notice their race or gender until they
pulled over; when he asked whether Boone had marijuana, she replied “ ‘Yeah, it’s right
here’ ”; Boone did not hand him the marijuana; he told Boone he would return her license
by stating “ ‘I’ll give it back to you when I’m done’ ”; he never used the word “wife”;
and he corrected Lu when Lu incorrectly told Newman that the officers had discretion to
seize the marijuana or not.
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Second, substantial evidence supported the trial court’s conclusion that Johnston’s
use of phrases such as “I suppose,” “from what I remember,” “probably,” and the like,
did not indicate only an innocent misrecollection of the facts. The trial court found that
in light of the other witnesses’ testimony, Johnston’s repeated statements to Frus that he
did not remove the marijuana from Boone’s pocket, his unequivocal statement to the
same effect after reviewing the property report, and his failure to correct his account
despite opportunities to do so, the Board was not required to accept Johnston’s
explanation that he could not correctly recall how the incident occurred. The trial court
did not err. Even assuming arguendo that the qualifier “from what I remember” excused
some of Johnston’s statements, after reviewing the property report during the Frus
interview Johnston unequivocally stated he was “absolutely positive” he did not reach
into Boone’s pocket to retrieve the marijuana.
Moreover, whether Johnston knew or should have known his statements to Frus
were false, or whether he simply had an innocent failure of memory, was at heart a
credibility question for the trial court. Johnston gave three inconsistent accounts of how
he retrieved the marijuana. In the property report, he implied Johnston handed him the
bottle while seated in the car. In the Frus interview, Johnston stated he retrieved the
marijuana from the car after Boone was handcuffed outside the car. And at the hearing,
he stated that she showed him the bottle in the car, but he retrieved it from her pocket
outside the car. Johnston prepared the property report shortly after the traffic stop, but it
too was incorrect, suggesting he intended to provide false information from the start.
Finally, as discussed post, Johnston had a motive to mischaracterize the stop in order to
undercut Boone’s allegation that he improperly pat searched her. Substantial evidence
thus supported the trial court’s credibility finding. (See generally Morrison, supra,
107 Cal.App.4th at pp. 867-868.)
Johnston posits that the other witnesses’ testimony was, in fact, inconsistent.
Therefore, he urges, the trial court erred by basing its credibility finding on the incorrect
assumption that the other witnesses’ accounts were consistent. He points out that neither
Lu nor Newman supported Boone’s allegation that Johnston pat searched her breast or
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thigh area; Boone could not recall which officer actually retrieved the marijuana from her
pocket; and Boone thought the officers were sheriff’s deputies, not L.A.P.D. officers.
But the trial court’s point was that none of the witnesses supported Johnston’s account
that he retrieved the marijuana from the car, and their testimony was consistent in this
regard. Moreover, Johnston himself admitted at the hearing that he most likely retrieved
the marijuana from the pocket.
Johnston also complains that the circumstances of the recovery of the marijuana
were not relevant at the time of the Frus interview. He avers, “the misstatements made
by Johnston during his interrogation were immaterial and irrelevant to the allegations at
the time and ultimately had no relevance to the legality or propriety of Johnston’s actions
in seizing the marijuana and citing Boone.” To the extent Johnston intends to argue the
circumstances of the seizure were unimportant, and therefore he was less likely to have
an accurate recollection, we disagree. At the time of the interview, Frus was
investigating allegations of biased policing and discourtesy, which apparently were
determined to be unfounded. However, Boone’s allegations of bias and discourtesy were
based on Johnston’s conduct during the stop, including the seizure of the marijuana.
Thus, the nature of his interaction with her, including the circumstances of the seizure of
the marijuana, was directly at issue and highly relevant at the time of the interview.
Johnston next argues that the Department’s manual defines misleading statements
as those in which relevant information is intentionally withheld or given in an inaccurate
context, or which are designed to lead an investigator or others astray. From this he
reasons that for a statement to be considered false or misleading the employee must have
known that his statements were false and intended to mislead the investigator. He urges
that because he lacked memory of the incident, he could not have intended to mislead
Frus. But he was not charged with making misleading statements; he was charged with
making false statements, and the departmental manual’s definition of “false statement”
does not include the requirement that the employee intended to mislead. Even if such a
requirement is implied, as we have discussed the trial court was not required to accept
Johnston’s argument that he had an innocent failure of recollection.
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Johnston next avers that he “corrected his statement upon learning of its
inaccuracy as required by [L.A.P.D.] policy.” He complains he could not have been
expected to clarify where he located the evidence until he became aware, at the hearing,
that he had been mistaken. But this argument is circular: it presumes that Johnston’s
misstatements to Frus were due to a failure of memory. The trial court was not required
to accept this premise.
c. Substantial evidence supported the trial court’s finding that Johnston had a
motive to lie
Johnston contends the trial court’s ruling was erroneous because it was based in
part on the faulty conclusion that he had a motive to falsify the report and make false
statements. As noted, the trial court found Johnston had a motive to misstate the
circumstances of his encounter with Boone in order to protect himself from her
allegations that he committed misconduct during the pat search. Johnston argues that
there is “absolutely” no evidence he was informed of the nature of Boone’s complaint
before he wrote the property report or made the statements to Frus, and therefore could
not have made false or inaccurate statements to protect himself from allegations of which
he was unaware. In support, he avers that neither Boone’s complaint, the “Sergeant’s
Daily Report,” nor Montelibano’s stipulated testimony mentioned an improper search;
Boone testified she intended to complain at the Hollywood station, but believed she was
unsuccessful in actually doing so; and the first time Johnston could have been aware of
Boone’s allegation that he improperly touched her was at the Board hearing, many
months after the report was written and his statements were made.
Johnston is correct that some of the language cited by the trial court – for example,
Boone’s assertion that Johnston “just basically had free, cheap thrill of my body,” and
told her she should learn how to talk to a man -- may not have been conveyed to
Johnston prior to Boone’s testimony at the hearing. However, he is incorrect that he must
have been unaware Boone complained about the pat search. The “Complaint Form”
completed by Sergeant Montelibano stated in pertinent part: “Complainant stated that on
February 15, 2011 at approximately 0920 hours, she and her girlfriend (Witness-
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Newman) were stopped by Officer Johnston . . . and Officer Lu . . . for a California
Vehicle Code violation. . . . [¶] . . . Complainant stated that Officer Johnston was
discourteous during the entire incident. When complainant asked for her identification
back from Officer Johnston, he stated, ‘I’ll give back your identification when I want to
give it back to you.’ Complainant was upset that Officer Johnston, being a male officer,
conducted a pat down search on her.” (Italics added.)
It was stipulated that after completing the complaint form, Montelibano contacted
Johnston and Lu and notified them “that a complaint had been made for the traffic stop.”
Moreover, Boone testified that at the Hollywood station, she told the person at the desk –
presumably Montelibano – that she had been “assaulted” by the officer who issued the
citation. She also stated, “ ‘[Y]ou think it’s entertaining that you have male police
officers rubbing down female openly gay people telling them how their body don’t feel
like a man.’ ” It is a reasonable inference that Montelibano may have informed Johnston
and Lu of Boone’s comments when he informed them she had made a complaint.
Newman and Boone both testified that they saw Johnston at the station, and both Lu and
Johnston admitted they saw the women there. Lu also stated that Boone had said during
the traffic stop that she was going to make a complaint.
Further, the stop occurred at approximately 9:10 a.m., and took approximately 40
minutes. After the stop, Boone and Newman went to the sheriff’s station and to a court
appointment, and then to the Hollywood L.A.P.D. station. According to Boone, they
arrived at the Hollywood station 45 minutes to an hour after the traffic stop concluded.
Thus, the women arrived at the station to complain between 10:35 a.m. and 10:50 a.m.
The property report states it was prepared at 11:00 a.m. Lu testified he was notified of
Boone’s complaint sometime between 10:20 a.m. and 12:20 p.m. Substantial evidence
thus supported the trial court’s express finding that Johnston “saw [Boone] at the
Hollywood Division station before he wrote the property report.” Although the
complaint form states Montelibano spoke with Boone at the front desk at approximately
11:30 a.m., it was for the trial court to resolve this conflict in the evidence, and we must
uphold its finding if supported by substantial evidence. From the evidence presented, the
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trial court could reasonably have inferred that at the time he wrote the report, and
certainly by the time of the Frus interview, Johnston was aware that Boone had
complained about an improper pat search.
DISPOSITION
The judgment is affirmed. Respondents are awarded costs on appeal.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
ALDRICH, J.
We concur:
KITCHING, Acting P. J.
EGERTON, J.
Judge of the Los Angeles Superior Court, assigned by Chief Justice pursuant to article
VI, section 6 of the California Constitution.
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