Cruz v. City of Merced

Filed 8/23/23; Certified for Publication 9/13/23 (order attached)

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

JOSE CRUZ,
F083402
Plaintiff and Appellant,
(Merced Super. Ct.
v. No. 20CV-02663)

CITY OF MERCED,
OPINION
Defendant and Respondent.

APPEAL from an order of the Superior Court of Merced County. Brian L.
McCabe, Judge.
Messing Adam & Jasmine, Gary M. Messing, and Lina Balciunas Cockrell for
Plaintiff and Appellant.
Lozano Smith and Wiley R. Driskill for Defendant and Respondent.
-ooOoo-

SEE DISSENTING OPINION
 Appellant and petitioner and former police officer Jose Cruz was terminated from
the Merced City Police Department (Department) based on allegations he conducted an
illegal search, submitted a false police report, and committed perjury at a court hearing.
Cruz appealed to the personnel board (Board), which found the City of Merced (City)
failed to show Cruz had submitted a false police report or had conducted an illegal
search. However, the Board found that Cruz was not truthful in explaining certain details
concerning the search. Consequently, the Board rejected the majority of charges against
Cruz, but sustained portions of charges relating to his untruthfulness. The Board
recommended that Cruz not be terminated, but instead that he be demoted without
backpay.
The Merced City Manager reversed the decision and upheld Cruz’s termination.
The trial court rejected Cruz’s challenges to the city manager’s decision.
We conclude the trial court erred in upholding several of the charges against Cruz.
While we do uphold several other charges, we remand for the trial court to determine
whether the surviving charges are sufficient to support the consequence of termination.
FACTS
Underlying Incident According to Cruz1
Cruz worked as a police officer for the City of Merced for about five years.
On the morning of August 29, 2018, Cruz drove his patrol vehicle to the Siesta
Motel. A group of individuals, including one Martin Olvera, were conversing in the
parking lot. Cruz was familiar with Olvera, having observed him in the same area during
the preceding weeks. As Cruz exited his vehicle, Olvera began to walk away mid-
conversation. Olvera walked away at a “higher speed” and appeared to grip his abdomen.
Eventually, Olvera returned to Cruz. Cruz knew Olvera was “on PRCS out of San
Joaquin” County.2 Cruz confirmed Olvera’s PRCS status on his in-vehicle computer.

1 Based on Officer Cruz’s testimony before the Board.
2 PRCS stands for post release community supervision.

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Because of his PRCS status, Olvera was supposed to have a permission slip to be in
another county. However, he did not have that documentation.
Cruz detained Olvera and called his PRCS officer. The PRCS officer did not
answer, so Cruz let Olvera go.
As Cruz was pulling away at a stop sign, individuals told him that Olvera had a
gun.
Later, Cruz drove to the Gateway Motel. As he arrived, he saw someone run into
a room he was familiar with, room 27. Cruz was concerned because if the individual was
Olvera, he might be violent given that he had known gang-affiliations. Cruz saw people
looking at him from inside the room, saw moving people through the window, and heard
a lot of shuffling around.
Cruz called for backup and knocked on the door. Ms. Pompa cracked the door
open a little bit and spoke with Cruz. Based on Cruz’s prior interactions with
Ms. Pompa, his observations of the room décor, and her later statements at the scene,
Cruz understood that Pompa lived in the room.
Ms. Pompa had a pit bull and Cruz saw at least three people in the room. Cruz
was wary of entering the room without backup because it would not have been safe.
Ms. Pompa told Cruz he needed a warrant if he wanted to come into the room.
However, Pompa eventually exited the room, spoke with Cruz, and gave him permission
to enter the room.
Cruz observed multiple individuals in the room, including Olvera, Annabelle
Perez, Amber De La Cruz, and two other males. At least one of the males had a recent
criminal history, including multiple felony warrants.
Cruz searched the bathroom and discovered a white floral backpack inside. The
details of Cruz’s interaction with this backpack are central to this appeal and are
discussed in detail later in this opinion. For present purposes, we note that Cruz placed
the backpack on the bathroom sink, the backpack opened, and was shortly thereafter

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placed back onto the ground. Cruz later asked who owned the backpack, to which
Ms. Perez eventually replied that it was hers. After that interaction, Cruz then searched
the backpack and found a gun.
While Cruz believed he could search the handbag3 by virtue of Ms. Pompa’s
consent to search the bathroom, he figured he would also ask Ms. Perez so that he had
multiple, redundant justifications for searching the bag. Also, asking for consent
improves officers’ reputation in the community. It looked to Cruz that Perez nodded in
response to his request to search. Cruz believed Ms. Perez and Olvera were in a romantic
relationship.
Cruz began dictating his police report for the incident during his shift later that day
and completed it shortly after his shift ended. Cruz said the events at the Gateway Motel
that day were not memorable nor out of the ordinary for him.
Probable Cause Declaration
Cruz wrote a probable cause declaration stating that as the door to room 27
opened, Olvera emerged from the restroom area. Olvera’s PRCS status was still active at
the time. The declaration stated, “a search of the restroom yielded a small white
backpack with a .380 automatic Jennings firearm with a scratched off serial number. The
handgun had a magazine with ammunition in it. There was no round in the chamber.”
The declaration further stated that Ms. Perez admitted to owning the bag in which the gun
was found. Olvera was listed in Perez’s “favorites” on her phone “with red hearts and an
image depicting Olvera shirtless.”
Police Report
Cruz’s police report of the incident stated, in part:

3 The backpack is at various times referred to as a backpack, handbag, or purse.
We will generally try to match however it is referenced in the portion of the record to
which we are citing.

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 “[After] Olvera was secured in the prisoner-compartment area of my
marked patrol vehicle by an assisting officer[,] [¶] I once again spoke with
Pompa, who identified Richard Thomas Maya, contact, as being the renter
of the room. Maya was identified by his California identification card.
Maya briefly gave permission for our search of the area where Olvera had
been seen entering, the restroom.… [¶] In performing a safety sweep of
the room and of the small restroom area, I saw what appeared to be a
smaller white-with-flowery-print backpack. The backpack was affixed with
zippers from topside to its sides and [had] one zipper to the front. I asked
who the backpack belonged to, and Perez advised it was hers. Perez
consented to a search of her backpack. [¶] … [¶] … In checking the
backpack, I could tell there were women’s hygiene items within it …. Also
within the bag was what appeared to be a blouse with its store tags attached
and a bra. Beneath those items was a small spray perfume bottle and what
was obviously a handgun. [¶] … The firearm had a shiny chrome finish to
it.” (Unnecessary capitalization omitted.)
Bodycam Video
Cruz’s bodycam video recorded an interaction he had with Ms. Pompa outside the
room. Cruz told Pompa he saw “him” run into the room and that “he” had a gun. Pompa
said he went into the bathroom “so you are going to want to look in the bathroom, if you
want, but that’s the only place....”
Shortly after, Ms. Pompa again said Olvera went into the bathroom. Cruz replied,
“[A]lright, you understand what I’m looking for right?” Pompa nodded. Cruz asked,
“[A]nd you’re cool with it?” Pompa nodded and said, “Yes.” She emphasized, “I’m mad
that there is even one in my house.”4
Later, the video shows Cruz enter the bathroom and search through its contents.
Though the camera is not oriented for an optimal view, it can be discerned that Cruz
picks up a floral backpack from the floor in front of the shower and places it on a nearby
sink. Cruz then searches the shower and a clothing piled contained therein. Eventually,
Cruz grabs the backpack on the sink. He holds it with his left hand for approximately
two seconds before his right hand begins to move in the direction of the bag. The bag

4 The City briefly suggests Ms. Pompa’s consent to search the bathroom was
somehow unclear. Based on these relatively clear expressions, we disagree.

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then moves completely out of view just before a zipping sound occurs as Cruz’s right
hand moves from right to left. For the next four or five seconds, the bag remains out of
view, a sound consistent with items being moved around can be heard, and a reflection of
Cruz’s head seen in the mirror shows he is looking downward. Then, another zipper
sound is heard, and the bag returns to view being held in Cruz’s left hand. Cruz then sets
the bag on the ground. The total time between the apparent “opening” zipper sound and
the apparent “closing” zipper sound is about five seconds. Cruz then begins to search
other areas of the bathroom.
About a minute later, Cruz can be heard saying, “Is this your bag, miss? The little
white one?” A few seconds later, Cruz can be seen holding what appears to be the same
backpack in his left hand. A female voice is heard saying, “[N]o, that’s not mine.”
Another female voice, which testimony would eventually establish as Ms. Perez’s, is
heard shortly thereafter saying, “[T]hat’s mine.” Cruz says, “[M]ind if I go through it?”
Perez moves her head in a roughly diagonal fashion down and to the left. Cruz then
begins to search the backpack and remove its contents. The subsequent contents of the
video are consistent with Cruz locating a gun in the backpack.
Criminal Prosecution of Perez and Olvera
Ms. Perez and Olvera were booked on weapons and gang charges. On September
11, 2018, Perez filed a motion to suppress evidence based on “the warrantless search” of
her bag. The motion was considered on the same date at the preliminary hearing. Deputy
District Attorney Tyson McCoy (McCoy), who was assigned to the case, filed no written
opposition to the motion. He also did not watch the bodycam footage before the hearing.
Cruz testified at the hearing. During that testimony, the following exchange
occurred:

“Q. Now, when you went and searched the bathroom you found that
white flower bag on the ground; right?

“A. Yes, ma’am.

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 “Q. You picked it up and put it on the sink?

“A. Yes.

“Q. And then you actually unzipped the bag and looked inside;
right?

“A. Not – I didn’t, like, search through it other than to put it on the
sink.

“Q. But you unzipped the bag and looked inside?

“A. I believe I unzipped the front portion of it because of the method
in which I grabbed it, but I put it on the sink.

“Q. Okay. What do you mean because of the method in which you
grabbed it? Did it require you opening the bag?

“A. No. The way I gripped it and put it on the sink, I think I opened
one of the zippers because when I grabbed the straps.

“Q. Okay. So when you put it on the sink, you did unzip the bag?

“A. Eventually, but not then.

“Q. So it’s your testimony that when you put the bag on the sink you
did not unzip it at that point?

“A. I do not recall that, but it’s on video.

“Q. Okay. So you do have – you did have a body cam activated at
that point?

“A. Yes, ma’am.

“Q. And I’m going to play you a portion of that body cam.”
The beginning of the bodycam video was played, and the following exchange
ensued.

“Q. Okay. If we could pause, and this is 20 seconds in. Did you see
the bag on the sink?

“A. I just put it down.

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 “Q. Okay. Previously in the 20 seconds we watched did you see the
bag on the sink?

“A. Yes.

“Q. And you saw that you unzipped the bag at that point?

“A. Yeah. The way in which I grabbed it, yes, you can see my hand.

“Q. Okay. And you can hear you actually unzipping the bag; right?

“A. It drapes over the bag. Correct.

“Q. Sorry. What drapes over the bag?

“A. My hand as to grip it.

“Q. Okay. So are you indicating that you unzipped the bag because
that was the way you were holding it?

“A. Initially, yes, ma’am.

“Q. You were not opening the bag to search the bag?

“A. If I would have been searching it, this video would still be
showing me searching it instead of just putting it back down next to the
cabinet.”
Court’s Discussion
At the end of the hearing, the court discussed its thinking. First, it observed that
Ms. Perez’s testimony at the hearing was not “particularly credible.”
Next, the court stated:

“I have some real concerns about what I observed on the video in the
defense exhibit. [¶] It seems pretty clear to the Court that when that
backpack was picked up from the floor and placed on the sink it was
closed, and you can clearly hear on the video … at some point later … you
hear a zipping noise, which I’m inferring is an unzipping and about seven
or eight seconds of doing something that you can’t really see much of on
the video, and then you hear another zipping noise,[] and so the Court is
inferring that the bag was re-zipped, and then it was placed back down on
the ground, and then a short time later after searching the rest of the
bathroom is when the officer turns around and asks Ms. Perez whether or
not he can search.…”

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 The court later continued,

“[I]t seems that the gun was located at the bottom; however, … I don’t
know if the officer just doesn’t recall or what happened, but I am concerned
because it’s pretty clear to the Court that that bag was opened and is
contrary to the testimony that was provided to the Court about what
happened. [¶] The quandary I’m in is I don’t know whether the officer saw
anything in there or not because there were about seven or eight seconds of
appearing that something could have been going on.”
The court stated that it was inclined to suppress the evidence.
McCoy argued that it was unlikely Cruz had seen the firearm during the initial
bag-opening because “any officer would … immediately take control of that weapon and
not just set it down nonchalantly when it’s got a firearm in the purse. So I think that does
tend to corroborate that he was saying that he wasn’t searching it.”
Defense counsel argued that another reasonable interpretation was that if Cruz saw
a firearm, “he may have realized at that point that he needed to get consent or else the
firearm was going to be suppressed.”
The court asked McCoy whether any illegality of the initial search would be
vitiated by the subsequent consent. McCoy initially said that fruit of the poisonous tree
doctrine would apply, but then said: “[B]ut I do think there’s … another issue here, too,
where … Ms. Pompa, who is the resident of the motel room, gave consent to search the
bathroom.”
McCoy also argued that while you could hear zipping on the video, there was “no
rifling” through the purse.
The court stated, “I’m just trying to find in my notes he said Pompa … gave
consent. I didn’t see that in my notes.” The court said it would take the matter under
submission pending preparation of a draft preliminary hearing transcript.
At a continued hearing, the court stated it reviewed the preliminary hearing
transcript. The court noted that Cruz testified Ms. Pompa consented to a search of the
restroom. The court stated that Pompa was “the occupant of the motel room” and that

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“[i]t looked like some sort of long-term rental based upon the video….” However, it then
referenced testimony from Cruz indicating Pompa refused to allow him inside. The court
stated, “Based upon that particular evidence, the Court does not find that it is clear that
Ms. Pompa actually gave her consent, so I cannot … uphold the search on those
grounds.”5
The court found Cruz’s testimony to not be credible. The court concluded that
Cruz did search the bag “initially.” While the court also found that Ms. Perez “gave
consent” for Cruz to search her bag, it concluded the previous search of the bag tainted
the subsequent consent-based search.
Based on the ruling, the charges against Ms. Perez were dismissed.
After the hearing, as McCoy and Cruz were walking to the parking lot, Cruz said
his glove got stuck on the bag. McCoy said, “Oh, give me a break, who’s going to
believe that.”
On September 20, 2018, McCoy informed the Department about what had
transpired. McCoy conveyed to Lieutenant Struble concerns he had with Cruz’s
credibility with respect to the case.
Subsequent Events
Cruz continued working as an officer from the hearing in September 2018 through
June 2019. Effective September 24, 2018, Cruz was promoted to senior police officer
and received a pay increase. Cruz’s performance review covering September 25, 2017, to
September 24, 2018, was positive. The review included a statement from a deputy
district attorney indicating Cruz was “doing a great job” and that his reports “contain

5 In this regard, the court was confused. Cruz testified that when he first arrived,
Ms. Pompa refused him entry. Later, she allowed him in and consented to a search of the
bathroom because that was where Olvera had been.
In sum, the evidence was clear that Ms. Pompa consented to a search of the
bathroom.

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everything they need to. She said he was “incredibly conscientious,” and that she
“honestly can’t think of anything that he needs to improve.”
Internal Investigation
On June 13, 2019, Lieutenant Jay Struble interrogated Cruz regarding the
allegations that he prepared a false police report and provided false testimony in court on
September 13, 2018.
Cruz said that because Ms. Pompa had already given consent, he “wasn’t so much
worried about that, I was worried about an unsecured firearm.”
Cruz said that as he grabbed the bag, he heard unzipping. He was “dumbfounded”
and wondered how he had done that. He “believe[d]” it was his glove that had gotten
stuck on the zipper. Then, he shook off his hand.
Cruz said he had “planned on flipping [the bag] away from me, just the way I
manipulate things, I’m afraid of sharps.”6 Cruz said that by the time he felt the snag, the
bag had already become unzipped. Cruz looked down to see what caused the bag to
unzip, whether it was the cuff of his sleeve or his glove, etc. Cruz could see dark fabric
inside the opened bag but did not rifle through the bag.
Cruz clearly stated that he did not intentionally unzip the backpack but did
intentionally zip it closed.
Termination Proceedings
On July 10, 2019, Captain Bimley West provided Cruz with written notice of the
Department’s intent to fire Cruz. The notice stated it was based on findings that Cruz had
violated the following provisions of the Merced Police Department’s Policy Manual
(MPDPM) and the California Penal Code. While the notice did not number each charge,
subsequent documents, including the trial court’s order that is the subject of the present
appeal, numbered them in order. We will use that numbering for ease of identification.

6 Cruz later elaborated that he intended to grab the backpack on its opposite end,
face it away from himself, and look on its other side.

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 Charge 1
Charge 1 was based on a violation of MPDPM Standard of Conduct 323.5.8(a),
which reads:

“(a) Failure to disclose or misrepresenting material facts, or making
any false or misleading statement on any application, examination form, or
other official document, report or form, or during the course of any work-
related investigation.”
In its explication of this charge, the notice stated:

“Officer Cruz, you completed a police report regarding the incident
[]; however, your report was incomplete. In your report, you did not
mention anything about your actions of opening the backpack (“bag”) and
looking inside prior to establishing ownership. The police report indicates
that the bag was searched after ownership was established. By failing to
include the bag being opened and looked into prior to establishing
ownership, you misrepresented material facts to the case.”
Charge 2
Charge 2 was based on MPDPM Standard of Conduct 323.5.8(e), which reads:

“(e) Disparaging remarks or conduct concerning duly constituted
authority to the extent that such conduct disrupts the efficiency of this
department or subverts the good order, efficiency and discipline of this
department or that would tend to discredit any of its members”
In its explication of this charge, the notice stated:

“Your conduct in this incident clearly disrupts the efficiency of this
department. You failed to complete an accurate and detailed police report,
leaving out material facts. Moreover, you provided unreliable testimony in
criminal court, possibly resulting in a Brady issue. Officer Cruz, your
failure to properly investigate, document and assist with thorough
prosecution in this case clearly exhibits inefficiency and discredits the
department.”
Charge 3
Charge 3 was based on MPDPM Standard of Conduct 323.5.8(l), which reads:

“(l) Any act on- or off-duty that brings discredit to this department.”
In its explication of this charge, the Notice stated:

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 “Your actions in this case, Officer Cruz, has brought discredit to the
department. You failed to thoroughly and accurately document this
incident as to what truly took place. The police report prepared by you
never mentions that the backpack was opened prior to establishing
ownership. You also provided false and unreliable testimony, while under
oath, in criminal court during the court proceedings for this case.”
Charge 4
Charge 4 was based on MPDPM Standard of Conduct 323.5.9(h), which reads:

“(h) Criminal, dishonest, or disgraceful conduct, whether on- or off-
duty, that adversely affects the member’s relationship with this
department.”
In its explication of this charge, the Notice stated:

“Your failure to prepare a thorough and accurate police report in this
case has adversely affected your relationship with the department. As a
Sworn Police Officer with approximately five years of experience, you are
entrusted [sic] to complete your work thoroughly and accurately as part of
his responsibility as an officer. You provided false testimony in criminal
court, again adversely affecting his relationship with the department.
Moreover, you acted dishonestly in two factors of this criminal
investigation, preparing the police report and testifying in criminal court.
Officer Cruz, your actions have adversely affected your professional
relationship with the Merced Police Department.”
Charge 5
Charge 5 was based on MPDPM Standard of Conduct 323.5.2(b), which reads:

“(b) The wrongful or unlawful exercise of authority on the part of
any member for malicious purpose, personal gain, willful deceit or any
other improper purpose.”
In its explication of this charge, the Notice stated:

“Officer Cruz, your actions demonstrates [sic] that you maliciously
exercised your authority as a sworn peace officer by illegally opening and
looking into the backpack before establishing ownership of the bag. By
opening and looking into the backpack, before gaining having [sic] proper
authority, you conducted an illegal search of the backpack. The search
violated the 4th Amendment of the U.S. Constitution. During your internal
affairs interview, you expressed that you are aware of what the 4th

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Amendment of the U.S. Constitution says. The illegal search of the
backpack was done with willful deceit or any other improper purpose.”
Charge 6
Charge 6 was based on Penal Code section 118, subdivision (e), which reads:

“Every person who, having taken an oath that he or she will testify,
declare, depose, or certify truly before any competent tribunal, officer, or
person, in any of the cases in which the oath may by law of the State of
California be administered, willfully and contrary to the oath, states as true
any material matter which he or she knows to be false, and every person
who testifies, declares, deposes, or certifies under penalty of perjury in any
of the cases in which the testimony, declarations, depositions, or
certification is permitted by law of the State of California under the penalty
of perjury and willfully states as true any material matter which he or she
knows to be false, is guilty of perjury. This subdivision is applicable
whether the statement, or the testimony, declaration, deposition, or
certification is made or subscribed within or without the State of
California.”
In its explication of this charge, the notice states:

“Before you testified in court about [your] observations and actions
… the Court administered an oath to you and you stated that you would
testify honestly and truthfully int his matter. You testified before the Court
that you did not open the backpack and look inside the backpack prior to
asking whom the bag belonged to. You were shown your body camera
video, in court, which clearly show [sic] you to open the backpack prior to
establishing ownership, and you testified that he did not open the backpack
prior to establishing ownership. Officer Cruz, you willfully stated that you
did not open the backpack prior to establishing ownership, knowing this to
be false.”
Charge 7
Charge 7 was based on Penal Code section 118.1, which reads:

“Every peace officer who files any report with the agency which
employs him or her regarding the commission of any crime or any
investigation of any crime, if he or she knowingly and intentionally makes
any statement regarding any material matter in the report which the officer
knows to be false, whether or not the statement is certified or otherwise
expressly reported as true, is guilty of filing a false report punishable by
imprisonment in the county jail for up to one year, or in the state prison for

14.
 one, two, or three years. This section shall not apply to the contents of any
statement which the peace officer attributes in the report to any other
person.”
In its explication of this charge, the notice states:

“Officer Cruz, you filed a police report regarding his actions in this
criminal investigation. There was pertinent information left out of the
criminal report, which changed the sequence of events. In your report, you
stated that you saw the backpack while performing a safety sweep of the
room, asked who the backpack belonged to, Perez advised it was hers and
gave consent to search the backpack. The body camera video clearly shows
you opening the backpack, sit it down and later establish ownership.”
In a document dated August 7, 2019, the Chief of Police notified Cruz he had been
terminated. Cruz appealed the termination decision to the Board.
Hearing Before the Board
The board heard testimony from witnesses, including Cruz, McCoy, and
Supervising Deputy District Attorney Matthew Serrato (Serrato).
McCoy testified that defense attorneys can obtain evidence of an officer’s past
dishonesty in future cases. McCoy also testified that he relies heavily on the integrity of
police report in determining which charges to file and how to prosecute a case.
McCoy said that he was concerned Cruz’s claim the zipper was stuck on his glove
“may have been a lie.” However, he conceded that he “couldn’t tell” based on the video
whether Cruz’s glove was stuck on the zipper or not.
Cruz testified that, in hindsight, he “could have taken a little more time” on the
police report, but at the time he believed he had “done a good job.”
When asked why he had previously claimed he “shook” his hand once it became
snagged on the zipper, yet the bodycam video showed no shaking, Cruz testified, “It’s
more a manner of speech, figure of speech. Shake it off, like I don’t let it mentally block
me from doing what I was doing, meaning my search.”
Serrato said the district attorney’s office, for which he worked, maintains a “Brady
list.” “[I]f an officer is deemed to have committed some sort of misconduct that’s

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discoverable to the defense, we document it, we have it saved under that officer’s name
in our computer system.” If one of the officers on the list testified in a case, the relevant
documents about the misconduct are sent to the defense. Serrato sat on a Brady
committee that made recommendations to the district attorney regarding the Brady list.
With respect to the Cruz matter, Serrato reviewed the hearing transcript and the
bodycam video. Serrato concluded Cruz’s actions did not rise to the level of a Brady
violation. Serrato felt that “it really kind of evolved into a semantic issue as to whether
or not what he did initially constituted a search, and I didn’t really feel it did .…”
Serrato also believed that once Cruz “obtain[ed] consent to search the whole
bathroom … legally at that point he could – he very easily could have been legally
permitted to search through that purse.…”
When asked if his conclusions had changed since he first looked at the case,
Serrato said no, but that Cruz’s claim about his glove getting caught on the zipper
“sounds funny” and “doesn’t quite ring true.” He followed up, “[B]ut you still can’t
disprove it.”
Decision of the Board
In June 2020, the Board issued its findings and recommendations. The Board
found that the missing language about the initially opening of the bag did not amount to a
false police report. The Board rejected the City’s contention that the superior court’s
ruling that the search was illegal meant it could not be relitigated. They observed that the
bodycam video “clearly shows Yolanda Pompa granting consent,” and that it was “not
clear that the Court would have ruled the search as illegal had it viewed the entire
[bodycam] video.” However, the Board found that the initial opening of the bag was
intentional and Cruz’s claim to the contrary was untruthful.
Based on these findings, the Board unanimously concluded the City did not meet
its burden of proof in establishing charges 1, 2, 5, 6, 7, and portions of charges 3 and 4.

16.
The Board sustained other portions of charges 3 and 4. The Board recommended that
Cruz not be terminated, but instead be demoted to police officer step 5 with no backpay.
On July 14, 2020, the city manager, Steve Carrigan, overturned the Board’s
decision and upheld Cruz’s termination.
On September 15, 2020, Cruz filed a verified petition for writ of administrative
mandamus in superior court, challenging his termination. The petition was argued by
counsel on June 21, 2021, and the court issued its written order denying the petition on
June 17, 2021.7
The court concluded that the outcome in the case hinged on two questions:

“(1) Does the body camera video … constitute substantial evidence
that Officer Cruz opened the backpack and looked inside before obtaining
consent to search the backpack? This Court finds that it does.

“(2) Does the Court, exercising its independent judgment, find that
the body camera video … establishes that Officer Cruz opened the
backpack and looked inside before obtaining consent to search the
backpack? This Court finds that it does.”
The court further “determine[d] that there was substantial evidence supporting
each of the seven charges that the City Manager found to be established by a
preponderance of the evidence contained in the Administrative Record, and, exercising
its independent judgment, this Court concludes that the evidence establishes each of the
seven charges.”
In its analysis of charge 5, the court stated,

“Exercising its independent judgment, this Court finds that the
doctrine of collateral estopped [sic] precludes relitigation of the criminal
court’s findings regarding the legality of the search or relitigation of the
criminal court’s findings as to whether Officer Cruz’s testimony presented
in the criminal matter was or was not credible.”

7 Cruz requests we take judicial notice of the court’s tentative ruling on the matter
and respondent has made no written objection thereto. We grant the request (see Evid.
Code, § 452, subd. (d)), but do not find the tentative ruling material.

17.
 The court concluded that the five threshold requirements for collateral estoppel –
(1) identity of issues, (2) actual litigation of issue in prior proceeding, (3) issue
necessarily decided in prior proceeding, (4) finality of decision on the merits, and
(5) privity of party against whom collateral estoppel is sought – were met. With respect
to the fifth requirement, the court held “Officer Cruz was in privity with the District
Attorney, a party to the action, and the ruling related directly to actions by Officer Cruz
in connection with that litigation.”
The court continued,

“Applying this Court’s independent judgment, this Court finds that
the testimony Officer Cruz provided at the criminal court was not credible
and that the doctrine of collateral estoppel precludes Officer Cruz from
relitigating whether or not the search was lawful, and, therefore, as a result,
that this Court finds that Officer Cruz “maliciously” exercised authority as
[a] sworn peace officer by illegally opening and looking into a backpack
before establishing ownership of [said] bag, conducted an illegal search,
and that the illegal search was done with willful deceit or an improper
purpose.…”
The court then discussed the legal principle whereby searches of areas within the
wingspan of a probationer may not require any form of consent and cited several cases to
that effect. The court observed, “Had this authority been presented by the District
Attorney at the suppression hearing in the criminal matter, it is possible that Judge
Schechter would have found the search to be lawful.” The court then noted that, on the
other hand, Judge Schecter found Cruz to lack credibility and that “the fortuitous fact that
a probation search might have been lawful does not save a search conducted for other
reasons.”
Cruz appeals the court’s order denying his writ petition.

18.
 DISCUSSION

I. The Court Prejudicially Erred in Applying Collateral Estoppel to
Conclusively Establish the Illegality of Cruz’s Search
Cruz’s first contention is that the court erred in applying collateral estoppel to
preclude relitigation of (1) the legality of the search and (2) his credibility.
Collateral estoppel has five threshold requirements: “1) the issue to be precluded
must be identical to that decided in the prior proceeding; 2) the issue must have been
actually litigated at that time; 3) the issue must have been necessarily decided; 4) the
decision in the prior proceeding must be final and on the merits; and 5) the party against
whom preclusion is sought must be in privity with the party to the former proceeding.”
(People v. Garcia (2006) 39 Cal.4th 1070, 1077.)
Privity is “a relationship between the party to be estopped and the unsuccessful
party in the prior litigation which is ‘sufficiently close’ so as to justify application of the
doctrine of collateral estoppel [citations].” (Ceresino v. Fire Ins. Exchange (1989)
215 Cal.App.3d 814, 820.) The privity requirement is not solely a matter of California
law. It is a federal due process violation to hold that a judgment is binding on a litigant
who was not a party or a privy to the prior action. (Parklane Hosiery Co., Inc. v. Shore
(1979) 439 U.S. 322, 327, fn. 7.) Consequently, due process “requires that the nonparty
have had an identity or community of interest with … the losing party in the first action.”
(Lynch v. Glass (1975) 44 Cal.App.3d 943, 948.)
Privity Did Not Exist Between Cruz and District Attorney
We conclude privity was not present here. Cruz, who was challenging his
termination from city employment in a mandamus action, did not have a community of
interest with the district attorney, who was prosecuting two criminal defendants. The
present action implicates Cruz’s personal interests (i.e., employment), which were not at
all “at stake in the suppression hearing.” (Tuttelman v. City of San Jose (9th Cir. 2011)
420 Fed.Appx. 758, 759 (Tuttelman).)

19.
 Moreover, Cruz was not “in control of the criminal prosecution.” (Tuttelman,
supra, 420 Fed.Appx. at p. 759.) Specifically, he was not in control of which legal
arguments would be presented at the suppression hearing to support the legality of the
search. That is particularly important here, given the trial court’s observation that if
authority concerning probationer searches had “been presented by the District Attorney
… it is possible that Judge Schechter would have found the search to be lawful.”
Because privity did not exist here, the trial court erred in concluding that collateral
estoppel applied.
Harmlessness
The City contends collateral estoppel is “irrelevant” to the trial court’s order.
Calling the issue “irrelevant” is an overstatement, given that the court’s order discussed
and applied collateral estoppel. However, the City’s explication of its argument suggests
that it is actually arguing harmlessness – i.e., that any error with respect to collateral
estoppel is harmless because the court also applied its independent judgment to the issue
of Cruz’s credibility and the legality of his search. We agree with the City on this first
point – i.e., that the trial court also found Cruz gave false testimony using its independent
judgment. However, we reject the second contention and conclude the court did not
apply its independent judgment in determining that Cruz’s search was illegal.
Harmlessness as to Determination of Cruz’s Truthfulness
In discussing charge 4, the trial court said,

“Exercising its independent judgment, this Court finds that the
evidence establishes that Officer Cruz opened the backpack and looked
inside before obtaining consent to search the backpack … and, as a result,
… Officer Cruz provided false testimony in criminal court which adversely
affected his relationship with the department, and that Officer Cruz acted
dishonestly in … testifying in criminal court, and, therefore, that Charge 4
should be SUSTAINED.”
From this text, it is readily apparent that the court applied its independent
judgment in concluding Cruz lied about the circumstances of the backpack inspection.

20.
 Prejudice as to Issue of Legality of Search
However, the same cannot be said of the court’s consideration of the
legality/illegality of Cruz’s search. In discussing charge 5, the court said,

“Applying this Court’s independent judgment, this Court finds that
that the testimony Officer Cruz provided at the criminal court was not
credible and that the doctrine of collateral estoppel precludes Officer Cruz
from relitigating whether or not the search was lawful, and, therefore, as a
result, that this Court finds that Officer Cruz “maliciously” exercised
authority as [a] sworn peace officer by illegally opening and looking into a
backpack before establishing ownership of [the] bag, conducted an illegal
search, and that the illegal search was done with willful deceit or an
improper purpose, and, therefore, that Charge 5 should be SUSTAINED.”
The court’s ruling makes clear that it was using its independent judgment to
conclude collateral estoppel applied, not that the search was illegal. This is confirmed by
the fact that the subsequent analysis in the trial court’s order is primarily a discussion of
how Judge Schechter might have ruled differently if she had been presented with legal
authority regarding parolee searches.
Consequently, we conclude that while the court conducted an independent
application of collateral estoppel, it did not independently determine that the search was
illegal. Instead, the court based its decision on the illegality of the search on what we
have determined was an erroneous application of collateral estoppel.
Moreover, as explained below, we conclude the search was in fact legal.
Therefore, even if the trial court had used its independent judgment to conclude the
search was illegal, we would reverse that determination.
Turning to our consideration of the merits, we find the reasoning of U.S. v. Melgar
(7th Cir. 2000) 227 F.3d 1038 (Melgar), persuasive.
Melgar involved a motel room with several occupants. Officers asked one of the
occupants, Velasquez, to accompany him into the hallway where they asked her for
permission to search the room. The officer’s “request was a general one; he did not

21.
specifically ask her if the police could search particular closed containers within the
room, nor did he ask her which of the numerous people in the room were actually staying
there.” (Melgar, supra, 227 F.3d at p. 1039.) Velasquez granted permission to search the
room. Officers found a floral purse. They opened it and found the identification of
defendant Zoila Melgar and counterfeit checks inside.
Melgar argued the evidence found in the purse needed to be suppressed because
“police never obtained permission from anyone to search that particular closed
container,” and that Velasquez’s authority to consent to search did not “extend to closed
containers within the room.” Melgar also contended that “the police should have
understood that the purse did not necessarily belong to Velasquez because there were
several women in the room.” (Melgar, supra, 227 F.3d at p. 1040.)
The appellate court ruled against Melgar. The court observed, “Generally, consent
to search a space includes consent to search containers within that space where a
reasonable officer would construe the consent to extend to the container.”8 (Melgar,
supra, 227 F.3d at p. 1041.)
Importantly, the court went on to reject the proposition that police must have
positive knowledge that the closed container is under the authority of the person
consenting to search.9 (Ibid.) “A contrary rule would impose an impossible burden on
the police. It would mean that they could never search closed containers within a

8 The dissent suggests Cruz has pulled one over on us by blurring the distinction
between consenting to search the bathroom versus consent to search the backpack. (Dis.
opn., post, at p. 13.) The actual problem is that the dissent overemphasizes the distinction
between consenting to search “the bathroom” versus containers within the bathroom,
contrary to case law. As many cases, including Melgar, have held, consent to search an
area generally includes consent to search the containers within. We agree with that legal
proposition and have applied it here in a rather straightforward manner.
9 However, when the police do have positive knowledge that the closed container
is not under the authority of the consenter, then such consent will not suffice. (See
Melgar, supra, 227 F.3d at pp. 1041–1042, discussing U.S. v. Rodriguez (7th Cir. 1989)
888 F.2d 519.)

22.
dwelling (including hotel rooms) without asking the person whose consent is being given
ex ante about every item they might encounter.” (Id. at p. 1042, italics added.)
We agree with Melgar. “ ‘[T]he ultimate touchstone of the Fourth Amendment is
“reasonableness.” ’ ” (People v. Ovieda (2019) 7 Cal.5th 1034, 1041.) It is reasonable
for police to presume consent to search a room includes consent to search containers
within that room. An officer need not also confirm that each and every container in the
room is under the authority of the consenter. Melgar properly affirms these principles
while also observing that other circumstances, not present here, could alter the analysis
(e.g., if the container has a name on it different than the person granting consent).
The City cites to U.S. v. Whitfield (D.C. Cir. 1991) 939 F.2d 1071, a case that
predates Melgar. Relying on Whitfield, the City contends Cruz had an obligation to
inquire further to resolve the ambiguous ownership situation he was presented with. But
Melgar was quite clear in rejecting the proposition that police must obtain positive
knowledge that a closed container is under the authority of the person consenting to
search of the room. (Melgar, supra, 227 F.3d at p. 1041.) When the person holding
themselves out as the resident of the premises consents to a search of the bathroom, and a
bag is found therein, a reasonable officer would construe the consent to search extends to
the bag.10 It is not incumbent on the officer to inquire about all the ownership
possibilities of each container in a room for which consent to search was given by
someone with apparent authority.
The dissent posits that the record in this case – including Cruz’s court testimony
and his answers during the Internal Affairs investigation and Skelly11 hearing –
“definitively establishes” that Cruz did not conduct his search of the backpack in reliance
on Pompa’s consent to search the bathroom. Not so. Cruz testified at the suppression

10 Assuming there is no obvious, unambiguous sign of separate ownership, such as
a name on the outside of the bag different from the person who had granted consent.
11 Skelly v. State Personnel Board (1975) 15 Cal.3d 194.

23.
hearing that Pompa had consented to search the area Olvera had been in. The People
argued at the suppression hearing that “Pompa, who is the resident of the motel room,
gave consent to search the bathroom.” During the subsequent internal affairs
investigation, Cruz said Pompa stated the room was hers along with her boyfriend’s, and
that she consented to a search. At the Skelly hearing, Cruz claimed he had consent to go
into the room from a female. Before the personnel board, Cruz “maintained he did not
need consent to open the Subject Bag as he had consent from the resident Yolanda
Pompa….”12
As the record clearly and repeatedly demonstrates, Pompa’s consent was a central
issue throughout this litigation, not one we plucked from obscurity or came up with on
our own.
The dissent goes on to say that the “only way” to find Cruz relied on Pompa’s
consent is to “reward[] … perjury” and impute reliance in spite of Cruz’s denial that he
searched the purse. (Dis. opn., post, at pp. 12–13.) However, that is not the only way to
arrive at our conclusion that the search was constitutional. More importantly, it is not the
way we arrived at it. As this opinion makes quite clear, we affirm the trial court’s finding
that Cruz opened the bag intentionally, not inadvertently. Our analysis proceeds
accordingly by determining whether that search was “reasonable” and permissible under
applicable constitutional principles.13

12 Cruz testified, “But when I asked [Perez for consent], I wasn’t expecting [Perez]
necessarily to answer because a woman had already given me consent and the bag just
seemed out of place. But Ms. Pompa had given me consent.”
13 The dissent says that “[s]ince Cruz affirmatively denies searching the bag
before speaking to Perez, one has to ignore his perjury to reach the conclusion the
majority reaches here.” (Dis. opn., post, at p. 13.) The dissent has it backwards.
“Ignoring the perjury” would be to accept Cruz’s untruthful claim that he did not search
the bag initially. Instead, we have operated under the finding of the personnel board and
trial court that Cruz did intentionally open the bag initially. Under the legal principles
described in Melgar, that search was constitutional.

24.
 For these reasons, we conclude that even if Cruz searched the bag before speaking
with Perez, such a search would not have been illegal. Consequently, charge 5 cannot
stand.
II. The Charges Pertaining to Cruz’s Police Report Were Unsupported
Cruz contends that there is insufficient evidence he omitted material facts in his
police report. We agree.
The City alleged Cruz omitted material facts from the police report. This omission
was the basis, in whole or part, for several charges against Cruz. Specifically, the City
asserted that the omission (1) violated a police department policy prohibiting the
“[f]ailure to disclose or misrepresenting [of] material facts, or making any false or
misleading statement on any … report … during the course of any work-related
investigation” (charge 1); (2) violated a police department policy against “disparaging
remarks or conduct concerning duly constituted authority to the extent that such conduct
disrupts the efficiency of [the] department or subverts the good order, efficiency and
discipline of [the] department or that would tend to discredit any of its members”
(charge 2); (3) violated a police department policy against acts that “bring discredit to
[the] department” (charge 3); (4) violated a police department policy against “criminal,
dishonest, or disgraceful conduct, whether on- or off-duty, that adversely affects the
member’s relationship with [the] department” (charge 4); and (5) violated a penal code
statute (Pen. Code, § 118.1) prohibiting the filing of a false police report (charge 7).14
By requiring only disclosure of those facts that are “material,” the department
policy does not mandate that police reports detail every square inch searched by an
officer during an incident. Neither must a police report describe every door that was

To the extent the dissent concludes constitutional law is inapplicable to this case
(dis. opn., post, at p. 13), we disagree.
14 Charge 6, and portions of charges 2 through 4, were based on the testimony
Cruz gave in court.

25.
opened or every container that was inspected. Instead, only those aspects of the search
that are “material” need to be included. Cruz’s final, search of the bag that yielded the
gun was certainly material, and it was included in the report. But the first opening of the
bag, even if it was intentional, was not material. It was not an illegal search, and it
yielded no contraband. Consequently, even the version of events accepted by the trial
court – that Cruz intentionally opened the zipper of the bag and looked inside for a few
seconds – was not material.15
Nor was anything in the report untruthful or misleading. Indeed, the allegations to
the contrary are just rehashes of the claim that the report should have mentioned the
initial opening of the backpack. The City contended the report was misleading because it
stated that Cruz asked who the bag belonged to, Ms. Perez consented to a search, Cruz
searched the bag and found a gun inside. But that is all true, and chronologically correct.
It does omit the initial opening of the zipper but, as discussed above, that omission was
not improper.16

III. Substantial Evidence Supported Trial Court’s Determination that Cruz’s
Court Testimony was Untruthful
Cruz also mounts a substantial evidence challenge to the trial court’s
determination that Cruz’s testimony was untruthful. We review the trial court’s
determination under the substantial evidence test. (Fukuda v. City of Angels (1999)
20 Cal.4th 805, 824.) Under that standard, we resolve all conflicts in evidence in favor of
the prevailing party and indulge all legitimate inferences to uphold the judgment, if
possible. (Ricasa v. Office of Administrative Hearings (2018) 31 Cal.App.5th 262, 276.)

15 In resisting this conclusion, the City focuses on Cruz’s subjective intent/beliefs
about the scope of his authority to search. But an immaterial fact would not become
material simply because an officer mistakenly thought it was material.
16 That said, we presume it is better to err on the side of over-inclusion of facts in
a police report, rather than under-inclusion. With the benefit of hindsight, perhaps it
would have been simpler if Cruz had included the circumstances of the initial zipper
opening in the report. Nonetheless, those facts were not “material.”

26.
 Analysis
Cruz testified that he did not unzip the bag when he placed it on the sink. After
being shown the video, Cruz testified he did unzip the bag when he placed it on the sink
because of “[t]he way in which I grabbed it.”
The Board found that Cruz’s unzipping of the bag was intentional, and not
inadvertent. Therefore, the Board found Cruz’s claim that the opening was inadvertent to
be untruthful.
The trial court found that, “Cruz opened the backpack and looked inside before
obtaining consent.” While it is true, as Cruz argues, that this sentence technically does
not speak to intentionality, we think context makes clear the court found Cruz opened the
bag intentionally. The court found that Cruz “opened the backpack and looked inside,”
yet did not disclose that fact in his court testimony. However, Cruz did testify as to
opening the backpack in court, but claimed it occurred inadvertently (i.e., because of “the
way in which [he] grabbed it”). So, the only way the trial court could say Cruz did not
disclose that he “opened” the backpack would be if the court meant “intentionally
opened.” Therefore, we understand the trial court to have found, like the Board, that
Cruz intentionally opened the backpack.
Turning to the evidence, we conclude this finding was adequately supported. The
bodycam video shows Cruz grabbing the backpack with his left hand approximately four
seconds before a zipper sound is heard. The “opening” zipper noise is concurrent with
movement of Cruz’s right hand, which is a “smooth” movement. The next zipper noise is
not heard for another five seconds, approximately. During that five seconds, sounds
consistent with items being moved around in the bag are heard and Cruz’s gaze is facing
downward. From these circumstances, one eminently reasonable inference is that Cruz
intentionally opened the bag, looked briefly through its contents, and intentionally closed
it.

27.
 While we cannot say the video conclusively negates any possibility of an
accidental opening, we can certainly say that an accidental opening is not the only
inference raised by the video. A factfinder might assume that if the bag had been
accidentally opened by Cruz, it would have been immediately closed or that Cruz would
have at least reacted in a manner suggesting surprise. Instead, the bag is apparently left
open for five seconds, during which time sounds consistent with rifling through the bag’s
contents are heard. There is no obvious explanation for why the bag would be left open
for some five seconds if its opening was inadvertent. Also, during that five seconds, Cruz
is looking downward, makes no visible motions (e.g., shaking) consistent with attempting
to dislodge from the bag, and he makes no visible facial expressions of surprise or
confusion. While these factors seem inconsistent with an accidental opening, they are not
absolutely determinative.
In sum, disbelief of Cruz’s testimony was not the only basis for finding against
him, as the bodycam video itself raises an inference that Cruz intentionally opened the
bag.
More importantly, even if the video supported an inference of accidental opening,
that fact would not be dispositive on substantial evidence review. Cruz argues that
people viewing the bodycam footage could come to different conclusions regarding what
happened. But even assuming that is true, our deferential standard of review would
require we would uphold the trial court’s finding. “ ‘ “If the circumstances reasonably
justify the trier of fact’s findings, the opinion of the reviewing court that the
circumstances might also be reasonably reconciled with a contrary finding does not
warrant a reversal of the judgment.” ’ ” (In re George T. (2004) 33 Cal.4th 620, 631.) In
other words, all that matters is that the trial court’s finding was supported by substantial
evidence; it does not matter that Cruz’s position may also have been supported by
substantial evidence.

28.
 In sum, we uphold the court’s apparent finding that Cruz intentionally opened the
bag and that Cruz’s testimony that the bag opened inadvertently as a result of how he
grabbed the straps was untruthful. Accordingly, we will uphold the portion of the court’s
order sustaining charge 6, as well as the aspects of charges 2 through 4 that were based
on Cruz’s court testimony.
Conclusion
As explained throughout this opinion, we have concluded the trial court erred in
relying on certain charges to sustain Cruz’s termination. While we have also upheld
some of the charges against Cruz, we cannot affirm the judgment because the possibility
remains that the trial court could conclude, in its independent judgment, that the
surviving charges are insufficient to support Cruz’s termination (i.e., that the termination
decision was an abuse of discretion). (See Fukuda v. City of Angels, supra, 20 Cal.4th at
pp. 824–825.) We will therefore remand for the trial court to make that independent
judgment in light of this opinion.17 (See ibid.)
DISPOSITION
The trial court’s order is reversed and this matter remanded to the trial court for
further proceedings consistent with this opinion.

POOCHIGIAN, Acting P. J.
I CONCUR:

DETJEN, J.

17 While we find the Board’s recommendation of demotion without backpay to be
reasonable, the determination of whether termination was an abuse of discretion should
be made by the trial court in the first instance.

29.
SMITH, J., Dissenting.
I respectfully dissent from parts of the majority opinion. I disagree with the
majority’s conclusion that Cruz prepared a thorough and complete police report regarding
the incident at issue here. I also disagree with the majority’s determination that the
searches at issue here were constitutional. I agree with the majority’s conclusion that the
trial court properly found that Cruz committed perjury at the suppression hearing. And,
finally, I disagree with the remand of the matter to the trial court for it to review the
penalty of termination that was imposed by the Merced city manager in this case. I
address all these points below.
I. Standard of Review
Preliminarily, it is necessary to outline the applicable standard of review to guide
analysis of the issues presented in this administrative mandamus matter. The legal
framework applicable to review of administrative mandamus proceedings is relatively
complex and exacting. The majority opinion does not fully address or comport with the
legal framework that governs our review of this matter.
While the trial court was required to independently review the evidence, the
standard of review on appeal from the trial court’s determination is the substantial
evidence test. (Fukuda v. City of Angels (1999) 20 Cal.4th 805, 824.) That is, we must
“sustain the trial court’s findings if they are supported by substantial evidence.”
(Governing Board v. Haar (1994) 28 Cal.App.4th 369, 378; Bixby v. Pierno (1971) 4
Cal.3d 130, 143, fn. 10 [“After the trial court has exercised its independent judgment
upon the weight of the evidence, an appellate court need only review the record to
determine whether the trial court’s findings are supported by substantial evidence.”].)
Substantial evidence is “relevant evidence that a reasonable mind might accept as
adequate support for a conclusion” (Taylor Bus Service, Inc. v. San Diego Bd. of
Education (1987) 195 Cal.App.3d 1331, 1340-1341), or evidence of “ ‘ “ponderable legal
significance … reasonable in nature, credible, and of solid value.” ’ ” (Ofsevit v. Trustees
of Cal. State University & Colleges (1978) 21 Cal.3d 763, 773, fn. 9.)
We review questions of law de novo. (Bostean v. Los Angeles Unified School
Dist. (1998) 63 Cal.App.4th 95, 107-108; Christensen v. Lightbourne (2017) 15
Cal.App.5th 1239, 1251 [on questions of law arising in mandate proceedings, courts
exercise independent judgment, with the superior court and appellate court performing
the same functions]; Pedro v. City of Los Angeles (2014) 229 Cal.App.4th 87, 99 [“An
appellate court independently determines whether the agency [or entity] prejudicially
abused its discretion by failing to proceed in the manner required by law, such as by
failing to comply with required procedures, applying an incorrect legal standard, or
committing some other error of law.”].)
II. Trial Court Properly Found Cruz Committed Perjury in Criminal Court
As noted in the majority opinion, Cruz conducted a search of the bathroom of
Room 27 at the Gateway Motel. Cruz’s bodycam captured the incident on video. During
the search, Cruz saw a small, flowered backpack-style purse in the bathroom.
Eventually, he found a handgun in the purse. Anabelle Perez, the owner of the purse, and
Martin Olvera were prosecuted in connection with the handgun.
Perez filed a motion to suppress the handgun. Cruz’s bodycam video was played
at the suppression hearing. After the video was played, Cruz testified under oath that
when he first dealt with the flowered purse in the bathroom, he inadvertently opened it
because of “[t]he way in which [he] grabbed it.” The criminal court found that Cruz’s
“odd explanation about the way he gripped [the purse], the zipper was open and of course
it opened more,” was “[not] at all credible,” and did not comport with the video evidence
of the initial opening of the purse. Although the handgun was discovered in a subsequent
search of the purse pursuant to consent from Perez, the court granted the suppression
motion on grounds the initial opening was an unconstitutional search that tainted the

2
second search. The prosecutor dismissed the charges against Perez and Olvera without
appealing the court’s ruling on the suppression motion because of “the credibility issue.”
The Merced Police Department opened an internal affairs (IA) investigation.
Cruz’s description of what happened when he first dealt with the purse, changed at this
stage. The IA investigator recounted Cruz stated in his interview that when he initially
picked up the purse, “he felt a snag and the bag unzipped,” such that Cruz “figured it was
his glove or sleeve that got caught” and inadvertently opened the bag. Cruz explained in
the IA interview: “I shook off my hand and got whatever was caught in there which I
believe was my glove.” The IA investigator reviewed the bodycam video of the incident
and determined Cruz’s explanation was inconsistent with the video. The IA investigator
concluded Cruz had lied under oath at the suppression hearing in describing the initial
opening of the purse as inadvertent rather than intentional.
Cruz then met with the Merced police chief for a pre-disciplinary meeting. The
police chief later recounted that Cruz repeated that, in initially dealing with the bag, he
“snagged either [his] glove or [his] sleeve and unzipped the zipper opening the bag.” The
police chief took note that this explanation was different from Cruz’s sworn testimony at
the suppression hearing that the bag unzipped initially because of the way he grabbed it.
The police chief concluded, based on the bodycam video of the incident, that Cruz’s
explanations that the bag opened inadvertently the first time, were “not credible.”
The City of Merced’s Personnel Board thereafter held a hearing on the matter. At
the Personnel Board hearing Cruz was asked about the fact the bodycam video did not
show him shaking off his hand as he had described to the IA investigator. Cruz
responded: “It’s more of a manner of speech, figure of speech. Shake it off, like I don’t
let it mentally block me from doing what I was doing, meaning my search.” The
Personnel Board found “[Cruz’s] explanation regarding the glove/sleeve getting caught
and causing the bag to open inadvertently was not credible.” The Board concluded: “All

3
three Board Members find [Cruz’s] explanation about the manner in which the Subject
Bag was opened before permission was granted[,] to be untruthful. The video clearly
showed that [Cruz] opened the bag before he had permission to do so from Anabelle
Perez.”
The Merced city manager then reviewed the matter. The city manager came to the
same conclusion, that is that Cruz had committed perjury at the suppression hearing in
describing the initial opening of the bag.
Finally, the trial court in the present proceeding similarly determined that “Officer
Cruz opened the backpack and looked inside before obtaining consent to search the
backpack … and, as result … Officer Cruz provided false testimony in criminal court …
and … acted dishonestly in … testifying in criminal court.”
In sum, every factfinder involved at each stage of this matter below, concluded
that Cruz committed perjury in describing the initial opening of the bag at the suppression
hearing. The criminal court, the Merced Police Department, the Personnel Board, the
city manager, and the trial court, all concluded Cruz perjured himself at the suppression
hearing by characterizing the initial opening of the bag as inadvertent rather than
intentional. The trial court sustained Charges 1 through 4 and Charge 7 based, in part, on
its finding that Cruz committed perjury in describing the initial opening of the backpack
at the suppression hearing.
This court has now upheld the trial court’s perjury finding on appeal, a conclusion
with which I agree. The bodycam video of the incident as well as Cruz’s shifting
explanations regarding the initial opening of the bag, constitute substantial evidence
supporting the trial court’s perjury finding.

4
III. Cruz Did Not Accurately Document, in His Police Report, the Sequence of
Events That Occurred During the Bathroom Search
Cruz prepared a police report documenting and memorializing the search of the
motel room bathroom that yielded the handgun and resulted in criminal prosecutions of
Anabelle Perez and Martin Olvera. Cruz wrote in the police report that when he arrived
at the motel room, he saw three men and three women inside: Richard Maya, Martin
Olvera, a man called Christian, Anabelle Perez, Yolanda Pompa, and a woman called
Amber. Cruz documented that, prior to searching the motel room bathroom, he
determined that Richard Maya was the renter of the room. Cruz did not note the
relationship of any of the other occupants to Richard Maya. Rather, he documented that
he proceeded to search the bathroom pursuant to consent from Maya, the known renter of
the motel room.
Cruz noted in his police report that, “[i]n performing a safety sweep” of the
bathroom, he saw “a smaller white-with-flowery-print backpack,” that was “affixed with
zippers from topside to its sides and one zipper to the front.” Cruz wrote: “I asked who
the backpack belonged to, and Perez advised it was hers. Perez consented to a search of
her backpack.” (Unnecessary capitalization omitted.) Cruz continued: “In checking the
backpack, I could tell there were women’s hygiene items within it as well as other sets of
sunglasses and small cards. One of the cards was, in fact, Perez’s California
identification card. Also within the bag was what appeared to be a blouse with its store
tags attached and a bra. Beneath those items was a small spray perfume bottle and what
was obviously a handgun.”
In Cruz’s telling, as documented in the police report, Cruz performed a textbook
search, the constitutionality of which was above reproach. He determined the renter of
the motel room was Richard Maya. He entered the motel room’s bathroom pursuant to
Maya’s consent. In “performing a safety sweep,” he saw a feminine “white-with-
flowery-print backpack.” Recognizing it was a woman’s bag, Cruz did not rely on

5
Maya’s consent in opening it; rather, he asked the occupants, to whom did the backpack
belong. Annabelle Perez said it was hers, so Cruz obtained Perez’s consent to search the
backpack. When he opened the backpack with Perez’s consent, he saw Perez’s
California identification card on top, confirming the backpack belonged to Perez. As
Cruz looked deeper in the bag, underneath a blouse and bra, he found a handgun.
Unfortunately for Cruz, his body camera recorded the entire incident. The video
revealed the initial opening of the purse, which had been entirely omitted from the police
report, thereby raising colorable questions as to the constitutionality of the search that
yielded the handgun. Other discrepancies between the video and the police report also
came to light. For example, the Merced police chief disputed Cruz’s characterization in
the police report that he noticed the flowered backpack while “performing a safety
sweep.” The police chief observed the bodycam video showed Cruz searched the “the
whole area,” which is “different from [conducting] a safety sweep.” The police chief also
questioned Cruz’s failure to document the initial opening of the backpack, which the
police chief described, based on the bodycam video, as follows: “In the video and the
reflection in the mirror you are looking down and moving your hand consistent with
someone looking through the bag and you can actually hear what is consistent with
moving something around. Your head is moving and I can see your body move.” The
police chief expected Cruz to document these facts in his police report.
Some of the charges against Cruz, as adjudicated at the administrative hearing,
pertained to Cruz’s failure to document the true facts of the initial search in his police
report. For example, Charge 3 alleged a violation of Merced Police Department Policy
323.5.8, specifically that Cruz “failed to thoroughly and accurately document what truly
took place (Police Report): no mention of opening backpack prior to establishing
ownership.” As to this charge, the trial court made a factual finding as follows:
“Exercising its independent judgment, this Court finds that the evidence establishes that

6
Officer Cruz opened the backpack and looked inside before obtaining consent to search
the backpack, that Officer [Cruz] did not disclose that this occurred in his police report
and testimony, and, as a result, Officer Cruz failed to thoroughly and accurately
document what actually took place, and that Officer Cruz provided false and unreliable
testimony under oath in court, and, therefore, that Charge 3 should be sustained.”
(Unnecessary capitalization omitted.)
Next, Charge 4 alleged, in part, a violation of Merced Police Department Policy
323.5.9(h), specifically that Cruz “[a]cted dishonestly in preparing the Police Report,”
and his “failure to prepare a thorough and accurate Police Report affected his relationship
with the department.” As to this charge, the trial court made a factual finding as follows:
“Exercising its independent judgment, this Court finds that the evidence establishes that
Officer Cruz opened the backpack and looked inside before obtaining consent to search
the backpack, that Officer Cruz did not disclose that this occurred in his police report and
testimony, and, as a result, Officer Cruz failed to prepare a thorough and accurate police
report that affected his relationship with the department, Officer Cruz provided false
testimony in criminal court which adversely affected his relationship with the department,
and that Officer Cruz acted dishonestly in preparing the Police Report and testifying in
criminal court, and, therefore, that Charge 4 should be sustained.” (Unnecessary
capitalization omitted.)
As noted above, our review of the trial court’s factual findings is strictly
circumscribed: we review the trial court’s factual findings for substantial evidence.
(Barber v. Long Beach Civil Service Com. (1996) 45 Cal.App.4th 652, 659 [in
determining whether substantial evidence supports the trial court’s conclusions, “we must
resolve all conflicts and indulge all reasonable inferences in favor of the party who
prevailed in the trial court”]; San Diego Unified School Dist. v. Commission on
Professional Competence (2011) 194 Cal.App.4th 1454, 1461-1462 [“ ‘ “ ‘When more

7
than one inference can be reasonably deduced from the facts, the appellate court cannot
substitute its deductions for those of the superior court.’ ” ’ ”].)
Here, the trial court made factual findings that Cruz did not accurately document
the true facts of the initial search in his police report and these findings are amply
supported by substantial evidence. The facts of the initial search are recorded in the
bodycam video. The trial court exercised its independent judgment on the evidence,
including the bodycam video, and found that when Cruz initially dealt with the backpack,
he intentionally opened and looked in it. It is undisputed that Cruz did not document
these facts—the true facts of the initial search as determined by the trial court—in his
police report. This record compels affirmance of the trial court’s findings underlying
Charges 3 and 4, to the effect that Cruz did not prepare a thorough and accurate police
report.
The majority asserts Cruz was not required to document, in his police report, the
facts of the initial search—a search Cruz falsely testified did not even happen—because
that initial “search” was properly conducted and was constitutional. However, the
question before us is whether the court’s findings are supported by substantial evidence,
which they undoubtedly are. The majority believes the determinative criterion for
assessing whether Cruz prepared a thorough and accurate police report is the
constitutionality or unconstitutionality of the initial search of the backpack. The majority
places the cart before the horse. The constitutionality of any search can only be
determined if the facts related to the search are known in the first instance.
The legality of the instant searches was not a foregone conclusion. Anabelle Perez
had the right to litigate the issue in her criminal case. The constitutionality of the
searches at issue cannot be tested or established if the searches are not documented in the
police report. If the fact that a search occurred is omitted from a police report, how can
colorable legal issues be detected, litigated, and decided in the first place? The

8
conclusion by a split appellate panel, after protracted administrative and legal
proceedings spanning a number of years, that the initial search—a search Cruz
vehemently denies conducting—was somehow valid under the Constitution of the United
States does not mean that Cruz properly omitted mention of the underlying facts from his
police report.
Had Cruz’s police report—which misleadingly presented the bathroom search as a
textbook one—been the only factual record documenting how the search unfolded, the
present litigation concerning the constitutionality of the search(es) would not have
occurred. Not only did Cruz omit the facts related to the initial search from his police
report, but he doubled down and testified, falsely, that there was no initial search. Cruz
lied to cover up the original omission in his police report, which omission was revealed
by the bodycam video. He sought to minimize the significance of the omitted facts.1
Without the bodycam video, we would never have known about the initial search, and the
question of its constitutionality or unconstitutionality would not have arisen in the first
place. Hence, the picture documented in the police report was incomplete and inaccurate
in material respects.
The bodycam video led the criminal court to find Cruz had perjured himself and to
hold his searches unconstitutional. Had the bodycam video not existed, the entire arc of
the present litigation would have been precluded. Even if the litigation somehow
happened, without the bodycam video, Cruz’s perjury and the facts surrounding the initial
search would have remained obscured and we would not be here today. The record, and
the course of events that unfolded only because of the bodycam video, show that the
omission of the initial search from the police report was a highly material omission (and
not least in Cruz’s own mind).

1 As the IA investigator explained: “[Cruz] got caught and had to come up with a
reason to try and explain getting caught.”

9
 The trial court made factual findings that upheld all the charges predicated on
Cruz’s failure to document the initial search in his police report, namely Charges 1
through 4 and Charge 7. The trial court’s findings underlying these charges are
supported by substantial evidence and should therefore be affirmed on appeal. (See
Breslin v. City and County of San Francisco (2007) 146 Cal.App.4th 1064, 1078
[“Applying the substantial evidence test on appeal, we may not reweigh the evidence, but
consider that evidence in the light most favorable to the trial court, indulging in every
reasonable inference in favor of the trial court’s findings and resolving all conflicts in its
favor.”].)
IV. The Search That Yielded the Handgun Was Unconstitutional
The majority relies on United States v. Melgar (7th Cir. 2000) 227 F.3d 1038
(Melgar) in finding that the initial search was constitutional and it therefore did not taint
the subsequent search that yielded the handgun. But Melgar is distinguishable and the
facts of Melgar differ in critical respects from the facts of this case. In Melgar, a number
of people were present in a hotel room. The police searched the room based on the
consent of the renter of the room, a woman (the police were previously aware the woman
was the renter of the room). As the renter of the room, she had actual authority to
consent to the search of the room. The renter and the other occupants were then taken to
the police station. During the subsequent search of the hotel room, the police found a
flowered purse under the mattress. The police searched the purse and found contraband
in it. Identification in the purse showed it belonged to one of the room’s occupants, not
to the renter of the room.
In Melgar, the search of the purse was valid because (1) police had consent to
search the hotel room from the renter of the room, (2) the renter of the room was a
woman, (3) the purse was a woman’s purse, (4) police reasonably construed the renter’s
consent to extend to the purse in her room, and (5) police relied on the female renter’s

10
consent in searching the purse. (Melgar, supra, 227 F.3d at pp. 1039-1040, 1042.)
Moreover, in Melgar, none of the occupants were present in the hotel room when police
found the purse (all the occupants had already been taken to the police station), so police
had no way to try to ascertain to whom the purse in question belonged. (Id. at p. 1040.)
Here, as recorded at the beginning of the bodycam video, Cruz knew Richard
Maya (a man) was the renter of the motel room before Cruz entered the room. Cruz
documented in his police report that he searched the bathroom pursuant to consent from
the renter of the motel room, Maya. While Cruz mentioned Yolanda Pompa in his police
report, he did not document her relationship to Maya or the motel room in question or
specify that she had granted consent to search either the bathroom or the backpack. The
trial court in the present administrative proceeding did not make any factual findings as to
Pompa’s relationship to Maya or to the motel room, or on the issue whether Pompa had
granted any form of consent to Cruz. The majority, however, contends, citing Melgar,
that Pompa had apparent authority to grant consent to a search of the bathroom and Cruz
reasonably relied on Pompa’s apparent authority to grant such consent in searching
Anabelle Perez’s purse. I disagree with the majority’s conclusion. Not only are we not
free to weigh the evidence to make factual findings on appeal, but Melgar does not
encompass the situation we have here, where the police officer conducting the search
perjured himself in describing the search.
In Melgar, the police had consent from the renter of the hotel room to search the
room AND actually relied on that consent to search the purse found under the mattress in
that room. Here, even assuming Cruz could properly search the bathroom based on
Pompa’s putative general consent to a bathroom search, Cruz, by his own admission, did
NOT rely on that consent in searching the backpack. This is a critical difference between
Melgar and the present case: here, there is no evidence that Cruz searched the backpack
pursuant to any putative consent from Pompa to a bathroom search.

11
 Cruz repeatedly testified under oath that he initially opened the backpack
inadvertently, giving different descriptions at the suppression hearing and administrative
hearing, respectively. In addition, during the IA investigation, Cruz reenacted, on video,
the initial opening of the backpack. In the video, Cruz stated he initially picked up the
backpack not to search it, but rather to check whether there were any identifying marks
on it, so he could identify its owner. In doing so, he snagged his glove in the zipper and
2
accidently opened the backpack. During his Skelly hearing, Cruz reiterated he intended
to look for identifying marks on the backpack when he snagged his glove in the zipper
and inadvertently opened it. Cruz was left “dumbfounded,” and looked down at the bag
because he “was tryin[g] to figure out how [he] got that unzipped without intentionally
wanting to unzip it.” Thereafter, Cruz specifically asked whose backpack it was, in an
effort to identify its owner; after Anabelle Perez claimed it, Cruz searched the backpack
and found Anabelle Perez’s California ID card among the items at the top of the
backpack. This record definitively establishes, as a matter of law, that Cruz did not
conduct the initial search of the backpack in reliance on Pompa’s general consent to a
search of the bathroom.
The majority disagrees with the proposition the record “definitively establishes”
that Cruz did not conduct the initial search of the backpack in reliance on Pompa’s
general consent to a search of the bathroom. But the majority merely parses the record to
show Pompa consented to a generalized search of the bathroom and Cruz relied on this
general consent to search the bathroom. My (more nuanced) point is that the record
definitively establishes that Cruz did not initially search the backpack in reliance on
Pompa’s putative consent to a bathroom search. Put simply, since Cruz has insisted to
this day that he did not intentionally open the backpack the first time, he obviously

2 Skelly v. State Personnel Bd. (1975) 15 Cal.3d 194.

12
cannot contend he opened it in reliance on Pompa’s (or anyone else’s) generalized
consent to a bathroom search. Cruz deploys the self-serving ploy of blurring the
distinction between the bathroom search and the initial search of the backpack, and the
majority buys into this ploy. But the determinative issue here is Cruz’s perjured
testimony. Cruz’s perjured testimony that the initial search did not occur in the first place
takes this case outside of the application of constitutional law altogether. (United States
v. Agurs (1976) 427 U.S. 97, 104 [perjury “involve[s] a corruption of the truth-seeking
function of the trial process”].)
The only way to find Cruz relied on Pompa’s generalized consent to a bathroom
search, to open and search the backpack the first time, is by ignoring or, more correctly,
rewarding Cruz’s perjury and affirmatively imputing such reliance despite Cruz’s denials
that he searched the purse at that juncture. That is a bridge this court need not, and
should not, cross. I conclude there was no justification for Cruz to open the backpack the
first time, prior to obtaining consent from Anabelle Perez to do so. It follows the initial
search was unconstitutional and tainted the subsequent, consensual search that yielded the
handgun. The handgun was therefore properly suppressed in the criminal proceedings.
In finding to the contrary, the majority states: “[W]e conclude that even if Cruz
searched the bag before speaking with Perez, such a search would not have been illegal.”
(Maj. opn., ante, at p. 25.) The majority’s conclusion might have made sense if Cruz had
testified that, before speaking with Perez, he searched the bag knowing he had Yolanda
Pompa’s consent to search the bathroom. Since Cruz affirmatively denies searching the
bag before speaking to Perez, one has to ignore his perjury to reach the conclusion the
majority reaches here. The majority insists it has taken Cruz’s perjury into account by
viewing Cruz’s initial opening of the backpack as a search per the trial court’s perjury
finding. However, there is still the problem that the trial court did not find that Cruz
searched the backpack based on Pompa’s consent to a bathroom search. Indeed, because

13
of Cruz’s perjury, the record affirmatively precludes a finding that Cruz construed
Pompa’s generalized consent to a bathroom search to extend to the backpack and relied
thereon in intentionally opening the backpack and searching it. The majority’s
constitutional analysis falls apart because it does not account for the essential, but
missing, element of reliance.
To the extent the trial court applied collateral estoppel to find the search of the
backpack was unconstitutional (in light of the criminal court’s conclusion to this effect),
that issue is irrelevant. We can determine, de novo, the legality of the search as a pure
question of law or mixed question of law and fact, based on Cruz’s police report, Cruz’s
sworn testimony at the suppression hearing, Cruz’s statements in the IA investigation,
Cruz’s sworn testimony at the administrative hearing, and the trial court’s factual
findings in the instant administrative proceeding. As explained above, based on this
evidence and the findings below, the initial search of the backpack was illegal and the
illegality tainted the subsequent search that yielded the handgun.3 The trial court
sustained Charge 5, based on its conclusion that Cruz’s searches of the backpack were
unconstitutional. Upon de novo review, relying on facts that appear in the record, I
would affirm the trial court’s sustainment of Charge 5.
V. The Penalty of Termination Was Proper as a Matter of Law
Cruz argues the Merced city manager’s decision to terminate his employment was
“arbitrary, capricious and a patently abusive exercise of discretion.” However, the
penalty imposed by the city manager is proper as a matter of law.

3 To the extent the majority reviews the constitutionality of the searches at issue de
novo, it cannot act as a factfinder in ascertaining the facts underlying its determination,
by resolving conflicts in the evidence or weighing the evidence, or by supplying facts that
do not appear in the evidence. The majority arrives at its conclusion that the searches
were constitutional via a highly abstract analysis that does not identify the facts or
evidence upon which it relies.

14
 “[T]he penalty imposed by the administrative body will not be disturbed in the
mandate proceeding unless a manifest abuse of discretion is shown.” (Deegan v. City of
Mountain View (1999) 72 Cal.App.4th 37, 46.) “The appellate court uses the same
standard as the superior court, reviewing the agency’s penalty for manifest abuse of
discretion.” (Id. at p. 47.) Furthermore, “[t]he appellate court conducts a de novo review
of the penalty assessed, giving no deference to the trial court’s determination.” (Id. at p.
46.) “If reasonable minds may differ as to the propriety of the penalty imposed, there has
been no abuse of discretion.” (Id. at pp. 46-47.) “It is only in the exceptional case, when
it is shown that reasonable minds cannot differ on the propriety of the penalty, that an
abuse of discretion is shown.” (Id. at p. 47.) “We do not substitute our discretion for that
of the administrative agency on the degree of punishment to be imposed.” (Ibid.
[“ ‘ “Neither an appellate court nor a trial court is free to substitute its discretion for that
of the administrative agency concerning the degree of punishment imposed.” ’ ”].)
Cruz has been found by numerous tribunals to have committed perjury in a
criminal court, which finding has now been upheld in this court. This is an extremely
serious finding for anyone, for a police officer it is career ending. At the administrative
hearing below, counsel for the City of Merced observed in his opening statement:
“Ultimately this is a case about honesty, integrity and trust, the trust between a police
officer and a district attorney, the trust between a police officer and a sitting judge, the
trust between a police officer and his superiors in the police department and ultimately
the trust between the Merced Police Department and the City of Merced, the community
which it represents and protects.”
Deputy District Attorney Tyson McCoy testified at the administrative hearing.
McCoy was asked to “explain the significance of the trustworthiness or honesty of a
police officer when a police officer is on the witness stand.” McCoy responded: “It’s
everything. It’s everything. If a police officer can’t be trusted, the system falls apart, and

15
much as I hate being here to see an officer go through this, and I’ll be honest with you,
our system only works if people are honest, and the fact that I believe an officer may
have lied on the stand, I was very concerned. I was very concerned that his credibility
was now at issue. I don’t know if he could be trusted on other cases.” McCoy noted that
acts of dishonesty and moral turpitude would stick with an officer for his entire career.
McCoy explained: “If there was evidence that a witness had lied, including an officer,
yes, we would discover that on every case that witness testifies in.” McCoy added that in
many criminal cases, an officer’s word is “central,” and turning over evidence of prior
perjury by the officer “usually will tank the case.” McCoy concluded: “One thing I think
people in the public don’t really understand until you’ve worked in this business is that
we strive really hard to do what’s right from the DA’s side, and we strive really hard to
present things in the honest, truthful light in every way we can.”
Merced Police Captain Jay Struble, who conducted the IA investigation in this
matter, also testified at the administrative hearing. Struble highlighted the gravity of a
police officer committing perjury in a criminal case. Struble testified: “If you are not
honest and do not testify truthfully in this career, there’s a thing called the Brady issue.4
Brady is a whole ‘nother case law, but basically if you’re found to be dishonest, the
district attorneys very rarely can even use you to prosecute criminal cases. [¶ ] … [¶ ] I
mean unfortunately that’s where this case went. It was basically a case of being
dishonest. There was plenty of opportunity out there and given to Officer Cruz to correct
it. [¶ ] … [¶ ] So based on the dishonesty, I had no choice. I cannot have an officer
that’s dishonest working for the Merced Police Department.”
Struble emphasized: “If you’re not truthful, you cannot be in law enforcement,
whether it’s in Merced, Sacramento, L.A., Florida. You cannot be dishonest.” Struble

4 Brady v. Maryland (1963) 373 U.S. 83.

16
further noted: “When you’re dishonest in court and you don’t provide truthful testimony,
there really is – you can’t progressively discipline based on the fact that everyone – all
the public defenders and defense counsel in this county is going to know, oh, this person
– this officer lied on the stand and they’re going to do – I hate to get off – Pitchess
motions and various other things, and your district attorney’s office is not going to be
able to use an officer to prosecute criminal cases. [¶ ] So it does me no good to have an
officer out working the street, arresting people if we can’t get them prosecuted.”
The Merced city manager noted: “I have taken weeks to review this case
thoroughly and after weighing all of the information, there are two words that I can hear
in my head, ‘honesty and credibility….’ Without honesty and credibility, who are we as
a city or as a society? These two words bind us together and define who we are and
somewhere in this matter involving Officer Cruz these two words got lost.”
Finally, the trial court below observed: “A Police Department should not be
required to employ an officer whose credibility will be an issue in every case in which he
testifies.” The trial court concluded that “the decision of the City Manager to uphold the
termination of Officer Cruz’s employment was not an abuse of discretion.” This court
applies the same standard as the trial court in reviewing the propriety of the Merced city
manager’s penalty determination in this administrative proceeding. Furthermore, this
court independently assesses the penalty imposed by the agency, giving no deference to
the trial court’s determination. Accordingly, at this juncture, it is unnecessary to remand
the matter for the trial court to review the Merced city manager’s original penalty
determination. The majority provides no explanation for the remand in light of the fact
the trial court’s determination is not accorded deference.
This court has affirmed the trial court’s determination that Cruz lied under oath in
criminal court. Moreover, it is indisputable that honesty, integrity, and credibility are
paramount attributes for police officers. (See Crawford v. City of Los Angeles (2009) 175

17
Cal.App.4th 249, 257 [“Termination based upon a false statement by a peace officer is
indisputably within the City’s power.”]; Ackerman v. State Personnel Bd. (1983) 145
Cal.App.3d 395, 400 [“the credibility and honesty of an officer are the essence of the
function”]; Kolender v. San Diego County Civil Service Com. (2005) 132 Cal.App.4th
716, 721 [“ ‘A [police officer’s] job is a position of trust and the public has a right to the
highest standard of behavior from those they invest with the power and authority of a law
enforcement officer.’ ”].) In addition, the record establishes that the agency does not
apply progressive discipline when a police officer is found to have been dishonest.
Therefore, the penalty of termination imposed here is proper as a matter of law for Cruz’s
commission of perjury in criminal court. The majority’s observation that “demotion
without backpay” is a “reasonable” penalty is not supported by the record. (Maj. opn.,
ante, at p. 29, fn. 17.) Accordingly, I would affirm the judgment.

SMITH, J.

18
Filed 9/13/23

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

JOSE CRUZ,
F083402
Plaintiff and Appellant,
(Merced Super. Ct.
v. No. 20CV-02663)

CITY OF MERCED,
ORDER GRANTING REQUEST
Defendant and Respondent. FOR PUBLICATION

As the nonpublished opinion filed on August 23, 2023, in the above entitled matter
hereby meets the standards for publication specified in the California Rules of Court,
rule 8.1105(c), it is ordered that the opinion be certified for publication in the Official
Reports.

POOCHIGIAN, Acting P. J.

WE CONCUR:

DETJEN, J.

SMITH, J.