Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEALS from a judgment of the Superior Court of Los Angeles County No. BS098929, Dzintra Janavs, Judge.
Diane Marchant for Plaintiff and Appellant.
Rockard J. Delgadillo, City Attorney, Claudia McGee Henry, Assistant City Attorney, Gerald M. Sato, Deputy City Attorney, for Defendants and Appellants.
BOREN, P.J.
A Board of Rights found Los Angeles Police Department (LAPD) Officer Frank Trevino, who was the subject of an LAPD Internal Affairs sting operation, guilty of five counts of misconduct, resulting in the termination of his employment. Trevino filed an administrative writ of mandate in the trial court, where he successfully challenged one of the five counts (count 3) on statute of limitations grounds.
Trevino appeals and contends that there is no substantial evidence to support two of the charges in the personnel complaint (counts 4 and 5), that one charge is time-barred (count 2), and that his right to due process was violated when respondent City of Los Angeles (the City) terminated his employment after giving notice only of demotion as a sanction. The City cross-appeals and contends the trial court erred in granting the writ of mandate as to one of the charges (count 3) because the statute of limitations had not commenced to run due to the continuing violation doctrine.
We find the evidence as to count 5 insufficient because Trevino had been suspended without pay and was not “on duty” at the time of his allegedly false statement. However, all other contentions, both on the appeal and the cross-appeal, are unavailing.
FACTUAL AND PROCEDURAL SUMMARY
Trevino was targeted for an integrity audit, commonly referred to as a sting operation, by Internal Affairs as a result of a complaint from a suspect that Trevino had taken $100 from him during booking. On September 10, 2002, Trevino was on duty and working at the Newton Division when Sergeant Tonya Dummar went to the Communications Division (the dispatch center) to assign a call to Trevino as part of the sting operation.
Beverly Enriquez, a civilian employee at the dispatch center, happened to be friends with Trevino’s wife. Trevino’s wife was a Downey police officer and a former civilian in the LAPD Communications Division. Enriquez left a message on both Trevino’s cell phone voice mail and on the answering machine of Trevino’s wife, warning that Internal Affairs would be monitoring frequencies and testing officers with bogus calls. Trevino’s wife then also called Trevino and left a message on his voice mail. Soon thereafter, Trevino called Enriquez and thanked her for the warning.
Trevino’s wife also returned Enriquez’s earlier message and confirmed that she had received Enriquez’s message. Enriquez indicated to her that she had spoken with Trevino and explained, “they’re monitoring the frequency and [there is] going to be a testing of units with bogus calls and assigning [Trevino] to them, so just information only . . . .”
This recording and various other recordings were introduced into evidence at the subsequent Board of Rights hearing.
Later that afternoon, as a part of the sting operation, Dummar gave the police dispatcher a bogus call and told her to assign it to Trevino. It was a staged domestic violence scenario, to which Trevino and his partner responded. When Trevino ran the plates on a nearby car used in the sting operation, Dummar knew the sting had failed and called it off.
No further sting efforts ensued because Trevino went to work with detectives and was no longer in the field. On October 11, 2002, Trevino called Sergeant Maria Acosta to find out the status of his pending promotion to sergeant. While chatting during the call, Trevino mentioned to her that there had been a sting on him, but that a friend in the Communications Division had warned him of the attempt. She did not ask the name of Trevino’s friend, but considered the situation he revealed to be “very bad.” She contacted supervisors about what Trevino had revealed and a personnel complaint was initiated.
On October 25, 2002, Internal Affairs assigned the investigation to Sergeant Orlando Moreno. On September 4, 2003, as part of a criminal investigation, Moreno interrogated Trevino. Trevino was advised of and declined to waive his Miranda rights. However, when Trevino was admonished as to his other legal rights and obligations (see Lybarger v. City of Los Angeles (1985) 40 Cal.3d 822, 827-828), he agreed to answer questions rather than be found insubordinate. Moreno specifically told Trevino, “[A]s I advised you, you are a witness at this point. You are not an accused. [Italics added.] But, nonetheless, you’ve asked to be Mirandized and Lybargered.” When Moreno again stated to Trevino, “you’re a witness in this investigation,” Trevino acknowledged that he was “a subject of an investigation” which could possibly involve criminal misconduct.
During this September 4, 2003, interview, Trevino described how he had learned on September 10, 2002, in a telephone call from his wife that he was the subject of a sting operation carried out with the assistance of staff in the Communications Division. However, Trevino claimed that he did not know the names of any of his wife’s friends in the Communications Division, that he did not ask his wife to name the friend who had passed along the information about the sting, and that he did not know and had not shared with anyone the identity of his wife’s friend in the Communications Division. At the conclusion of the interview, Moreno gave Trevino a “direct order” not to discuss the investigation with anyone other than his employee representative, commanding officer, or an attorney.
On February 26, 2004, after receiving audio tapes of phone calls made on September 10, 2002, Moreno again interrogated Trevino as part of the investigation. Moreno played for Trevino the recording of his prior interview on September 4, 2003, and Trevino was offered but declined the opportunity to change any of his prior statements. Moreno then asked Trevino again if he knew the identity of the Communications Division employee who had tipped off his wife about the sting operation. Trevino again claimed he did not know the identity of that person.
Moreno then proceeded to play for Trevino the tape recording of the September 10, 2002, telephone call from Trevino to a person who identified herself as “Enriquez,” during which Enriquez said she had been “sweating it” in her efforts to contact him, and Trevino thanked her. Trevino acknowledged that the recording was of a conversation between him and Enriquez, who he admitted was one of his wife’s friends. However, Trevino asserted he could not remember what he was thanking Enriquez for.
At the conclusion of the February 26, 2004, interrogation, Moreno indicated that he intended to accuse Trevino of two incidents of misconduct: (1) that Trevino made false statements during the September 24, 2003, interview; and (2) that Trevino had known on September 10, 2002, of the identity of an LAPD employee who was releasing confidential information about the Internal Affairs sting operation, but that Trevino failed to report that employee’s misconduct to appropriate supervisors. Trevino denied the accusations. Moreno again gave Trevino a direct order not to discuss the investigation with anyone other than his employee representative, attorney, or commanding officer.
Rudy Vasquez, another civilian employee in the Communications Division who was friends with Trevino back on September 10, 2002, admitted that he spoke to Trevino “roughly nine to 10 times” about the investigation into the charges against him of “providing false statements and not reporting misconduct.” According to Vasquez, the first time he spoke with Trevino about the charges was during a phone call “possibly in February [of 2004] sometime soon after the news had been released in roll call.” As Vasquez again stated in response to a further question about when he “first” spoke to Trevino about this incident, “It had to have been in February of [2004].”
In April of 2004, Trevino received notice of the results of Moreno’s investigation and the complaint containing the allegations. Trevino replied through his representative that he had received his Skelly notice, meaning notice of proposed disciplinary action and other predeprivation procedural rights ensured by due process of law, and that his guilt and the penalty, if any, would be adjudicated by a Board of Rights. (Skelly v. State Personnel Bd. (1974) 15 Cal.3d 194; see Gov. Code, § 3304.) On July 8, 2004, after considering Trevino’s Skelly response, the Chief of Police relieved Trevino of duty without pay and demoted him from sergeant to police officer III, pending a hearing by a Board of Rights.
Unless otherwise indicated, all statutory references are to the Government Code.
On October 14, 2004, Moreno attempted to contact Trevino through his legal representative to set up a further interview. The representative indicated he would convey the request. Moreno also attempted to contact Trevino to set up an interview by going through Trevino’s chain of command. On October 25, Moreno also sent by certified mail a letter to two known addresses for Trevino, ordering him to appear with a representative for an interview as a part of the ongoing investigation and warning him that he would face an additional charge if he did not appear. Trevino did not appear.
On November 8, 2004, Moreno personally confronted Trevino and ordered him to submit to an interview. When Moreno told Trevino that he had been trying to reach him for some time, Trevino asserted he had no prior knowledge of Moreno’s letter. The next day, Trevino picked up the certified letter at the post office.
During additional interviews on November 15 and 23, 2004, Trevino again denied knowing that Moreno had earlier sent him a certified letter and denied knowing until recently that Moreno had been attempting to schedule an interview with him. However, according to Larry Stamps, a United States Postal Service carrier, Trevino refused to sign for and acknowledge a certified letter from his employer, the LAPD; Trevino said he wanted his wife to sign for it because he was having trouble at his job.
On December 2, 2004, an amended complaint was filed against Trevino. It contained the following five counts of misconduct:
Count 1: On September 4, 2003, Trevino while on duty made false statements to Moreno, who was conducting an official investigation.
Count 2: On February 26, 2004, Trevino, while on duty, made false statements to Moreno, who was conducting an official investigation.
Count 3: On September 10, 2002, Trevino became aware of misconduct committed by civilian employee Enriquez and failed to notify an LAPD supervisor.
Count 4: Between February 2004 and August 26, 2004, Trevino was insubordinate when he violated a direct order not to discuss his personnel complaint investigation with any person other than his attorney, employee representative, commanding officer or Internal Affairs investigators.
Count 5: Between November 15, 2004, and November 23, 2004, Trevino while on duty made false statements to Moreno, who was conducting an official investigation.
After a hearing, the Board of Rights found Trevino guilty of all five counts. It reviewed Trevino’s personnel records, which revealed a five-day suspension in 1995 for making a false statement, and recommended his removal from employment. In recommending Trevino’s discharge, the Board of Rights found that he had “lost sight of his oath of office and acted in a self-serving and arrogant manner.” On June 14, 2005, the Chief of Police accepted the discharge recommendation and signed an order imposing the discharge penalty.
We note that as to count 4, although Trevino was charged with violating between February and August of 2004 the order not to discuss the case with anyone, the Board of Rights only found that he “violated that order [ ] on the day of February 20th, 2004.” It found no violation on any other date.
Trevino then filed a petition for a writ of mandate in the superior court seeking to set aside his termination on various grounds. The court declined to set aside his termination. However, the court struck count 3 in the personnel complaint on statute of limitations grounds and directed that the Board of Rights reconvene for the purpose of considering an appropriate penalty for the remaining counts of which Trevino had been found guilty.
This appeal and cross-appeal ensued.
DISCUSSION
I. The standard of review.
On review of an administrative decision substantially affecting a fundamental vested right, we must sustain the trial court’s factual findings if they are supported by substantial evidence. However, we review de novo the trial court’s rulings on questions of law. (Jackson v. City of Los Angeles (2003) 111 Cal.App.4th 899, 902.)
II. Substantial evidence supports the finding of guilty as to the misconduct allegation in count 4, but not the allegation in count 5.
A. Substantial evidence supports count 4, which alleged Trevino’s insubordination by violating a direct order not to discuss the personnel complaint investigation with anyone (other than with counsel, an employee representative, a commanding officer, or investigators).
In arguing the lack of substantial evidence to support count 4, Trevino points to several factors. He notes that he denied violating the order not to discuss his case, that Vasquez was purportedly uncertain of what he and Trevino talked about on the violation date of February 20, 2004, and that phone records indicated the only lengthy call between them (about 20 minutes long) occurred on June 7, 2004. Nonetheless, we find the record provides abundant substantial evidence.
Vasquez initially testified at the Board of Rights hearing that the first time he spoke with Trevino about the charges was during a phone call “possibly in February [of 2004] sometime soon after the news had been released in roll call.” Significantly, when Vasquez was asked a second time at the hearing about when he “first” spoke to Trevino “about this incident,” Vasquez replied, “It had to have been in February of [2004].”
Phone records indicate telephone contact between Trevino and Vasquez on February 20, 2004. On that date, Vasquez made a one-minute call to Trevino’s cell phone, followed a minute later by a seven-minute-long phone call to Trevino’s home phone. Trevino argues on appeal that Vasquez purportedly testified he discussed the case with him only after that date. However, the record at the Board of Rights hearing actually establishes that Vasquez explained that Trevino spoke to him after February 20 about a charge concerning a “misleading statement,” but that Trevino spoke to him on February 20 about the charge of providing a false statement and not reporting misconduct as to Enriquez.
Accordingly, substantial evidence establishes that Vasquez--who admitted that he spoke to Trevino “roughly nine to 10 times” about the investigation into the charges against him of “providing false statements and not reporting misconduct”--spoke to Trevino on February 20, 2004, in violation of a direct order not to discuss the investigation.
B. Substantial evidence does not support count 5, which alleged that between November 15 and 23 of 2004, Trevino “while on duty” made false statements to Moreno, who was conducting an official investigation.
Count 5 is based on Moreno’s claim that he mailed Trevino a letter dated October 21, 2004, demanding that Trevino submit to another interview, and that Trevino made false statements to him when on two occasions Trevino said he did not know about the October 21 letter until November 8, 2004.
The Board of Rights found Trevino guilty of this count based largely on the credible testimony of a United States Postal Service carrier. As summarized by the Board of Rights, the letter carrier testified that Trevino refused to sign for and acknowledge a certified letter from his employer, that Trevino said he wanted his wife to sign for it because he was having trouble at his job, and that he appeared “motivated by disgust and did not want to have anything to do with the LAPD.”
Trevino contends that substantial evidence is lacking to support this charge because since July 8, 2004, he had been temporarily and provisionally relieved from duty and had not been on the LAPD payroll since August 12, 2004. Thus, Trevino asserts there was no evidence that he was “on duty,” as alleged in the complaint, when he made the false statements.
The City points out that until terminated after a Board of Rights hearing, Trevino remained an employee of the City of Los Angeles and a sworn officer in the LAPD even while relieved from duty. The City contends that even though Trevino was temporarily relieved of duty, he was not at liberty to engage in insubordinate conduct without disciplinary consequences. However, the City fails to appreciate the significance of a temporary or provisional suspension from duty.
“Generally, LAPD officers cannot be ‘suspended, demoted in rank, suspended and demoted in rank, removed, or otherwise separated from the service of the department . . . except for good and sufficient cause shown upon a finding of guilty of the specific charge or charges . . . after a full, fair, and impartial hearing’ before a Board of Rights. (L.A. Charter, § 1070 (a).)” (Mays v. City of Los Angeles (2008) 43 Cal.4th 313, 318, fn. 3.)
The case of Garvin v. Chambers (1924) 195 Cal. 212 is instructive and supports Trevino’s position. In Garvin, the Supreme Court long ago held that a police officer suspended without pay could not be disciplined for insubordination because of his refusal to be interviewed while suspended. “Insubordination can be rightfully predicated only upon a refusal to obey some order which a superior officer is entitled to give and entitled to have obeyed. [W]hile the order of indefinite suspension was in force [the officer’s] status as a policeman was suspended to the extent that he could not be called upon to do police duty nor be held amenable for a failure to do such duty. And that being so, it follows, for obviously greater reasons, that he could not be held amenable for a refusal to comply with a command which concerned not the performance of police duty, but which . . . contemplated ‘putting him on the carpet’ concerning the charge previously instituted against him and for which he was under suspension.” (Id. at p. 224.)
Therefore, just as in Garvin where the officer could not be disciplined for insubordination while he was suspended without pay, Trevino cannot be deemed “on duty” and disciplined for any false statements to Moreno who was conducting the continuing investigation. The evidence is thus insufficient as to the charge in count 5 against Trevino.
It is thus unnecessary to discuss Trevino’s contention that the letter carrier’s testimony did not constitute substantial evidence.
III. Disciplinary action based on count 2 is not time-barred by Government Code section 3304, subdivision (d), because count 2 involved a discrete act of misconduct.
Count 2 charged that on February 26, 2004, Trevino, while on duty, made false statements to Moreno, who was conducting an official investigation. The Board of Rights found Trevino guilty on the grounds that in his interview on February 26, 2004, he made false statements to Moreno when he denied knowing who in the Communications Division “leaked” information about the sting operation. In essence, count 2 alleged making false statements during the course of the investigation of count 3.
Section 3304, subdivision (d) provides, in pertinent part, as follows: “Except as provided in this subdivision and subdivision (g), no punitive action . . . shall be undertaken for any act, omission, or other allegation of misconduct if the investigation of the allegation is not completed within one year of the public agency’s discovery by a person authorized to initiate an investigation of the allegation . . . . In the event that the public agency determines that discipline may be taken, it shall complete its investigation and notify the public safety officer of its proposed disciplinary action within that year . . . .” (Italics added.)
Trevino argues that the City discovered the possibility that someone in the Communications Division had “leaked” information about the sting operation no later than October 11, 2002, the day Trevino told Acosta that a friend in the Communications Division had warned him of the attempt to sting him. According to Trevino, the misconduct in question (i.e., making a false statement on February 26, 2004, during the course of an investigation) was beyond the one-year time frame allowed for an investigation, and the allegation in count 2 was untimely.
The City, however, properly contends that the statute of limitations period did not run because the false statement made by Trevino to Moreno on February 26, 2004, was a discrete act of misconduct, which commenced the running of the limitations period on the day that statement was made. Attempting to cover up underlying misconduct by making a false statement during an investigation is separate and distinct from the underlying misconduct, just as perjury during a trial is a separate and distinct crime from the offense that is the subject of the underlying trial. To conclude otherwise would be to hold that the statute of limitations for a discrete act of misconduct could somehow run before the act was actually committed.
The City’s position is further buttressed by the timely compliance with the statutory notice requirements regarding the charge in count 2. Section 3304, subdivision (d) requires the agency to notify the officer of proposed discipline within one year of the discovery of the misconduct. It is uncontested that within one year of the February 26, 2004, misconduct, the LAPD provided Trevino with both the Skelly notice and the complaint. Of course, it would have been impossible for the City to have provided the requisite notice several months before the act of misconduct had even occurred. Likewise, it would have been impossible for the statute of limitations on the February 26, 2004, misconduct not to have commenced on that date, but to have commenced on October 11, 2002, long before the event had occurred.
Thus, the disciplinary action based on count 2 is not time-barred.
IV. The City did not deny Trevino due process by firing him as a response to his appeal of the demotion and temporary relief from duty.
Trevino contends that his right to due process was violated when the Board of Rights imposed the sanction of termination of employment after giving notice only of a demotion and a right to appeal that demotion. Apart from Trevino’s failure to preserve this issue for appeal by raising the claim at the administrative level in the Board of Rights hearing (see Takahashi v. Board of Education (1988) 202 Cal.App.3d 1464, 1481-1485), it is without merit.
First, to the extent Trevino suggests he was terminated because he appealed his demotion to a Board of Rights hearing, the notion is without factual foundation. The record is simply barren of any suggestion of retaliatory animus by the Board of Rights or anyone else.
Second, Trevino erroneously asserts that in July of 2004 he received only notice of a demotion. In fact, the demotion and relief from duty were merely provisional and were imposed pending the outcome of a Board of Rights hearing. Most significantly, under the City’s Charter, the range of discipline options available to a Board of Rights clearly includes termination of employment (Mays v. City of Los Angeles, supra, 43 Cal.4th at p. 319, fn. 3), and Trevino knew he was to confront a Board of Rights. As indicated by Trevino’s response to the Skelly notice, he actually knew as of April 2, 2004, that the final adjudication of any disciplinary issue would be made following the trial-type hearing of a Board of Rights, and therefore that he could be subject to any final discipline within the jurisdiction of a Board of Rights to recommend to the Chief of Police, including termination of employment.
At the same time that Trevino received the provisional demotion order, he also received a copy of the complaint--which advised him specifically that his guilt and any penalty would be determined by a Board of Rights. Accordingly, Trevino knew at the same time he learned of the provisional order that his final punishment could be termination, because such a disciplinary action is within the jurisdiction of the Board of Rights.
Finally, regarding specific written advisement of the range of possible punishments, such detail is not constitutionally required by procedural due process or by statute. As explained by the Supreme Court, “The tenured public employee is entitled to oral or written notice of the charges against him, an explanation of the employer’s evidence, and an opportunity to present his side of the story. [Citations.] To require more than this prior to termination would intrude to an unwarranted extent on the government’s interest in quickly removing an unsatisfactory employee.” (Cleveland Board of Education v. Loudermill (1985) 470 U.S. 532, 546.) In specifically reviewing the LAPD’s disciplinary process, the California Supreme Court recently held that notice of the misconduct charged and of the LAPD’s intent to adjudicate by an administrative tribunal is all the notice required under section 3304, subdivision (d). (Mays v. City of Los Angeles, supra, 43 Cal.4th at pp. 317-318, 324.)
Accordingly, the disciplinary notice procedures used satisfied all statutory and due process requirements.
V. The trial court properly held that punitive action under count 3 was time-barred by section 3304, subdivision (d).
In its cross-appeal, the City contends the trial court erred in overturning the finding as to count 3 on the grounds that the statute of limitations (§ 3304, subd. (d)) had expired. Count 3 alleged that on September 10, 2002, Trevino became aware of misconduct committed by civilian employee Enriquez and failed to notify an LAPD supervisor.
In proceedings before the Board of Rights, Trevino argued that the notice required by section 3304, subdivision (d), for count 3 had to have been provided to him by October 11, 2003, which was one year after the October 11, 2002, date when Trevino told Acosta that an unnamed friend in the Communications Division had warned Trevino approximately a month earlier of the attempt to “sting” him. The LAPD countered that the limitations period was tolled between October 11, 2002, when a criminal complaint initiated an investigation into the “unknown” civilian employee, and February 19, 2004, when the district attorney’s office rejected filing a case against Enriquez. The Board of Rights agreed with the LAPD that the one-year limitations period was statutorily tolled for “the time during which the criminal investigation or criminal prosecution is pending.” (§ 3304, subd. (d)(1); see also § 3004, subd. (d)(7), regarding multiple employees.) The Board of Rights then found Trevino guilty as to count 3.
In Trevino’s petition for a writ of mandate before the trial court, he again argued that he had not received notice of the proposed disciplinary action by October 11, 2003, and that section 3304, subdivision (d) barred punitive action. The City again reasserted its tolling argument. In reply, counsel for Trevino did not dispute that the LAPD had conducted “a criminal investigation” of some sort, but she argued that nothing had been done as part of the investigation until March 10, 2003, when Moreno interviewed Acosta.
The trial court, exercising its independent judgment, reasoned that “it appears the District Attorney’s office did not commence its crime investigation until January 26, 2004, over 3 months after the 1 year statute of limitations had run.” On that basis, it granted a limited writ of mandate as to count 3.
A. A continuing violation was not charged.
On appeal, the City now urges that that punitive action under count 3 was proper and not time-barred because of the “continuing violation” doctrine. (Cf. Richards v. CH2M Hill, Inc. (2001) 26 Cal.4th 798, 811-818, 823-824, discussed in the context of a statutory discrimination claim.) Under the City’s “continuing violation” theory, the statute of limitations does not commence to run where, in contrast to a discrete act, the officer violates an ongoing obligation, such as Trevino’s ongoing duty to report the misconduct of Enriquez. According to the City, the statute of limitations had not run because Trevino had an obligation on September 11, 2002, and on every single day thereafter to report Enriquez’s one episode of misconduct to an appropriate supervisor.
However, the charge against Trevino, as alleged by the language in count 3, fails to charge a continuing violation. Rather, count 3 merely charges that “[o]n or about September 10, 2002” Trevino became aware of misconduct committed by Enriquez and failed to notify an LAPD supervisor. No doubt, Trevino had a continuing duty to report the misconduct. Nonetheless, if the City wanted to pursue the matter as the failure of a continuing duty, it had an obligation to specifically charge him with the failure of that continuing duty, and to use such unambiguous terms in the charging language of the complaint. Count 3 could have easily alleged Trevino’s continuing violation of his duty to report the misconduct--but count 3 simply did not so allege. Thus, the City’s “continuing violation” theory is unavailing.
B. The City’s claim that the LAPD performed a criminal investigation of Trevino’s possible commission of the offenses of obstruction of a peace officer and conspiracy.
Equally without merit is the City’s claim that the statute of limitations period was tolled during the period of the LAPD’s criminal investigation. Section 3304, subdivision (d)(1) provides for tolling if the officer’s misconduct is also the subject of a criminal investigation or prosecution. However, as aptly noted by Trevino, there is no evidence that his conduct, meaning his failure to report Enriquez’s misconduct, was the subject of a criminal investigation by Moreno. In fact, when Trevino was first questioned by Moreno, on September 4, 2003, Moreno specifically advised Trevino that he was only “a witness” and “not an accused.”
A potential crime was committed by Enriquez (her obstruction of a peace officer’s sting operation) on September 10, 2002, when she called Trevino’s wife to warn Trevino that there would be a sting operation with bogus calls for officers to respond to. As the district attorney found, the statute of limitations on that crime ran on September 10, 2003, six days after Trevino was first questioned. There is simply no evidence in the record before the Board of Rights that Moreno ever conducted a criminal investigation as to Trevino.
Nor does the City provide citation in the record for any evidence to support its assertion that Trevino supposedly recognized at trial that the March 2003 interview of Acosta was part of the criminal investigation in which Trevino was allegedly the focus. Although it is logical that Trevino, and not just Enriquez, may well have been the subject of such a criminal investigation, the evidence before the Board of Rights does not establish Trevino as the focus of a criminal investigation. Also, as observed by the trial court, it was only much later, between January 26, 2004, and February 19, 2004, that the district attorney looked at the possibility of a criminal case against Trevino and concluded the statute of limitations had already run.
Trevino’s counsel acknowledged in her reply to the City’s opposition to Trevino’s petition for a writ of mandate that Moreno did not even do a criminal investigation until his March 2003 interview of Acosta. However, counsel’s reply did not acknowledge that the investigation was of Trevino. Moreover, counsel’s reply in the superior court, of course, was not evidence before the Board of Rights.
Accordingly, the trial court properly struck from the personnel complaint count 3, which had alleged that on September 10, 2002, Trevino became aware of misconduct committed by Enriquez but failed to notify an LAPD supervisor. Count 3 is barred by the statute of limitations.
DISPOSITION
The judgment striking count 3 from the personnel complaint, and directing the Board of Rights to convene for the purpose of considering an appropriate penalty for the remaining counts of which Trevino was found guilty, is modified by additionally striking count 5 from the personnel complaint. In all other respects, the judgment is affirmed.
Each party to bear its own costs on appeal.
We concur: ASHMANN-GERST, J., CHAVEZ, J.