COURT OF APPEAL OF CALIFORNIA

Fourth Appellate District

Division Two

Manuel Correa,

Plaintiff and Appellant,

v.

County of Riverside et al.,

Defendants and Respondents.

E036581

2005 Cal. App. Unpub. Lexis 11319

December 7, 2005, Filed

Notice: Not to be published in Official Reports. California Rules of Court, Rule 977(A), prohibit courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by Rule 977(B). This opinion has not been certified for publication or ordered published for the purposes of Rule 977.

Ramirez, P.J.; McKinster, J., King, J. concurred.

Ramirez

Manuel Correa (Correa) challenges the trial court’s order denying his amended verified petition for writ of administrative mandate (writ petition). The writ petition asked the trial court to reverse the arbitrator’s decision upholding respondents’ (County of Riverside and Riverside County Sheriff’s Department) decision to terminate Correa’s employment. We find Correa’s arguments to be without merit and thus we affirm the trial court’s order denying the writ petition.

FACTS

Correa became a deputy sheriff with the Riverside County Sheriff’s Department (the Department) in 1990 when the Department absorbed the Desert Hot Springs Police Department with whom he was employed. At the time of the incidents at issue here, he was assigned to the sheriff’s station in Lake Elsinore.

Procedural History

On July 25, 2002, the Department served Correa with a Notice of Intent to Terminate. On August 27, 2002, Correa met with his union representatives and officials of the Department regarding the charges and proposed discipline. The Department terminated Correa on October 11, 2002, after sustaining three allegations of misconduct. Allegation 1 was that Correa had failed to appear in court on April 10 and 11, and September 17 and 27, 2001, after having received a subpoena or having been ordered by the judge to appear for those dates. Allegation 2 was that Correa brought discredit to the Department by disrupting court proceedings and the Riverside County District Attorney’s Office to the point that the supervising deputy district attorney made a formal written complaint to the Department. Allegation 3 was that Correa was dishonest when initially questioned about the court appearances.

Correa filed an administrative appeal, which was conducted by an arbitrator selected by the parties. The hearings were conducted on April 7, 8 and 18, 200. The arbitrator issued her decision on June 2, 2003, upholding the termination. The arbitrator concluded that, even without considering the failures to appear in court in April 2001, the County of Riverside (County) was justified in terminating Correa because, in September 2001, he initially lied to his superiors about not appearing in court in September of 2001.

On December 5, 2003, Correa filed his writ petition in the superior court alleging two causes of action. First, Correa argued that the County violated his rights under the Public Safety Officers Procedural Bill of Rights Act (Gov. Code, § 3303 et seq.; n1 the Act) when it based his termination on: (1) information obtained through unlawful interrogations in violation of section 3303; and (2) acts in April 2001 that occurred more than 12 months before the July 25, 2002, Notice of Intent to Terminate, in violation of section 3304, subdivision (d). Second, Correa argued that the arbitrator prejudicially abused her discretion when she upheld the termination because, among other things, the Department violated the Act, as discussed above. The trial court denied the writ petition, ruling that: (1) none of the exchanges that Correa labeled “interrogations” gave rise to an obligation to comply with section 3303, because they were either made in the normal course of duty or counseling, or initiated by Correa; (2) the County was allowed to consider the April 2001 missed court appearances in making its termination decision because September 2001 was the first time that anyone authorized to investigate Correa had enough information about Correa’s disruption of the district attorney’s office to initiate an investigation; and (3) the other grounds mentioned in the writ petition, which are not relevant to this appeal, were without merit.

Incidents on April 10 and 11, 2001

The Riverside Superior Court had subpoenaed Correa to appear at its Perris branch on April 10, 2001, at 8:30 a.m. for a preliminary hearing. Correa arrived after 11:00 a.m., causing the prosecutor to begin proceedings on another case. The court ordered him to return at 8:30 a.m. the next day.

On April 11, 2001, Correa was not in court by 9:00 a.m. The prosecutor began the preliminary hearing without Correa, but finished with another witness and could not proceed without Correa. By 10:30 a.m., phone calls had been placed to Correa’s home and cell phones and pager with no response. A district attorney supervisor contacted a sergeant and possibly a watch commander at the Lake Elsinore sheriff’s station. Correa arrived at the court about 11:30 a.m.

Incidents on September 17 and 18, 2001

The court had subpoenaed Correa to appear at its Perris branch for a preliminary hearing on September 17, 2001, at 8:30 a.m. At 9:30 a.m., both the prosecutor and a supervising district attorney began trying to reach Correa by telephone. Around noon, Correa responded by telephone to a call to his pager while on the way to the courthouse. The prosecutor told Correa the case was continued until the following day. Correa was 15 to 20 minutes from the courthouse. He arrived at the courthouse parking lot, intending to speak with the prosecutor, but instead turned around and drove away without going inside. Later in the day, the case was continued until September 27. About 8:00 or 8:15 on the morning of September 18, the prosecutor left a message on Correa’s cell phone canceling the appearance for that day. Correa got the message when he was on his way to the court, not far from his Temecula home.

Incident on September 27, 2001

Correa again failed to appear in court as subpoenaed. The prosecutor called his cell and home phones and pager, without success. The prosecutor also requested assistance from other deputies at the courthouse who worked with Correa. About 10:15 a.m., the prosecutor called Correa’s supervisor, Sergeant Thompson (Thompson), at home. Thompson called Correa at home and told him to get to court as soon as possible. At 11:00 a.m., the district attorney’s office told the judge that they intended to issue an arrest warrant for Correa. Correa arrived at the Perris courthouse about 11:45 a.m. Correa had a conversation with the prosecutor, during which he repeatedly claimed to have been at the courthouse on September 18, while the prosecutor denied that he had. Correa eventually admitted that he was not at the courthouse on September 18. The preliminary hearing took place that afternoon. Later that day, the supervising district attorney wrote a memo of formal complaint to Correa’s supervisors. The memo outlined Correa’s tardiness, failures to appear and poor attitude, and explained that Correa was interfering with the ability of the district attorney’s office to do its job.

DISCUSSION

On appeal, Correa contends the Department terminated him in violation of the Act when it (1) failed to inform him of his rights under the Act prior to six separate interrogations, in violation of section 3303; and (2) terminated him for alleged misconduct which occurred in April 2001, more than one year prior to the July 25, 2002, Notice of Intent to Terminate, in violation of section 3304.

1. Standard of Review

Whether the Act applies to the six enumerated contacts between Correa and his supervisors is an issue we review using the de novo standard. This is because this determination requires interpreting the Act and the scope of its coverage. (Shafer v. Los Angeles County Sheriff’s Dept. (2003) 106 Cal.App.4th 1388, 1396.) However, the trial court made a finding of fact, not an interpretation of law, when it determined that the Department did not violate section 3304 because it did not have enough information to investigate the April 2001 misconduct until less than a year prior to the July 2002 Notice of Intent to Terminate. Therefore, we review that issue to see if the trial court’s finding is supported by substantial evidence. (Ibid.)

2. Interrogations in Violation of Section 3303

The Act “establishes certain procedural rights and protections for public safety officers.” (Burden v. Snowden (1992) 2 Cal.4th 556, 561.) These rights and protections are intended to maintain stable employer-employee relations between public safety employees and their employers, thereby ensuring that the public receives effective public safety services. (§ 3301.) The Act “balances the interests of the public in maintaining the integrity of the police force with the interest of the public safety officer in receiving fair treatment.” (City of Los Angeles v. Superior Court (Labio) 57 Cal.App.4th 1506, 1512, citing Pasadena Police Officers Assn v. City of Pasadena (1990) 51 Cal.3d 564, 568, 273 Cal. Rptr. 584.)

Section 3303 provides certain procedural rights whenever “any public safety officer is under investigation and subjected to interrogation by his or her commanding officer, or any other member of the employing public safety department, that could lead to punitive action . . . .” These include the right to be informed of the nature of the investigation ( § 3303, subd. (c)), and the right to tape record the interrogation (§ 3303, subd. (g)). When an interrogation “focuses on matters that are likely to result in punitive action,” the officer has the right to have a representative present. (§ 3303, subd. (i).) Finally, “if prior to or during the interrogation of a public safety officer it is deemed that he or she may be charged with a criminal offense, he or she shall be immediately informed of his or her constitutional rights.” (§ 3303, subd. (h).)

However, these protections do not apply when the interrogation takes place “in the normal course of duty,” nor do they apply to “counseling, instruction or informal verbal admonishment by, or other routine or unplanned contact with, a supervisor or any other public safety officer.” (§ 3303, subd. (i).)

The courts have interpreted this provision to exclude “innocent preliminary or casual questions and remarks between a supervisor and officer,” and “routine communication within the normal course of administering the department.” (City of Los Angeles v. Superior Court (Labio), supra, 57 Cal.App.4th at p. 1514.) The court in Labio further framed the issue as whether a contact between an accused officer and his or her supervisors constitutes, on one hand, “routine or unplanned contact within the normal course of duty” or, on the other hand, “part of an investigation . . . for sanctionable conduct.” (Id. at pp. 1513-1514.) We review each of the six contacts, which Correa characterizes as interrogations, to determine whether they trigger the protections of section 3303.

a. First Interrogation

On September 19, 2001, Thompson reviewed deputy payroll sheets for the pay period ending on that date. He noticed that Correa’s payroll sheet indicated that he had been in court from 8:30 a.m. until 10:00 a.m. on September 17. n2 Thompson saw Correa in the hallway and told him to change the time to later in the day. This is because Sergeant Purvis (Purvis) had told Thompson that the district attorney’s office had called the station looking for Correa about 10:00 a.m. on that date. Correa then changed the payroll sheet to indicate that he had arrived at court at 2:00 p.m. and left at 3:30 p.m. Correa returned the payroll sheet to Thompson and stated he had arrived at court and made contact with the prosecutor later in the day rather than in the morning. Thompson then explained the station policy that the first 6.75 hours should be counted as compensatory time rather than overtime.

This was clearly a routine contact within the normal course of duty, and thus not an interrogation. As a sergeant, Thompson’s duties included reviewing, approving and signing the payroll sheets of deputies on his shift, including Correa. In the course of performing this duty, Thompson merely told Correa to change the time to reflect an afternoon court appearance, rather than a morning one, and explained the difference between overtime and compensatory time. During the subsequent personnel investigation, Correa stated that Thompson did not question him as to whether he arrived at the courthouse and thus was entitled to four hours of pay for the hour and a half he reportedly spent.

b. Second Interrogation

On September 27, 2001, during the lunch break at the Perris courthouse, Correa drove to the station to, in Correa’s own words, “confront” Lieutenant Snodgrass (Snodgrass). Correa asked Snodgrass “if there was an investigation going on.” Snodgrass told him there was, and that Thompson was going to be questioning people at the courthouse about whether Correa arrived at the Perris courthouse on September 17 and 18. Correa stated, “Good thing I made it to Perris then,” but also noted that no one had seen him at the courthouse. The two then discussed Correa’s tired appearance and the difficulties he was experiencing in his personal life.

This encounter was not an interrogation because it was not part of an investigation and because it was unplanned. Snodgrass did not call Correa into his office to discuss September 17 and 18. Rather, Correa himself initiated the contact by driving to the station on his lunch break from court to ask Snodgrass whether an investigation was ongoing.

c. Third Interrogation

Later on September 27, 2001, Correa called Thompson and told him that he had spoken with Snodgrass earlier that day and related what was said. Correa repeated the statement, “Good thing I made it to Perris.” Thompson told Correa, in Correa’s words, “Yeah, I don’t know what’s going to happen with this investigation. We’re probably going to look into it more.” Thompson also told Correa that the policy would now probably have to be changed so that all deputies would have to get a time stamp from the courthouse to prove each court appearance.

This encounter was not an interrogation because it was unplanned and was not part of an investigation. Again, Correa initiated the contact by placing a telephone call to Thompson. There is no admissible evidence on the record that Thompson asked Correa any questions about his court appearances. Rather, the encounter appears to have been an effort by Correa to obtain information about whether he was being investigated and to reiterate that he had been at the Perris courthouse on September 17 and 18 and thus was entitled to four hours of pay for each of those dates.

d. Fourth Interrogation

On October 7, 2001, Correa approached Thompson in the station’s locker room and asked him how he was doing. Thompson told Correa that he had been better. Correa asked Thompson if it was because of something Correa had done. Thompson then told Correa about the formal complaint the Department had received from the district attorney’s office regarding Correa’s court appearances, and that it was going to be a personnel investigation. Correa asked if Thompson believed Correa had done anything wrong. Thompson told Correa that he should officially check in with the district attorney’s office whenever he goes to court. Thompson also told Correa that cell phone records would indicate whether he was near his home in Temecula or near the Perris courthouse when he received the calls from the district attorney’s office on September 17 and 18. This is because the records would indicate, within a five-mile circumference, which cell phone tower transmitted the call to and from his cell phone. Thompson told Correa that he had the right to an attorney and that that it would be best for the two of them not to discuss the matter. Correa attempted to continue the conversation, but it ended when other people entered the locker room.

Again, this encounter was not an interrogation because it was unplanned on Thompson’s part and was not part of an investigation. Correa initiated the contact to obtain information about the investigation. Thompson did not question Correa about September 17 and 18, but rather gave Correa information about the investigation and then cautioned Correa that the two of them should not be discussing the matter in the locker room without Correa’s attorney present.

e. Fifth Interrogation

On October 9, 2001, Correa went to Sergeant Lopotosky’s (Lopotosky) office. Correa was very upset and told Lopotosky that he had made arrangements to talk with Snodgrass that day about the investigation. Correa said that he had been untruthful about being at the Perris courthouse on September 17 and 18. Correa said that this bothered his conscience and he wanted to tell the truth. Lopotosky told Correa that, as a sergeant and supervisor, he would have to document any admissions that Correa made to him. Lopotosky then walked Correa to Snodgrass’s office, waited for Correa to come out, then talked to him for a few minutes and told him he had done the right thing by being honest.

Once again, this encounter was not an interrogation because it was not planned and was not part of an investigation. Correa initiated the contact by going into Lopotosky’s office to tell him that he had been untruthful and intended to admit this to Snodgrass. Lopotosky did not ask Correa questions about whether he had lied about being at the Perris courthouse, and in fact advised Correa that he would have to report any admissions that Correa might make. Although Lopotosky did generally encourage Correa to be truthful, he did not attempt to obtain information from Correa that was relevant to the investigation.

f. Sixth Interrogation

Earlier on the same day, October 9, 2001, Correa went to the station prior to his shift and approached Snodgrass in the parking lot. Correa told Snodgrass that he needed to speak with him about something serious. Snodgrass was busy with something else and asked Correa if the discussion would take a while. Snodgrass then told Correa to meet him in Snodgrass’s office in a half-hour. After speaking with Lopotosky as described above, Correa met with Snodgrass in Snodgrass’s office. Correa told Snodgrass that he had been untruthful when he had said he was at the Perris courthouse on September 17 and 18 and had falsified his payroll sheet for those days. At the end of the meeting, Snodgrass called a peer counselor to come in and sit with Correa. Snodgrass left the office to speak to one of his own superiors, then came back and told Correa to take the rest of the day off. Snodgrass also referred Correa to a psychiatrist.

This encounter was not an interrogation because it was not planned by Snodgrass and was not part of an investigation. Again, Correa approached Snodgrass and told him he had to speak with him about something very serious. Snodgrass agreed to meet with Correa one-half hour later to accommodate Correa’s request. Correa voluntarily told Snodgrass that he had falsified his payroll sheet and lied about September 17 and 18. There is absolutely no indication on the record that Snodgrass questioned Correa and elicited this information.

3. Violation of Section 3304’s One-Year Rule

Section 3304, subdivision (d) provides that a public agency may not punish a public safety officer for misconduct unless it completes its investigation and notifies the officer of its proposed action within one year after a person authorized to initiate the investigation discovers the misconduct. Here, Correa contends that he was improperly terminated for missing court appearances on April 10 and 11, 2001, because this occurred more than one year prior to the July 25, 2002, Notice of Intent to Terminate.

The trial court concluded that the County could rely on Correa’s April 2001 actions to make its termination decision because no one authorized to investigate had enough information about Correa’s disruption of the district attorney’s office to initiate an investigation until September 2001.

On April 11, 2001, Purvis received a phone call at the station from a supervisor with the district attorney’s office stating that they were looking for Correa because he had not shown up for a court appearance and asking for the name of Correa’s immediate supervisor. The record is unclear, but it appears that the district attorney supervisor might also have spoken with a Sergeant Collins and an unnamed watch commander. It is also possible that one of the named sergeants may have been the watch commander. The only thing the record is clear about is that the supervisor spoke with Purvis. In any case, there is no indication in the record that the district attorney supervisor told the sheriff’s personnel anything other than that Correa had missed a court appearance. This is not enough information to begin an investigation into whether Correa had disrupted the operations of the district attorney’s office and brought discredit to the Department. In addition, Correa has not established that Purvis was a person authorized to begin an investigation, in that Purvis was not Correa’s supervisor.

In addition, the formal complaint memo that the same supervising district attorney wrote to the Department on September 27, 2001, makes it clear that only in September of 2001 did Correa’s continued failures to appear in court and newly reported attitude problem merit a personnel investigation: “I am writing to advise you of a continuing problem we are having with Deputy Manuel Correa ( # 1924) from the Elsinore Station. The first incident was in April 2001 and at that time I spoke about it with Sgt. Purvis and Sgt. Collins of your station. The matter seemed resolved until last week. In short, he is not showing up for court when under subpoena. This alone would not be a problem except that his attitude is equally poor and he is interfering with our ability to do our jobs. This is to document what is happening.” (Emphasis added.)

Based on these facts, the trial court’s finding on this issue is supported by substantial evidence.

DISPOSITION

The trial court’s order denying the amended verified petition for writ of mandate is affirmed. Costs awarded to respondents.

RAMIREZ, P.J.

We concur:

McKINSTER, J.

KING, J.

Notes

1. All further statutory references are to the Government Code.

2. Department policy allowed deputies to be paid for a minimum of four hours whenever they appeared in court, regardless of whether their actual time spent was less. This is why it was important for the Department to determine whether Correa was actually at the Perris courthouse on September 17 and 18, 2001. If the district attorney’s office cancelled his court appearances before he arrived at the Perris courthouse, then he would earn pay for, at most, the actual time spent traveling to the courthouse.