Perea v. Fales

JOHN PEREA, Plaintiff and Appellant, v. JAMES M. FALES, JR., as City Manager, etc., et al., Defendants and Respondents

(Opinion by Christian, J., with Caldecott, P. J., and Rattigan, J., concurring.)

COUNSEL

Carroll, Burdick & McDonough and Christopher D. Burdick for Plaintiff and Appellant.

David E. Schricker, City Attorney, for Defendants and Respondents.

OPINION

CHRISTIAN, J.

John Perea, a Redwood City police officer, appeals from a judgment which denied his petition seeking a writ of mandate to: (1) set aside a decision of the Redwood City Personnel Board suspending him for [39 Cal. App. 3d 941] five days from his duties as a police officer, (2) reimburse him for lost wages and fringe benefits, and (3) expunge the record of the suspension from his personnel records. The petition was submitted for decision upon the administrative record.

On the evening of September 13, 1971, appellant, who was off duty and wearing civilian clothing, was stopped for driving 50 miles per hour in a residential neighborhood. The officer who stopped appellant reprimanded him for speeding but did not issue a citation.

Appellant was subsequently suspended from duty without pay for five days on the ground that the speeding incident was "conduct unbecoming an officer of the Redwood City Police Department," a ground for discipline specified in section 2 of part II (General Orders) of "Rules and Regulations for the Redwood City Police Department." The suspension was appealed to the Redwood City Personnel Board. After taking evidence the personnel board recommended that the suspension be upheld; the city manager accepted the recommendation and sustained the suspension.

[1a] Appellant's status, and the nature of the rights claimed by him, form the context in which the case must be considered. The personnel regulations of Redwood City provide that an employee may be dismissed only for cause. The city has thus vested in appellant a fundamental right to continuing employment, free of suspension except for cause. (Bixby v. Pierno (1971) 4 Cal. 3d 130, 144-147 [93 Cal. Rptr. 234, 481 P.2d 242].) Appellant's suspension had two effects. First, he was deprived of property -- five days' salary and fringe benefits -- which he would otherwise have received. Second, the record of suspension, inserted in appellant's personnel file, is a threat to his continued livelihood as a police officer in that (1) the letter of suspension threatened a cumulative effect by including a warning that any additional infractions of the police department's rules would lead to appellant's dismissal, and (2) the contents of an individual's personnel file may be the basis of the current employer's response to inquiries about that individual from prospective employers.

Respondents contend that appellant's right to continued employment is nevertheless not vested, citing O'Neal v. City etc. of San Francisco (1969) 272 Cal. App. 2d 869 [77 Cal. Rptr. 855]. O'Neal states: "It has been said that a public employee has no vested right to public employment .... [Citations.]" (Id., p. 874.) The authorities upon which that statement relies do suggest that a public employee has no property right in holding his public office (Matter of Carter (1903) 141 Cal. 316, 319 [74 P. 997]; Redding v. City of Los Angeles (1947) 81 Cal. App. 2d 888, 900-901 [185 P.2d 430]). Only one of the authorities, Boutwell v. State Board of [39 Cal. App. 3d 942] Equalization (1949) 94 Cal. App. 2d 945 [212 P.2d 20], refers to vested rather than property rights: "[There is] no vested right in public employment other than that given by the statute, ..." (Id., p. 950; italics added.) Here the vested right was created by the city's own regulations.

[2] Appellant contends that there was no substantial evidence to support the personnel board's determination that appellant had been guilty of "conduct unbecoming an officer." In actuality, the evidence was uncontradicted that appellant was speeding; appellant's real claims are that the words "conduct unbecoming an officer" are too vague to define a standard of conduct and that there is no nexus between appellant's conduct and his fitness to perform his functions as a police officer. In Morrison v. State Board of Education (1969) 1 Cal. 3d 214, 218 [82 Cal. Rptr. 175, 461 P.2d 375], the Supreme Court of California held that a teacher's conduct could not constitutionally be characterized as "immoral," "unprofessional," or involving "moral turpitude" for the purpose of imposing discipline unless that conduct reflected on the teacher's fitness to teach. A similar nexus between conduct characterized as "unbecoming an officer" and fitness to perform the functions of a police officer is required for the suspension of an officer from duty (id., p. 239). In addition, the regulations applied to appellant to justify his suspension must not be so vague as to give no guidance as to what conduct is permitted and what is prohibited (id., p. 231). The expression "conduct unbecoming an officer" fails, on its face, to provide a standard. However, the required certainty may be provided by the common knowledge of members of the particular vocation when the regulation does not itself contain specific standards; it may be that police officers "will normally be able to determine what kind of conduct indicates unfitness" to work in law enforcement (id., p. 233).

Thus, the test established by Morrison requires two determinations: (1) whether the regulation is sufficiently specific to provide fair warning of which conduct is prohibited and which permitted, and (2) whether there exists a relationship or "nexus" between the prohibited conduct and the employee's fitness to perform the duties required by the position. (See Perrine v. Municipal Court (1971) 5 Cal. 3d 656, 663 [97 Cal. Rptr. 320, 488 P.2d 648], cert. den., 404 U.S. 1038 [30 L. Ed. 2d 729, 92 S. Ct. 710]; Vielehr v. State Personnel Bd. (1973) 32 Cal. App. 3d 187, 194-195 [107 Cal. Rptr. 852].) Both specificity and nexus must be shown.

[1b] Appellant contends that the court erred in reviewing the personnel board's findings according to the substantial evidence test; appellant argues that the trial court should have applied independent judgment to the local administrative agency's findings. The standards applicable to [39 Cal. App. 3d 943] review of local agency findings by the trial courts were recently announced in Strumsky v. San Diego County Employees Retirement Assn. (1974) 11 Cal. 3d 28, 32 [112 Cal. Rptr. 805, 520 P.2d 29]: "If the order or decision of the agency substantially affects a fundamental vested right, the trial court, in determining under section 1094.5 whether there has been an abuse of discretion because the findings are not supported by the evidence, must exercise its independent judgment on the evidence and find an abuse of discretion if the findings are not supported by the weight of the evidence. If, on the other hand, the order or decision does not substantially affect a fundamental vested right, the trial court's inquiry will be limited to a determination of whether or not the findings are supported by substantial evidence in the light of the whole record." The Supreme Court specified that the new rule of review is to apply both prospectively and to appeals pending at the time the decision in Strumsky was filed (id., p. 45). We have determined that appellant had a fundamental vested right which was affected by the personnel board's decision; therefore, independent judgment is to be exercised by the trial court in reviewing this administrative record.

[3] Appellant contends that reception of evidence of prior misconduct denied him a fair and impartial hearing before the personnel board. The evidence, admitted over appellant's continuing objection, was an evaluation report from his personnel file, part of the cross-examination of appellant, and testimony of two of appellant's superiors in the police department. (See Mattison v. City of Signal Hill (1966) 241 Cal. App. 2d 576, 579, 580, fn. 2 [50 Cal. Rptr. 682]; Whoriskey v. City etc. of San Francisco (1963) 213 Cal. App. 2d 400, 404, 406 [28 Cal. Rptr. 833].) But administrative hearings are not required to be conducted by technical rules of evidence; evidence upon which "responsible persons are accustomed to rely," although not admissible in civil actions, is admissible at the agency hearing.* The record of appellant's performance was relevant to the determination of appropriate action; hence it was not error to receive that evidence.

The judgment is reversed with directions to the trial court to apply independent judgment to the record of the administrative agency hearing, make new findings, and render judgment.

Caldecott, P. J.. and Rattigan, J., concurred.

* For example, Government Code section 11513, subdivision (c), applicable to proceedings under the Administrative Procedure Act, provides: "The hearing need not be conducted according to technical rules relating to evidence and witnesses. Any relevant evidence shall be admitted if it is the sort of evidence on which responsible persons are accustomed to rely in the conduct of serious affairs, regardless of the existence of any common law or statutory rule which might make improper the admission of such evidence over objection in civil actions. ..."

People v. Reeves [39 Cal. App. 3d 944]

[Crim. No. 24418. Court of Appeals of California, Second Appellate District, Division Two. June 20, 1974.]

THE PEOPLE, Plaintiff and Appellant, v. OSWALD SAMUEL REEVES, Defendant and Respondent

(Opinion by Fleming, J., with Roth, P. J., and Beach, J., concurring.)

COUNSEL

Joseph P. Busch, District Attorney, Harry B. Sondheim and Sterling S. Suga, Deputy District Attorneys, for Plaintiff and Appellant.

Richard S. Buckley, Public Defender, Harold E. Shabo, Michael Tynan and A. Jane Fulton, Deputy Public Defenders, for Defendant and Respondent.

OPINION

FLEMING, J.

The People appeal an order of the superior court setting aside an information which charged Oswald Samuel Reeves with possession of a sawed-off shotgun on or about 28 July 1973. (Pen. Code, § 12020.) fn. 1 [39 Cal. App. 3d 946] The question is whether the evidence, independently of Reeves' extrajudicial confession, sufficiently establishes the corpus delicti of possession of a sawed-off shotgun.

The evidence shows that at 4 a.m. on 28 July 1973 codefendant Conrad Robinson fired a shotgun at a passing automobile at the intersection of Spaulding and Adams Boulevard in Los Angeles. As police officers pursued, Robinson ran into an alley and then came out of the alley with his hands up. In the alley a few yards away the officers found a shotgun with a 14 3/4-inch barrel. On 30 July 1973 defendant Reeves went to the Wilshire police station and volunteered to a police officer that on the night of the shooting he had been at a party with Robinson and, after an argument at the party, he and Robinson went to get a gun. The officer asked, "Whose gun is it?" and Reeves replied, "It's my gun. We went to my house."

[1] A defendant cannot be held to answer unless the evidence establishes, independently of his extrajudicial statements, the corpus delicti of the crime with which he is charged. (People v. Martinez, 27 Cal. App. 3d 131, 133 [103 Cal. Rptr. 451].) But the independent evidence need show only that a crime has been committed by someone. Proof of the corpus delicti does not require proof of the identity of the perpetrator of the crime, nor proof that the defendant committed the crime. (People v. Cobb, 45 Cal. 2d 158, 161 [287 P.2d 752]; People v. Westfall, 198 Cal. App. 2d 598, 601-602 [18 Cal. Rptr. 356].) The corpus delicti of murder, for example, consists of proof of the death of a person and the existence of some criminal agency as the cause. (People v. Amaya, 40 Cal. 2d 70, 75 [251 P.2d 324].) [2] In the instant case, the existence of the sawed-off shotgun alone established the corpus delicti of the offense of possession of a sawed-off shotgun. From the current active existence of the sawed-off shotgun it necessarily follows that someone sawed it off and someone possessed it. (Cf. People v. McKinney, 9 Cal. App. 2d 523, 524 [50 P.2d 827]; People v. Westfall, 198 Cal. App. 2d 598, 601 [18 Cal. Rptr. 356].) Because possession alone establishes the crime, the prosecution need not show an intent to use the weapon unlawfully. (People v. Stinson, 8 Cal. App. 3d 497, 501 [87 Cal. Rptr. 537].)

We therefore conclude that the evidence before the magistrate established sufficient cause to hold Reeves to answer on the charge of possession of a sawed-off shotgun because, (1) the existence of the sawed-off shotgun was self-evident, and (2) Reeves' statement to a police officer that he owned [39 Cal. App. 3d 947] the shotgun and he and Robinson went to get it shortly before its use supported the inference that Reeves possessed the shotgun at the time charged in the information. It remains for the trier of fact to determine the reliability of Reeves' confession and the sufficiency of the evidence of possession beyond a reasonable doubt. (People v. McKinney, 9 Cal. App. 2d 523, 524-525 [50 P.2d 827].)

The order is reversed.

Roth, P. J., and Beach, J., concurred.

FN 1. At the time of the offense, Penal Code section 12020 provided as follows: "Any person in this state who manufactures or causes to be manufactured, imports into the state, keeps for sale, or offers or exposes for sale, or who gives, lends, or possesses any instrument or weapon of the kind commonly known as a blackjack, slungshot, billy, sandclub, sandbag, sawed-off shotgun, or metal knuckles, or who carries concealed upon his person any explosive substance, other than fixed ammunition or who carries concealed upon his person any dirk or dagger, is guilty of a felony, and upon conviction shall be punishable by imprisonment in the county jail not exceeding one year or in a state prison for not less than one year nor more than five years.

"As used in this section a 'sawed-off shotgun' means a shotgun having a barrel or barrels of less than 18 inches in length, or a rifle having a barrel or barrels of less than 16 inches in length, or any weapon made from a rifle or shotgun (whether by alteration, modification, or otherwise) if such weapon as modified has an overall length of less than 26 inches."