Bacilio v. City of L. A.

FACTS AND PROCEDURAL BACKGROUND

A. Underlying incident

Plaintiff Edgar Bacilio (Bacilio) is a police officer with the Los Angeles Police Department (LAPD). On March 30, 2011, Bacilio was on patrol with his partner, Nestor Escobar (Escobar). Early in their shift, the officers responded to a family dispute call, arrested the husband, and placed the child with the wife. Later in their shift, they drove to the wife's apartment to conduct a welfare check on the child.

After judgment was entered, Bacilio filed a timely notice of appeal.

DISCUSSION

Bacilio argues that the trial court erred in denying his petition for a writ of administrative mandamus as to all disciplinary charges because the LAPD did not notify him of the potential discipline within POBRA's one-year limitations period. More specifically, Bacilio contends the tolling period under the exception for criminal investigations ended when the prosecutor orally told the internal affairs investigator that "she was not going to file against the officers" rather than when the district attorney's office formally rejected prosecution a few months later.

Bacilio offers two further arguments in response. First, he asserts that the text of section 3304, subdivision (d)(2)(A) nowhere says that an "informal letter" is not enough. This is true, but irrelevant because the text does not speak at all to the issue of when tolling ends. Second, he levels several attacks on a standard that hinges the end of tolling to a formal rejection-namely, that it might drag out investigations, lead to game playing, and be meaningless in cases where the public agency does not present its case to an outside prosecutorial entity. Because our construction of section 3304, subdivision (d)(2)(A) makes formal rejection a sufficient but not a necessary condition to the end of tolling, Bacilio's attacks on a standard we do not adopt are beside the point. What is more, his attacks do not call into question the propriety of the standard we do adopt, for the reasons we explain above.

II. Does Substantial Evidence Support the Finding That the District Attorney's Office Did Not Finally Determine Not to Prosecute Until Its October 3, 2013 Declination to Prosecute?

In assessing whether a prosecuting entity's or public agency's determination is final, we look to the totality of the circumstances along the entire timeline of the decision maker's involvement. ( Richardson , supra , 214 Cal.App.4th at pp. 693-694, 154 Cal.Rptr.3d 145 [looking to what happened after interim decisions not to prosecute].) Although POBRA itself does not specify which party bears the burden of proving the applicability of tolling ( id. at p. 698, 154 Cal.Rptr.3d 145 ), the general rule is that the party who invokes a tolling doctrine bears the burden

Bacilio argues that the deputy district attorney's August 6, 2013 comments heralded the end of the criminal investigation. Specifically, he points to the internal affairs investigator's written notes recounting that the prosecutor said "she was not going to file against the officers" and that "it was okay ... to do the admin[istrative] interview" as well as his initial testimony at the hearing that her comments constituted "an official rejection." Bacilio is essentially asking us to place greater weight on one part of the internal affairs investigator's testimony over another, and to do so in part by looking to who was asking the investigator the questions. But the hearing officer (and then the trial court) already did that, and each independently found the investigator's comments regarding the tentative nature of the prosecutor's comments to be more accurate. As a general principle, we cannot gainsay their determination as to which portions of a witness's testimony to credit. ( In re I.J. (2013) 56 Cal.4th 766 , 773, 156 Cal.Rptr.3d 297 , 299 P.3d 1254 .) And we are particularly loathe to do so in this context, where doing so is tantamount to giving greater weight to what the investigator thought the prosecutor meant than to the prosecutor's actual (though subsequent) words. (Accord, Richardson , supra , 214 Cal.App.4th at p. 695, 154 Cal.Rptr.3d 145 [" 'It defies reason to believe that a member of a separate department ... is better able to ascertain the conclusion of an investigation within that separate department' "].)

B. Report of misconduct

On August 4, 2011, the wife filed a report alleging that Escobar had spent 90 minutes in her apartment and, while there, had kissed her, touched her breasts and vaginal area over her clothes, and propositioned her for sex. The wife later picked Escobar out of a photo spread, indicating that she was 60 to 70 percent sure he was the one who sexually assaulted her.

C. Internal affairs investigation

The LAPD's Internal Affairs Division immediately began to investigate the wife's claim of misconduct as to Escobar, Bacilio, and a third officer. Because the alleged misconduct could constitute a crime as to both Escobar (namely, sexual battery) and Bacilio (namely, aiding and abetting sexual battery), the investigation was both administrative and criminal.

D. Presentation to, and rejection by, the District Attorney's Office

On June 3, 2013, the lead internal affairs investigator presented the results of the LAPD's Internal Affairs investigation to the Los Angeles County District Attorney's Office. The lead investigator sought prosecution of Escobar for felony sexual battery under color of authority.

On August 6, 2013, a deputy district attorney interviewed the wife, using the lead internal affairs investigator as a translator.

Immediately after the interview, the deputy district attorney made statements to the lead internal affairs investigator regarding future prosecution. According to the investigator's written notes from their post-interview discussion, the prosecutor said "she was not going to file against the officers" and that "it was okay ... to do the admin[istrative] interviews" of Bacilio and the third LAPD officer "since she is not filing charges against them." In his later testimony about the post-interview discussion, the investigator stated that the prosecutor had not "officially rejected" the case for prosecution; that she had said "she most likely was not going to file ... against the officers" but "was still actually working on the case"; and that it was okay to interview Bacilio

I. When Does Tolling End for Criminal Investigations Under Section 3304, Subdivision (d)(2)(A)?

POBRA is designed to "maintain[ ] stable employer-employee relations between public safety employees and their employers" ( Jackson , supra , 111 Cal.App.4th at p. 909, 4 Cal.Rptr.3d 325 ), which is important because " '[e]ffective law enforcement depends' " upon such stability ( Richardson v. City and County of San Francisco Police Com. (2013) 214 Cal.App.4th 671 , 691, 154 Cal.Rptr.3d 145 ( Richardson ) ). (See generally § 3301.) POBRA achieves this goal by codifying "a list of basic rights and protections which must be afforded all peace officers ... by the public entities that employ them." ( Baggett v. Gates (1982) 32 Cal.3d 128 , 135, 185 Cal.Rptr. 232 , 649 P.2d 874 .)

Among the basic rights POBRA confers is the right to a speedy investigation. POBRA secures this right by requiring a public agency, within one year, to (1) complete its investigation of any "act,

POBRA specifies a number of situations in which this one-year limitations period is inapplicable, is tolled, or is extended. (§ 3304, subd. (d)(2)(A)-(H).) At issue here is the following exception: "If the act, omission, or other allegation of misconduct is also the subject of a criminal investigation or criminal prosecution, the time during which the criminal investigation or criminal prosecution is pending shall toll the one-year time period." ( Id. , subd. (d)(2)(A).) This exception makes tolling mandatory for the "entire duration" of the pending criminal investigation or prosecution. ( Daugherty v. City and County of San Francisco (2018) 24 Cal.App.5th 928 , 958-959, 234 Cal.Rptr.3d 773 ( Daugherty ); Department of Corrections , supra , 247 Cal.App.4th at p. 715, 202 Cal.Rptr.3d 732 ; Lucio v. City of Los Angeles (2008) 169 Cal.App.4th 793 , 802, 86 Cal.Rptr.3d 833 ( Lucio ).) Because the exception focuses on whether "the act, omission, or other allegation of misconduct" is "the subject" of investigation or prosecution, tolling continues even as to officers who are cleared of any misconduct as long as the act, omission, or other allegation is still being investigated or prosecuted as to some officer. ( Parra v. City and County of San Francisco (2006) 144 Cal.App.4th 977 , 994, 50 Cal.Rptr.3d 822 .) The reason for this tolling exception is straightforward: Criminal investigations are more nuanced, more complex, and more time consuming, and should not be placed on the same "fast track" as purely administrative investigations. ( Daugherty , at pp. 958-959, ; Lucio , at p. 800, 86 Cal.Rptr.3d 833 .)

So at what point is a criminal investigation no longer "pending" within the meaning of section 3304, subdivision (d)(2)(A)?

These aids all point to one conclusion in this case: A criminal investigation is no longer pending when a final determination not to prosecute and to close the criminal investigation is made. Interim decisions short of a final determination will not stop the tolling.

We reach this conclusion for three reasons.

First, tying the conclusion of tolling to the final determination not to prosecute best harmonizes POBRA's underlying purposes. The tolling exception for criminal investigations seeks to balance two competing interests: The public safety officer's POBRA-based right to a speedy investigation and adjudication ( Breslin v. City and County of San Francisco (2007) 146 Cal.App.4th 1064 , 1075, 55 Cal.Rptr.3d 14 ( Breslin ) ), and the public agency's or prosecuting entity's right to conduct a fulsome criminal investigation on an efficient, but not unduly cramped, timetable. Requiring that the determination not to prosecute be final, rather than interim, ensures that investigations are not prematurely placed back on POBRA's fast track while at the same time ensuring that an officer's right to speedy adjudication becomes paramount once a final determination is made.

Second, tying the conclusion of tolling to the final determination provides the most workable standard, particularly in light of the alternatives. (Accord, City of Santa Monica v. Gonzalez (2008) 43 Cal.4th 905 , 919, 76 Cal.Rptr.3d 483 , 182 P.3d 1027 ["we may reasonably infer that [our Legislature] intended an interpretation producing practical and workable results"].) Treating an interim decision not to prosecute as definite ignores the practical realities of criminal investigations. Such investigations rarely involve a steady and continuous acquisition of information, and instead proceed by way of fits and starts as lines of inquiry stagnate, only to come alive again as new information is uncovered. (See Daugherty , supra , 24 Cal.App.5th at p. 963, 234 Cal.Rptr.3d 773 [noting "the ebb and flow of activity in a criminal case"].) Decisions short of a final determination are necessarily in flux; they should not be given determinative effect. For similar reasons, we reject a standard that would peg the end of tolling to whether the criminal investigation was "active." We agree with Richardson , supra , 214 Cal.App.4th at pages 697-698, 154 Cal.Rptr.3d 145 that such a standard "would simply be unworkable" " 'because it leaves unanswered the central question of how much an investigator must do, and how frequently, to maintain an "active" investigation.' " Conversely, a standard that insists upon

Lastly, tying the conclusion of tolling to the final determination whether to prosecute best harmonizes the cases that have thus far construed section 3304, subdivision (d)(2)(A)'s exception. Many cases have

Substantial evidence supports the finding that the City carried its burden of showing that the district attorney's office did not make its final determination regarding prosecution until it issued its October 3, 2013 Worksheet declining to prosecute. To begin, the lead internal affairs investigator testified that the deputy district attorney's comments to him on August 6, 2013 were tentative because she was " most likely ... not going to file" charges and was "still actually working on the case." Further, the very fact that the district attorney's office prepared and transmitted a more fulsome and complete Worksheet regarding all three officers under investigation supports the finding that the earlier, August 6, 2013 oral advisement was an interim decision rather than a final determination. What is more, that the Worksheet was signed not only by the prosecutor but also by a reviewing deputy

The judgment is affirmed. The City and the LAPD Chief of Police are entitled to their costs on appeal.

We concur:

LUI, P.J.

ASHMANN-GERST, J.