73 Cal.App.5th 711
Cal. Ct. App.2022Background:
- On April 15, 2017, LAPD officers Louis Lozano and Eric Mitchell (foot‑beat partners) did not respond to a nearby robbery‑in‑progress call; a DICVS (digital in‑car video system) recording later showed they discussed not assisting, misreported their location (Code 6), and spent time playing Pokémon Go while on duty.
- Their supervisor, Sgt. Jose Gomez, later conducted a brief counseling meeting the same evening; the next day he reviewed the patrol unit’s DICVS, discovered the incriminating recording, and forwarded the matter for investigation.
- Internal investigators relied heavily on the DICVS; officers were charged with multiple counts (failure to respond, misleading a supervisor, playing a mobile game on duty, and making false statements) and pled guilty to some counts.
- At the board of rights hearing petitioners objected to admission of the DICVS excerpts as capturing "private conversations" under Board Special Order No. 45 and later raised Penal Code §632; the board admitted the recording under Professional Standards Notice 13.5 and found them guilty, recommending discharge.
- Petitioners pursued administrative mandamus arguing (1) the DICVS use violated Special Order No. 45 and Penal Code §632, (2) their POBRA right to a representative was violated at the Sgt. Gomez meeting, and (3) discharge was excessive; the trial court denied relief and the Court of Appeal affirmed.
Issues:
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Special Order No. 45 bars use of unintentionally recorded private DICVS conversations in discipline | Special Order No. 45 states DICVS not to monitor private conversations; that forbids using the recordings for discipline | Special Order governs intentional law‑enforcement use; Notice 13.5 permissibly authorizes use of unintentionally recorded personal communications when they show criminal/egregious misconduct | Court: Notice 13.5 is consistent with Special Order No. 45 and within department authority; admission proper |
| Whether Penal Code §632(d) rendered the DICVS recording inadmissible | §632 prohibits use of confidential communications recorded without consent; evidence therefore inadmissible | §632 requires intentional eavesdropping; no evidence anyone intentionally recorded a confidential conversation here | Court: §632 inapplicable—petitioners failed to show intentional recording, so statute’s exclusion does not apply |
| Whether Notice 13.5 required independent evidence before reviewing/using the recording | Notice 13.5 requires evidence of criminal/egregious misconduct apart from the recording before initiating an investigation | Notice 13.5 permits initiating an investigation when the recording itself discloses criminal/egregious misconduct | Court: Notice 13.5 authorizes use when the recording itself reveals egregious misconduct; here it did |
| Whether Sgt. Gomez’s evening meeting triggered POBRA right to a representative | The meeting was interrogation likely to lead to discipline; §3303(i) required right to representation | The meeting was routine supervisory counseling/informal admonishment excluded from §3303(i) protection | Court: Substantial evidence supports that the meeting was routine supervisory counseling; POBRA did not apply |
Key Cases Cited
- Molina v. Board of Administration, 200 Cal.App.4th 53 (discussing standard of review in administrative mandamus and deference to trial court findings)
- Domar Electric, Inc. v. City of Los Angeles, 9 Cal.4th 161 (city charter construction principles; charter as supreme law of the city)
- Estate of Kramme, 20 Cal.3d 567 (definition of "intentionally" in recording/ privacy context requires intent to record confidential communication)
- People v. Superior Court (Smith), 70 Cal.2d 123 (interpretation of Penal Code §632 and intentional recording requirement)
- Marich v. MGM/UA Telecommunications, Inc., 113 Cal.App.4th 415 (application of §632 and evidentiary exclusion)
- City of Los Angeles v. Superior Court (Labio), 57 Cal.App.4th 1506 (POBRA right to representation where questioning is part of an investigation)
- Pasadena Police Officers Assn. v. City of Pasadena, 51 Cal.3d 564 (purpose and balancing inherent in POBRA protections)