Filed 2/19/20 Jones v. City of San Diego CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA
JOE JONES,

Petitioner and Appellant,

v.

CITY OF SAN DIEGO, et al.,

Defendants and Respondents. D075173

(Super. Ct. No. 37-2017-00031786- CU-WM-CTL)

APPEAL from a judgment of the Superior Court of San Diego County, Judith F. Hayes, Judge. Affirmed.

Law Office of Michael Dale Williamson and Robert H. Brownlee for Petitioner and Appellant.

Mara W. Elliott, City Attorney, George F. Schaefer, Assistant City Attorney, and Sarah A. Wigdor-Roberts, Deputy City Attorney, for Defendants and Respondents.

The City of San Diego (City) terminated Joe Jones from his position as an officer with the City’s police department (Department) after he was captured on video assaulting his girlfriend. Following an evidentiary hearing, the San Diego Civil Service Commission (Commission) upheld Jones’s termination. Two video exhibits were key to the Commission’s decision: (1) hotel security camera footage of the incident (the hotel video); and (2) a cellphone video of portions of that footage (the cellphone video). Jones did not dispute that he was depicted in the cellphone video; instead, he claimed the video showed consensual rough sexual foreplay, not an assault. The Commission’s hearing officer expressly found Jones “lacked credibility.”

Jones filed a petition for writ of mandamus against the City, the Department, and the Commission (collectively, Respondents). Jones argued primarily that the Commission’s “findings are not supported by the evidence adduced at the hearing” because the video exhibits were improperly admitted without a sufficient foundation. Jones also repeated his claim that the videos merely showed consensual rough foreplay. The court found the video exhibits were properly considered, and that Jones’s explanation of the videos was “not credible.” Thus, the court found the Commission’s “findings were fully supported by the evidence.”

On appeal, Jones repeats his claim that his termination is not supported by the evidence because the trial court improperly considered the video exhibits, which merely showed consensual foreplay. We reject Jones’s claim and affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

Department Investigation and Termination

Jones was employed by the City as a full-time, tenured police officer in the Department.

In December 2015, Jones traveled to Puerto Rico with his girlfriend, Sarah, to attend a boxing match. Sarah worked as a bookkeeper for the boxer’s wife. Several off-duty San Diego police officers also attended the boxing match as the boxer’s security detail. Jones knew some of the officers, but was not part of the security team.

The day after the boxing match, one of the off-duty police officers, Lieutenant Ben Kelso, learned that an alleged domestic violence incident had occurred between Jones and Sarah. The boxer’s wife later sent Kelso a text message attaching the cellphone video.

The cellphone video is 22 seconds long and appears to be a recording of another screen displaying hotel security camera footage. The video shows a man and woman in an interior lobby area; the man presses the woman against the wall, then forcefully slams his shoulder into her torso; as the woman is falling to the ground, the man raises his knee and strikes her in the head; and once the woman has fallen to the floor and is lying still, the man forcefully kicks her in her back.

Kelso reported the incident and forwarded the cellphone video to the Department’s Internal Affairs department (IA) and Professional Standards Unit (PSU), which then investigated the incident.

As part of its investigation, PSU investigators coordinated with a prosecutor in Puerto Rico who obtained the hotel video via subpoena and sent it to the Department. The trial court aptly described the hotel video, in pertinent part, as follows:

“The video shows [Jones] and [Sarah] in a hallway. It appears [Sarah] is trying to get away from [Jones] and that [Jones] is trying to take away what appears to be a cellphone. [Jones] pushes [Sarah] into the wall and then he lowers his left shoulder and slams it into [Sarah]’s chest and upper torso while she is against the wall. [Sarah] falls to the ground. As she is falling, [Jones] hits [Sarah]’s head with his knee. Once [Sarah] is lying on the floor, [Jones] begins to kick her in the back.”

IA interviewed Jones and Sarah separately. Each denied the incident involved domestic violence. Instead, they claimed they were playing romantically and accidentally fell into the wall when Jones playfully tried to pick up Sarah. Even after investigators showed Jones a slowed-down and captioned version of the hotel video, he maintained it was romantic horseplay. Neither Jones nor Sarah told investigators they were “swingers” involved in consensual rough foreplay as part of “dominance and submission” role-playing.

Based on its review of the video evidence and witness statements, IA concluded Jones violated the Department’s obedience-to-laws and unbecoming-conduct policies. Concluding that Jones’s violations of these policies also violated the City’s civil service rules, the Department provided Jones with an “Advance Notice of Adverse Action – Termination.” After an assistant chief upheld the termination following an administrative appeal, Jones requested (but later waived) a final “Chief’s Appeal.” The Department thereafter served Jones with a Notice of Termination.

Appeal to the Commission

Jones appealed his termination to the Commission. A Commission hearing officer presided over a two-day evidentiary hearing, during which seven witnesses testified in-person; numerous documentary exhibits were admitted, including the IA and PSU investigation reports; and the hotel video and cellphone video were ultimately admitted. We focus our discussion on the admission of the video exhibits.

The Cellphone Video

Lieutenant Kelso testified at the Commission hearing that the boxer’s wife sent him the cellphone video in a text message. According to Kelso, the wife “said she got a copy from the hotel manager, that she . . . and Sarah had spoken to the hotel manager, and, basically, they saw the video, and I think [the wife] used her cell phone to capture the video.” Kelso acknowledged the recording “wasn’t good clarity” or “digital quality,” but he “could tell it was” Jones and Sarah in the footage. Kelso testified the video exhibit shown at the hearing was “the same video that [he] received on [his] cell phone.”

Later in the Commission hearing, Sarah acknowledged the cellphone video showed her and Jones engaged in what she was “referring to as ‘the hallway incident’ at the hotel where [they] were horsing around.”

The hearing officer admitted the cellphone video in evidence over Jones’s objection that Kelso’s foundational testimony was hearsay.

The Hotel Video

When shown the hotel video at the Commission hearing, Kelso said the opening image “appears to be the same lobby of the . . . [h]otel that was depicted in the [cellphone] video.” He testified the video depicted Jones, Sarah, and another member of the boxer’s entourage.

Sergeant Raul Delgadillo, a PSU investigator involved in Jones’s case, testified about the chain of custody for the hotel video. Delgadillo said he obtained the hotel video “during this investigation from the Puerto Rico District Attorney’s Office through Attorney Marquez Rivera.” Rivera sent Delgadillo a copy of “a court order he obtained to gather the video . . . from the hotel.” Rivera later sent Delgadillo an email with photographs of a sealed envelope that purportedly contained the hotel video. Within about one week, Delgadillo received the package containing the hotel video. The package did not contain an authenticating declaration from the hotel’s custodian of records.

Jones’s counsel objected to admission of the hotel video, arguing “there’s not been any foundation from the custodian of record[s] that [the] [e]xhibit . . . is a true, correct, and complete copy of the original that’s being held by that hotel. I think we need that before it can be admitted.” The hearing officer agreed and did not yet admit the hotel video in evidence.

Jones’s Defense Case

Jones testified at the hearing and denied the incident involved domestic violence. Instead, he explained for the first time that he and Sarah were “swingers” engaged in a “dominance and submission” lifestyle that involved “sexual role play.” The hallway incident was simply consensual “foreplay.” Jones said he did not give this explanation during his IA interview because it “was not a question that ar[ose] . . . .”

Jones acknowledged IA investigators showed him a video of the incident during his interview. He did not dispute that he and Sarah were in the video; rather, he disputed the characterization of what it depicted. For example, he characterized the video as depicting him attempting to playfully pick up Sarah and falling into the wall (not forcefully slamming her into the wall); attempting to step over her as she fell (not kneeing her in the head); and attempting to “push [her] off” his sandal after she fell on it (not kicking her in the back).

Likewise, Sarah acknowledged the cellphone video depicted her and Jones “horsing around” during a ” ‘hallway incident’ ” in the hotel, but she claimed it captured her and Jones “acting out” a sexual fantasy involving a “rough encounter[],” not domestic violence.

Further Proceedings Regarding Admissibility of the Hotel Video

After the close of evidence, the hearing officer and counsel conferred regarding the admissibility of the hotel video. The hearing officer confirmed the exhibit had not yet been admitted, “subject to see[ing] if [Appointing Authority’s counsel] could clean it up with a proper custodian of record certification and possibly translation.” The hearing officer gave the parties 30 days to submit briefs arguing the exhibit’s admissibility. In the meantime, the hearing officer proceeded immediately to oral closing arguments.

Jones filed his brief about nine days after the hearing. In it, he acknowledged that “[a]uthentication may . . . be accomplished by means of an affidavit from a custodian of records attesting to the authenticity of a writing (video),” but he argued this had not been done.

About two weeks later, the Appointing Authority filed its post-hearing brief, accompanied by several materials: (1) a Spanish-to-English translation of the subpoena pursuant to which the hotel had produced the hotel video; (2) an authenticating declaration from the hotel’s custodian of records; and (3) a declaration from the prosecutor in Puerto Rico establishing the chain of custody. The Appointing Authority argued in its brief that these materials established a sufficient foundation on which to admit the hotel video.

The Commission’s Ruling

In his written decision, the Commission hearing officer found the hotel video admissible and indicated he had relied on it in his ruling:

“With regards to the briefs filed by both sides, the Hearing Officer finds that the hotel surveillance video is authentic and admissible. It is unaltered and reliable. It accurately depicts the events of that evening and what is reflected in the video is not disputed by [Jones] . . . . [Jones] is aware that hearsay is admissible in these proceedings and because [Jones] did not dispute the authenticity or reliability of the video, combined with the fact that the video lends support to the statements of other witnesses and evidence about the incidents that night, including the statements of [Jones] and his girlfriend[,] the evidence is admissible.”

Based in part on the video exhibits, the hearing officer upheld Jones’s termination. In doing so, the hearing officer “found that both [Jones] and [Sarah] lacked credibility in their testimony” and, thus, their “claim [that] the incident was consensual sex play is entirely unpersuasive.”

Trial Court Proceedings

In the trial court, Jones filed a petition seeking a writ of mandate commanding Respondents “to set aside their decision in its entirety, and to restore Jones to his position in good standing.” He argued the Commission’s termination decision was “not supported by the evidence adduced at the hearing, and the findings are not supported by the [hearing officer’s] written decision.”

In his briefing to the trial court, Jones argued the hearing officer improperly considered the cellphone video and hotel video because they were admitted without proper foundation. But Jones also admitted in his trial court briefing that the cellphone video depicts him interacting with Sarah. Specifically, Jones wrote:

“Note: Jones does not dispute that in [the cellphone video] he is on video, in a hallway with his girlfriend, Sarah. [¶] . . . [¶] Jones and . . . Sarah were certainly in a hallway, in a hotel, in Puerto Rico. Jones and his girlfriend physically contacted each other while in the hotel hallway.”

Jones argued, however, that “[i]n light of [his] and . . . Sarah’s denial of an assault, what is disputed is how much information may be gleaned from the poor-quality video. . . . Jones maintained the video lacked foundation because Lieutenant Kelso’s testimony recounting the boxer’s wife’s explanation of its provenance was hearsay.

As to the hotel video, Jones acknowledged that foundation can be established by a custodian of records affidavit, but he argued, “[o]f course, we know there was no affidavit that accompanied the video from the hotel.”

Respondents argued in their trial court briefing that the cellphone video was authenticated because Jones “admits it is him in the video, and doesn’t dispute what the video shows. Instead, he disputes the characterization of his conduct in the video as criminal assault . . . .” Respondents also argued that “Jones’s arguments [in his opening brief] that there were no affidavits associated with the videos is incorrect.”

The trial court found that the Commission hearing officer properly admitted and considered both the cellphone video and the hotel video. First, the trial court observed that the Commission was not bound by formal evidentiary rules. In making this observation, the court took judicial notice of section 23.1205(b)(3) of the San Diego Municipal Code, which states:

“The proceedings shall be as informal as is compatible with the requirements of justice, and the Commission need not be bound by the common law or statutory rules of evidence and procedure, but may make inquiry in the matter through oral testimony and records presented at the hearing, which is best calculated to ascertain the substantial rights of the parties and to carry out justly the spirit and provisions of the Charter. The testimony taken at the hearing shall be under oath and shall be recorded by a reporter.” (Italics added.)

Second, the court found a sufficient foundation existed for the cellphone video because Jones “does not contest that he appears in the cellphone video, rather he disputes the characterization of the video.”

Finally, as to the hotel video, the trial court found a sufficient foundation existed because (1) Jones “does not contest [the cellphone video] depicts him and the incident and it is clear [the cellphone video] is cellphone footage of [the hotel video]”; (2) “Respondents’ post-hearing briefing included a declaration from . . . the custodian of record for the hotel video . . . and a certified translation”; and (3) Respondents’ post-hearing briefing also included a “a certified declaration from . . . the state prosecutor in Puerto Rico, who attested to the chain of custody of [the hotel video],” which was further established by Sergeant Delgadillo’s hearing testimony.

Based on its review of the cellphone video and the hotel video, the trial court found that the hearing officer’s “findings were fully supported by the evidence.” The court expressly found that Jones’s “characteriz[ation] [of] the incident as one involving consensual sex play . . . is not credible.” Instead, the court found “[t]he video itself depicts a violent incident . . . . [that] indicate[s] assault, not some consensual sex play.” Accordingly, the trial court upheld Jones’s termination.

DISCUSSION

Jones contends the trial court erred by considering the video exhibits. We disagree.

I. Standard of Review
II.
Termination of a police officer’s employment involves a fundamental vested right that is subject to review under the independent judgment standard. (Barber v. Long Beach Civil Service Com. (1996) 45 Cal.App.4th 652, 658; Saraswati v. County of San Diego (2011) 202 Cal.App.4th 917, 927.) Under this standard, ” ‘The trial court must not only examine the administrative record for errors of law, but must also conduct an independent review of the entire record to determine whether the weight of the evidence supports the administrative findings. [Citation.]’ ” (Saraswati, at p. 926.)

“On appeal from a decision of a trial court applying its independent judgment, we review the trial court’s findings rather than those of the administrative agency.” (Norasingh v. Lightbourne (2014) 229 Cal.App.4th 740, 753.) We review the trial court’s factual findings for substantial evidence, and its legal conclusions de novo. (Ibid.; Gonzalez v. Santa Clara County Dept. of Social Services (2014) 223 Cal.App.4th 72, 84-85; Breslin v. City and County of San Francisco (2007) 146 Cal.App.4th 1064, 1077-1078; Fukuda v. City of Angels (1999) 20 Cal.4th 805, 824.)

III. The Trial Court Properly Relied on the Video Exhibits, Which
Constitute Substantial Evidence to Support the Trial Court’s Ruling
IV.
We have viewed the hotel video and the cellphone video. If they were properly before the trial court, they unquestionably constitute substantial evidence in support of the trial court’s decision upholding Jones’s termination. Thus, the dispositive issue is whether the trial court properly considered them.

Jones contends the video exhibits were not properly before the trial court. He maintains the cellphone video lacked foundation because it was authenticated entirely by Lieutenant Kelso’s hearsay description of his conversation with the boxer’s wife. And he maintains the hotel video was never admitted in the Commission hearing and that it lacked foundation because it was authenticated by only a post-hearing declaration from the hotel’s custodian of records. We are not persuaded in either respect.

A. Relevant Legal Principles
B.
“Authentication of a writing, including a photograph, is required before it may be admitted in evidence.” (People v. Goldsmith (2014) 59 Cal.4th 258, 266 (Goldsmith), citing Evid. Code, § 1401, subd. (a).) “To authenticate a writing, the proponent of the writing must introduce ‘evidence sufficient to sustain a finding that it is the writing that the proponent of the evidence claims it is.’ ” (Ramos v. Westlake Services LLC (2015) 242 Cal.App.4th 674, 684 (Ramos), quoting Evid. Code, § 1400; see Goldsmith, at p. 266.)

“There is no strict requirement as to how a party authenticates a writing.” (Ramos, supra, 242 Cal.App.4th at p. 684, citing Evid. Code § 1410 [“Nothing in this article shall be construed to limit the means by which a writing may be authenticated or proved.”].) “A photograph or video recording is typically authenticated by showing it is a fair and accurate representation of the scene depicted. [Citations.] This foundation may, but need not be, supplied by the person taking the photograph or by a person who witnessed the event being recorded. [Citations.] It may be supplied by other witness testimony, circumstantial evidence, content and location.” (Goldsmith, supra, 59 Cal.4th at pp. 267-268; see People v. Valdez (2011) 201 Cal.App.4th 1429, 1435 [” ‘ “[L]ike any other material fact, the authenticity of a [document] may be established by circumstantial evidence . . . .” ‘ “]; People v. Skiles (2011) 51 Cal.4th 1178, 1187 (Skiles) [“a writing can be authenticated by circumstantial evidence and by its contents”].)

” ‘A trial court’s finding that sufficient foundational facts have been presented to support admissibility is reviewed for abuse of discretion.’ ” (Ramos, supra, 242 Cal.App.4th at p. 684.)

C. Analysis
D.
1. Cellphone Video
2.
Jones’s challenge to the admissibility of the cellphone video is completely without merit. Contrary to Jones’s contention, the cellphone video was authenticated by far more than Lieutenant Kelso’s testimony. Jones conceded in his trial court briefing that “he is on [the] video, in a hallway with his girlfriend, Sarah,” and his trial counsel repeated the concession during oral argument on the petition. This was sufficient to authenticate the cellphone video. (See Goldsmith, supra, 59 Cal.4th at pp. 271-272 [authentication established, in part, by counsel’s concession during oral argument that the “photographs in this case actually depicted his client in the intersection”].) Sarah likewise acknowledged the cellphone video depicted her and Jones “horsing around” during a ” ‘hallway incident’ ” in the hotel.

In light of Jones’s concession and Sarah’s testimony, the trial court did not abuse its discretion in finding the cellphone video sufficiently authenticated.

3. Hotel Video
4.
We likewise find no abuse of discretion in the trial court’s finding that the hotel video was sufficiently authenticated. The court’s rationale was twofold. First, the court found that the “cellphone footage of the video is clear enough to show that it is the same video of . . . the hotel video.” Having viewed both videos, we conclude the trial court did not abuse its discretion in making this finding. The content of the cellphone video was, thus, sufficient to authenticate the hotel video. (See Goldsmith, supra, 59 Cal.4th at p. 268 [authentication “may be supplied by . . . content”]; Skiles, supra, 51 Cal.4th at p. 1187 [“a writing can be authenticated by . . . its contents”].)

Second, the trial court further based its authentication finding on the documents submitted with the Appointing Authority’s post-hearing brief—certified translations of declarations from the hotel’s custodian of records authenticating the hotel video, and the Puerto Rican prosecutor attesting to the chain of custody.

Jones does not challenge the substance of these declarations. He complains only of their timing—that they were submitted to the hearing officer only after the close of evidence, thus denying him “the opportunity to confront and cross-examine the custodian of records, and the Spanish to English translator.” But this was precisely the procedure the hearing officer and counsel agreed to at the close of evidence. Moreover, Jones acknowledged in both his post-hearing brief to the hearing officer and in his briefing to the trial court that a declaration from the custodian of records would be sufficient to authenticate the video. He has failed to explain how the Appointing Authority’s submissions fell short of this standard.

Finally, like the trial court, we observe that Jones’s technical evidentiary challenges are not well-taken in the context of an administrative appeal. The City’s municipal code provision governing Commission hearings states that “the Commission need not be bound by the common law or statutory rules of evidence and procedure.” In arguing for a more stringent evidentiary standard, Jones misplaces his reliance on Carl S. v. Commission for Teacher Preparation & Licensing (1981) 126 Cal.App.3d 365 because the hearing in that case was governed by a statute that imposed a stricter evidentiary standard. (See Carl S., at p. 371 [” ‘Hearsay evidence may be used for the purpose of supplementing or explaining other evidence but shall not be sufficient in itself to support a finding unless it would be admissible over objection in civil actions.’ ” (Italics omitted)].) Jones has cited no authority construing a provision comparable to the municipal code provision that governed his hearing.

In sum, the trial court did not abuse its discretion by considering the hotel video.

DISPOSITION

The judgment is affirmed.

HALLER, J.

WE CONCUR:

HUFFMAN, Acting P. J.

AARON, J.