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Friday, August 25, 2023


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Firing Might Be Excessive Penalty for Officer Who Committed Perjury on the Stand—C.A.

Majority Says Some Charges Weren’t Founded on Substantial Evidence, Judge Must Decide, on Remand, if Lying Under Oath Justifies Ending Employment


By a MetNews Staff Writer


The commission of perjury in court might not be enough to justify termination of the employment of a police officer, the Fifth District Court of Appeal has held, over a dissent.

Acting Presiding Justice Charles Poochigian wrote the majority opinion, in which Justice Jennifer R.S. Detjen joined. Justice M. Bruce Smith dissented.

Poochigian’s opinion, filed Wednesday and not certified for publication, reverses an order by Merced Superior Court Judge Brian L. McCabe denying former Merced police officer Jose Cruz’s petition for a writ of administrative mandamus. The opinion declares that some of the charges against Cruz were not supported by substantial evidence, contrary to McCabe’s impression, and that a remand is necessary so that the Superior Court can determine whether the officer’s lying under oath at a suppression hearing, in and of itself, warranted the termination of employment.

Smith protested that there is no need for a remand and that the writ-denial should be affirmed.

“Cruz has been found by numerous tribunals to have committed perjury in a criminal court, which finding has now been upheld in this court,” he wrote, remarking that “[t]his is an extremely serious finding for anyone,” adding:

“[F]or a police officer it is career ending.”

Cruz’s Testimony

Cruz’s testimony was in connection with his Aug. 29, 2018 search of a backpack in a motel bathroom, discovering in the bag a loaded handgun with the serial number crossed off. The occupant of the motel room had consented to a search of the bathroom.

However, the owner of the backpack, Annabelle Perez, facing a weapons charge, contended at a suppression hearing that before she consented to a search of the backpack, Cruz had already unzipped it, peeked into it, and re-zipped it.

Cruz, on the witness stand, initially denied that the backpack had been unzipped but, after being confronted with bodycam footage showing that it had been opened and closed, explained that it had become unzipped when he held it by a strap and that he closed it.

The judge declared his disbelief of Cruz’s testimony and granted the suppression motion.

The officer later proclaimed, after an internal affairs investigation was launched, that his glove or sleeve got caught on the zipper, causing the unzipping.

 Merced’s chief of police on Aug. 7, 2019, notified Cruz he had been fired based on seven charges that had been leveled against him, including lying under oath; the city’s Personnel Board found that charges involving filing a false report and conducting an illegal search were not proven but that Cruz’s testimony had been “untruthful,” recommending a demotion with no back pay; the city manager made the decision to oust Cruz from his job. It was the decision of the city manager—who determined that all seven charges were valid—that was challenged in the writ proceeding.

Trial Court’s Ruling

In his June 17, 2021 decision, McCabe set forth, and answered, the key questions that were presented, saying:

“(1) Does the body camera video…constitute substantial evidence that Officer Cruz opened the backpack and looked inside before obtaining consent to search the backpack? This Court finds that it does.

“(2) Does the Court, exercising its independent judgment, find that the body camera video…establishes that Officer Cruz opened the backpack and looked inside before obtaining consent to search the backpack? This Court finds that it does.”

He spelled out:

“Officer Cruz opened the backpack and looked inside before obtaining consent to search the backpack…and, as result…Officer Cruz provided false testimony in criminal court…and…acted dishonestly in…testifying in criminal court.” 

McCabe also said that in exercising his independent judgment, he “concludes that the evidence establishes each of the seven charges.”

Poochigian’s Opinion

Poochigian said McCabe erred in concluding, on the basis of collateral estoppel, that the finding by the judge at the suppression hearing that the search Cruz conducted was unlawful, compels the conclusion that the departmental charge that he committed a Fourth Amendment violation, pointing out that the parties were not identical. The jurist added that, in any event, the search was not unlawful because the occupant of the motel room had consented to a search of the bathroom and “[i]t is reasonable for police to presume consent to search a room includes consent to search containers within that room.”

He wrote that Cruz’s report of the incident was not false simply because he did not mention that matter of the zipping and unzipping.

However, he went on to say:

“[W]e uphold the court’s apparent finding that Cruz intentionally opened the bag and that Cruz’s testimony that the bag opened inadvertently as a result of how he grabbed the straps was untruthful,”

Poochigian explained that despite the false testimony, “we cannot affirm the judgment because the possibility remains that the trial court could conclude, in its independent judgment, that the surviving charges are insufficient to support Cruz’s termination (i.e., that the termination decision was an abuse of discretion).”

In a footnote, he remarked:

“While we find the Board’s recommendation of demotion without backpay to be reasonable, the determination of whether termination was an abuse of discretion should be made by the trial court in the first instance.”

Smith’s Dissent

Smith said his consented dissent:

“This court applies the same standard as the trial court in reviewing the propriety of the Merced city manager’s penalty determination in this administrative proceeding. Furthermore, this court independently assesses the penalty imposed by the agency, giving no deference to the trial court’s determination. Accordingly, at this juncture, it is unnecessary to remand the matter for the trial court to review the Merced city manager’s original penalty determination. The majority provides no explanation for the remand in light of the fact the trial court’s determination is not accorded deference.

“This court has affirmed the trial court’s determination that Cruz lied under oath in criminal court. Moreover, it is indisputable that honesty, integrity, and credibility are paramount attributes for police officers….In addition, the record establishes that the agency does not apply progressive discipline when a police officer is found to have been dishonest. Therefore, the penalty of termination imposed here is proper as a matter of law for Cruz’s commission of perjury in criminal court. The majority’s observation that ‘demotion without backpay’ is a ‘reasonable’ penalty is not supported by the record.”

He also took issue with Poochigian’s conclusions that the search was lawful and that Cruz’s report of the incident was accurate.

The case is Cruz v. City of Merced, F083402.


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