Rodriguez v. Santa Clara Civil Serv. Com.

Filed 10/15/08 Rodriguez v. Santa Clara Civil Serv. Com. CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

The City of Santa Clara and the City of Santa Clara Civil Service Commission Board of Review (hereafter jointly the City) appeal from a judgment granting respondent David Rodriguezs petition for writ of administrative mandamus in part. The City had terminated Rodriguezs employment as a police officer based on his alleged use of excessive force during the arrest of a citizen and his failure to report his use of force. The Civil Service Commission Board of Review (Board) upheld the termination. The court concluded that some of the Boards findings were not supported by the weight of the evidence and remanded the matter to the Board to reconsider its penalty determination in light of the courts findings. We find no error and affirm the decision of the trial court.

Factual and Procedural History

I. Brief Description of Incident

On October 19, 2001 at 12:24 a.m., Santa Clara Police Officer Amy Jackson stopped Michael Barrett at a gas station in Santa Clara after she observed him riding a bicycle on the sidewalk and on the wrong side of the road, without a light. Barrett did not cooperate with Officer Jackson and resisted her attempts to stop him. A struggle ensued. Officer Jackson called for back-up and several officers responded, including Officer David Rodriguez. The officers eventually subdued Barrett and he was taken into custody.

A day or two after the incident, two of the officers that had responded to Jacksons call told their superiors that they believed Rodriguez had used excessive force to subdue Barrett. Officer Jake Malae alleged that Rodriguez struck Barrett in the head, neck, and shoulder areas five or six times with his flashlight and kicked Barrett in the face four times. Officer Randy Van Dyke alleged that Rodriguez kicked Barrett in the face three times. We shall review the events at the scene in greater detail in our discussion of the evidence presented at the hearing before the Board.

II. Administrative and Criminal Investigations

In response to the allegations, the Santa Clara Police Department (SCPD) initiated an administrative investigation. The administrative investigation was a personnel matter, as opposed to a criminal investigation, and was conducted by Sergeant Brian Lane of the professional standards unit. On October 24, 2001, Barrett filed a citizens complaint alleging, among other things, excessive and unnecessary use of force by Rodriguez and other officers. Rodriguez was placed on administrative leave in October 2001.

During the initial administrative investigation, Sergeant Lane determined that Rodriguezs actions had the potential of rising to criminal acts and discussed the case with representatives of the district attorneys office. The representatives of the district attorneys office decided that the allegations could result in a criminal action. Sergeant Lane therefore ceased his investigation and turned the case over to the detective division of the SCPD. After the detectives completed their investigation, the district attorneys office decided not to file criminal charges against Rodriguez and the case was reassigned to Sergeant Lane to complete his administrative investigation.

In July 2002, Sergeant Lane completed his investigation and submitted a written report to Police Chief Steven Lodge. Sergeant Lane found that the following allegations against Rodriguez had been sustained: (1) he used unnecessary/ excessive force; (2) he did not report his use of force to his supervisor orally or in writing, as required by the SCPD; (3) he failed to complete reports accurately and completely; (4) he made his report or conducted police business in less than a truthful and/or cooperative manner; and (5) his conduct harmed and discredited his reputation and that of the department.

III. The Citys Notice of Termination and Skelly Hearing

On September 3, 2002, the City served Rodriguez with a Notice of Proposed Disciplinary Action, advising him of the formal allegations against him, of the results of its investigation, of the Citys intent to terminate his employment, and of his right to respond to the notice under Skelly v. State Personnel Board (1975) 15 Cal.3d 194 (Skelly). Rodriguez requested a Skelly hearing, which was held on October 21, 2002. On November 8, 2002, the City sent Rodriguez a Notice of Final Disciplinary Action, advising him that it had reviewed the information he presented at the Skelly hearing, that the information did not alter its previous conclusion, and that his employment would be terminated effective November 15, 2002.

IV. Appeal to Civil Service Commission Board of Review

Rodriguez appealed his termination to the Board. The Board conducted hearings on nine days between March 31, 2003 and June 18, 2003. During the hearings, the Board heard testimony from Officer Rodriguez and officers who were present at the scene of the incident; from Sergeant Lane, Chief Lodge, and other police officers who were not involved in the incident; and from Barrett, Deputy District Attorney Karen Sinunu, and expert witnesses for both sides. The Board also reviewed the report of Sergeant Lanes administrative investigation, which included the police report of the incident, photographs, Barretts medical records, summaries and transcripts of witness interviews, Rodriguezs background interview with another police agency, and excerpts from SCPDs policies and procedures manual.

V. Testimony at Civil Service Hearing

Malae was assigned to patrol in a two-man, unmarked car with Rodriguez on the night of the incident. This was the first time Malae was assigned to the same car as Rodriguez; he did not have any problems with Rodriguez before that date. Rodriguez and Malae heard Jackson call for a fill or back-up officer to assist her with a stop near the Rotten Robbie gas station at Aldo and Lafayette Streets in Santa Clara. They then heard her ask dispatch to step up the fill, which Malae understood to mean that she really needed help. According to Rodriguez, Jacksons voice sounded panicky. Rodriguez thought she was fighting or in danger. Rodriguez testified that Jackson was a new police officer, that she was small in stature, and that she had just completed her field training. Malae and Rodriguez responded with lights and sirens activated. Other officers also responded to Jacksons call for help.

A. Officer Jacksons Testimony

Jackson testified that when she stopped Barrett, he had a rather strange demeanor. He was stepping back and forth and rocking. He seemed nervous and was sweating. She thought he was under the influence of drugs. She asked him whether he had any weapons and told him she would do a pat search. His clothes were dark and bulky and his pockets were bulging. She tried to get him to put his hands behind his back. Instead, he put his right hand in his right pocket and turned away from her. Barrett became more agitated. Jackson grabbed Barretts left hand and got him face down on the ground, with his right hand under his body. She maintained control of his left arm and kneeled on his back to pin him down. She told him to give her his right arm. Barrett tried to break free. He was thrashing and squirming and kicking his legs.

B. Officer Gratneys Testimony

Officer Tom Gratney arrived and assisted Jackson, who was trying to get Barretts right arm out from under him. Gratney approached Barretts left side. Barrett did not comply, so Gratney struck him two or three times on the left side of his face with a closed fist. Barrett continued to resist and would not release his right arm. Gratney sprayed Barrett with pepper spray, which had no effect on Barrett. Barrett continued to thrash about.

C. Officer Bells Testimony

Officer Christopher Bell approached Barretts right side and saw Barretts right arm near his waistband or pocket. Bell pulled on Barretts right forearm. He could not get Barrett to release his right arm, so he struck Barrett four times on the back of his right bicep with his flashlight. Between blows, Bell tried pulling Barretts right arm out from under him. Bell testified that Barrett was fighting pretty vigorously and had unusual strength for someone his size.[1] Bell hit Barrett as hard as he could and, in the process, struck Gratney in the hand.

In his peripheral vision, Bell saw another flashlight swinging. He recalled that it was held by the bulb end and recalled one to three strikes. The first flashlight strike he saw hit the back of Barretts left arm and shoulder. He did not see whether or where the other strikes landed. He did not see any flashlights hit Barrett in the neck or head.

D. Officers Rodriguezs & Malaes Initial Involvement

Officers Malae and Rodriguez arrived after Officers Gratney and Bell. Malae was driving the patrol car; Rodriguez was in the passenger seat. Malae testified that shortly before they arrived, Rodriguez got really amped up, agitated and said Give me the fight, bro. The closer they got, the more heated Rodriguez became. Rodriguez testified that he said get me in there because he knew how volatile the situation can get when someone is fighting with a police officer and because he wanted to help Jackson. Rodriguez grabbed his flashlight, popped the car door open while the car was still moving at four to five miles per hour, and sprinted toward Jackson and Barrett. Malae and Rodriguez told very different stories about what happened next.

E. Officer Malaes Testimony

According to Malae, Barrett was standing and leaning forward when he and Rodriguez arrived.[2] Rodriguez approached, holding his flashlight by the bulb end, and hit Barrett in the head with the flashlight four or five times. The first strike hit the back, left side of Barretts head. Barrett gasped and started to fall to the ground, face first. The remaining strikes hit Barretts neck and shoulder area.

Malae testified that as Barrett hit the ground, his face canted slightly to the left and Rodriguez kicked him at least four times in the face. The first kick was a full force kick that caused Barretts head to shake violently. All of the kicks landed near Barretts left cheek and mouth. Malae stepped between Rodriguez and Barrett and got Barretts left arm out from underneath him. As Bell pulled Barretts right arm out, Malae handcuffed Barretts hands behind his back. After the officers handcuffed Barrett, Malae noticed blood near Barretts face and called an ambulance.

Based on the size and strength of the officers present, Malae believed that the officers would eventually take Barrett into custody and that Barrett was not fighting, just refusing to give up his hands. Malae never thought Barrett was going for a weapon. Malae believed that Rodriguez used unreasonable, excessive force. Malaes supervisor, Sergeant Todd Cummins, arrived with the wrap, a device that was wrapped around Barretts legs to prevent him from kicking. Although SCPD policy required Malae to report any excessive use of force right away, Malae did not discuss his concerns with Sergeant Cummins at the scene or later that day. Malae did not discuss his concerns with Gratney when he took Gratney to the hospital that night. Malae explained that although he was disgusted by what he saw, it is extremely difficult to make such accusations against a fellow officer. Later, Malae heard that Officer Randy Van Dyke had similar concerns and decide to discuss the matter with Van Dyke before reporting it to his superiors.

F. Officer Van Dykes Testimony

Van Dyke testified that he arrived at the scene of the incident about the same time as Bell. He saw Barrett on his stomach, on the ground, wrestling with two officers. Bell took a position on Barretts right side and Van Dyke grabbed Barretts ankles, since he was kicking his legs. Van Dyke saw Bell strike Barretts right arm with a flashlight to get control of the right arm. Van Dyke did not see Rodriguez arrive. At one point, he looked up and saw Rodriguez give Barrett three quick kicks to the head with his right foot. From his vantage point, it was difficult to see where the kicks landed. He believes Rodriguez hit something because Barretts legs straightened out; he stopped kicking and started shaking and groaning. Van Dyke testified that other officers had control of the suspects upper body before Rodriguez kicked him. He did not see Rodriguez hit Barrett with a flashlight, but recalls that Rodriguez had his flashlight in his hand.

Van Dyke told Malae that he had attempted to discuss his concerns with Rodriguez and that Rodriguezs reaction was antagonistic and condescending. Van Dyke said Rodriguez had stated that the kicks were not mentioned in his report. This prompted Malae to pull Rodriguezs report of the incident.

The following day, Van Dyke told Rodriguez that he was uncomfortable with what had occurred and that there was no reason to kick the suspect in the head since they had enough officers there. Rodriguez explained that he thought Barrett was going for a weapon and Van Dyke said he still did not think the kicks were appropriate. According to Van Dyke, Rodriguez stated, If you think thats what you saw, its not going to be in my report.

G. Officer Rodriguezs Testimony and Written Report Regarding Incident

Rodriguez testified that when he arrived, Barrett was lying on his stomach, violently flailing his arms and legs. Barrett was not under control. Four other officers were present. Rodriguez ran towards Barrett at full speed. He was going so fast, he almost knocked over the whole group of officers. He noticed that Barretts left shoulder was coming off the ground as if he was pushing himself to get away and took a position on Barretts left side. Rodriguez stepped down firmly or stomped on Barretts left shoulder with his right foot and went down on both knees, pinning Barretts left shoulder to the ground. Rodriguez noticed Barretts head coming back toward the officers, to either push himself up or head-butt Jackson. Rodriguez grabbed his flashlight by the center of the shaft, used it as a brace and pushed Barretts head back toward the ground.

Rodriguez denied hitting Barrett with the flashlight or kicking him in the face. He did not intend to use his flashlight as an impact tool, only a brace. Barrett was non-compliant; he was putting his hands in a dangerous area where suspects are known to carry weapons. None of the techniques that the officers used worked to get Barrett under control.

Since Barrett was moving and Officer Bell was swinging his flashlight, Rodriguez had to get up and reset his position twice. Each time he reset his position, Rodriguez stepped on Barretts shoulder, went down to his knees, and braced Barretts head with his flashlight. According to Rodriguez, he was using his body weight to pin the suspect, which is not considered a use of force. After Bell got control of Barretts right hand, Rodriguez assisted an unidentified officer in grabbing Barretts left hand and bringing it to the right hand so that he could be handcuffed. After he was handcuffed, Barrett continued to violently flop around, kick, and spit. Barrett stated, Im not the one. He tried to get out of the handcuffs by raising his arms behind his back toward his head.

The officers turned Barrett over onto his back. Rodriguez searched his right pockets and recovered a pocketknife with a five-inch blade. According to Jacksons report, the officers also found a small Leatherman tool, which included a pocket knife, in Barretts jacket pocket. There was also evidence that Barrett had a third knife in his backpack, stored with some bicycle repair tools. While on his back, Barrett smacked his head against the concrete surface of the sidewalk or the metal construction plate that was in the area. Officer Richard Fitting held onto Barretts head to prevent him from injuring himself. Barrett continued to struggle, so they turned him over and called for the wrap.

Rodriguez did not see Malae during the incident and later told Malae that the other officers could have used his help.

Jackson was the arresting officer and prepared the primary report regarding the incident. Rodriguez prepared a supplemental report in which he stated in part: Upon arrival, I observed suspect Barrett lying supine on the east sidewalk of Lafayette Street north of Aldo. I observed that Officer Jackson was on top of Barrett who was actively resisting and fighting Officer Jackson. I observed Barrett flailing his arms and kicking his legs at Officer Jackson and other officers at the scene. I responded and assisted officers in using our body weight to prevent Barrett from injuring Officer Jackson and other officers at the scene. I continually heard Officer Jackson shouting commands for suspect Barrett to quit fighting and to give her his hands, which he had concealed under his stomach, as he laid now prone on the sidewalk. [] I assisted Officer Jackson with pulling Barretts hands out from under his stomach. Barrett continued to resist by kicking his legs and attempting to lift his body up as we attempted to keep him down. During the struggle, I observed Barrett bang his head on the cement floor. Officers at the scene were finally able to handcuff Barrett with his hands behind his back.

After investigators told Rodriguez that four officers had seen him kick Barrett, Rodriguez told the investigators that his foot may have inadvertently connected with Barrett as he stepped down on his shoulder, which others may have misperceived as a kick, and that the other officers may have misperceived what he did with his flashlight as a strike. SCPD Administrative General Order 1.3.6 provides in part: Employees shall, as soon as possible, make an oral report to their immediate supervisor in all cases in which they exercise the use of force beyond simple control holds or overcoming passive resistance. Sergeant Cummins was Rodriguezs immediate supervisor at the time of Barretts arrest; he arrived at the scene with the wrap after Barrett was placed in handcuffs. Rodriguez did not tell Sergeant Cummins or document in his report that he had stomped on Barretts left shoulder, pinned his shoulder down with his knees, or braced his head with his flashlight.

Rodriguez testified that he saw Van Dyke kick Barrett twice in either the groin or the buttocks. Van Dyke denied hitting or kicking Barrett.

H. Other Witnesses and Evidence

Barrett had little memory of the incident. He testified that he dislocated his right elbow, injured his left rotator cuff, and sustained a one and one-half inch gash on the back of his head. He also complained of swelling of the face and brain and pain in his buttocks.

George Williams, an expert in police training and defensive tactics, testified for the City. He acknowledged that in the beginning of the encounter between Barrett and the officers, there was a high level of danger that a weapon might be drawn. But as additional officers arrived, that possibility became more remote. Based upon his review of the investigation materials, he concluded that Rodriguez struck Barrett in the head with a flashlight and that one of the blows connected and caused the laceration to the back of Barretts head. He also concluded that Rodriguezs first kick contacted his face in at least a glancing manner and that the remaining kicks did not make a telling blow. He stated that the circumstances of this case did not require the use of deadly force and that flashlight blows to a suspects head and kicks to the head when a suspect is on the ground in a prone position are deadly force. That Rodriguezs kicks did not connect does not change the fact that two officers saw him kick a downed suspect who was restrained by three officers. Williams does not teach officers to pin suspects with their feet because it is not effective and there is a very good possibility that it will be misinterpreted as a kick. He testified that it would have been appropriate for Rodriguez to use his foot or drop to his knees to pin the suspects shoulder and use his flashlight as a bracing tool.

Deputy District Attorney Karen Sinunu testified that her staff had concluded that Rodriguez had used excessive force under color of authority but did not think they could persuade 12 jurors that a crime had been committed. She testified that her office is required to turn over information relating to dishonesty or other misconduct that they know of involving police officers under Brady v. Maryland (1963) 373 U.S. 83 and that Rodriguez was on a list of officers subject to the Brady disclosure.

Don Cameron, an expert on the use of force by police officers, testified on behalf of Rodriguez. He testified that a full-on kick with a boot will cause massive injuries to the suspects face. He reviewed the photographs of Barretts injuries and concluded that they showed classic road rash on Barretts left cheek, eyebrow, and forehead areas, which means that the left side of his face came into contact with asphalt or concrete. He testified that the markings on the right side of Barretts nose and injury to his right ear were consistent with being punched. None of the injuries depicted in the photographs are consistent with being kicked four times with a boot in a full force manner. Had the suspect been kicked full force in the face, Cameron would have expected massive facial injuries. Cameron could not tell what caused the laceration to the back of Barretts head, but testified that that injury was not consistent with a full force strike from a flashlight in a downward motion. He opined that the injury to the back of Barretts head could have been caused by contact with a hard surface and is consistent with hitting his head on the metal plate. Cameron has heard of officers misperceiving a reasonable use of force as unreasonable and testified regarding the factors that may affect an officers perception in such situations. In response to a hypothetical question based on Rodriguezs version of events, Cameron testified that the officers use of force was reasonable.

SCPD Administrative General Order 1.3.6 provides that the use of certain types of force shall be reported via the chain of command to the Chief of Police, in writing, by both the employee utilizing the force and the employees immediate supervisor. The requirement applies to [a]ny employee striking a subject with their hand or any other object, [a]ny force beyond simple control holds or overcoming passive resistance, and [a]ny force used which results in injury to a subject or any allegation of injury. Rodriguezs written report does not mention the use of his foot to stomp on Barretts shoulder, the use of his knees to pin the suspect, or the use of the flashlight to pin the suspect.

VI. Civil Service Commission Board of Review Decision

The Board issued its decision on July 18, 2003. The Board concluded that there was just cause for termination and denied Rodriguezs appeal. The Board made 25 Findings of Fact and 12 Additional Findings. We shall review the Boards findings in detail in our discussion of the courts order on the writ petition. All but two of the Boards findings were unanimous. The Board voted three to two that the force used by Rodriguez with the flashlight was excessive and four to one that the force with the foot stomps was excessive. The Board sustained each of the Citys five charges against Rodriguez and concluded that [a]ny of these charges on their own would have been sufficient to sustain termination.

VII. Petition for Writ of Administrative Mandate

In January 2004, Rodriguez filed a petition for administrative mandate in the superior court, arguing that the Boards decision was not supported by the findings, that the findings were not supported by the evidence, that termination was an excessive penalty, and that the Board did not permit a fair hearing or proceed in the manner required by law. He argued that the Boards decision did not set forth sufficient findings to bridge the analytical gap between the raw evidence and the Boards decision, citing Topanga Association for a Scenic Community v. County of Los Angeles (1974) 11 Cal.3d 506. The court conducted a hearing on the writ petition in April 2006 and filed its written decision on the petition on June 16, 2006.

IX. Trial Courts Decision on Petition for Writ of Administrative Mandate

The trial court reviewed the Boards findings of fact to determine whether they were supported by the weight of the evidence. As set forth below, the court concluded that some of the Boards findings were not supported by the evidence and made its own findings of fact.

A. Trial Courts Review of Boards Findings of Fact

The court divided the Boards findings of fact into four groups. The first group (findings numbers 1 through 6)[3] consists of facts leading up to Rodriguezs involvement in the incident.[4] The court found that these facts were supported by the record.

The second group (findings numbers 7 to 11) deals with Rodriguezs actions in attempting to subdue Barrett. The Board made the following findings of fact in this group: From a full speed run, Rodriguez impacted or landed on Barretts left shoulder with full force. (Finding no. 7.) Rodriguez stomped/kicked Barrett with his foot more than once. (Finding no. 8.) Rodriguez used his flashlight on Barrett in an attempt to control him. (Finding no. 9.) Rodriguez utilized his knees on Barretts neck/shoulder area with his full body weight. (Finding no. 10.) Rodriguez stood up again and then dropped his knees on Barretts left shoulder/neck area. (Finding no. 11.)

The court concluded that Finding of fact no. 7 is supported by the weight of the evidence to the extent that [Rodriguez] ran and landed on Barretts left shoulder area, but not to the extent that he landed with full force. It also found that the weight of the evidence supports finding of fact no. 8 since that finding does not state that Rodriguez intentionally kicked Barrett. The court concluded that Board finding numbers 9 through 11 are supported by the evidence.

The third group of findings (findings numbers 12 to 15) concern Rodriguezs failure to report the use of the flashlight, stomps, his knees, or any force. The Board made the following findings of fact in this group: Rodriguez failed to report the use of the flashlight[,] [] the stomping on Barrett[, and the] [] knee dropping on Barrett. (Findings nos. 12 to 14.) Rodriguez failed to notify his supervisor (Cummins) on the night of the incident, or as soon as possible, of any use of force. (Finding no. 15.) With regard to this group, the court observed that Rodriguez concedes his report was poorly written, but asserts he did not need to report anything other that his use of body weight. The court concluded that the findings simply state [Rodriguez] did not include certain details in his report and the evidence supports these findings.

The court concluded that the findings of fact in the fourth group, findings numbers 16 to 25, are supported by the evidence.[5] The court observed, however, that findings of fact numbers 17 through 25 simply repeat statements made by various witnesses and experts, at least two of whom, Williams and Cameron, were in direct conflict in their opinion testimony as to whether [Rodriguezs] actions constituted  excessive force. 

B. Trial Courts Review of Boards Additional Findings

The Boards Additional Findings included findings that Rodriguez was dishonest and less than truthful during part of the investigation; that [s]ome of the force used by Rodriguez with the flashlight and with the foot stomp was unnecessary; that some of his actions represented Conduct Unbecoming an Officer; that Rodriguez failed to report the use of force and a failed to complete his reports accurately and completely; and that [s]ome aspects of his conduct during the incident and during the investigation were neglectful. The Additional Findings included the Boards ultimate conclusion that there was good cause to terminate Rodriguez. The court held that the Additional Findings were conclusory, do not cite to any evidence in the administrative record, and do not provide any insight into the Boards analysis. It concluded that the Additional Findings were inadequate and unhelpful to its review of the case.

C. Trial Courts Findings Regarding the Use of Force

The court independently reviewed the record and concluded that [t]he evidence taken as a whole does not support the finding(s) that [Rodriguez] actually used unreasonable and excessive force against Barrett although his overall conduct at the scene of the arrest and thereafter did not reflect the high standards of the Department. The court explained: [U]sing foot blows at all when an arrestee is primarily on the ground struggling with three other officers and no weapon is suspected demonstrates a violation of [SCPD] standards, even if the foot blows inflict no injury and no excessive force is actually applied. The court concluded that [g]iven the inconsistent and contrasting evidence regarding the degree of force actually applied to Mr. Barrett, Rodriguezs lack of any meaningful prior record of discipline, and the Boards reliance upon unsupported findings that Rodriguezs use of force was unnecessary and excessive, termination seems excessive.

D. Trial Courts Findings Regarding the Failure to Report Use of Force

The court observed, however, that the findings that were supported by the evidence unequivocally establish that [Rodriguez] failed to report his use of force other than his use of his body weight in violation of City and [SCPD] policy. The court concluded that Rodriguezs failure to report his use of force orally or in writing and to be totally honest in violation of [SCPD] policy is a serious matter. In light of the district attorneys stated intent to turn over the reports of its criminal investigation of Rodriguezs conduct in this case as Brady evidence, the court concluded that Rodriguezs usefulness as a police officer appeared limited.

The court had no confidence that the Boards penalty decision was not impermissibly tainted by the findings that were not supported by the evidence. It held that, to the extent that the Board selected a punishment based on findings that were not supported by the record, it abused its discretion. The court granted the writ and remanded to the Board for reconsideration of the penalty to be imposed consistent with the findings of the court. The City appeals.

Discussion

I. Trial Court and Appellate Court Standards of Review

In a mandamus proceeding, the superior courts inquiry shall extend to the questions of whether the [agency] has proceeded without, or in excess of jurisdiction, whether there was a fair trial, and whether there was any prejudicial abuse of discretion. (Code Civ. Proc., 1094.5, subd. (b).)[6] An abuse of discretion is established if the agency has not proceeded in the manner required by law, the order or decision is not supported by the findings, or the findings are not supported by the evidence. (Ibid.; Fukuda v. City of Angels (1999) 20 Cal.4th 805, 816, fn. 8 (Fukuda).)

The applicable standards of review at the superior court and appellate court levels differ depending upon which issues are under review. (Deegan v. City of Mountain View (1999) 72 Cal.App.4th 37, 45 (Deegan).) With respect to culpability, i.e., whether [Rodriguez] committed the misconduct alleged, the superior court has extensive powers of review. The trial court examines whether the decision of the Administrative Board is supported by the findings and whether the findings are supported by the evidence in the administrative record. (Ibid., citing 1094.5, subd. (b).) Where the petitioner claims that the findings of the administrative entity are not supported by the evidence, one of two standards applies depending on the nature of the rights involved. If the decision substantially affected a fundamental vested right, the superior court exercises its independent judgment on the evidence in the administrative record in order to determine whether the findings are supported by the weight of the evidence. (Strumsky v. San Diego County Employees Retirement Assn. (1974) 11 Cal.3d 28, 32 (Strumsky); 1094.5, subd. (c).) In all other cases, the superior courts review is limited to examining the administrative record to determine whether the decision was supported by substantial evidence. (Strumsky, at p. 32.)

It has been held that discipline imposed on public employees affects their fundamental vested right in their employment. (Boctor v. Los Angeles County Metropolitan Transit Authority (1996) 48 Cal.App.4th 560, 572-573.) Since this case involved discipline imposed on Officer Rodriguez, a public employee, the superior court was required to exercise its independent judgment on the evidence and find an abuse of discretion if the Boards findings were not supported by the weight of the evidence. (Id. at p. 573.) A decision that is contrary to the weight of the evidence is one that is contrary to the preponderance of the evidence. (Chamberlain v. Ventura County Civil Service Commission (1977) 69 Cal.App.3d 362, 368.)

Even where the trial court exercises its independent judgment, however, it still must afford a strong presumption of correctness concerning the administrative findings. [T]he party challenging the administrative decision bears the burden of convincing the court that the administrative findings are contrary to the weight of the evidence. (Fukuda, supra, 20 Cal.4th at p. 817.) [T]he presumption [of the correctness of the administrative agencys findings] provides the trial court with a starting point for reviewbut it is only a presumption, and may be overcome. Because the trial court ultimately must exercise its own independent judgment, that court is free to substitute its own findings after first giving due respect to the agencys findings. (Id. at p. 818.)

In exercising its independent judgment, the trial court examines the entire administrative record and reviews evidence both in support of, and in conflict with, the administrative agencys findings. (Deegan, supra, 72 Cal.App.4th at p. 45, citing  1094.5, subd. (c) and Bixby v. Pierno (1971) 4 Cal.3d 130, 143-144 (Bixby).) The trial court resolves evidentiary conflicts and is required to assess witnesses credibility and to arrive at its own independent findings of fact. (Deegan, at p. 45.) The trial court may make its own findings that are contrary to the findings of the administrative agency. (Pittsburg Unified School District v. Commission on Professional Competence (1983) 146 Cal.App.3d 964, 976-977; Levingston v. Retirement Board (1995) 38 Cal.App.4th 996, 1000-1001.)

An appellate court reviewing the superior courts decision applies the substantial evidence standard regardless of what standard was applied by the superior court. (Fukuda, supra, 20 Cal.4th at p. 824; Malibu Mountains Recreation, Inc. v. County of Los Angeles (1998) 67 Cal.App.4th 359, 368.) Where the superior court has exercised its independent judgment, the appellate court reviews the record to determine whether the superior courts findings (not those of the administrative agency) are supported by substantial evidence. (Bixby, supra, 4 Cal.3d at pp. 143-144; Deegan, supra, 72 Cal.App.4th at p. 45.)

A different standard applies to the review of an agencys decision regarding penalty. We shall discuss that standard in detail when we address the Citys arguments with regard to the courts review of the Boards penalty assessment.

The City agrees that this case required the court to apply the independent judgment standard, but argues that the trial court erred in its application of the independent judgment standard, which led to an improper determination that the Board abused its discretion.

II. Trial Courts Treatment of Boards Additional Findings Regarding Failure to Report Use of Force and Dishonesty

The City argues that the court exceeded its jurisdiction when it rejected the Boards Additional Findings and issued new findings that were virtually identical to some of the Boards Additional Findings that the court had rejected. The City contends that the court erred both when it rejected the Boards Additional Findings as conclusory, inadequate, and unhelpful and when it issued its own findings.

As we explained before, the courts standard of review required that it independently review the entire record and determine whether the Boards findings were supported by the weight of the evidence. The court was free to substitute its own findings after first giving due respect to the Boards findings. (Deegan, supra, 72 Cal.App.4th at p. 45.) The court had the power to resolve evidentiary conflicts, assess witness credibility, and arrive at its own finding of fact. (Ibid.) Thus, the court did not err when it issued its own findings.

In support of its argument, the City prepared a chart illustrating the similarities between eight of the Boards Additional Findings and five of the courts findings. All but one of the courts findings on the chart are based on the following paragraph from the courts decision: The findings of fact supported by the evidence unequivocally establish that [Rodriguez] failed to report his use of force other than his body weight in his report in violation of City and Department policy. This lack of candor and honesty in the face of accusations of excessive force is a very serious violation. [Rodriguezs] lack of candor appears to also have been evidenced at the hearing before the Board when [Rodriguezs] testimony about the confrontation with Jacob Malae at the church parking lot^[[7]] was substantially contradicted by the testimony of Officers Amos and Baker. At the beginning of the paragraph, the court expressly stated that the findings in this paragraph were based on the Boards findings of fact [that were] supported by the evidence, not the Additional Findings. As we noted before, the court had found that the weight of the evidence supported the Boards findings that Rodriguez failed to report the use of the flashlight[,] [] the stomping on Barrett[, and the] [] knee dropping on Barrett (Findings nos. 12 to 14.) and that Rodriguez failed to notify his supervisor (Cummins) on the night of the incident, or as soon as possible, of any use of force (Finding no. 15). The court also found that the Boards Additional Finding no. 1 (b), which clarified that the omission of the use of force in a report is a violation of Santa Clara Police Manual section 1.3.6, was helpful. In the third sentence of the paragraph, the court merely commented on other evidence relating to Rodriguezs credibility that supported its finding of a lack of candor.

The last of the courts findings on the Citys chart quotes from the following passage in the courts decision: On the other hand, the failure to report use of force orally or in writing and to be totally honest in violation of Department policy is a serious matter. This sentence is in a paragraph where the court discusses the propriety of the penalty and merely summarizes its findings as set forth in the paragraph quoted above. Thus, it too was based on Board findings that the court had found were sufficient.

The City argues that upon determining that the Boards Additional Findings were conclusory or inadequate, the court should have remanded to the Board to prepare adequate findings, citing City of Fairfield v. Superior Court (1975) 14 Cal.3d 768, Zink v. City of Sausalito (1977) 70 Cal.App.3d 662 (Zink), and American Funeral Concepts-American Cremation Society v. Board of Funeral Directors & Embalmers (1982) 136 Cal.App.3d 303, 311. These cases do not stand for the proposition for which they are cited and the Citys reliance on them is misplaced.

For these reasons, we reject the Citys contention that the court exceeded its jurisdiction when it issued new findings that were virtually identical to some of the Boards Additional Findings, which the court had rejected.

III. The Trial Court Did Not Apply an Erroneous Standard to the Boards Use of Force Findings

The City contends the court improperly rejected the Boards Additional Findings regarding the type of force used by Rodriguez. The City argues that the court did not apply the correct standard, erroneously created its own standard, and then concluded that there was insufficient evidence to support the erroneous standard. In particular, the City contends that the court did not describe the Boards findings correctly. It asserts that the court stated that the Board had found that Rodriguez had used  unreasonable and excessive force when the Board found Rodriguez had used  unnecessary force. It also contends the court applied a standard requiring proof of  unreasonable and excessive force when the Citys policy and the charging letter refer to unreasonable or excessive force. We find no error.

In its Notice of Final Disciplinary Action, the City advised Rodriguez that he was being terminated on grounds specified in section 6.4 of the Citys Civil Service Rules and Regulations, including subsections 6 (Dishonesty), 12 (Discourteous Treatment of Public), 15 (Failure to Observe Departmental Rules and Regulations), 17 (Any Other Failure of Good Behavior ), and 18 (Failure to Satisfactorily Perform the Duties of the Position). Each of these grounds was supported by citation to one or more provisions of the Santa Clara Police Manual (SCPM). Each of the charges, except for Dishonesty, was based in whole or in part on SCPM section 26.3.3 (BF), which prohibits Unnecessary or excessive use of physical force against any person. The SCPD Use of Force Policy uses the terms reasonable and unreasonable and necessary and unnecessary to describe the use of force[8]; it does not use the term excessive. In summary, the Use of Force Policy and the SCPM use the terms unreasonable, unnecessary, and excessive to describe the type of force that is unacceptable and could result in discipline.

The Board used both the terms unnecessary and excessive in its findings to describe Rodriguezs use of force.

The court found that the evidence taken as a whole does not support the finding(s) that [Rodriguez] actually used unreasonable and excessive force against Barrett. The court also quoted from the Use of Force Policy, which may explain why it used the word unreasonable, a term the Board did not use. It also stated, Given the inconsistent and contrasting evidence regarding the degree of force actually applied to Mr. Barrett, [Rodriguezs] lack of any meaningful prior record of discipline, and the Boards reliance upon unsupported findings that the force used was both unnecessary and excessive (additional findings 5 (b) and (c)), termination seems excessive.[9] The latter holding tracks the language of the Boards findings precisely, which persuades us that the court had the Boards findings in mind and applied the correct standard. The court carefully reviewed the record and discussed the circumstances surrounding the use of force on Barrett in detail. Regardless of the adjectives it used, the court concluded that the Boards findings of misconduct related to Rodriguezs use of force were not supported by the weight of the evidence. In light of the entire record, we are not persuaded that the court applied the wrong standard when it reviewed the Boards findings on the use of force.

IV. Substantial Evidence Supports the Trial Courts Holding That the Boards Use of Force Findings Were Not Supported by the Weight of the Evidence

The City argues that the weight of the evidence supports the Boards Additional Findings that [s]ome of the force used by Rodriguez with the flashlight [and] with the foot stomp was unnecessary and that his use of force was excessive; it contends the court erred when it set aside those findings.

This argument misapprehends our standard of review on appeal. As we noted above, an appellate court reviewing the superior courts decision on a writ of administrative mandamus applies the deferential substantial evidence standard regardless of what standard the superior court applied. (Fukuda, supra, 20 Cal.4th at p. 824; Malibu Mountains Recreation, Inc. v. County of Los Angeles, supra, 67 Cal.App.4th at p. 368.) In a case such as this, where the superior court has exercised its independent judgment, the appellate court reviews the record to determine whether the superior courts findings (not those of the administrative agency) are supported by substantial evidence. (Bixby, supra, 4 Cal.3d at pp. 143-144; Deegan, supra, 72 Cal.App.4th at p. 45.) As long as there is substantial evidence, the appellate court must affirm, even if the reviewing justices personally would have ruled differently if they had presided over the proceedings below and even if other substantial evidence would support a different result. (Bowers v. Bernards (1984)150 Cal.App.3d 870, 874.)

In our view, substantial evidence supports the findings of the trial court. As the court observed, Barrett violently resisted Jacksons efforts to place him in handcuffs. Although he did not use them, Barrett was carrying two knives in his right front jacket pocket. Several of the officers thought Barrett was under the influence of drugs and, when Barrett refused to give up his right hand, were concerned that he might reach for a weapon. Barrett resisted the officers efforts to control him, even after Gratney struck him twice in the face with a closed fist and sprayed him with pepper spray and after Bell struck him four times in the back of his upper right arm with a flashlight. Barrett continued to resist after Van Dyke, Rodriguez and Malae arrived and after Rodriguez applied force with his foot stomps and flashlight. Even after he was placed in handcuffs, Barrett continued to resist, by banging his head on the ground and then placing his hands over his head in an attempt to escape the handcuffs. Barrett was so out of control, the officers had to use the wrap to control his legs. Jackson reported that Barrett remained violent and uncooperative, even at the hospital. The incident was over in seconds, the scene was dark, and several officers were involved.

Although Rodriguez and Malae had very different accounts of what happened, the Boards findings that the court concluded were supported by the evidence are consistent with Rodriguezs account of the events. The Board found that Rodriguez impacted or landed on Barretts left shoulder, that he stomped/kicked Barrett with his foot more than once, that he used his knees on Barretts neck/shoulder area with his full body weight, and that he used his flashlight on Barrett in an attempt to control him. Although the Board and the court agreed on these findings, they disagreed on the question whether this conduct was necessary or unnecessary under the circumstances of the case. Notably, the Board did not find that Rodriguez struck Barrett in the back of the head with his flashlight or that he kicked him in the face, as Malae had testified. In addition, expert Williams testified that it would have been appropriate for Rodriguez to use his foot or drop to his knees to pin the suspects shoulder and use his flashlight as a bracing tool.

The court concluded that Malae was not a totally objective witness, and that his admitted pre-existing animus toward [Rodriguez] may have unconsciously altered his perceptions of events during Barretts arrest. These findings are supported by substantial evidence. As the court observed, Malae, the only officer who testified that he actually saw [Rodriguez] strike Barrett with a flashlight on the head and land full-force kicks to Barretts face, acknowledged that he had misgivings about being paired up with Rodriguez before this incident happened. There was also evidence that after the incident, Rodriguez criticized Malae for not assisting the officers at the scene in subduing Barrett. The evidence also supports the courts conclusion that Malae did not perceive the incident accurately, including the facts that it was dark, that several officers were in a small space, that Barrett did not have either the type or severity of injuries one would expect from flashlight blows to the head and kicks to the face, and that Malae was the only officer who said Barrett was standing. Moreover, the Citys expert, Williams, stated that when officers pin suspects with their feet, as Rodriguez did, there is a very good possibility that their actions will be misinterpreted as a kick. Rodriguezs expert, Cameron, also testified that he had heard of situations where an officers use of his foot to pin a subject has been misinterpreted as a kick.

Moreover, Barretts injuries do not support the conclusion that Rodriguez used excessive force. Cameron, testified that Barretts relatively minor head injuries were not consistent with the level of force that Malae and Van Dyke described. The most serious injury, the dislocation of his right elbow, was not inflicted by Rodriguez; Barrett did not know what caused the rotator cuff injury to his left shoulder and speculated that it may have been due to bringing his hands around to his back so that he could be handcuffed. In addition, Officer Fitting testified that he held onto Barretts head as Barrett was banging his head on the ground, to prevent Barrett from injuring himself. During much of that time, Barrett was on his back.

Based on this evidence, we conclude that substantial evidence supports the trial courts conclusion that the weight of the evidence does not support the Boards finding that Rodriguez used unreasonable or unnecessary or excessive force in the incident involving Barrett.

V. The Court Did Not Err When It Remanded To the Board to Reconsider its Penalty Determination

The City contends the court erred when it set aside the Boards penalty determination and remanded the case to the Board to reconsider the penalty issue in light of the courts findings.

A. Waiver

We begin our analysis of this issue by noting that during the hearing on the writ petition, the City suggested that if the court finds the Board abused its discretion, it send the case back to the Board for further review of the penalty issue. Generally, a party who expressly agrees to an action taken by the trial court cannot challenge that action on appeal. (Nevada County Office of Education v. Riles (1983) 149 Cal.App.3d 767, 779.) Rodriguez does not argue waiver. Since the parties have not briefed the waiver issue, we shall exercise our discretion to address the issue in spite of the Citys apparent waiver.

B. Standard of Review

With respect to the question of penalty, the superior courts powers of review are quite limited, and are exercised only with great deference to the administrative agencys findings. (Deegan, supra, 72 Cal.App.4th at p. 45, citing Cummings v. Civil Service Com. (1995) 40 Cal.App.4th 1643, 1652 (Cummings).) When the superior court has conducted its review and has concluded that the agency properly found misconduct, the imposition of the appropriate penalty for that misconduct is left to the sound discretion of the agency. The penalty imposed by an administrative body will not be disturbed in mandamus proceedings unless an abuse of discretion is demonstrated. (Kazensky v. City of Merced (1998) 65 Cal.App.4th 44, 53 (Kazensky).) Neither the trial court nor the appellate court is entitled to substitute its discretion for that of the administrative agency concerning the degree of punishment imposed. (Citation.) The trial court may vacate but not modify the agencys determination of penalty if it finds a manifest abuse of discretion. (Citation.) The appellate court conducts a de novo review of the penalty assessed, giving no deference to the trial courts determination. Again, the appellate court reviews the agencys selection of penalty and, if reasonable minds can differ with regard to the propriety of the disciplinary action, it finds no abuse of discretion. (Deegan, supra, 72 Cal.App.4th at pp. 45-46.) It is only in the exceptional case, when it is shown that reasonable minds cannot differ on the propriety of the penalty, that an abuse of discretion is shown. (Id. at p. 47.) This principle of judicial review applies even when the superior court exercises its independent judgment on the evidence. (Kazensky, supra, 65 Cal.App.4th at p. 53.)

The appellate court uses the same standard as the superior court, reviewing the agencys penalty for manifest abuse of discretion. [Citations.] Neither an appellate court nor a trial court is free to substitute its discretion for that of the administrative agency concerning the degree of punishment imposed. (Cummings, supra, 40 Cal.App.4th at p. 1652, quoting Barber v. State Personnel Bd. (1976) 18 Cal.3d 395, 404.) In this inquiry, the appellate court reviews the agencys selection of penalty for abuse of discretion, and the trial courts determination finding an abuse of discretion or not is not binding on the appellate court. [Citation.] We do not substitute our discretion for that of the administrative agency on the degree of punishment to be imposed. (Deegan, supra, 72 Cal.App.4th at p. 47.) In determining whether an agency abused its discretion in assessing a particular penalty, a court will look to whether reasonable minds may differ as to the propriety of a penalty imposed. [Citations.] Judicial interference with the agencys assessment of a penalty will only be sanctioned when there is an arbitrary, capricious or patently abusive exercise of discretion by the administrative agency. (Kazensky, supra, 65 Cal.App.4th at p. 54.)

C. Citys Contentions

The City argues that the Boards finding on the charge of dishonesty, which was upheld by the trial court, was sufficient by itself to support the Boards decision to terminate Rodriguez. The City relies on the Boards statement in its decision that Any of these [five] charges on their own would have been sufficient to sustain termination. The City argues that [w]hen only one or a few of the findings are necessary to support an agencys decision, as is the case with the charge of dishonesty, it is unnecessary to remand a matter to the administrative agency. Instead, the decision of the agency should be upheld. The City contends that once the court agreed that Rodriguez was dishonest and that such misconduct limited his ability to perform as a police officer, the court was required to uphold the Boards penalty determination with regard to that offense. The City also argues that the courts remand order improperly interferes with the Boards penalty determination by requiring the Board to engage in a repetitive act. Finally, the City contends that California caselaw mandates that administrative agencies terminate dishonest police officers and that an agency abuses its discretion when it imposes a penalty less than termination.

D. Analysis

Four of the five charges in the Citys notice of disciplinary action listed unnecessary or excessive use of force, with a reference to SCPM section 26.3.3 (BF), as a ground for the charge. The only charge that was not based in whole or in part on a claim of unnecessary or excessive use of force was the dishonesty charge, which referenced SCPM section 26.3.3 (BB). That section provides: Testifying, making reports or conducting police business in less than a truthful and/or cooperative manner is grounds for discipline.[10]

The City asserts that [w]hen only one or a few of the findings are necessary to support an agencys decision, as is the case with the charge of dishonesty, it is unnecessary to remand a matter to the administrative agency. Instead, the decision of the agency should be upheld. In support of this argument, the City cites Saad v. City of Berkeley (1994) 24 Cal.App.4th 1206, 1214 (Saad). In Saad, the court upheld the denial of a land use permit, stating that it was not necessary to determine that each finding by the Board was supported by substantial evidence as long as the Board found that one of the necessary elements enumerated in the ordinance was lacking and that finding was supported by substantial evidence. (Id. at pp. 1213-1214.) Saad is factually distinguishable from this case because it involved an application for a use permit, which did not involve a fundamental vested right. Because of this, the trial court in Saad applied the substantial evidence test and did not exercise its independen