CPOA CASE SUMMARIES – MAY 2019

Courtesy of James R. Touchstone, Esq.

CONSTITUTIONAL LAW

  1. Trial courts possess inherent authority to impose reasonable bail conditions related to public safety on felony defendants who are released on monetary bail.

In re Webb, 7 Cal. 5th 270 (2019)

Facts: Defendant Bettie Webb was arrested and charged with two felony counts for knowingly bringing controlled substances into a state prison (Penal Code section 4573) and unauthorized possession of a controlled substance in a prison (Section 4573.6). Webb posted bail and was released from custody. At her arraignment, she pled not guilty. However, over her objection the magistrate imposed, as an additional condition of release, that she waive her Fourth Amendment right to be free of warrantless or unreasonable searches. Webb’s writ of habeas corpus petition to the court challenging the search condition was denied. She then filed a “petition for a writ of habeas corpus contending the magistrate lacked statutory or inherent authority to impose the bail search condition, and imposition of the condition constitutes a pretrial restraint without due process protections such as notice and a hearing or any showing that she poses a heightened risk of misbehaving while on bail.” The Court of Appeal concluded that the trial court had no authority to condition Webb’s bail on a Fourth Amendment waiver, and it ordered the search condition vacated.

The San Diego County District Attorney petitioned for review.[1] The Supreme Court of California granted review to decide the question: “Do trial courts possess inherent authority to impose reasonable bail conditions related to public safety on felony defendants who are released on monetary bail?”

Held: The California Supreme Court held that trial courts have authority to impose reasonable bail conditions related to public safety on felony defendants released on bail. The Court discussed two cases that addressed whether a court may impose release conditions on a person who has posted bail. Although the facts of In re McSherry involved misdemeanor charges, the Second District Court of Appeal there held that “a trial court may impose reasonable bail conditions on the granting of that bail” if the conditions are “reasonable and related to public safety.”[2] In a felony case two years later in Gray v. Superior Court, the First District also held that a trial court may impose reasonable conditions even if the person has been released on bail, and that the condition imposed is not necessarily unreasonable.[3] The Gray court observed that Penal Code section 1270 (a) describes a court’s authority to set bail conditions with regards to a defendant’s misdemeanor offense, whereas defendant Gray was charged with felony counts. The Gray court explained, however, that “[i]n McSherry, the court reasoned that if a trial court is statutorily authorized to impose bail conditions on a person charged with a misdemeanor (see Pen. Code [section] 1270, subd. (a)), then the Legislature surely intended similar conditions could be imposed when a defendant facing felony charges is released on bail. (McSherry, supra, 112 Cal.App.4th at p. 862.)”[4] Gray therefore agreed with McSherry that “there is a general understanding that the trial court possesses inherent authority to impose conditions associated with release on bail.”

The Supreme Court agreed with McSherry and Gray. The Court observed that, although no statutes governed the precise situation with Webb, several statutes provide for release conditions on bail, and none of these statutes suggested that bail conditions were unique to the situations they governed. Moreover, McSherry and Gray were correct that it would be illogical for the Legislature to authorize conditions of release on bail for those charged with a misdemeanor (as in Penal Code section 1270 (a)) but prohibit such conditions for those charged with a felony.

Penal Code section 1275(a)(1) states: “In setting, reducing, or denying bail, a judge or magistrate shall take into consideration the protection of the public, the seriousness of the offense charged, the previous criminal record of the defendant, and the probability of his or her appearing at trial or at a hearing of the case. The public safety shall be the primary consideration.” (Italics added.) The Court concluded that trial courts have authority to impose reasonable conditions related to public safety on persons released on bail.[5] Accordingly, the California Supreme Court reversed the Court of Appeal’s judgment, and remanded to that Court with instructions to deny the District Attorney’s petition.

  • United States Supreme Court holds that probable cause to arrest defeats First Amendment retaliation claim.

Nieves v. Bartlett, 2019 U.S. LEXIS 3557 (May 28, 2019)

Facts: Arctic Man is an annual weeklong sports festival held in a remote part of Alaska during which a small community of a few dozen becomes transformed temporarily into a campground that the Supreme Court called “one of the largest and most raucous cities in Alaska.” Freezing temperatures and excessive alcohol consumption are common during the course of the festival. Due to the remote location, police availability is limited to patrol the event.

On the final night of Arctic Man in 2014 at about 1:30 a.m., Sergeant Luis Nieves was speaking to a group of festival attendees to ask them to move their alcohol to the inside of their RV to keep them from minors. According to Nieves, an apparently intoxicated Russell Bartlett started yelling at the RV owners not to talk to the police. When Nieves approached him, Bartlett began yelling at the officer to leave. Rather than escalate the situation, Nieves moved away. Bartlett disputed Nieves’s version of events, claiming that he was not drunk at that time and did not yell at Nieves.

Several minutes later, Bartlett saw Trooper Bryce Weight talking with a minor. According to Weight, Bartlett approached him in an aggressive manner, stood between Weight and the minor during Weight’s questioning, and yelled with slurred speech that Weight should not speak with the minor. According to Weight, when Bartlett stepped very close to him in a combative way, Weight pushed him back. Nieves saw the confrontation and came over quickly right after Weight pushed Bartlett. Nieves initiated an arrest. Bartlett was slow to comply, and the officers forced him to the ground. According to Bartlett, he was not aggressive, stood close to Weight because he wanted to be heard over loud music, and was slow to comply because of a back injury. Bartlett claimed that after he was handcuffed, Nieves said “bet you wish you would have talked to me now.” Bartlett was arrested for disorderly conduct and resisting arrest. He had sustained no injuries and was released a few hours later. The State ultimately dismissed criminal charges against Bartlett.

Bartlett sued under 42 U.S.C. section 1983, claiming that the officers violated his First Amendment rights by arresting him in retaliation for his speech—meaning his initial refusal to speak with Nieves and his intervention in Weight’s discussion with the minor. The District Court granted summary judgment for the officers, holding that the existence of probable cause to arrest precluded Bartlett’s claim. The Ninth Circuit reversed, holding that probable cause does not defeat a retaliatory arrest claim under its prior decision in Ford v. Yakima.[6] The Ninth Circuit concluded that Bartlett’s affidavit regarding what Nieves allegedly said after the arrest could enable Bartlett to prove that the officers’ desire to chill his speech was a but-for cause of the arrest. The officers petitioned for review, and the United States Supreme Court granted certiorari.

Held: The United States Supreme Court granted review of the case to resolve the issue of whether probable cause to make an arrest defeats a claim that the arrest was in retaliation for speech protected by the First Amendment. The Court first explained that “as a general matter the First Amendment prohibits government officials from subjecting an individual to retaliatory actions” for engaging in protected speech. Hartman v. Moore, 547 U.S. 250, 256 (2006). If an official takes adverse action against someone based on retaliation for the individual’s expression of protected speech, and “non-retaliatory grounds are in fact insufficient to provoke the adverse consequences,” the injured person may generally seek relief by bringing a First Amendment claim. Id. To prevail on such a claim, a plaintiff must establish not only that the official was motivated by a “retaliatory animus” and that the motive caused plaintiff’s subsequent injury, but also that the adverse action against the plaintiff would not have been taken absent the retaliatory motive (i.e., the motive was a “but-for” cause of the injury). Id., at 259-260. See also Mt. Healthy City Bd. of Ed. v. Doyle, 429 U. S. 274, 283-284 (1977)).

The Court explained that establishing such a “causal connection” in retaliation claims can be complex. For example, in retaliatory prosecution cases, the official alleged to have the retaliatory motive does not carry out the retaliatory action himself. Instead, a prosecutor decides whether to bring charges, and prosecutors are generally immune from suit and their charging decisions have a presumption of regularity. To account for this causation issue, plaintiffs in retaliatory prosecution cases must plead and prove as a threshold matter that the decision to press charges was objectively unreasonable because it was not supported by probable cause. Hartman v. Moore, 547 U.S. 250, 263. Hartman adopted this requirement because “[d]emonstrating that there was no probable cause for the underlying criminal charge will tend to reinforce the retaliation evidence and show that retaliation was the but-for basis for instigating the prosecution, while establishing the existence of probable cause will suggest that prosecution would have occurred even without a retaliatory motive.” Id., at 261.

Officers Nieves and Weight, here, argued that the same no-probable-cause threshold requirement should apply to retaliatory arrest claims because of parallels to the causal complexities that Hartman identified for retaliatory prosecution claims. The Supreme Court observed that its prior decision in Reichle v. Howards[7] recognized, and Lozman v. Riviera Beach[8]reaffirmed, that retaliatory arrest claims do indeed face some of the same causality challenges identified in Hartman: “[R]etaliatory arrest cases also present a tenuous causal connection between the defendant’s alleged animus and the plaintiff’s injury.” Reichle, 566 U.S., at 668. The Court explained that the causal inquiry is complex because protected speech is often completely legitimate for officers to consider when deciding whether to make an arrest; officers frequently must make split-second judgments when deciding whether to arrest; and the content and manner of a suspect’s speech might provide vital information—for example, if the suspect is ready to cooperate or alternatively presents a continuing threat.

Bartlett argued in his brief that causation in retaliatory arrest cases need “is not inherently complex” because the “factfinder simply must determine whether the officer intended to punish the plaintiff for the plaintiff’s protected speech.” The Court found that this approach improperly “dismisses the need for any threshold objective showing, moving directly to consideration of the officers’ subjective intent.” The Court observed that, in the Fourth Amendment context, the Supreme Court has “almost uniformly rejected invitations to probe [officers’] subjective intent,”[9] and Bartlett’s purely subjective approach would undermine that precedent by making the constitutionality of an arrest “vary from place to place and from time to time” depending on the personal motives of individual officers,[10] and would encourage officers to minimize communication during arrests to avoid having their words scrutinized for hints of improper motive. On the other hand, adopting Hartman’s no-probable-cause threshold addresses those concerns by its clear objective standard. Absent a showing of no probable cause for arrest, a retaliatory arrest claim fails. But if the plaintiff establishes the absence of probable cause, then the Mt. Healthy test governs: The plaintiff must show that the retaliation was a substantial or motivating factor behind the arrest, and, if that showing is made, the defendant can prevail only by showing that the arrest would have been initiated without respect to retaliation.

Observing that States permit warrantless misdemeanor arrests for minor criminal offenses in a wide range of situations, the Court made “a narrow qualification…for circumstances where officers have probable cause to make arrests, but typically exercise their discretion not to do so.” The Court maintained that in such cases an “unyielding” requirement to show the absence of probable cause could present a risk that some police officers would exploit the arrest power as a means of suppressing speech. As an example, the Court explained that jaywalking at an intersection is “endemic but rarely results in an arrest,” but an individual who complained verbally about police conduct might be arrested subsequently for jaywalking in possible retaliation. If the individual’s retaliatory arrest claim were to be dismissed on the ground that there was undoubted probable cause for the jaywalking arrest, “applying Hartman’s rule would come at the expense of Hartman’s logic” because the dismissal in this context would be “insufficiently protective of First Amendment rights.”

The Court therefore found that the no-probable-cause requirement should not apply when a plaintiff presents objective evidence that he was arrested when otherwise similarly situated individuals not engaged in the same sort of protected speech had not been. Cf. United States v. Armstrong, 517 U. S. 456, 465 (1996). The Court explained that because this inquiry is objective, the statements and motivations of the particular arresting officer would be irrelevant at this stage. After making the required showing, the plaintiff’s claim could proceed in the same way as claims where the plaintiff had met the threshold showing of the absence of probable cause.

Turning to the circumstances here, the Court found insufficient evidence of retaliation on the part of Trooper Weight. The only evidence of retaliatory animus identified by the Ninth Circuit was Bartlett’s affidavit stating that Sergeant Nieves said “bet you wish you would have talked to me now.” However, that allegation about Nieves did not reveal anything about what motivated Weight, who did not know about Bartlett’s prior encounter with Nieves. That aside, the Court concluded that there was probable cause to arrest Bartlett: Nieves initiated Bartlett’s arrest with knowledge that Bartlett had been drinking, had seen Bartlett talking loudly and standing close to Weight, and Nieves had seen Weight push Bartlett back. The Court concluded that because there was probable cause to arrest Bartlett, his retaliatory arrest claim failed as a matter of law. The United States Supreme Court accordingly reversed the Ninth Circuit’s judgment, and remanded.

For a more detailed discussion of this case, including concurring and dissenting opinions, please see Client Alert Vol. 34, No. 21, available at www.jones-mayer.com.

QUALIFIED IMMUNITY

Officers entitled to qualified immunity where no clearly established law demonstrated that probationary officer’s rights were violated.

Perez v. City of Roseville, 2019 U.S. App. LEXIS 14927 (9th Cir. May 21, 2019)

Facts: Janelle Perez was hired by the City of Roseville (“City”) Police Department (“Department”) as a police officer, subject to a probationary one-year period, as was typical for new hires. In January 2012, Perez began her probationary one-year term. After about ten weeks, Perez separated from her husband and started dating another Department officer named Shad Begley after he started working the same shift as Perez. Begley separated from his wife soon after he began working that shift. Begley’s wife wrote a citizen’s complaint alleging that Perez and Begley were having an extramarital relationship and that they were engaging in romantic relations while on duty. Begley’s wife also alleged that Begley and Perez contacted each other by phone and text numerous times while on duty.

Chief Daniel Hahn received the complaint in June 2012, and ordered an internal affairs investigation into the matter. During the investigation, Begley, Perez, and their spouses were interviewed, and phone and text logs were reviewed. The investigation did not suggest that Perez and Begley engaged in sex while on duty, but did reveal that they made personal phone calls to each other and exchanged texts multiple times while on duty. Some of the calls occurred while Perez was responding to calls for help. Both Perez and Begley admitted to sending personal texts to each other while on duty.

After reviewing the investigation report, Perez and Begley’s supervisor, Lieutenant Walstad, concluded that Perez violated the “[u]nsatisfactory work performance” standard set forth in Section 340.3.5(c)[11] of the Department policy manual because her personal calls impacted her ability to perform her duties. Perez had talked on the phone to Begley while in transit responding to dispatch calls, after arriving on the scene of a disturbance, and also before reporting to headquarters to clear a call.

The supervisor also concluded that Perez had violated the manual’s Section 340.3.5(aa) by engaging in conduct “which any employee knows or reasonably should know is unbecoming a member of the Department or which is contrary to good order, efficiency or morale, or which tends to reflect unfavorably upon the Department or its members.” The supervisor referred to Perez’s relationship with Begley as “secret” in nature and unprofessional, and that the relationship failed to meet the “high standards of ethical conduct and behavior” required. The supervisor also mentioned that both officers were married and “have young children,” and recommended sustaining both disciplinary charges against Perez.

In August 2012, Captain Stefan Moore informed Perez of the findings sustaining the charges against her for “Conduct Unbecoming” and “Unsatisfactory Work Performance.” Captain Moore issued a written reprimand to Perez that described the grounds for the two violations in late August 2012. The reprimand pointed to personal phone calls Perez made while on duty ranging from eight to nineteen minutes, and reflected unfavorably on the Department. The reprimand stated that such further conduct could result in possible termination. Perez appealed her reprimand, yet continued her relationship with Begley in secret while awaiting an administrative hearing scheduled for early September 2012.

During this post-investigation pre-administrative hearing time period, Chief Hahn learned of negative comments from multiple different sources, from both officers and citizens, regarding Perez’s job performance. Chief Hahn also recalled issues of concern from Perez’ background investigation report regarding her relationship with female officers at her old department. According to Chief Hahn’s testimony, these “new issues of concern” prompted him to release Perez from probation. Chief Hahn stated that Perez’s affair with Begley while both were married at the time played no role in his decision to fire her. Perez was terminated at the conclusion of the September 2012 administrative hearing pertaining to her written reprimand. Her written notice of release from service did not give reasons for her termination; it simply stated that probationary officers could be released without cause.

After her termination, Perez sued the City, the Department, Chief Hahn, Captain Moore, and Lieutenant Walstad (the latter three collectively, “individual defendants”) under 42 U.S.C. section 1983 for (1) violation of her rights to privacy and intimate association under the First, Fourth, and Fourteenth Amendments; and (2) deprivation of liberty without due process of law in violation of the Fourteenth Amendment. The District Court granted summary judgment in favor of the defendants on all claims. Perez appealed the District Court’s summary judgment in favor of the individual defendants.

Held: The Ninth Circuit Court of Appeals first addressed whether the defendants were entitled to summary judgment on Perez’s Section 1983 claim that defendants terminated her based on her extramarital relationship with Begley, violating her constitutional right to privacy and intimate association.

The Court explained that under the doctrine of qualified immunity, courts may not award damages against a government official in his personal capacity unless (1) the official violated a statutory or constitutional right, and (2) the right was clearly established at the time of the challenged conduct. Lane v. Franks, 573 U.S. 228, 243 (2014). For this doctrine, courts may “exercise their sound discretion in deciding which of the two prongs of the qualified immunity analysis should be addressed first in light of the circumstances in the particular case at hand.” Pearson v. Callahan, 555 U.S. 223, 236 (2009). In addressing the “clearly established” prong of the qualified immunity test, courts “do[] not require a case directly on point for a right to be clearly established, [but] existing precedent must have placed the statutory or constitutional question beyond debate.” Kisela v. Hughes, 138 S. Ct. 1148, 1152 (2018). Significantly, the Supreme Court has “repeatedly told courts — and the Ninth Circuit in particular — not to define clearly established law at a high level of generality.” Id. (quoting City & Cty. of S.F. v. Sheehan, 135 S. Ct. 1765, 1775-76 (2015)). The clearly established law at issue “must be ‘particularized’ to the facts of the case.” White v. Pauly, 137 S. Ct. 548, 552 (2017) (quoting Anderson v. Creighton, 483 U.S. 635, 640 (1987)). “The contours of a right must be ‘sufficiently definite that any reasonable official in the defendant’s shoes would have understood that he was violating it.’ Kisela, 138 S. Ct. at 1153. In short, the doctrine is broad; it protects ‘all but the plainly incompetent or those who knowingly violate the law.’ Pauly, 137 S. Ct. at 551.” (internal citations omitted.)

Perez argued that the Ninth Circuit’s decision in Thorne v. City of El Segundo, 726 F.2d 459 (9th Cir. 1983) met the “clearly established” criteria of the second prong of the qualified immunity test. The Ninth Circuit here explained that Thorne held that a police department may not make employment decisions based on sexual activities that are wholly irrelevant to a police department’s legitimate concerns about the employee’s work performance. However, Thorne did not preclude consideration of relationships that occurred on duty, or relationships among officers that were ongoing and affected on-the-job performance or other legitimate interests of the Department, such as community reputation and morale. Id. at 469, 471. Nor did it deal with probationary officers. Moreover, Thorne involved wholly past sexual relations with no relevance to on-the-job performance. The Court noted Perez was, at the time of the disciplinary charges, currently involved in a relationship with Begley, and made personal communications with him while on duty driving her police vehicle and responding to calls for service. Therefore, the Ninth Circuit held, Thorne “[did] not put beyond debate the question whether a police department can fire a probationary officer who is engaged in an ongoing relationship with another married officer and routinely makes personal calls and texts to that officer while she is supposed to be responding to calls for help, giving rise to legitimate concerns regarding efficiency, morale, and public perception.”

The Ninth Circuit also pointed to subsequent cases that suggested police departments may appropriately consider on-the-job sexual relations that impact job performance and are not purely private, as the Department did with Perez here. Fugate v. Phx. Civil Serv. Bd. held that Thorne’s protections did not extend “to sexual behavior that is not purely private, that compromises a police officer’s performance, and that threatens to undermine a police department’s internal morale and community reputation.” 791 F.2d 736, 741 (9th Cir. 1986). The Ninth Circuit’s decision in Fleisher v. City of Signal Hill, 829 F.2d 1491 (9th Cir. 1987) also permitted consideration of some off-dutysexual conduct, the Court noted.

The Court next considered whether defendants were entitled to summary judgment on Perez’s Section 1983 claim that defendants violated her constitutional right to due process by failing to give her an adequate opportunity to refute the charges made against her and clear her name before she was terminated. The Ninth Circuit explained that when a public employee is terminated for reasons serious enough to stigmatize the person such that the person cannot take advantage of other job opportunities, and the public employer publicizes those stigmatizing charges (relevant here when Captain Moore sent a letter reporting the charges to Begley’s wife after the internal affairs investigation was concluded), the employee’s liberty interest under the Constitution is implicated and she must be given an opportunity to refute the charges. Tibbetts v. Kulongoski, 567 F.3d 529, 536 (9th Cir. 2009). The Court further explained that in order to establish that “the charge is made in connection with termination of employment,”[12] a plaintiff must establish a “temporal nexus between the employer’s statements and the termination,” Campanelli v. Bockrath, 100 F.3d 1476, 1483 (9th Cir. 1996).

The Ninth Circuit explained that in Tibbetts, the Court had held that it was not clearly established that a government official’s stigmatizing statement made nineteen days after the plaintiff’s termination would satisfy the temporal nexus test, and therefore the Court had concluded that the defendant was entitled to qualified immunity for failure to provide a name-clearing hearing. The Court observed that Perez raised Captain Moore’s letter in August 2012 to Begley’s wife reporting the charges and her termination in early September 2012 in connection with her argument that she was entitled to a name-clearing hearing where she could refute the charges. However, the time period between these two events was nineteen days – the same number of days as in Tibbetts. Thus, Perez failed to show that it was clearly established that such hypothetically stigmatizing charges were made in connection with her termination. Bound by Tibbetts, the Court thus concluded it was not clearly established that defendants were required to provide Perez with a name-clearing hearing, and defendants were therefore entitled to qualified immunity.

The Ninth Circuit Court of Appeals affirmed.

For a more detailed discussion of this case, please see Client Alert Vol. 34, No. 20, available at www.jones-mayer.com.

PUBLIC EMPLOYMENT

  1. Appellant not entitled to increased tax liability recovery under Government Code section 19584 caused by receiving lump sum of back pay award for improper termination of employment.

Barber v. State Pers. Bd., 35 Cal. App. 5th 500 (4th Dist. 2019)

Facts: Patrick Barber was dismissed from his employment as a parole agent by the California Department of Corrections and Rehabilitation (“CDCR”) in April 2009 for alleged violations of Government Code section 19572.[13] The California State Personnel Board (“SPB”) found and a trial court upheld that CDCR’s termination of Barber was proper. Barber appealed and the California Fourth District Court of Appeal reversed[14] the trial court’s decision, and directed SPB to set aside its decision sustaining CDCR’s dismissal of Barber and award him “any other relief to which he is entitled.” SPB set aside its earlier decision, and ordered CDCR to reinstate Barber and pay Barber all back pay and benefits that would have accrued if he had not been terminated in April 2009. In April 2015, Barber was reinstated, and started working again and receiving salary and benefits.

CDCR paid Barber approximately $500,000 in back pay as a lump sum award. As a result, Barber incurred increased income tax liability. In May 2015, Barber filed a motion to allow recovery for increased tax liability under Government Code section 19584 as an element of back pay, asserting that payment as a lump sum resulted in “a significantly greater tax burden than if he had been receiving his salary on a yearly basis and paying his taxes accordingly.” SPB denied Barber’s motion. The trial court upheld SPB’s decision and denied Barber’s petition for writ of mandamus. Barber appealed the denial of his writ petition and motion for increased tax liability recovery.

Held: The California Fourth District Court of Appeal affirmed. The Court held that Barber was not entitled to increased tax liability recovery under Section 19584 because such relief was not statutorily authorized.

The Court explained that the State Civil Service Act (Government Code section 18500 et seq.) provides for compensation for employees who have been wrongfully discharged from state service.[15] The Court explained that back pay serves to make an employee whole for the employer’s wrongdoing. The Court said that the appropriate standard for the measurement of back pay is to take the difference between the actual wages earned and the wages the individual would have earned in the position that, but for the employer’s wrongful conduct, the individual would have held.[16] The State Civil Service Act statutes and related regulations limit the back pay relief recoverable to lost salary and benefits.

Section 19584 provides, in relevant part: “Whenever the board revokes or modifies an adverse action and orders that the employee be returned to his or her position, it shall direct the payment of salary and all interest accrued thereto, and the reinstatement of all benefits that otherwise would have normally accrued. ‘Salary’ shall include salary, as defined in Section 18000, salary adjustments and shift differential, and other special salary compensations, if sufficiently predictable.” (Italics added.) Barber contended that increased tax liability recovery is “salary,” as defined in Section 19584.

Section 18000 provides: “The salary fixed by law for each state officer, elective or appointive, is compensation in full for that office and for all services rendered in any official capacity or employment whatsoever, during his or her term of office, and he or she shall not receive for his or her own use any fee or perquisite for the performance of any official duty.” The Court observed that there is no mention in Sections 18000 or 19584 of any entitlement to recovery for increased tax burdens.

The Court noted that the common meaning of “compensation” is “payment, and that the Legislature included in its Section 19584 definition of “salary” “other special salary compensations, if sufficiently predictable.”[17] (italics added.) Quoting Department of Corrections & Rehabilitation v. State Personnel Bd.,[18] the Court explained that “Section 19584’s use of the word ‘compensation’ unambiguously sweeps broadly and encompasses all earned payments.” (italics added.) The Court found that, because increased tax liability is neither earned nor a payment, it was therefore not “salary” or “special salary compensation” within the meaning of Section 19584. This Court also observed that the legislative history of Section 19584 did not suggest that the Legislature intended that Section 19584, as amended, include recovery for increased tax liability arising from a lump sum back pay award.

The Court thus found that Section 19584 narrowed the category of recoverable compensation to income paid for work performed. The Fourth District also found that Government Code section 19582’s requirement that SPB render a just and proper decision did not enable the board to exceed its statutory authority regarding the calculation of an award of back pay and benefits.

Barber also argued that even if Section 19584 did not authorize recovery for increased tax liability, he was nevertheless entitled to such recovery as equitable relief under federal and state case law. The Fourth District disagreed, explaining that the federal decisions that allowed for increased tax liability recovery were distinguishable because those decisions were founded on federal legislation that included language expressly allowing for broad equitable relief; Section 19584 did not include such language.

The Fourth District Court of Appeal thus found the trial court did not err in affirming SPB’s decision denying Barber increased tax liability recovery, and accordingly affirmed.

  • Department of Social Services consultant’s bonuses were not pensionable because they meant to compensate for additional work outside regular duties, despite completion of the extra work within normal work hours.

Paxton v. Bd. of Admin., Pub. Employees’ Ret. Sys., 35 Cal. App. 5th 553 (3rd Dist. 2019).

Facts: Dr. Robert Paxton is a medical consultant-psychiatrist (“consultant”) who reviews claims for disability benefits for the State Department of Social Services (“Department”). Only such consultants review claims involving psychiatric issues. As of the time of this case, Paxton was still employed by the Department.

The Department periodically deals with backlogs of disability review cases. One such backlog led the Department and the union representing the consultants to agree to a voluntary bonus program “for processing additional workload.” Under the bonus program, consultants were to be paid for each case closed above a certain threshold per week. Paxton participated in the program from 2005 until it ended in November 2011. Consultants were paid $27 per case after 90 cases per week. Paxton testified that he did not work more than 40 hours per week, and he earned large bonuses while spending only an average of five minutes reviewing a case. At this average, Paxton could achieve the threshold in about 1.5 days. Paxton earned over $1.2 million in bonuses working in this manner. In 2010, his lowest monthly bonus was nearly $17,000 and his highest was $39,000.

The Public Employees’ Retirement System (“CalPERS”) determined that compensation Paxton received as bonuses from the program would not be taken into account when calculating his future pension benefit. Paxton appealed the decision, but at a hearing, an administrative law judge agreed with CalPERS, determining that the bonus payments did not meet the requirements under Section 20636 to qualify as special compensation. The Board of Administration of CalPERS (“Board”) upheld this interpretation. Paxton challenged the Board’s decision in his petition for writ of mandate. The trial court denied his petition and his complaint, concluding that the Board properly determined the bonus payments paid to Paxton were not pensionable compensation because the bonuses were intended to compensate him for performing additional work outside of his regular duties. The trial court entered judgment in the Board’s favor. Paxton appealed.

Held: The Third District Court of Appeal of California affirmed. The Court held that Paxton’s bonuses did not qualify as “special compensation” such that the bonuses would be included in the calculation of his future pension benefits.

Under the Public Employment Retirement Law, “special compensation” may be a component of the calculated value of the amount of a pension. The definition of special compensation in Government Code section 20636 (g)(3)(B) includes “[c]ompensation for performing normally required duties, such as…bonuses (for duties performed on regular work shift)” (italics added), among other items. Subdivision (g)(4)(I) of Section 20636, however, excludes from special compensation “[c]ompensation for additional services outside regular duties,” “such as … bonuses for duties performed after the member’s regular work shift.” (italics added.)

Paxton contended his bonuses were pensionable because they were earned for performing regular duties (i.e. reviewing disability files) and he did not work overtime to earn them because he earned the bonuses during a regular work shift. The Court, however, focused on subdivision (g)(3)(B)’s inclusion within the special compensation definition of the phrase “required duties,” and subdivision (g)(4)(I)’s exclusion of “[c]ompensation for additional services outside regular duty” from special compensation.

Looking at the bonus program’s origins, the Third District observed that the bonus program in which Paxton participated was a replacement for an overtime program that was necessitated because the consultants refused to work more hours to address the backlog of claims. The trial court had explained that, prior to the implementation of the bonus program, the consultants’ union took the position that “the ‘extra work’ was not part of the employees’ ‘regular duties’ and therefore warranted ‘extra compensation’ for the ‘additional workload.’” (internal citations refer to union’s characterizations.)

The trial court concluded Paxton’s bonus pay was not pensionable compensation because they “were intended to compensate him for performing ‘additional’ work ‘outside his regular duties,’ even if, for a variety of reasons, he was able to complete this extra work within his ‘normal’ 40-hour work week.” The Third District Court of Appeal concluded that the trial court’s conclusion was supported by substantial evidence and the plain language of Section 20636. Accordingly, the Court of Appeal affirmed the trial court’s judgment.

MISCELLANEOUS

A. California Supreme Court’s conclusions regarding admissibility of defendant’s post-arrest statements were not contrary to, nor an unreasonable application of, federal law.

Bradford v. Davis, 923 F.3d 599 (9th Cir. 2019)

Facts: On April 18, 1988, Lynea Kokes was found dead in her apartment by her husband sometime after 8 p.m. The roommate of Mark Alan Bradford spoke with detectives on the scene later. The roommate told them he saw Bradford with a knife, and later found a bent knife blade in the laundry room where Bradford had been earlier. The roommate allowed police into their apartment, whereupon police arrested Bradford. The officers searched Bradford and found a wooden knife handle caked with a dried red liquid. Detectives also found Kokes’s wallet and other items, and red-stained clothing in a duffel bag in Bradford’s room. Bradford’s fingerprint was found in Kokes’s apartment, and the blood on Bradford’s clothing tested positive for the presence of blood consistent withKokes’s blood. Forensic evidence suggested Kokes had been raped and sodomized, and that she died from stab wounds and strangulation.

Bradford was brought to the police station, where he made four statements over the next day and a half. Bradford’s first statement, to Detectives Riehl and Arnold, was made at around 5 a.m. on April 19. About 7 a.m., Bradford made another statement to station officers while being booked. The third statement was made to Detective Hooks at 9:30 a.m. Just over twenty-four hours later, Bradford asked to speak with detectives, and made the fourth statement to Detective Arnold. Bradford implicated himself in Kokes’s murder in each of the four statements.

Bradford moved to suppress all of the statements. The trial court found that Bradford’s first statement was obtained in violation of Miranda v. Arizona, 384 U.S. 436 (1966), but was voluntary; his second statement was voluntary and not the product of interrogation; his third statement was involuntary; and his fourth statement was self-initiated, voluntary, and not in violation of Miranda. The trial court ruled that Bradford’s second and fourth statements were admissible, but his first and third statements were not. At trial, an officer testified regarding the second statement, and the jury heard and were presented a transcript of the fourth statement.

The jury convicted Bradford of first-degree robbery, first-degree murder, rape, and sodomy. The jury also found that he killed Kokes to prevent her from testifying against him, which was a special circumstance permitting capital punishment. Bradford was sentenced to death.

On direct appeal, Bradford challenged the admission of his second and fourth statements. In January 1997, the California Supreme Court affirmed[19] both Bradford’s conviction and death sentence. The Court agreed with the trial court that the first and third statements were not admissible. The California Supreme Court also determined that although the second portion of the second statement should not have been admitted because it violated Miranda, any error was harmless because the entire fourth statement was properly admitted. In November 1997, the Supreme Court of the United States denied Bradford’s petition for a writ of certiorari.[20]

Bradford filed an amended petition for a writ of habeas corpus in the District Court. The District Court held that the California Supreme Court’s ruling denying relief was contrary to and based on an unreasonable application of clearly established federal law. The District Court also held that all of Bradford’s statements were involuntary, and that the admissions of the second and fourth statements was not harmless. The District Court granted habeas relief as to the special circumstance and penalty phase and vacated Bradford’s death sentence. The State of California cross appealed from that decision.

Held: The Ninth Circuit Court of Appeals held that the California Supreme Court’s rulings regarding the voluntariness and admissibility of Bradford’s four post-arrest statements were not contrary to, nor an unreasonable application of, federal law.

The Court explained that, under Miranda, a defendant must be advised of his Miranda rights prior to custodial interrogation, including the right to remain silent and the right to have an attorney present. If a defendant requests counsel, the interrogation must stop until an attorney is present. Miranda, 384 U.S. at 474. Under Edwards v. Arizona,[21] if a defendant invokes his right to counsel, a subsequent waiver must be voluntary, knowing, and intelligent. Edwards, 451 U.S. at 482. A defendant should not be further interrogated “until counsel has been made available to him, unless the accused himself initiates further communication, exchanges, or conversations with the police.” Id. at 484-85. The Edwards rule is thus intended to “prevent police from badgering a defendant into waiving his previously asserted Miranda rights.” Michigan v. Harvey, 494 U.S. 344, 350 (1990).

However, even for statements taken in violation of Miranda, if their “trustworthiness . . . satisfies legal standards,”[22] such statements are admissible. The question of whether a statement is voluntary depends on “all the circumstances of the interrogation,”[23] including such potential factors as the length and nature of detention; the length and nature of questioning; and law enforcement use of any threats, punishments or inducements. The burden of proof for showing the defendant’s Miranda waiver and confession were voluntary falls upon the state.[24]

The Ninth Circuit explained that “[a] prior coerced confession can “taint” a subsequent one. See Oregon v. Elstad, 470 U.S. 298, 310 (1985). However, an Edwards violation does not on its own render subsequent confessions involuntary. Elstad, 470 U.S. at 308-310. The Court next considered each of Bradford’s four statements.

Bradford’s first statement was made to Detective Riehl early in the morning of April 19, 1988 at the Van Nuys police station. Shortly after obtaining Bradford’s background information, Riehl informed Bradford of his Miranda rights. Bradford declined the detective’s offer to talk and asked for a lawyer. Riehl told Bradford they could go “off the record,” after which Bradford agreed to discuss Kokes’s murder and his actions.

The California Supreme Court held that police had violated Miranda in obtaining the first statement, but the confession was nonetheless voluntary because Bradford had been in custody only six hours, because Bradford did not hesitate in speaking with detectives after being told they were “off the record,” and because Bradford’s voice did not indicate any stress or excitement. After reviewing the interview recording, the Ninth Circuit found support for the state Court’s view of Bradford’s voice. The Ninth Circuit also found the facts here did not suggest coercive tactics. Thus, the California Supreme Court’s holding that the confession was voluntary, even with the Miranda violation, was not an unreasonable application of the federal voluntariness analysis. Moreover, the state Supreme Court had the cited relevant precedent of Miranda, Edwards, and others; therefore, that Court’s conclusion was not contrary to clearly established federal law.

Bradford’s second statement was at around 7 a.m. on April 19, 1988 during the booking process. While Officer Denby fingerprinted Bradford, an unidentified detective about other business briefly inquired as to Bradford’s status. Bradford responded “Murder.” The detective then left. Neither Denby nor another officer spoke to Bradford for the next two minutes while Denby finished the fingerprinting. Then Bradford, without any prompting, told the two officers that he helped Kokes move into her apartment, choked her, left to clean up, and then returned to kill her. The officers then asked Bradford several questions about the crime without informing Bradford of his Miranda rights. The reviewing courts considered the first part of the second statement to consist of the remark from the unidentified detective until the end of the two officers’ silence; the second part began was when officers questioned Bradford.

Under Rhode Island v. Innis, interrogation “must reflect a measure of compulsion above and beyond that inherent in custody itself.”[25] The California Supreme Court found no coercion in the first part of the booking statement from the detective’s casual remark and because there had been no interrogation before Bradford made his unprompted statements about the murder with the two officers; thus, the state Supreme Court concluded that the first part of Bradford’s second statement admissible because it was voluntary. The Ninth Circuit found support for this conclusion and held it was not contrary to or an unreasonable application of federal law.

For the second part of the second statement, the Ninth Circuit found no “taint” under Elstad from the first statement or the first part of the second statement to affect the second part of the second statement – because the earlier statement and first part of the booking statement were voluntary. Although the two officers did not advise Bradford of his Miranda rights in the second part of the second statement, the Ninth Circuit concluded that the admission of this portion of the booking statement did not have a substantial and injurious effect on the jury because it was duplicative of Bradford’s fourth statement, which provided much greater detail anyway. Thus, the California Supreme Court’s holding that any error in admission of this statement was harmless beyond a reasonable doubt did not unreasonably apply federal law.

Bradford’s third statement occurred on April 19, 1988 beginning around 9:30 a.m. Bradford told Detective Hooks that he wanted an attorney “to help me out a little bit.” However, Detective Hooks interrogated him “off the record” anyway, and Bradford again described Kokes’s murder and the subsequent events. The California Supreme Court, although noting that Detective Hooks’s conduct was “unethical and . . . strongly disapproved,” found the third statement voluntary because Bradford had been in custody approximately eleven hours and had did not hesitate to speak with Detective Hooks.

The Ninth Circuit explained that the California Supreme Court’s totality of the circumstances conclusion for the third statement was entitled to deference because Bradford betrayed no emotion in the interview to signal his distress or discomfort and so it was not objectively unreasonable for the California Supreme Court to determine that Bradford’s will was not overborne during the interrogation.

On the morning of April 20, 1988, Bradford called Detective Hooks and said that he wanted to put a statement on the record. Bradford’s fourth statement was made to Detective Arnold at about 10 a.m. Near the beginning, after Bradford said he would “probably talk,” the detective told Bradford of his Miranda rights. Bradford affirmed that he understood his right to an attorney and his right to remain silent. He also repeatedly affirmed, in response to the detective’s repeated queries, that he was “giv[ing] up” those rights. Thereafter, Bradford described in graphic detail how he helped Kokes move in, raped her, beat her, showered off her blood while considering that Kokes might talk if she lived, and then slit her throat and stabbed her.

The California Supreme Court held that Bradford’s statement to Detective Arnold was properly admitted because it was voluntary and Bradford validly waived his Miranda rights. The Ninth Circuit held that the California Supreme Court’s holding that Bradford’s fourth statement was voluntary and was not objectively unreasonable: Bradford initiated the fourth interrogation more than twenty-four hours after the third one, and Detective Arnold’s multiple clarifications of Bradford’s Miranda rights and Bradford’s numerous affirmations of his waiver rendered the waiver knowing and intelligent. The Ninth Circuit also found no coercive tactics in the record suggesting that Bradford’s fourth statement was involuntary or his waiver unknowing or unintelligent.

The Ninth Circuit thus found none of the Supreme Court of California’s conclusions regarding Bradford’s four statements contrary to or an unreasonable application of federal law. Accordingly, the Ninth Circuit reversed the District Court’s holding for Bradford’s Miranda claim and vacated the District Court’s grant of habeas relief as to Bradford’s death sentence.

B. California Supreme Court affirms in case where a peace officer was shot and killed by the defendant, a gang member who had previous and ongoing interaction with the officer.

People v. Rivera, 7 Cal. 5th 306 (2019)

Facts: A jury convicted defendant Cuitlahuac Tahua Rivera of the murder (Pen. Code, §§ 187, 189.) of Merced Police Department (“Department”) Officer Stephan Gene Gray. During the trial, the prosecution’s evidence – which included the testimony of Jamilah Peterson, Rivera’s girlfriend at the time, and other witnesses – pointed to Rivera as the perpetrator of two shootings on April 11, 2004, and April 15, 2004. Officer Gray died from the second shooting. Rivera admitted that he shot and killed Officer Gray while fleeing from a parole search resulting from a traffic stop. Rivera further admitted that he was a member of the Merced Gangster Crips street gang at the time of the shooting. Prosecution evidence demonstrated several encounters between Rivera and Gray, based on Rivera’s membership in the Merced Gangster Crips and Officer Gray’s assignment on the Department’s gang unit to monitor the Merced Gangster Crips. Peterson testified about an incident where Rivera abandoned Peterson’s car on the road to evade Officer Gray, who had been following him. Officer Gray had been to Peterson’s house to speak with Rivera. Rivera expressed resentment to Peterson that Gray was always harassing him. Gray and Rivera once had a physical confrontation which led to Rivera’s hospitalization.

Rivera was convicted by the jury of first degree murder and other offenses, including unlawful possession of a firearm by a felon and assault with a semiautomatic firearm. The jury found true special circumstance allegations that the murder was committed for the purpose of avoiding or preventing a lawful arrest or perfecting or attempting to perfect an escape from lawful custody, and that the murder involved the intentional killing of a peace officer engaged in the course of his duties. (Pen. Code section 190.2, subd. (a)(5), (a)(7).) Rivera was also convicted and sentencedfor two counts of unlawful possession of a firearm by a felon, two counts of shooting at an occupied vehicle, and two stayed counts of assault with a semiautomatic firearm. The jury also found true all alleged enhancements, including that the murder and unlawful possession of a firearm offenses were committed for the benefit of, at the direction of, or in association with any criminal street gang for the purposes of Pen. Code, section 186.22 (b)(1)’s gang enhancement. Rivera was sentenced to death. An automatic appeal followed.

Held: The California Supreme Court reviewed and affirmed its modified judgment.[26]

Rivera argued that there was insufficient evidence to support a conviction for first degree murder committed with premeditation and deliberation, contending the killing resulted from a spontaneous encounter that was initiated by Officer Gray. The Court quoted People v. Anderson (1968) 70 Cal.2d 15 in explaining that “[t]he type of evidence which this court has found sufficient to sustain a finding of premeditation and deliberation falls into three basic categories”: (1) facts about planning activity “prior to the actual killing which show[s] that the defendant was engaged in activity directed toward, and explicable as intended to result in, the killing”; (2) “facts about the defendant’s prior relationship and/or conduct with the victim from which the jury could reasonably infer a ‘motive’ to kill the victim”; and (3) “facts about the nature of the killing from which the jury could infer that the manner of killing was so particular and exacting that the defendant must have intentionally killed according to a ‘preconceived design.’” (Id. at pp. 26–27, italics omitted.)

Here, the Court noted that prosecution evidence revealed that Rivera and Officer Gray “knew each other on sight” and that Rivera had an ongoing relationship from which the jury could reasonably infer a motive to kill. Officer Gray had admonished Rivera about hanging around “with the people he was hanging around with” and warned Rivera that if Officer Gray “[saw] him doing anything, then, you know, he would come get him.” Rivera’s then-girlfriend Peterson testified that on the night of the shooting, both she and Rivera recognized Officer Gray at a four-way-stop, and Rivera expressed frustration after Officer Gray being following them, saying: “Mother-fucker, why did—Why is he always bothering me? Why is he harassing me? Why don’t he just leave me alone?” Rivera also told Peterson’s father over the phone that Officer Gray was following him. Rivera made a second phone call to someone known to offer to drive gang members. Peterson also recalled Rivera’s stepbrother telling her that Rivera had said he was “going to do something to Gray because he was tired of [Gray] harassing him.”

The Court concluded that based on this evidence, the jury could have reasonably concluded that Rivera made the phone calls and held onto his gun when he exited the vehicle because he was planning to kill Officer Gray. Furthermore, Rivera and Officer Gray’s history of past contentious encounters as well as Rivera’s comments to Peterson in the car provided evidence of a prior relationship and conduct from which the jury could have inferred a motive to kill Officer Gray.[27] The Ninth Circuit found the combined evidence sufficient to support the jury’s finding that Rivera committed a premeditated and deliberate murder.

Regarding Rivera’s claim that the jury found him guilty based on an unsupported theory, the Court explained that the special circumstance in Penal Code section 190.2(a)(5) provides: “The murder was committed for the purpose of avoiding or preventing a lawful arrest, or perfecting or attempting to perfect, an escape from lawful custody.” The Supreme Court observed that the jury found that Rivera intentionally killed Officer Gray while he was engaged in the performance of his duties or in retaliation for the performance of his duties, and also found Rivera guilty of being a felon in possession of a firearm while running away from Officer Gray. From these facts and the jury’s convictions, the Court found sufficient evidence that the jury relied on the theory that the murder was committed for the purpose of avoiding or preventing a lawful arrest to find true the special circumstance in rendering its verdict. This was a valid theory.

The Court also found the evidence sufficed to sustain the jury’s true finding on the gang-related enhancements for defendant’s first degree murder and felon-in-possession-of-a-firearm conviction. The prosecution’s evidence revealed that Rivera was an active member of a gang, that Officer Gray had been leading an investigation into the gang’s drug trade, and that Rivera had personally interacted with Gray while Gray’s investigated a shooting involving another gang member. Forensic evidence of a bullet recovered from Gray’s body also pointed to Rivera because the bullet was fired from the same gun used in the April 11 gang-related shooting. Although the Supreme Court found the trial court erred by not defining assault for purposes of the offense of assault with a semiautomatic firearm, the error was harmless because the trial court gave other instructions and the jury’s findings necessarily addressed the elements of assault. Moreover, the Court determined that each of Rivera’s allegations of prosecutorial misconduct closing argument either did not constitute misconduct or was harmless.


[1] After the petition was filed, the underlying matter was resolved by Webb’s guilty plea and probation disposition. Accordingly, this question was moot as to defendant by the time of the Court’s opinion.

[2] 112 Cal.App.4th 856, 858 (2nd Dist. 2003).

[3] 125 Cal.App.4th 629, 642-643 (1st Dist. 2005).

[4] Gray, 125 Cal.App.4th at pp. 641–642.

[5] The Court also noted that after McSherry and Gray were decided, California voters amended the Constitution in 2008 to make clear that trial courts do have authority to impose reasonable release conditions on persons who post bail. California Constitution, article I, section 28, subdivision (b)(3) provides that a victim has the right “[t]o have the safety of the victim and the victim’s family considered in fixing the amount of bail and release conditions for the defendant.” (Italics added.)

[6] 706 F. 3d 1188 (9th Cir. 2013).

[7] 566 U. S. 658 (2012).

[8] 585 U. S. ___, 138 S. Ct. 1945 (2018).

[9] Ashcroft v. al-Kidd, 563 U. S. 731, 737 (2011).

[10] Devenpeck v. Alford, 543 U. S. 146, 154 (2004).

[11] Section 340.3.5(c) of the Department policy manual describes “[u]nsatisfactory work performance including, but not limited to, failure, incompetence, inefficiency or delay in performing and/or carrying out proper orders, work assignments or instructions of supervisors without a reasonable and bona fide excuse.”

[12] Mustafa v. Clark Cty. Sch. Dist., 157 F.3d 1169, 1179 (9th Cir. 1998) (per curiam) (internal quotation marks omitted).

[13] Apparently, the specific violations under this section were: inexcusable neglect of duty, dishonesty, discourteous treatment of the publicor other employees, and behavior either during or outside of duty hours of such a nature to cause discredit to the appointing authority or the person’s employment.

[14] The Fourth District concluded there that Barber was not given sufficient notice of which workplace rules he allegedly violated, and was therefore deprived of his due process right to prepare an effective defense against the charge.

[15] Swepston v. State Personnel Bd. 195 Cal.App.3d 92, 95 (3rd Dist. 1987).

[16] See Davis v. Los Angeles Unified School Dist. Personnel Com., 152 Cal.App.4th 1122, 1134 (2nd Dist. 2007).

[17] The majority disagreed with the dissent’s view that Barber’s increased tax liability constituted “sufficientlypredictable” salary compensation because the majority did not consider Barber’s increased tax liability to be “predictable.”

[18] 227 Cal.App.4th 1250, 1258 (6th Dist. 2014).

[19] People v. Bradford, 14 Cal. 4th 1005 (1997).

[20] Bradford v. California, 522 U.S. 953 (1997).

[21] 451 U.S. 477 (1981).

[22] Mincey v. Arizona, 437 U.S. 385, 397-98 (1978) (alteration in original).

[23] Id., at 401.

[24] Colorado v. Connelly, 479 U.S. 157, 168 (1986).

[25] 446 U.S. 291, 300 (1980).

[26] The Supreme Court modified the judgment as to certain fines imposed by the trial court, not discussed here.

[27] The Court referred to People v. Cruz, 26 Cal.3d 233, 245 (1980): “Defendant’s pent-up resentment toward his victim[] establishes the prior relationship from which the jury reasonably could infer a motive for the killing[].”