Cruz v. City of Merced
| Docket Number | F083402 |
| Decision Date | 23 August 2023 |
| Parties | JOSE CRUZ, Petitioner and Appellant, v. CITY OF MERCED, Respondent. |
| Court | California Court of Appeals |
1
JOSE CRUZ, Petitioner and Appellant,
v.
CITY OF MERCED, Respondent.
F083402
California Court of Appeals, Fifth District
August 23, 2023
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Merced County, No. 20CV-02663 Brian L. McCabe, Judge.
Messing Adam &Jasmine, Gary M. Messing, and Lina Balciunas Cockrell for Petitioner and Appellant.
Lozano Smith and Wiley R. Driskill for Respondent.
OPINION
POOCHIGIAN, Acting P. J.
Appellant and petitioner and former police officer Jose Cruz was terminated from the Merced City Police Department (Department) based on allegations he conducted an illegal search, submitted a false police report, and committed perjury at a court hearing. Cruz appealed to the personnel board (Board), which found the City of Merced (City) failed to show Cruz had submitted a false police report or had conducted an illegal search. However, the Board found that Cruz was not truthful in explaining certain details concerning the search. Consequently, the Board rejected the majority of charges against Cruz, but sustained portions of charges relating to his untruthfulness. The Board recommended that Cruz not be terminated, but instead that he be demoted without backpay.
The Merced City Manager reversed the decision and upheld Cruz's termination. The trial court rejected Cruz's challenges to the city manager's decision.
We conclude the trial court erred in upholding several of the charges against Cruz. While we do uphold several other charges, we remand for the trial court to determine whether the surviving charges are sufficient to support the consequence of termination.
FACTS
Underlying Incident According to Cruz[1]
Cruz worked as a police officer for the City of Merced for about five years.
On the morning of August 29, 2018, Cruz drove his patrol vehicle to the Siesta Motel. A group of individuals, including one Martin Olvera, were conversing in the parking lot. Cruz was familiar with Olvera, having observed him in the same area during the preceding weeks. As Cruz exited his vehicle, Olvera began to walk away midconversation. Olvera walked away at a "higher speed" and appeared to grip his abdomen.
Eventually, Olvera returned to Cruz. Cruz knew Olvera was "on PRCS out of San Joaquin" County.[2] Cruz confirmed Olvera's PRCS status on his in-vehicle computer.
Because of his PRCS status, Olvera was supposed to have a permission slip to be in another county. However, he did not have that documentation.
Cruz detained Olvera and called his PRCS officer. The PRCS officer did not answer, so Cruz let Olvera go.
As Cruz was pulling away at a stop sign, individuals told him that Olvera had a gun.
Later, Cruz drove to the Gateway Motel. As he arrived, he saw someone run into a room he was familiar with, room 27. Cruz was concerned because if the individual was Olvera, he might be violent given that he had known gang-affiliations. Cruz saw people looking at him from inside the room, saw moving people through the window, and heard a lot of shuffling around.
Cruz called for backup and knocked on the door. Ms. Pompa cracked the door open a little bit and spoke with Cruz. Based on Cruz's prior interactions with Ms. Pompa, his observations of the room decor, and her later statements at the scene, Cruz understood that Pompa lived in the room.
Ms. Pompa had a pit bull and Cruz saw at least three people in the room. Cruz was wary of entering the room without backup because it would not have been safe.
Ms. Pompa told Cruz he needed a warrant if he wanted to come into the room. However, Pompa eventually exited the room, spoke with Cruz, and gave him permission to enter the room.
Cruz observed multiple individuals in the room, including Olvera, Annabelle Perez, Amber De La Cruz, and two other males. At least one of the males had a recent criminal history, including multiple felony warrants.
Cruz searched the bathroom and discovered a white floral backpack inside. The details of Cruz's interaction with this backpack are central to this appeal and are discussed in detail later in this opinion. For present purposes, we note that Cruz placed the backpack on the bathroom sink, the backpack opened, and was shortly thereafter
placed back onto the ground. Cruz later asked who owned the backpack, to which Ms. Perez eventually replied that it was hers. After that interaction, Cruz then searched the backpack and found a gun.
While Cruz believed he could search the handbag[3] by virtue of Ms. Pompa's consent to search the bathroom, he figured he would also ask Ms. Perez so that he had multiple, redundant justifications for searching the bag. Also, asking for consent improves officers' reputation in the community. It looked to Cruz that Perez nodded in response to his request to search. Cruz believed Ms. Perez and Olvera were in a romantic relationship.
Cruz began dictating his police report for the incident during his shift later that day and completed it shortly after his shift ended. Cruz said the events at the Gateway Motel that day were not memorable nor out of the ordinary for him.
Probable Cause Declaration
Cruz wrote a probable cause declaration stating that as the door to room 27 opened, Olvera emerged from the restroom area. Olvera's PRCS status was still active at the time. The declaration stated, "a search of the restroom yielded a small white backpack with a .380 automatic Jennings firearm with a scratched off serial number. The handgun had a magazine with ammunition in it. There was no round in the chamber." The declaration further stated that Ms. Perez admitted to owning the bag in which the gun was found. Olvera was listed in Perez's "favorites" on her phone "with red hearts and an image depicting Olvera shirtless."
Police Report
Cruz's police report of the incident stated, in part:
"[After] Olvera was secured in the prisoner-compartment area of my marked patrol vehicle by an assisting officer[,] [¶] I once again spoke with Pompa, who identified Richard Thomas Maya, contact, as being the renter of the room. Maya was identified by his California identification card. Maya briefly gave permission for our search of the area where Olvera had been seen entering, the restroom.... [¶] In performing a safety sweep of the room and of the small restroom area, I saw what appeared to be a smaller white-with-flowery-print backpack. The backpack was affixed with zippers from topside to its sides and [had] one zipper to the front. I asked who the backpack belonged to, and Perez advised it was hers. Perez consented to a search of her backpack. [¶] . . . [¶] . . . In checking the backpack, I could tell there were women's hygiene items within it . . .. Also within the bag was what appeared to be a blouse with its store tags attached and a bra. Beneath those items was a small spray perfume bottle and what was obviously a handgun. [¶] . . . The firearm had a shiny chrome finish to it." (Unnecessary capitalization omitted.)
Bodycam Video
Cruz's bodycam video recorded an interaction he had with Ms. Pompa outside the room. Cruz told Pompa he saw "him" run into the room and that "he" had a gun. Pompa said he went into the bathroom "so you are going to want to look in the bathroom, if you want, but that's the only place...."
Shortly after, Ms. Pompa again said Olvera went into the bathroom. Cruz replied, "[A]lright, you understand what I'm looking for right?" Pompa nodded. Cruz asked, "[A]nd you're cool with it?" Pompa nodded and said, "Yes." She emphasized, "I'm mad that there is even one in my house."[4]
Later, the video shows Cruz enter the bathroom and search through its contents. Though the camera is not oriented for an optimal view, it can be discerned that Cruz picks up a floral backpack from the floor in front of the shower and places it on a nearby sink. Cruz then searches the shower and a clothing piled contained therein. Eventually, Cruz grabs the backpack on the sink. He holds it with his left hand for approximately two seconds before his right hand begins to move in the direction of the bag. The bag
then moves completely out of view just before a zipping sound occurs as Cruz's right hand moves from right to left. For the next four or five seconds, the bag remains out of view, a sound consistent with items being moved around can be heard, and a reflection of Cruz's head seen in the mirror shows he is looking downward. Then, another zipper sound is heard, and the bag returns to view being held in Cruz's left hand. Cruz then sets the bag on the ground. The total time between the apparent "opening" zipper sound and the apparent "closing" zipper sound is about five seconds. Cruz then begins to search other areas of the bathroom.
About a minute later, Cruz can be heard saying, "Is this your bag, miss? The little white one?" A few seconds later, Cruz can be seen holding what appears to be the same backpack in his left hand. A female voice is heard saying, "[N]o, that's not mine." Another female voice, which testimony would eventually establish as Ms. Perez's, is heard shortly thereafter saying, "[T]hat's mine." Cruz says, "[M]ind if I go through it?" Perez moves her head in a roughly diagonal fashion down and to the left. Cruz then begins to search the backpack and remove its contents. The subsequent contents of the video are consistent with Cruz locating a gun in the backpack.
Criminal Prosecution of Perez and Olvera
Ms. Perez and Olvera were booked on weapons and gang charges. On September 11, 2018, Perez filed a motion to suppress evidence based on "the warrantless search" of her bag. The motion was considered on the same date at the preliminary hearing. Deputy District Attorney Tyson McCoy (McCoy), who was assigned to the case, filed no written opposition to the motion. He also did not watch the bodycam footage before the hearing.
Cruz testified at the hearing. During that...
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