Melkonians v. Los Angeles County Civil Service Comm'n

• Decision Date: 13 May 2009
• Docket Number: No. B208046.,B208046.
• Citation: 95 Cal. Rptr. 3d 415,174 Cal.App.4th 1159
• Court: California Court of Appeals Court of Appeals
• Parties: ARA MELKONIANS, Plaintiff and Appellant, v. LOS ANGELES COUNTY CIVIL SERVICE COMMISSION et al., Defendants and Respondents.

174 Cal.App.4th 1159

95 Cal. Rptr. 3d 415

ARA MELKONIANS, Plaintiff and Appellant, v. LOS ANGELES COUNTY CIVIL SERVICE COMMISSION et al., Defendants and Respondents.

No. B208046.

Court of Appeals of California, Second District, Division Three.

May 13, 2009.

Green & Shinee and Helen L. Schwab for Plaintiff and Appellant.

Law Offices of William Balderrama and William Balderrama for Defendants and Respondents.

OPINION

KLEIN, P. J.—

Ara Melkonians appeals from an order denying a petition for writ of mandate (Code Civ. Proc., § 1094.5) by which he sought to overturn the termination of his employment with the Los Angeles County Sheriff's Department (the Department) for violation of the Department's policies regarding conduct toward others.

Melkonians contends a tape-recorded telephone call made by the complaining witness in the underlying incident of domestic violence did not qualify as a spontaneous statement (Evid. Code, § 1240), Melkonians was denied the right to confront and cross-examine the complaining witness (Crawford v. Washington (2004) 541 U.S. 36 [158 L.Ed.2d 177, 124 S.Ct. 1354]), the evidence was insufficient to support the alleged violation, and the Department did not give notice of its intent to terminate within one year as required by the Peace Officers Bill of Rights Act (Gov. Code, § 3304, subd. (d)).

We reject these contentions and affirm the denial of Melkonians's writ petition.

BACKGROUND

1. The underlying incident of domestic violence and evidence before the Civil Service Commission.

The evidence adduced before the Los Angeles County Civil Service Commission (Civil Service Commission) indicated Yajera Morales dated Melkonians for three or four months. When she tried to distance herself from him, he persisted in attempting to see her. On March 7, 2003, Melkonians and Morales spoke on the telephone while Morales was away from her apartment. Morales returned home and parked her car sometime after 4:00 p.m. Melkonians telephoned her and said he already was inside her apartment, having crawled through a window. When Morales arrived at the apartment, she became upset and asked Melkonians to leave but he refused.

Morales went into a bedroom and asked a passing female to call the police. When Morales tried to leave the room, Melkonians grabbed Morales by the mouth "really hard." Morales had undergone facial surgery nine days earlier. Morales bit Melkonians's hand to stop him from grabbing her face. Even then, Melkonians did not release his grip and continued to hold her mouth. Morales told Melkonians to leave her alone and said she was going to get a restraining order. Melkonians said if she did that, she would be sorry. Melkonians also told Morales a piece of paper was not going to save her.

Melkonians was inside the apartment for approximately 45 minutes. When Melkonians left, Morales called 911 at 5:05 p.m. and called information (411) at 5:07 p.m. At 5:09 p.m., she called the business line of the West Hollywood sheriff's station. The conversation with the answering deputy was tape-recorded. Morales spoke in a halting and emotion-laden voice; she clearly was upset.¹ Morales stated: "Hi, I have a question if you have time for me to answer. I have a boyfriend and he is a cop and he broke into my house, broke the window." After the deputy ascertained the boyfriend no longer was there, the deputy asked for Morales's address. Morales responded, "I just have a question for he told me if I call the cops (unintelligible). He say if I call the cops I will get in trouble." Morales indicated she had been struck in the face and had been told that she could not get a restraining order against a police officer. The dispatcher indicated a restraining order could be obtained at the Santa Monica courthouse and asked if Morales wanted to report the incident. When Morales indicated the boyfriend knew where she worked, the deputy indicated the restraining order would cover her workplace.

At that point in the conversation, the dispatcher asked Morales to hold.² Deputy Klaus then picked up the line and asked how he could help Morales. Morales, still speaking haltingly and with much emotion, responded, "How can I do to get a restraining order?" Klaus referred Morales to the Santa Monica courthouse, then asked why she needed a restraining order. Morales indicated her boyfriend, Melkonians, was a sheriff's deputy in West Hollywood. "And he broke through my window and he hit me in my face." When Klaus indicated a deputy should take a report on the matter, Morales responded: "No, no, no I just want to get a restraining order. He told me if I called the cops he said I am going to be sorry later ...."

Klaus again suggested a report should be filed but Morales responded: "Well he said if I do that I am going to be sorry." "He said, who do you think they are going to believe, him or me." Klaus obtained Morales's name and telephone number and asked to send someone to take a report. Morales replied, "Please no, because I'm scared," and indicated she would just get a restraining order. When Klaus noted Morales could not get a restraining order until Monday, Morales stated: "I am going to wait until Monday and Monday will leave my house and I am going to wait until Monday. He told me, I told him that I can take a restraining order, and he told me, do you think that piece of paper is going to save you. (CRYING)"

Within a half-hour of the telephone call, Lieutenant Donnie Mauldin, the watch commander of West Hollywood sheriff's station, arrived at Morales's apartment. Mauldin noticed a yellow Viper parked at the rear of the building and later learned the car belonged to Melkonians. Mauldin saw that Morales had a black eye, her cheek looked swollen and she had marks on her upper chest. She appeared to have been crying and looked upset.

Mauldin videotaped an interview with Morales. In the interview, Morales said Melkonians was outside the apartment when she called the West Hollywood station and was outside as recently as 10 minutes ago. Morales then recounted the incident as set forth above.³ Morales told Mauldin she did not want Melkonians to know she had filed a report because he told her she would be sorry if she did. Mauldin observed a picture of Melkonians in the mirror of Morales's bedroom. Written next to the picture was, "don't fuck with this."

After the interview, Melkonians approached Mauldin on the street in front of Morales's apartment complex. Mauldin arrested Melkonians on charges of burglary, domestic violence and false imprisonment. Sometime prior to being arrested, Melkonians filed a police report with the Los Angeles Police Department in which he claimed Morales asked him to crawl through a window of her apartment because she locked her keys inside. Further, when Melkonians emerged from the apartment, Morales "flipped out" and began striking him with a closed fist and broke a glass figure on his hand, causing a small puncture wound.

Deputy Sheriff Marcus Hershey, a sergeant assigned to the Internal Criminal Investigation Bureau (ICIB), arrived at Morales's apartment at approximately 8:30 p.m. Hershey spoke to Lieutenant Mauldin, then tape-recorded an interview with Morales. Hershey's partner, Sergeant Reinhardt Schuerger, examined Morales's cell phone. It indicated she called 911 at 5:05 p.m. and she called 411 at 5:07 p.m. Morales said she called 911 first but no one answered. She then called 411 to get the number of the West Hollywood sheriff station.

A supplementary report indicates Hershey met Morales at a hair salon on April 3, 2003. Melkonians drove Morales to the meeting. Morales gave Hershey her new temporary address. Morales admitted she went to Las Vegas with Melkonians after the incident of March 7, 2003. Morales was reluctant to speak with Hershey and wished to sign a complaint refusal form. Morales wrote on the form in Spanish that she wants to forget what happened and does not want to feel stressed. Hershey asked Morales to stay in contact with him. Morales gave Hershey the telephone numbers to her mother's home in Costa Rica and the telephone number to her temporary residence.

Division Chief of Patrol Ronnie Williams, the Department's decision maker in the discharge of Melkonians, testified Melkonians had 14 administrative hearings in 10 years of service and nine of the allegations were sustained. One of the sustained allegations grew out of an incident of domestic violence in 1994.⁴ Additionally, Melkonians was discharged on April 27, 2003, for numerous violations of Department policy in 2002.⁵ Melkonians's behavior brought embarrassment and discredit to the Department and exposed the Department to civil liability.

The ICIB investigator's log detailed the efforts of Investigator Hines to contact Morales.

On December 9, 2003, Melkonians's attorney left a message with the investigator which indicated Melkonians was not willing to make a voluntary statement and that Melkonians could be deemed as otherwise unavailable to participate in an interview.

2. Procedural matters.

a. The incident involving Morales.

On May 27, 2003, the city attorney's office indicated it did not intend to prosecute Melkonians in this case. On September 18, 2003, the city attorney reported Melkonians had agreed to attend 26 sessions of domestic violence counseling and the case against Melkonians would remain open during the three-year criminal limitations period in the event of further incidents.

The Department mailed a termination letter to Melkonians on May 13, 2004, which was returned unclaimed. The Department mailed a similar letter to Melkonians on July 22, 2004.

Melkonians appealed the discharge to the Civil Service Commission, which conducted the hearing at which the above evidence was adduced. (See Skelly v. State Personnel Bd. (1975) 15 Cal.3d 194, 215 [124 Cal.Rptr. 14, 539 P.2d 774].)

b. The termination arising out of the 2002 violations.

The Department terminated Melkonians on August...