Spielbauer v. County of Santa Clara

• Decision Date: 12 January 2007
• Docket Number: No. H029345.,H029345.
• Citation: 146 Cal.App.4th 914,53 Cal.Rptr.3d 357
• Court: California Court of Appeals Court of Appeals
• Parties: Thomas SPIELBAUER, Plaintiff and Appellant, v. COUNTY OF SANTA CLARA et al., Defendants and Respondents.

53 Cal.Rptr.3d 357

146 Cal.App.4th 914

Thomas SPIELBAUER, Plaintiff and Appellant, v. COUNTY OF SANTA CLARA et al., Defendants and Respondents.

No. H029345.

Court of Appeal, Sixth District.

January 12, 2007.

Burnett, Burnett & Allen, Douglas B. Allen, San Jose, for Plaintiff and Appellant Thomas Spielbauer.

Office of the County counsel, Ann Miller Ravel, County Counsel, Marcy L. Berkman, Deputy County Counsel, for Defendants and Respondents County of Santa Clara et al.

RUSHING, P.J.

Plaintiff Thomas Spielbauer was dismissed by his employer, defendant County of Santa Clara, on the grounds that he had engaged in conduct unbecoming a county employee by making deceptive statements to a judge, and had committed insubordination by refusing to answer questions about the incident on grounds that his answers might incriminate him. He brought this action in mandate to set aside that decision. The superior court denied relief, and plaintiff brought this appeal. We have concluded that the finding of insubordination cannot be sustained because a public agency cannot penalize one of its employees for refusing to answer incriminating questions unless the state first grants or offers immunity, i.e., a binding undertaking not to use his answers in any criminal prosecution. We will therefore reverse the judgment denying relief and direct that the matter be remanded to county authorities to determine the appropriate discipline based upon the one sustainable charge.

BACKGROUND

On January 27, 2003, plaintiff was counsel of record for one Michael Dignan, who was charged with possessing ammunition while a convicted felon. On that date plaintiff appeared before Judge Teilh, to whom the case had been assigned for trial, to argue certain motions in limine. Among these was a motion by the prosecutor to exclude extrajudicial statements by one Troy Boyd, who had been detained at the same time as Dignan, but not charged. Plaintiff confirmed that he intended to offer into evidence Boyd's hearsay statement to police "that his parents owned the house" where the ammunition was found "and that he has been renting it since he was 19 years of age."

The apparent purpose of this evidence was to support a doubt in the jury's mind that Dignan had been in control of the area where the contraband ammunition was found. This strategy depended on the ambiguity and incompleteness of Boyd's reported statements. As he later said, he was renting the house from his parents but in turn subletting portions of it to others, including Dignan. The value of Boyd's statements, as viewed by the defense, thus lay in their failure to mention Dignan's own possessory interest, a fact that would presumably emerge if Boyd testified.

The prosecutor argued that Boyd's statements were inadmissible hearsay. He asserted that they could not come within any hearsay exception predicated on the unavailability of the declarant (i.e., Boyd) to testify, since there had been no evidence of any attempt by the defense to secure Boyd's attendance at trial. When Judge Teilh asked plaintiff what exception to the hearsay rule would permit the statements to come into evidence, plaintiff asserted that he had not sent an investigator to look for Boyd, in part because "Mr. Boyd has a warrant out for his arrest. And if the San Jose Police are not going to be able to find Mr. Boyd, I think that my investigator is going to be very hard put to find an individual who is avoiding contact with anybody that has to do with the judicial system." He presented an outstanding $5,000 warrant for Boyd, and contended that insofar as Boyd's unavailability as a witness was required to establish a hearsay exception, "the fact that there is a warrant out for Troy Boyd would meet that burden."

The prosecutor argued that plaintiffs "non-existen[t]" efforts to locate Boyd did not establish the "due diligence" necessary to establish a declarant's unavailability for hearsay purposes. Plaintiff replied that to exclude the statements would deprive Dignan of "a critical defense," i.e., doubts based on Boyd's possessory interest in the house, and that this would be unfair because Boyd was "a foggy, gray kind of witness who doesn't like to be—who's had problems with the law and avoids contact with any kind of authority figures...." After further argument, the court ruled that it would "allow those statements to come in as to the ownership of the house and his residence there."

Plaintiff then said he wanted the jury to be told that Troy Boyd had an outstanding arrest warrant or was a fugitive from justice. Otherwise, he argued, jurors might wonder, "Why didn't Mr. Dignan call Mr. Boyd?" The prosecutor replied that this was a "very good question" because "Mr. Spielbauer has acknowledged to this court that he's made zero effort to locate him." Plaintiff replied, "Well, I'd like to tell the jury why I have not. I'd like to tell the jury why, because he's got a warrant for his arrest and he's ducking [i.e., avoiding service of process]." He then expressed an intention to move the arrest warrant into evidence in order to "explain to the jury why Mr. Boyd is not here as a witness for Mr. Dignan."

Plaintiff did not inform the court that on the day before this hearing, he had spoken to the witness Boyd at the house in question. This fact emerged three days later, after a police sergeant went to the house and found Boyd there. Boyd told him that he had spoken to "a public defender investigator ...." When the prosecutor confronted plaintiff with this information, plaintiff said it had been he, not an investigator, who spoke with Boyd. Plaintiff then told the court that he had gone to the house to take photographs on Sunday, January 26, 2003; that he there found "a whole bunch of people watching the Super Bowl"; and that one of them "turned out to be Mr. Boyd." Plaintiff had not carried a subpoena, he said, because he had not expected to find Boyd there. He recounted a* conversation in which Boyd "told me that he would not cooperate in being served. He told me he did not want to inject himself into the legal system. He did not want to come to court. He did not want to testify." Plaintiff asserted that he had no obligation to tell the court on Monday that he had "bumped into" the witness on the day before. He offered the rationale that such a disclosure "calls into question basically what you would call the attorney work product."

The prosecutor contended that plaintiffs statements on January 27, 2003, constituted an "affirmative false misrepresentation [sic] ... to this Court," and that plaintiff had "injected himself as a witness into this case by attempting to frustrate the discovery of the truth." Without addressing this assertion, the court ruled that Boyd was in fact available as a witness and that this would be taken into account in ruling on any hearsay objection.¹

In late February or early March, Chief Assistant Public Defender David Mann heard about the foregoing incident, and was told that the deputy district attorney in the Dignan matter "was getting transcripts from [that] case and was going to `go after' [plaintiff] in some fashion." Mann communicated with the office of the District Attorney, which in mid-March supplied a "packet of material" concerning plaintiffs statements to Judge Teilh. Officials there told him the office had not decided which of three options to pursue: "file a misdemeanor charge against [plaintiff] ...; report him to the State Bar; or leave it to us to handle." Mann decided not to wait for a decision by that office but to go ahead with an internal investigation. Later—around the end of May 2003—the office of the district attorney did file a misdemeanor complaint charging plaintiff with a deceit upon the court in violation of Business and Professions Code section 6128. Although the present record is incomplete on this point, plaintiff asserts that the action was ultimately dismissed by stipulation.

Meanwhile the public defender's office undertook its own investigation. The office first scheduled an interview between plaintiff and Joe Guzman, supervisor of the felony division, on March 26, 2003. That meeting was apparently not transcribed, but was continued to April 1, 2003, after plaintiff demanded, through counsel, an opportunity to review relevant documents plus citation of the authority on which the meeting was convened.

By the time of the continued meeting on April 1, 2003, if not before, a dispute had arisen over plaintiffs obligation to answer questions concerning the events in question. On that date a department investigator, Alayne Bolster, asked plaintiff to describe his meeting with the witness Troy Boyd. Plaintiffs attorney, Zacharias Ledet, interjected that plaintiff "declines to answer your question, relying on the advice of counsel and protection afforded to him under the Constitution of the State of California, the Constitution of the United States, and the Statutes and Laws of the State of California, the County of Santa Clara, and the United States of America." Guzman responded by addressing plaintiff "Tom, you have a right to remain silent and not incriminate yourself. Your silence, however, may be deemed insubordination, leading to administrative discipline up to and including termination. Any statement made during this interview cannot, and I emphasize cannot, be used against you in any subsequent criminal proceeding. Do you understand what I've just read to you?" In the ensuing exchange, plaintiffs counsel stated that the protection against penal use as described by Guzman "only applies to peace officers" and that the "advisement" read to plaintiff was thus "not on point and unless you receive a ruling from a Court of Law, that advisement could not cover Mr. Spielbauer...." Guzman then said, "I want to make clear that this is not a criminal proceeding. ... This is an employee investigation, okay. What we do here stays within the Public Defender's Office. This...