Date: 10-26-2018

Case Style: Edgar Bacilio v. City of Los Angeles

Case Number: B279217

Judge: Hoffstadt

Court: California Court of Appeals Second Appellate District Division Two on appeal from the Superior Court, County of Los Angeles

Plaintiff's Attorney: Jacob A. Kalinski, Christopher D. Nissen, and Gidian R. Mellk f

Defendant's Attorney: Michael N. Feuer, Blithe S. Bock, and Shaun Dabby Jacobs

Description: The Public Safety Officers Procedural Bill of Rights Act
(POBRA), Government Code section 3300 et seq.,1 requires public
agencies investigating misconduct by a public safety officer to
complete their investigation and notify the officer of any proposed
discipline within one year of discovering the misconduct. (§ 3304,
subd. (d)(1).) If the possible misconduct “is also the subject of a
criminal investigation or criminal prosecution,” the one-year
period is tolled while the “criminal investigation or criminal
prosecution is pending.” (§ 3304, subd. (d)(2)(A).) This appeal
presents the question: When is a criminal investigation no longer
“pending”? In other words, when does this tolling period end for
a criminal investigation? We hold that a criminal investigation is
no longer pending—and section 3304, subdivision (d)(2)(A)’s
tolling period ends—when a final determination is made not to
prosecute all of the public safety officers implicated in the
misconduct at issue. Applying this definition, we conclude that
the tolling period did not end until the Los Angeles County
District Attorney officially rejected prosecution of all three
officers investigated in this case. Consequently, the investigation
and discipline in this case was timely. We accordingly affirm.
FACTS AND PROCEDURAL BACKGROUND
I. Facts
A. Underlying incident
Plaintiff Edgar Bacilio (Bacilio) is a police officer with the
Los Angeles Police Department (LAPD). On March 30, 2011,
Bacilio was on patrol with his partner, Nestor Escobar (Escobar).
Early in their shift, the officers responded to a family dispute
call, arrested the husband, and placed the child with the wife.

1 All further statutory references are to the Government
Code unless otherwise indicated.
3
Later in their shift, they drove to the wife’s apartment to conduct
a welfare check on the child.
Bacilio was the officer in charge of accurately documenting
the officers’ activities during their shift. In the Daily Field
Activities Report (or DFAR, for short), Bacilio reported that he
and Escobar had spent 115 minutes at the wife’s apartment.
However, the Incident Recall Sheet and Unit History Log, which
also track officers’ activities during their shifts, reflected that the
two officers had been at the apartment for 12 minutes and 86
minutes, respectively.
B. Report of misconduct
On August 4, 2011, the wife filed a report alleging that
Escobar had spent 90 minutes in her apartment and, while there,
had kissed her, touched her breasts and vaginal area over her
clothes, and propositioned her for sex. The wife later picked
Escobar out of a photo spread, indicating that she was 60 to 70
percent sure he was the one who sexually assaulted her.
C. Internal affairs investigation
The LAPD’s Internal Affairs Division immediately began to
investigate the wife’s claim of misconduct as to Escobar, Bacilio,
and a third officer. Because the alleged misconduct could
constitute a crime as to both Escobar (namely, sexual battery)
and Bacilio (namely, aiding and abetting sexual battery), the
investigation was both administrative and criminal.
4
D. Presentation to, and rejection by, the District
Attorney’ s Office
On June 3, 2013, the lead internal affairs investigator
presented the results of the LAPD’s Internal Affairs investigation
to the Los Angeles County District Attorney’s Office. The lead
investigator sought prosecution of Escobar for felony sexual
battery under color of authority.
On August 6, 2013, a deputy district attorney interviewed
the wife, using the lead internal affairs investigator as a
translator.
Immediately after the interview, the deputy district
attorney made statements to the lead internal affairs investigator
regarding future prosecution. According to the investigator’s
written notes from their post-interview discussion, the prosecutor
said “she was not going to file against the officers” and that “it
was okay . . . to do the admin[istrative] interviews” of Bacilio and
the third LAPD officer “since she is not filing charges against
them.” In his later testimony about the post-interview
discussion, the investigator stated that the prosecutor had not
“officially rejected” the case for prosecution; that she had said
“she most likely was not going to file . . . against the officers” but
“was still actually working on the case”; and that it was okay to
interview Bacilio and the third LAPD officer because they “were
not” “criminally involved,” such that interviewing them “would
not interfere with [the prosecutor’s] case.”
On October 3, 2013, the district attorney’s office sent
Internal Affairs a Charge Evaluation Worksheet officially
declining to file charges against Escobar, Bacilio, and the third
LAPD officer. The Worksheet was signed by the prosecutor as
well as a “reviewing deputy.” The Worksheet explained that
there was insufficient evidence to prove either felony or
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misdemeanor sexual battery, and that the statute of limitations
on any misdemeanor charge had expired.
E. Administrative discipline
On September 10, 2014, the LAPD served Bacilio with
notice that Internal Affairs was seeking an official reprimand
against him based on the underlying incident.2
A few months later, in November 2014, the LAPD brought
11 administrative charges against Escobar, Bacilio, and the third
LAPD officer. The LAPD alleged two counts of misconduct
against Bacilio: (1) “fail[ing] to maintain an accurate daily field
activities report (DFAR)” during his March 30, 2011 shift, and
(2) making “misleading statements” during his two interviews
with Internal Affairs on September 27, 2013, and February 17,
2014.
The LAPD sustained the first charge against Bacilio but
found the second charge “Not Resolved.”
Bacilio appealed the LAPD’s ruling to a hearing officer.
Following an evidentiary hearing at which Bacilio and the lead
internal affairs investigator both testified, the hearing officer
issued a written ruling. The hearing officer found that the LAPD
had initiated administrative disciplinary proceedings against
Bacilio in a timely manner because POBRA’s one-year limitations
period was tolled from the time of the wife’s initial report of

2 Bacilio was served with a so-called “Skelly notice.” Based
on evidence that a Skelly notice is sufficient to satisfy POBRA for
penalties up to (but not exceeding) an official reprimand, the
hearing officer concluded that the Skelly notice functioned as the
“Letter of Intent or Notice of Adverse Action” required by section
3304, subdivision (d)(1). Because the parties do not challenge
this ruling on appeal, we also accept that Bacilio received
POBRA-approved notice on September 10, 2014.
6
potentially criminal misconduct “until [Bacilio’s] criminal case
was officially rejected by the D.A. on October 3, 2013.” On the
merits, the hearing officer sustained the first charge, but changed
the “Not Resolved” finding on the second charge to “Unfounded.”
The LAPD’s then-Chief of Police, Charles Beck (Chief
Beck), agreed with the hearing officer’s resolution of the first
charge, but changed the second charge back to “Not Resolved.”
II. Procedural Background
Bacilio filed a petition for a writ of administrative
mandamus against defendants the City of Los Angeles (the City)
and Chief Beck3 seeking (1) declaratory and injunctive relief
vacating all adverse disciplinary findings, and (2) a $25,000
penalty for the LAPD’s malicious violation of POBRA.
Following full briefing and a hearing, the trial court issued
a 23-page minute order denying the petition in part and granting
it in part. The court ruled that the LAPD’s administrative
proceedings against Bacilio were timely under POBRA.
Specifically, the court ruled that the “statutory tolling period” for
criminal investigations did not end until “the DA . . . formally
close[d] its criminal file” on October 3, 2013. The court noted
“[t]here are good policy reasons” to continue tolling until “a
formal notice from the DA” declining prosecution—chiefly, that
“informal discussions could be misinterpreted.” On the merits,
the court found that the “weight of the evidence” (1) supported

3 While this appeal was pending, Michel Moore succeeded
Chief Beck as LAPD’s Chief of Police. Because Chief Beck was
named as a defendant in this case in his official capacity, Chief
Moore is now substituted as a defendant in this appeal (see
Weadon v. Shahen (1942) 50 Cal.App.2d 254, 259-260); but our
opinion continues to refer to Chief Beck when discussing his
actions while he was still Chief.
7
Chief Beck’s finding as to the first charge for failing to maintain
an accurate DFAR, but (2) did not support his finding that the
second charge for making misstatements during interviews was
“Not Resolved.” At the request of the parties, the court simply
amended the finding on the second charge to “Unfounded” rather
than remanding for further proceedings.
After judgment was entered, Bacilio filed a timely notice of
appeal.
DISCUSSION
Bacilio argues that the trial court erred in denying his
petition for a writ of administrative mandamus as to all
disciplinary charges because the LAPD did not notify him of the
potential discipline within POBRA’s one-year limitations period.
More specifically, Bacilio contends the tolling period under the
exception for criminal investigations ended when the prosecutor
orally told the internal affairs investigator that “she was not
going to file against the officers” rather than when the district
attorney’s office formally rejected prosecution a few months later.
The issue Bacilio presents in this appeal entails two
subsidiary questions: (1) What is the standard for determining
when the tolling period for criminal investigations ends under
section 3304, subdivision (d)(2)(A); and (2) did the trial court
properly determine that the standard was not satisfied in this
case until the formal rejection of prosecution? The first question
is a question of statutory interpretation subject to our
independent review. (Department of Corrections & Rehabilitation
v. State Personnel Bd. (2016) 247 Cal.App.4th 700, 707
(Department of Corrections).) In answering the second question,
we review the court’s findings for substantial evidence because
the trial court has already exercised its independent judgment
8
upon the evidence in recognition of the public employee’s
fundamental vested right in his employment. (Jackson v. City of
Los Angeles (2003) 111 Cal.App.4th 899, 902 (Jackson).) Our
task here is to review the trial court’s ruling, not its reasoning.
(People v. Chism (2014) 58 Cal.4th 1266, 1295, fn. 12.)
I. When Does Tolling End for Criminal Investigations
Under Section 3304, Subdivision (d)(2)(A)?
POBRA is designed to “maintain[] stable employeremployee
relations between public safety employees and their
employers” (Jackson, supra, 111 Cal.App.4th at p. 909), which is
important because “‘[e]ffective law enforcement depends’” upon
such stability (Richardson v. City and County of San Francisco
Police Com. (2013) 214 Cal.App.4th 671, 691 (Richardson)). (See
generally § 3301.) POBRA achieves this goal by codifying “a list
of basic rights and protections which must be afforded all peace
officers . . . by the public entities that employ them.” (Baggett
v. Gates (1982) 32 Cal.3d 128, 135.)
Among the basic rights POBRA confers is the right to a
speedy investigation. POBRA secures this right by requiring a
public agency, within one year, to (1) complete its investigation of
any “act, omission, or other allegation of misconduct” by a public
safety officer, and (2) notify the affected officer of the agency’s
“proposed discipline.” (§ 3304, subd. (d)(1);4 Squire v. County of

4 In pertinent part, the provision provides: “[N]o punitive
action, nor denial of promotion on grounds other than merit, shall
be undertaken for any act, omission, or other allegation of
misconduct if the investigation of the allegation is not completed
within one year of the public agency’s discovery by a person
authorized to initiate an investigation of the allegation of an act,
omission, or other misconduct. . . . In the event that the public
agency determines that discipline may be taken, it shall complete
9
Los Angeles (2018) 22 Cal.App.5th 16, 23.) The “one-year
limitation period” begins to tick once a “person authorized to
initiate an investigation” “discovers, or through the use of
reasonable diligence should have discovered” the act, omission, or
other allegation of misconduct. (§ 3304, subd. (d)(1); Pedro v. City
of Los Angeles (2014) 229 Cal.App.4th 87, 106.) This one-year
limitations period “ensure[s] that an officer will not be faced with
the uncertainty of a lingering investigation” (Mays v. City of Los
Angeles (2008) 43 Cal.4th 313, 322, superseded on other grounds
by § 3304, subd. (d)) and, on a more practical level, “promotes
the . . . officer’s interest in receiving fair treatment by requiring
the diligent prosecution of known claims so that police officers
receive prompt notice of claims against them, can prepare a fair
defense on the merits, and can marshal the facts while memories
and evidence are fresh” (Jackson, supra, 111 Cal.App.4th at
p. 909).
POBRA specifies a number of situations in which this oneyear
limitations period is inapplicable, is tolled, or is extended.
(§ 3304, subd. (d)(2)(A)-(H).) At issue here is the following
exception: “If the act, omission, or other allegation of misconduct
is also the subject of a criminal investigation or criminal
prosecution, the time during which the criminal investigation or
criminal prosecution is pending shall toll the one-year time
period.” (Id., subd. (d)(2)(A).) This exception makes tolling
mandatory for the “entire duration” of the pending criminal

its investigation and notify the public safety officer of its
proposed discipline by a Letter of Intent or Notice of Adverse
Action articulating the discipline that year, except as provided in
paragraph (2). The public agency shall not be required to impose
the discipline within that one-year period.” (§ 3304, subd. (d)(1).)
10
investigation or prosecution. (Daugherty v. City and County of
San Francisco (2018) 24 Cal.App.5th 928, 958-959 (Daugherty);
Department of Corrections, supra, 247 Cal.App.4th at p. 715;
Lucio v. City of Los Angeles (2008) 169 Cal.App.4th 793, 802
(Lucio).) Because the exception focuses on whether “the act,
omission, or other allegation of misconduct” is “the subject” of
investigation or prosecution, tolling continues even as to officers
who are cleared of any misconduct as long as the act, omission, or
other allegation is still being investigated or prosecuted as to
some officer. (Parra v. City and County of San Francisco (2006)
144 Cal.App.4th 977, 994.) The reason for this tolling exception
is straightforward: Criminal investigations are more nuanced,
more complex, and more time consuming, and should not be
placed on the same “fast track” as purely administrative
investigations. (Daugherty, at pp. 958-959; Lucio, at p. 800.)
So at what point is a criminal investigation no longer
“pending” within the meaning of section 3304, subdivision
(d)(2)(A)?
As with any question turning on statutory interpretation,
we start with the text of the statute. (Apple Inc. v. Superior
Court (2013) 56 Cal.4th 128, 135.) Where, as here, the text of the
statute does not speak to the question, we turn next to “‘other
aids, such as the statute’s purpose, legislative history, and public
policy.’” (Ardon v. City of Los Angeles (2016) 62 Cal.4th 1176,
1184, quoting Coalition of Concerned Communities, Inc. v. City of
Los Angeles (2004) 34 Cal.4th 733, 737.)
These aids all point to one conclusion in this case: A
criminal investigation is no longer pending when a
final determination not to prosecute and to close the criminal
11
investigation is made. Interim decisions short of a final
determination will not stop the tolling.
We reach this conclusion for three reasons.
First, tying the conclusion of tolling to the final
determination not to prosecute best harmonizes POBRA’s
underlying purposes. The tolling exception for criminal
investigations seeks to balance two competing interests: The
public safety officer’s POBRA-based right to a speedy
investigation and adjudication (Breslin v. City and County of San
Francisco (2007) 146 Cal.App.4th 1064, 1075 (Breslin)), and the
public agency’s or prosecuting entity’s right to conduct a fulsome
criminal investigation on an efficient, but not unduly cramped,
timetable. Requiring that the determination not to prosecute be
final, rather than interim, ensures that investigations are not
prematurely placed back on POBRA’s fast track while at the
same time ensuring that an officer’s right to speedy adjudication
becomes paramount once a final determination is made.
Second, tying the conclusion of tolling to the final
determination provides the most workable standard, particularly
in light of the alternatives. (Accord, City of Santa Monica
v. Gonzalez (2008) 43 Cal.4th 905, 919 [“we may reasonably infer
that [our Legislature] intended an interpretation producing
practical and workable results”].) Treating an interim decision
not to prosecute as definite ignores the practical realities of
criminal investigations. Such investigations rarely involve a
steady and continuous acquisition of information, and instead
proceed by way of fits and starts as lines of inquiry stagnate, only
to come alive again as new information is uncovered. (See
Daugherty, supra, 24 Cal.App.5th at p. 963 [noting “the ebb and
flow of activity in a criminal case”].) Decisions short of a final
12
determination are necessarily in flux; they should not be given
determinative effect. For similar reasons, we reject a standard
that would peg the end of tolling to whether the criminal
investigation was “active.” We agree with Richardson, supra,
214 Cal.App.4th at pages 697-698 that such a standard “‘would
simply be unworkable” “because it leaves unanswered the central
question of how much an investigator must do, and how
frequently, to maintain an “active” investigation.’” Conversely, a
standard that insists upon a formal notification that a criminal
investigation has terminated goes too far in the other direction
because it may invite mischief and delay by empowering an
agency that has made a final determination to manipulate
POBRA’s timetable by holding off issuing formal notification of
that determination.
Lastly, tying the conclusion of tolling to the final
determination whether to prosecute best harmonizes the cases
that have thus far construed section 3304, subdivision (d)(2)(A)’s
exception. Many cases have ruled that tolling ends when the
prosecuting entity or the public agency itself has formally ended
its criminal investigation. (Daugherty, supra, 24 Cal.App.5th at
p. 962 [“formal end to the corruption investigation”]; Breslin,
supra, 146 Cal.App.4th at pp. 1078-1079 [“when the criminal
investigation formally ended”]; Richardson, supra, 214
Cal.App.4th at p. 697 [“‘when the criminal investigation formally
ended’”].) Others have held that a log entry in the public agency’s
records that “there was ‘lack of criminal prima facie to present’ to
a prosecutor” ends the tolling. (See Lucio, supra, 169
Cal.App.4th at pp. 796-797 [applying City Charter provision with
same language as section 3304, subdivision (d)(2)(A)].) In each of
13
these cases, the formal end or log entry denoted a final
determination that the criminal investigation was completed.
Bacilio offers two further arguments in response. First, he
asserts that the text of section 3304, subdivision (d)(2)(A)
nowhere says that an “informal letter” is not enough. This is
true, but irrelevant because the text does not speak at all to the
issue of when tolling ends. Second, he levels several attacks on a
standard that hinges the end of tolling to a formal rejection—
namely, that it might drag out investigations, lead to game
playing, and be meaningless in cases where the public agency
does not present its case to an outside prosecutorial entity.
Because our construction of section 3304, subdivision (d)(2)(A)
makes formal rejection a sufficient but not a necessary condition
to the end of tolling, Bacilio’s attacks on a standard we do not
adopt are beside the point. What is more, his attacks do not call
into question the propriety of the standard we do adopt, for the
reasons we explain above.
II. Does Substantial Evidence Support the Finding That
the District Attorney’s Office Did Not Finally Determine
Not to Prosecute Until Its October 3, 2013 Declination to
Prosecute?
In assessing whether a prosecuting entity’s or public
agency’s determination is final, we look to the totality of the
circumstances along the entire timeline of the decision maker’s
involvement. (Richardson, supra, 214 Cal.App.4th at pp. 693-694
[looking to what happened after interim decisions not to
prosecute].) Although POBRA itself does not specify which party
bears the burden of proving the applicability of tolling (id. at p.
698), the general rule is that the party who invokes a tolling
doctrine bears the burden of proving its applicability (Brown v.
14
Bleiberg (1982) 32 Cal.3d 426, 439). We will apply that generally
applicable rule.
Substantial evidence supports the finding that the City
carried its burden of showing that the district attorney’s office did
not make its final determination regarding prosecution until it
issued its October 3, 2013 Worksheet declining to prosecute. To
begin, the lead internal affairs investigator testified that the
deputy district attorney’s comments to him on August 6, 2013
were tentative because she was “most likely . . . not going to file”
charges and was “still actually working on the case.” Further,
the very fact that the district attorney’s office prepared and
transmitted a more fulsome and complete Worksheet regarding
all three officers under investigation supports the finding that
the earlier, August 6, 2013 oral advisement was an interim
decision rather than a final determination. What is more, that
the Worksheet was signed not only by the prosecutor but also by
a reviewing deputy suggests that further review was necessary
and that the prosecutor’s earlier oral advisement was not
definitive. In these regards, the facts of this case are much like
the facts of Richardson, supra, 214 Cal.App.4th 671, where the
court determined that a criminal investigation was still pending
(and thus still tolled under POBRA) until the prosecuting entity
wrote a formal memo declining charges, even though earlier
memos to the file indicated that no investigation was ongoing.
(Id. at pp. 693-694.)
Bacilio argues that the deputy district attorney’s August 6,
2013 comments heralded the end of the criminal investigation.
Specifically, he points to the internal affairs investigator’s
written notes recounting that the prosecutor said “she was not
going to file against the officers” and that “it was okay . . . to do
15
the admin[istrative] interview” as well as his initial testimony at
the hearing that her comments constituted “an official rejection.”
Bacilio is essentially asking us to place greater weight on one
part of the internal affairs investigator’s testimony over another,
and to do so in part by looking to who was asking the investigator
the questions. But the hearing officer (and then the trial court)
already did that, and each independently found the investigator’s
comments regarding the tentative nature of the prosecutor’s
comments to be more accurate. As a general principle, we cannot
gainsay their determination as to which portions of a witness’s
testimony to credit. (In re I.J. (2013) 56 Cal.4th 766, 773.) And
we are particularly loathe to do so in this context, where doing so
is tantamount to giving greater weight to what the investigator
thought the prosecutor meant than to the prosecutor’s actual
(though subsequent) words. (Accord, Richardson, supra,
214 Cal.App.4th at p. 695 [“‘It defies reason to believe that a
member of a separate department . . . is better able to ascertain
the conclusion of an investigation within that separate
department’”].)

Outcome: The judgment is affirmed. The City and the LAPD Chief of Police are entitled to their costs on appeal.

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