Arthur Ochoa v. County of Kern

Appellant Arthur Ochoa, formerly employed by the Kern County Sheriff’s Office

(KCSO) as a deputy sheriff, petitioned for a peremptory writ of mandate commanding

respondents County of Kern and Kern County Sheriff Donny Youngblood to set aside his

termination and other extraordinary relief to remedy a violation of the Public Safety

Officers Procedural Bill of Rights Act (Gov. Code, § 3300 et seq.).1

Ochoa claimed

KCSO—in contravention of section 3304, subdivision (d)—failed to complete an

administrative investigation of his alleged misconduct and notify him of the proposed

disciplinary action within one year of the public agency’s discovery by a person

authorized to initiate said investigation. The superior court entered an order and

judgment denying the petition.

On appeal, Ochoa reiterates his termination was time barred because a KCSO

sergeant initiated an investigation of his alleged misconduct on March 25, 2013, and an

internal affairs investigator notified him of the proposed termination on August 11, 2014.

Respondents assert the one-year statute of limitations period in section 3304, subdivision

(d)(1), does not commence until an internal affairs investigation is authorized. Since the

sergeant who initiated the investigation on March 25, 2013, was not authorized by

department policy to initiate an internal affairs investigation, his investigation did not

start the one-year limitations period. They also argue two separate criminal

investigations of the misconduct tolled the one-year limitations period. In the published

portion of this opinion, we conclude section 3304, subdivision (d)(1), requires the

investigation to be completed within one year of the public agency’s discovery by a



1 Henceforth, we refer to this statute by the commonly used acronym POBRA.

(See, e.g., Mays v. City of Los Angeles (2008) 43 Cal.4th 313 (Mays); Neves v.

Department of Corrections & Rehabilitation (2012) 203 Cal.App.4th 61.)

In addition, subsequent statutory citations refer to the Government Code unless

otherwise indicated.

3.

person authorized to initiate an investigation of the allegation of misconduct; although the

sergeant could not initiate an internal affairs investigation, he was “a person authorized to

initiate an investigation” of the allegation within the meaning of that statute. We,

therefore, agree with Ochoa the one-year limitations period commenced March 25, 2013.

In the unpublished portion, we conclude KCSO acted in a timely manner because the first

criminal investigation sufficiently tolled the limitations period. The order and judgment

denying Ochoa’s petition are affirmed.

FACTUAL AND PROCEDURAL HISTORY2

On March 22, 2013, Priscilla S. informed Deputy Chaidez that Ochoa harassed

her. On the same day, Chaidez submitted an interoffice memorandum documenting the

allegation to Sergeant Bittle, Ochoa’s superior.

On March 25, 2013, Bittle received Chaidez’s memorandum and “started an

investigation” “to determine what the nature of the complaint was.” Between March 25

and March 27, 2013, he tried to contact Priscilla several times without success. On

March 27, 2013, Bittle submitted an interoffice memorandum concerning Priscilla’s

allegation and his attempts to contact her to Commander Hansen.

On April 8, 2013, Bittle spoke to Priscilla and her brother. Priscilla stated Ochoa

made unwanted sexual advances toward her for almost four years. Priscilla’s brother

stated Ochoa punched him in the face a few days earlier. Bittle detailed the conversation

in an April 8, 2013, interoffice memorandum to Hansen.

On April 9, 2013, in KCSO case No. SR13-10251, Senior Deputy Rutledge

initiated a criminal investigation of Ochoa “for assault under color of authority and

annoying/molesting a child under the age of 18 years old.”



2 The record on appeal includes the parties’ agreed statement. (See Cal. Rules of

Court, rule 8.134.) “Facts recited in an agreed statement take the place of factual

findings, and bind the parties.” (Institoris v. City of Los Angeles (1989) 210 Cal.App.3d

10, 17.)

4.

On May 6, 2013, Chief Deputy Zimmerman signed a KCSO “Personnel

Complaint” authorizing internal affairs to investigate Priscilla’s harassment claim against

Ochoa. Senior Deputy Levig was appointed to conduct this investigation.

On June 13, 2013, Rutledge asked the Kern County District Attorney (District

Attorney) to file criminal charges against Ochoa in KCSO case No. SR13-10251, namely

(1) assault by an officer under color of authority (Pen. Code, § 149); (2) sexual battery

(id., § 243.4, subd. (a)); (3) preventing or dissuading a witness or victim (id., § 136.1,

subd. (a)(1)); and (4) annoying or molesting a child under 18 years of age (id., § 647.6,

subd. (a)(1)). On June 21, 2013, the District Attorney rejected the request but returned

the case “for further investigation.”

Between June 21, 2013, and July 2, 2013, Rutledge “learned facts related to an

alleged violation of Penal Code [s]ection 502, unauthorized access to computers,

computer systems and computer data, specifically [Ochoa]’s access of the [Criminal

Justice Information System, the California Law Enforcement Telecommunications

System, or the Department of Motor Vehicles] database information regarding [Priscilla]

. . . on January 19, 2013.” On July 2, 2013, Rutledge resubmitted his request for a

criminal complaint in KCSO case No. SR13-10251 but did not append a charge of

unauthorized access to computers, computer systems, and computer data. He “did not

conduct any further investigation regarding the allegations in [KCSO] case [No.]

SR13-10251 after July 2, 2013,” and “did not conduct any further investigation regarding

the alleged Penal Code section 502 violation from July 2, 2013[,] through June 25, 2014.”

On July 30, 2013, in connection with KCSO case No. SR13-10251, Deputy

District Attorney Kohler reviewed Ochoa’s personnel file. Thereafter, on an unspecified

date, she assigned District Attorney Investigator Caldas to look into the allegations more

thoroughly. After Caldas’s investigation, Kohler met with the District Attorney and an

Assistant District Attorney. The District Attorney decided not to prosecute Ochoa.

5.

On June 25, 2014, Sergeant Simpson ordered Rutledge, his subordinate, to

investigate Ochoa’s potential violation of Penal Code section 502 in KCSO case No.

SR14-16963. On July 1, 2014, Rutledge asked the District Attorney to charge Ochoa

with knowingly and without permission accessing a computer, computer system, or

computer network (Pen. Code, § 502, subd. (c)(7)). On July 7, 2014, the District

Attorney rejected the request because the applicable statute of limitations had run.

On August 11, 2014, Levig served Ochoa with a “Notice of Proposed Disciplinary

Action—Termination,” which cited numerous violations of Civil Service Commission

Rules and KCSO Policies and Procedures.

3

Following a Skelly4 hearing, Ochoa was

terminated effective October 7, 2014.

On October 28, 2014, Ochoa petitioned for a peremptory writ of mandate and

other extraordinary relief pursuant to Code of Civil Procedure section 1085 and section

3309.5, respectively.5

On November 12, 2015, the court conducted an oral hearing on

the petition.



3 The notice specified Ochoa infringed rules, policies, and/or procedures pertaining

to the following: (1) “Conduct unbecoming an employee in the public service”;

(2) “Disorderly or immoral conduct”; (3) “Incompetence or inefficiency”; (4) “Neglect of

duty”; (5) “Violation of any lawful or reasonable regulation or order”; (6) “Dishonesty”;

(7) “Duties of Personnel – All Members”; (8) “Duties of Personnel – Deputy Sheriffs”;

(9) “Rules of Conduct – Law Enforcement Personnel”; (10) “Use of Mobile Data

Computers”; and (11) “Use of Computer Systems and Data.”

4 Skelly v. State Personnel Board (1975) 15 Cal.3d 194.

5 We note Ochoa petitioned for a writ of ordinary mandamus (Code Civ. Proc.,

§ 1085) rather than a writ of administrative mandamus (id., § 1094.5).

“ ‘The proper method of obtaining judicial review of most public agency decisions

is by instituting a proceeding for a writ of mandate.’ [Citation.] Two such writs are

provided by statute: (1) ordinary mandamus [citation] and (2) administrative mandamus

[citation]. Challenge of an agency’s action or decision via proceeding for a writ of

administrative mandamus is available if the decision was ‘made as a result of a

proceeding in which by law a hearing is required to be given . . . .’ [Citations.]” (Nathan

G. v. Clovis Unified School Dist. (2014) 224 Cal.App.4th 1393, 1399-1400, fn. omitted.)

“Administrative mandamus is properly employed when a hearing is required by law, even

6.

Bittle testified he “was not authorized to initiate an internal affairs investigation.”

Nonetheless, as a sergeant, he “ha[s] to look into . . . allegations to find out what they

were all about.” Bittle stated he had “the ability to investigate subordinates” and

“discipline [them] for [policies and procedures] violation[s]” but “would not impose any

discipline beyond a written reprimand.” In March 2013, in an unrelated case, he

investigated Ochoa for a possible Policies and Procedures violation and issued

“Documented Oral Counseling,” which “is considered in an employee’s annual

performance review.”

Simpson testified a sergeant “did not have the authority to initiate an internal

affairs investigation” and “only the Sheriff, the Undersheriff, or Chief Deputies can

authorize the initiation of an internal affairs investigation.” “[H]is authority was limited

to gathering enough facts to make his chain of command aware of the nature of the

allegations.”

Levig testified “no one below the rank of a Chief Deputy has the ability to

authorize an administrative investigation.”

Zimmerman testified he authorized an internal affairs investigation on May 6,

2013, and “only a Chief Deputy can initiate an internal affairs investigation of a deputy”

pursuant to Policies and Procedures Nos. D-300 (Employee Discipline – Misconduct)6



if the hearing is not held.” (Lanigan v. City of Los Angeles (2011) 199 Cal.App.4th 1020,

1029 (Lanigan).) Under POBRA, “[n]o punitive action . . . shall be undertaken by any

public agency . . . without providing the public safety officer with an opportunity for

administrative appeal.” (§ 3304, subd. (b); see Otto v. Los Angeles Unified School Dist.

(2001) 89 Cal.App.4th 985, 996 (Otto) [POBRA mandates an evidentiary hearing before

a neutral fact finder in which the officer may challenge any punitive action].)

Although Ochoa “improperly brought his petition . . . as a traditional mandamus

proceeding, we [may] . . . treat[] it as if it had been properly brought under Code of Civil

Procedure section 1094.5.” (Lanigan, supra, 199 Cal.App.4th at p. 1029, fn. 6; see

Bollengier v. Doctors Medical Center (1990) 222 Cal.App.3d 1115, 1125.) We choose to

do so.

6 Policies and Procedures No. D-300 reads in pertinent part:

7.

and D-600 (Citizen Complaint Procedure)7

. A sergeant, on the other hand, “cannot

initiate an internal affairs investigation.” Instead, a sergeant “can conduct fact-finding if



“PROCEDURE B – SUPERVISOR INITIATED COMPLAINTS

“A supervising employee who becomes aware of misconduct on the part of

any member will:

“● Prepare a confidential memo, including:

“○ The rules, regulations, policies or orders applicable to

the incident.

“○ A description of what actions he or she took (if any)

concerning the incident.

“● Forward the confidential memo and all supporting

documentation and information directly to his or her

commander in a sealed envelope. In cases where the

supervising employee is of the rank of commander or higher,

the documentation will be forwarded to the next highest level.

“The affected division commander will:

“● Evaluate the nature of the complaint and determine if the

situation may be appropriately handled at the supervisory

level. If the situation is of a more serious nature and it

appears discipline may be warranted, forward the

documentation to his or her chief deputy.

“PROCEDURE C – CASE INVESTIGATIONS

“The chief deputy, upon receiving a personnel complaint, will evaluate the

complaint and determine if the case will be:

“● Returned to the appropriate division for a pre-investigation

“● Concluded as an ‘Adverse Comment’ only

“● Eligible for a Pre-disposition Settlement Agreement (PDSA)

“● Handled as a division level investigation

“● Handled as an Internal Affairs investigation

“The chief deputy will document his or her decisions on the complaint form

and return the entire package to the Personnel Division Commander.”

7 Policies and Procedures No. D-600 reads in pertinent part:

“PROCEDURE

8.

there is an allegation” to “determine[] if the allegation is criminal or administrative in

nature.” Zimmerman noted “[KCSO] encourages complaints to be handled at the lowest

possible level” and acknowledged (1) “a [s]ergeant has the ability to give a written

reprimand to a subordinate deputy”; and (2) “a reprimand does not require that an internal

affairs investigation was initiated.” However, “a [s]ergeant cannot take disciplinary

action against a subordinate when there are serious or criminal allegations.”

Kohler testified she “d[id] not remember the specific date that Caldas was

assigned” to investigate KCSO case No. SR13-10251 and “did not know the specific date

of the final rejection of [said] case.” She recalled (1) she assigned Caldas “[p]retty

quickly” after she reviewed Ochoa’s personnel file on July 30, 2013; and (2) Caldas

“took about a month to get in contact with [Priscilla].” Kohler remarked Caldas “took

. . . anywhere from two or three weeks to a month or two to complete . . . [an]



“Any member of the Sheriff’s Office who is given a formal citizen’s

complaint will:

“● Accept the complaint as written by the complainant;

“● Give a copy to the complaining party of his or her own

statements at the time the complaint is filed. [¶] . . . [¶]

“● Forward the complaint form in a sealed envelope to the

Undersheriff or his designee.”

“The Undersheriff or Chief Deputy, upon receiving a personnel complaint,

will:

“● Determine if an Internal Affairs investigation is warranted;

“● Determine if the investigation, if any, will be done by the

Internal Affairs Section or be returned to the appropriate

division for investigation;

“● Forward the entire package to the Human Resources Division

Commander with authorization for an investigation to be

conducted;

“● Monitor or cause to be monitored the progress of the

investigation.”

9.

investigation.” After receiving the results of Caldas’ investigation, Kohler met with

District Attorney Green and Assistant District Attorney Spielman and they decided to

forgo criminal prosecution. This meeting took place “a month or two” after July 30,

2013.

Caldas testified he “was asked by . . . Kohler to attempt to locate and talk to

[Priscilla] regarding an investigation of [Ochoa]” sometime in 2013. He contacted

Priscilla, who told him “she did not want to cooperate any further.” Caldas informed

Kohler about the exchange “two weeks” after “Kohler requested that he contact

[Priscilla].” He “did not conduct any other work . . . other than contacting [Priscilla] one

time.”

Thereafter, the court denied Ochoa’s petition. It held:

“[Ochoa] has not met his burden of proving that the August 11,

2014, notice of proposed disciplinary action was served outside the oneyear

limitations period set forth in . . . section 3304[, subdivision ](d)(1).

“The criminal investigation regarding [KCSO case No.] SR13-10251

commenced April 9, 2013. The administrative investigation commenced

May 6, 2013; . . . Bittle was not authorized to initiate an investigation

within the meaning of . . . [section] 3304[, subdivision ](d)(1). The

limitations period for the administrative action was tolled during the

criminal investigation regarding [KCSO case No.] SR13-10251.

“. . . Kohler reviewed [Ochoa]’s personnel file on July 30, 2013, as

part of the ongoing criminal investigation. A preponderance of the

evidence shows that Kohler requested additional investigation after she

reviewed . . . [Ochoa]’s file, and . . . Caldas undertook that criminal

investigation. Kohler estimated the additional investigation took from one

to two months, to a little less than a month. Caldas recalls that his

investigation took two weeks. Kohler also met with her superiors to

discuss the possible criminal filing before it was finally rejected; the date of

that meeting is unknown, but it was part of the criminal investigation

regarding [KCSO case No.] SR13-10251 after Kohler reviewed the

personnel file. [Ochoa] has not shown that the criminal investigation

concerning [KCSO case No.] SR13-10251 concluded on or before

August 11, 2013. A preponderance of the evidence tends to show the

10.

criminal investigation regarding [KCSO case No.] SR13-10251 concluded

after August 11, 2013.

“In addition, a preponderance of the evidence shows that a criminal

investigation regarding [KCSO case No.] SR14-16963 took place between

June 25, 2014, and July 7, 2014 (12 days). That criminal investigation was

undertaken in good faith and would have extended the limitations period,

but as stated above, the criminal investigation regarding [KCSO case No.]

SR13-10251 concluded after August 11, 2013.

“[Ochoa] has not met his burden of proving the administrative action

is barred by the limitations period.”

DISCUSSION

I. POBRA overview.

“Initially enacted in 1976 [citation], POBRA ‘sets forth a list of basic rights and

protections which must be afforded all peace officers [citation] by the public entities

which employ them. It is a catalogue of the minimum rights [citation] the Legislature

deems necessary to secure stable employer-employee relations [citation].’ [Citations.]”

(Mays, supra, 43 Cal.4th at p. 320.) “These rights include limits on and guidelines for

investigations and interrogations of public safety officers in connection with disciplinary

proceedings (§ 3303), the right to an administrative appeal and a one-year statute of

limitations for investigations (§ 3304), the right to notification of adverse comments

placed in his or her personnel file and the right to comment thereon (§ 3305), the right to

inspection of personnel files (§ 3306), the right to refuse to submit to a lie detector test

(§ 3307), and the right to the protections of POBRA (§ 3309.5, subd. (a)).” (Lanigan,

supra, 199 Cal.App.4th at p. 1030.) “When a law enforcement agency investigates

alleged misconduct by an officer employee, the procedural protections in [POBRA]

balance the public interest in maintaining the efficiency and integrity of the police force

with the police officer’s interest in receiving fair treatment.” (Jackson v. City of Los

Angeles (2003) 111 Cal.App.4th 899, 909 (Jackson); see Mays, supra, at p. 320 [citing

Jackson with approval].)

11.

“One protection codified in section 3304 is the speedy adjudication of conduct that

could result in discipline.” (Breslin v. City and County of San Francisco (2007) 146

Cal.App.4th 1064, 1075 (Breslin).) Section 3304, subdivision (d)(1), provides in

pertinent part:

“[N]o punitive action[8]

. . . 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 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.” (See Mays, supra, 43

Cal.4th at pp. 321-322 [“Not only completion of the investigation, but also

the requisite notification to the officer, must be accomplished within a year

of discovery of the misconduct.”].)

“[T]he apparent purpose of [section 3304,] subdivision[ (d)(1)], . . . is to ensure that an

officer will not be faced with the uncertainty of a lingering investigation, but will know

within one year of the agency’s discovery of the officer’s act or omission that it may be

necessary for the officer to respond in the event he or she wishes to defend against

possible discipline.” (Mays, supra, 43 Cal.4th at p. 322.)

Section 3304 “allows for tolling or extension of the one-year limitations period

under specified circumstances.” (Breslin, supra, 146 Cal.App.4th at p. 1075.) For

instance, subdivision (d)(2)(A), provides:

“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 oneyear

time period.”



8 A “punitive action” means “any action that may lead to dismissal, demotion,

suspension, reduction in salary, written reprimand, or transfer for purposes of

punishment.” (§ 3303.)

12.

Therefore, “[POBRA] requires the tolling of the one-year statute of limitations while a

criminal investigation is pending if the misconduct is the subject of that investigation.”

(Breslin, supra, 146 Cal.App.4th at p. 1078.)

II. Standard of review.

“Discipline imposed on public employees affects their fundamental vested right in

employment.” (Melkonians v. Los Angeles County Civil Service Com. (2009) 174

Cal.App.4th 1159, 1167; accord, Jackson, supra, 111 Cal.App.4th at p. 902.) “In a

mandamus proceeding affecting a fundamental vested right, an appellate court must

sustain the trial court’s factual findings that are supported by substantial evidence.

Questions of law are reviewed de novo.” (Negron v. Los Angeles County Civil Service

Com. (2015) 240 Cal.App.4th 874, 881-882, citing Jackson, supra, at p. 902.)

III. Analysis.

Ochoa contends his termination was time barred under section 3304, subdivision

(d)(1), because Bittle launched an investigation of the misconduct on March 25, 2013,

and Levig served the “Notice of Proposed Disciplinary Action—Termination” on

August 11, 2014, after 504 days elapsed.

Respondents insist Ochoa’s misconduct was not discovered until May 6, 2013, the

date Zimmerman authorized the internal affairs investigation. Moreover, they claim the

one-year limitations period was tolled by the criminal investigations in KCSO cases Nos.

SR13-10251 and SR14-16963.

a. The one-year limitations period commenced March 25, 2013.

As noted, before a punitive action can be undertaken against a transgressing

officer, the investigation of the misconduct and requisite notification to the officer must

be accomplished within one year of the public agency’s discovery “by a person

authorized to initiate an investigation . . . .” (§ 3304, subd. (d)(1); see Pedro v. City of

Los Angeles (2014) 229 Cal.App.4th 87, 106 [“[T]he one-year limitations period under

. . . section 3304, subdivision (d)(1) begins to run when a person authorized to initiate an

13.

investigation discovers, or through the use of reasonable diligence should have

discovered, the allegation of misconduct.”].)

The record establishes a KCSO chief deputy, not a sergeant, can initiate an

internal affairs investigation. Nonetheless, a sergeant is empowered to (1) “conduct factfinding”

in connection with purported Policies and Procedures violations to “determine[]

if the allegation[s] [are] criminal or administrative in nature”; and (2) impose certain

forms of discipline (e.g., documented oral counseling, written reprimands) when the

violations are neither “serious” nor “criminal” and do not necessitate an internal affairs

investigation. Clearly, a sergeant is authorized to initiate some sort of inquiry into a

subordinate’s alleged wrongdoing. (Cf. Benefield v. Department of Corrections &

Rehabilitation (2009) 171 Cal.App.4th 469, 476-477 [“no evidence whatsoever” the

officer who was informed of alleged misconduct had any authority to initiate an

investigation].) Hence, the issue is whether this inquiry constitutes an “investigation”

under section 3304, subdivision (d)(1). (See Poole v. Orange County Fire Authority

(2015) 61 Cal.4th 1378, 1384 [“[Where] appeal involves the application of a statute to

undisputed facts, our review is de novo.”]; Richardson v. City and County of San

Francisco Police Com. (2013) 214 Cal.App.4th 671, 692 (Richardson) [“Legal issues

involving the interpretation of . . . section 3304 are reviewed de novo.”].)

The fundamental objective of statutory construction is to ascertain legislative

intent so as to effectuate the purpose of the law. (Los Angeles County Metropolitan

Transportation Authority v. Alameda Produce Market, LLC (2011) 52 Cal.4th 1100, 1106

(LACMTA); Lewis C. Nelson & Sons, Inc. v. Clovis Unified School Dist. (2001) 90

Cal.App.4th 64, 69; see Code Civ. Proc., § 1859.) “The well-established rules for

performing this task require us to begin by examining the statutory language, giving it a

plain and commonsense meaning.” (LACMTA, supra, at pp. 1106-1107; accord, SFPP v.

Burlington Northern & Santa Fe Ry. Co. (2004) 121 Cal.App.4th 452, 469.) “We do not,

however, consider the statutory language in isolation; rather, we look to the statute’s

14.

entire substance in order to determine its scope and purposes. [Citation.] That is, we

construe the words in question in context, keeping in mind the statute’s nature and

obvious purposes. [Citation.] We must harmonize the statute’s various parts by

considering it in the context of the statutory framework as a whole. [Citation.]”

(LACMTA, supra, at p. 1107.)

In common parlance, an “investigation” refers to “a detailed examination or

search, often formal or official, to uncover facts and determine the truth.” (Webster’s

New World Dict. (2d college ed. 1982) p. 741.) POBRA does not explicitly provide its

own specialized definition for the term. (See § 3300 et seq.)9

Its language, however,

indicates its procedural protections only apply to investigations “by [the public safety

officer’s] commanding officer, or any other member of the employing public safety

department, that could lead to punitive action . . . .” (§ 3303, italics added; accord,

Paterson v. City of Los Angeles (2009) 174 Cal.App.4th 1393, 1400.)

On March 25, 2013, Bittle, a sergeant, became aware of Priscilla’s harassment

claim against Ochoa by way of Chaidez’s memorandum. Commensurate with his

authority, he commenced an inquiry “to determine what the nature of the complaint was”

by attempting to contact Priscilla. If Bittle found misconduct that did not rise to a

“serious” or “criminal” level and did not warrant an internal affairs investigation, he had

the power to issue a written reprimand. (See ante, fn. 8; see also Wences v. City of Los

Angeles (2009) 177 Cal.App.4th 305, 317 [written reprimand is a “per se” punitive action



9 Thus, we find unconvincing respondents’ suggestion that Bittle’s “fact finding

inquiry” could not constitute an investigation because, at the outset, he “was unsure if

there were sufficient facts in [Priscilla]’s complaint against [Ochoa] to warrant a more

serious investigation” and “was not certain exactly what to make of the allegations

lodged against [Ochoa].” Obviously, the purpose of such an inquiry is to uncover the

facts and evaluate whether they tend to prove or disprove the allegations. Respondents

even acknowledge “[w]hen . . . Bittle received the memorandum from . . . Chaidez

detailing a citizen’s complaint involving [Ochoa], it was his responsibility to determine if

there was any credence to the claims.”

15.

under POBRA]; Gordon v. Horsley (2001) 86 Cal.App.4th 336, 347 [same].) In other

words, once Bittle launched the inquiry, a punitive action, i.e., a written reprimand, could

have resulted. (See Otto, supra, 89 Cal.App.4th at p. 997 [“[POBRA] does not require a

showing that an adverse employment consequence has occurred or is likely to occur.”].)

Furthermore, “punitive action . . . may exist when action is taken which may lead to the

adverse consequences specified in section 3303[10]

at some future time.” (Id. at p. 996.)

In the instant case, “it is easy to determine that [Bittle’s inquiry] might have led to

punitive action, because it did lead to punitive action.” (Paterson v. City of Los Angeles,

supra, 174 Cal.App.4th at p. 1401.) In accordance with Policies and Procedures No.

D-300 (see ante, fn. 6), Bittle forwarded interoffice memoranda to Hansen, a commander.

Hansen presumably relayed the documentation to Zimmerman, the chief deputy.

Zimmerman evaluated Priscilla’s harassment claim and authorized the internal affairs

investigation that eventually led to Ochoa’s termination. (See Otto, supra, at p. 997 [“It

is sufficient if [a] report’s issuance and delivery to officials ‘may lead’ to [adverse

employment] consequences in the future.”].) The statute of limitations period, therefore,

commenced March 25, 2013.

b. The criminal investigation in KCSO case No. SR13-10251 tolled the

one-year limitations period for at least 143 days.

*

As noted, “[POBRA] requires the tolling of the one-year statute of limitations

while a criminal investigation is pending if the misconduct is the subject of that

investigation.” (Breslin, supra, 146 Cal.App.4th at p. 1078.) On appeal from a trial

court’s ruling as to whether tolling provisions were properly applied to section 3304’s

one-year limitations period, “[t]he fundamental standard of review . . . is substantial

evidence [citation], unless the appeal presents pure issues of law, in which case our



10 See ante, footnote 8.

* See footnote, ante, page 1.

16.

review is independent. [Citations.]” (Parra v. City and County of San Francisco (2006)

144 Cal.App.4th 977, 992-993; see, e.g., Richardson, supra, 214 Cal.App.4th at pp. 693-

698 [applying substantial evidence standard of review].)

On April 9, 2013, Rutledge launched a criminal investigation in KCSO case No.

SR13-10251. On June 13, 2013, he asked the District Attorney to file criminal charges

against Ochoa. On June 21, 2013, the District Attorney rejected Rutledge’s request but

returned the case “for further investigation.” On July 2, 2013, Rutledge resubmitted his

request for a criminal complaint. On July 30, 2013, in connection with the case, Kohler

reviewed Ochoa’s personnel file. She then assigned Caldas to investigate further. His

findings led the District Attorney to forgo prosecution.

The parties agree the criminal investigation in KCSO case No. SR13-10251

commenced April 9, 2013, and continued through July 30, 2013, suspending the

limitations period for 112 days. (See Breslin, supra, 146 Cal.App.4th at p. 1079 [“The

time within which an act provided by law is to be done is computed by excluding the first

day and including the last, unless that last day is a holiday.”]; see also § 6800.) However,

Ochoa contends the “evidence regarding the investigation after [July 30, 2013,] is too

vague to sufficiently establish when the tolling stopped.”

“ ‘Applying the substantial evidence test on appeal, we may not reweigh the

evidence, but consider that evidence in the light most favorable to the trial court,

indulging in every reasonable inference in favor of the trial court’s findings and resolving

all conflicts in its favor. [Citations.]’ ” (Richardson, supra, 214 Cal.App.4th at p. 692.)

“We uphold the trial court’s findings unless they so lack evidentiary support that they are

unreasonable. We may not uphold a finding based on inherently improbable evidence or

evidence that is irrelevant to the issues before us.” (Breslin, supra, 146 Cal.App.4th at

p. 1078.)

The record shows Kohler testified she assigned Caldas to investigate KCSO case

No. SR13-10251 “[p]retty quickly” after she reviewed Ochoa’s personnel file. Caldas

17.

testified he contacted Priscilla and reported his findings to Kohler “two weeks” later.

According to Kohler, at a meeting that occurred “a month or two” after July 30, 2013, the

District Attorney elected to forgo prosecution. On appeal, testimony may be rejected

only when it is inherently improbable, i.e., unbelievable per se, physically impossible, or

wholly unacceptable to reasonable minds. (Nevarez v. Tonna (2014) 227 Cal.App.4th

774, 786; Kolender v. San Diego County Civil Service Com. (2005) 132 Cal.App.4th

1150, 1155.) Nothing compels us to do so here.11

Based on Kohler’s and Caldas’s

testimonies, the court found by a preponderance of the evidence that the criminal

investigation ended sometime after August 11, 2013. The evidence—viewed in the light

most favorable to this finding—demonstrates this investigation concluded between

August 30 and September 30, 2013. Based on a start date of April 9, 2013, and a

conservative end date of August 30, 2013, the investigation suspended the limitations

period for 143 days. Therefore, on August 11, 2014, the date Ochoa was notified of his

proposed termination, 361 days had elapsed.12

Finally, Ochoa complains the court erroneously placed the burden of proving the

limitations period was tolled on him rather than respondents. We need not address this

issue. Even assuming, arguendo, the burden of proof belonged to respondents, we have

found there was substantial evidence Ochoa’s misconduct was the subject of a pending

criminal investigation until at least August 30, 2013. (See Richardson, supra, 214

Cal.App.4th at p. 698.)



11 In his brief, Ochoa highlights the failure of Kohler, Caldas, and the District

Attorney to maintain any records that identified exactly when KCSO case No. SR13-

10251 was rejected. This may be unusual. Nonetheless, “[u]nusual circumstances are

not necessarily inherently improbable.” (People v. Gunn (1959) 170 Cal.App.2d 234,

240; accord, Schaffield v. Abboud (1993) 15 Cal.App.4th 1133, 1142.)

12 Given our disposition, we need not address whether the criminal investigation in

KCSO case No. SR14-16963 further tolled the limitations period.

The judgment is affirmed. Costs on appeal are awarded to respondents County of

Kern and Kern County Sheriff Donny Youngblood.