Judge James C. Chalfant, Case Number: 22STCP03667, Date: 2023-08-17 Tentative Ruling

Petitioner Deputy Sheriff Anthony Paez (“Paez”) seeks a writ of mandate directing Respondent Los Angeles County Civil Service Commission (“Commission”) and Real Parties-in-Interest County of Los Angeles (“County”), the Los Angeles Sheriff’s Department, and Alex Villanueva (collectively, “LASD” or the “Department”) to set aside his 30-day suspension.

The court has read and considered the opening brief, opposition, and reply, and renders the following tentative decision.

Petitioner Paez filed the verified Petition on October 7, 2022, alleging a cause of action for administrative writ of mandate. The Petition alleges in pertinent part as follows.

Paez joined LASD on September 13, 2006. On April 3, 2019, he received notice of the LASD’s intent to suspend him. He filed a grievance pursuant to the LASD Union’s Memorandum of Understanding. Despite his grievance, on August 1, 2019, Paez received notice of a 30-day suspension.

Paez requested an administrative hearing, which a Commission hearing officer held in early 2021. On June 8, 2021, the hearing officer submitted his proposed decision which recommended a 15-day suspension. Both LASD and Paez filed objections and the Commission heard arguments from both parties on April 6, 2022.

On June 23, 2022, the Commission announced amended conclusions of law that overruled Paez’s objections and the hearing officer’s proposed decision and concluding that the 30-day suspension should be sustained. On August 5, 2022, the Commission issued its final decision to that effect.

On November 30, 2022, Paez served LASD with the Petition and Summons by substitute service, effective December 9, 2022.

On December 1, 2022, Paez served the County and Commission with the Petition and Summons by substitute service, effective December 11, 2022.

On December 2, 2022, Paez served LASD Sheriff Alex Villanueva with the Petition and Summons by substitute service, effective December 12, 2022.

On February 7, 2023, the Commission filed notice of no beneficial interest in the outcome of this case.

CCP section 1094.5 is the administrative mandamus provision which structures the procedure for judicial review of adjudicatory decisions rendered by administrative agencies. Topanga Ass’n for a Scenic Community v. County of Los Angeles, (“Topanga”) (1974) 11 Cal.3d 506, 514-15.

CCP section 1094.5 does not on its face specify which cases are subject to independent review, leaving that issue to the courts. Fukuda v. City of Angels, (“Fukuda”) (1999) 20 Cal.4th 805, 811. In cases reviewing decisions which affect a vested, fundamental right the trial court exercises independent judgment on the evidence. Bixby v. Pierno, (“Bixby”) (1971) 4 Cal.3d 130, 143; see CCP §1094.5(c). The independent judgment standard of review applies to administrative findings on guilt in cases involving a law enforcement officer’s vested property interest in his employment. Barber v. Long Beach Civil Service Comm’n, (1996) 45 Cal.App.4^th 652, 658.

Under the independent judgment test, “the trial court not only examines the administrative record for errors of law but also exercises its independent judgment upon the evidence disclosed in a limited trial de novo.” Bixby, supra, 4 Cal.3d at 143. The court must draw its own reasonable inferences from the evidence and make its own credibility determinations. Morrison v. Housing Authority of the City of Los Angeles Board of Commissioners, (2003) 107 Cal.App.4th 860, 868. In short, the court substitutes its judgment for the agency’s regarding the basic facts of what happened, when, why, and the credibility of witnesses. Guymon v. Board of Accountancy, (1976) 55 Cal.App.3d 1010, 1013-16.

“In exercising its independent judgment, the trial court must afford a strong presumption of correctness concerning the administrative findings, and the party challenging the administrative decision bears the burden of convincing the court that the administrative findings are contrary to the weight of the evidence.” Fukuda, supra, 20 Cal.4th at 817. Unless it can be demonstrated by petitioner that the agency’s actions are not grounded upon any reasonable basis in law or any substantial basis in fact, the courts should not interfere with the agency’s discretion or substitute their wisdom for that of the agency. Bixby, supra, 4 Cal.3d 130, 150-51; Bank of America v. State Water Resources Control Board, (1974) 42 Cal.App.3d 198, 208.

The agency’s decision must be based on a preponderance of the evidence presented at the hearing. Board of Medical Quality Assurance v. Superior Court, (1977) 73 Cal.App.3d 860, 862. The hearing officer is only required to issue findings that give enough explanation so that parties may determine whether, and upon what basis, to review the decision. Topanga, supra, 11 Cal.3d 506, 514-15. Implicit in CCP section 1094.5 is a requirement that the agency set forth findings to bridge the analytic gap between the raw evidence and ultimate decision or order. Id. at 115.

An agency is presumed to have regularly performed its official duties (Evid. Code §664), and the petitioner therefore has the burden of proof. Steele v. Los Angeles County Civil Service Commission, (1958) 166 Cal.App.2d 129, 137. “[T]he burden of proof falls upon the party attacking the administrative decision to demonstrate wherein the proceedings were unfair, in excess of jurisdiction or showed prejudicial abuse of discretion. Afford v. Pierno, (1972) 27 Cal.App.3d 682, 691.

The propriety of a penalty imposed by an administrative agency is a matter in the discretion of the agency, and its decision may not be disturbed unless there has been a manifest abuse of discretion. Lake v. Civil Service Commission, (“Lake”) (1975) 47 Cal.App.3d 224, 228. The Commission’s decision must be “an arbitrary, capricious, or patently abusive exercise of discretion” to be overruled by the trial court. If there is “any reasonable basis to sustain it,” the penalty should be upheld. County of Los Angeles v. Civil Service Com. of County of Los Angeles, (“Montez”) (2019) 40 Cal.App.5th 871, 877. “Only in an exceptional case will an abuse of discretion be shown because reasonable minds cannot differ on the appropriate penalty.” Ibid.

In determining whether there has been an abuse of discretion, the court must examine the extent of the harm to the public service, the circumstances surrounding the misconduct, and the likelihood that such conduct will recur. Skelly v. State Personnel Board, (“Skelly”) (1975) 15 Cal.3d 194, 217-18. Neither an appellate court nor a trial court is free to substitute its discretion for that of the administrative agency concerning the degree of punishment imposed. Nightingale v. State Personnel Board, (“Nightingale”) (1972) 7 Cal.3d 507, 515. The policy consideration underlying such allocation of authority is the expertise of the administrative agency in determining penalty questions. Cadilla v. Board of Medical Examiners, (“Cadilla”) (1972) 26 Cal.App.3d 961.

The Peace Officers Bill of Rights Act (“POBRA”) is located at Govt. Code section 3300 et seq and sets forth a list of basic rights and protections which must be afforded to all peace officers by the agencies that employ them. Bagett v. Gates, (1982) 32 Cal.3d 128, 135. The various procedural protections of 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.

“No punitive action, nor denial of promotion on grounds other than merit, shall be undertaken by any public agency against any public safety officer who has successfully completed the probationary period that may be required by his or her employing agency without providing the public safety officer with an opportunity for administrative appeal.” Govt. Code §3304(b). A “‘punitive action’ means any action that may lead to dismissal, demotion, suspension, reduction in salary, written reprimand, or transfer for purposes of punishment.” Govt. Code §3303.

Govt. Code section 3304(b)’s limited purpose is to afford peace officers subject to punitive action an opportunity to establish a formal record of circumstances surrounding his or her discipline and attempt to convince the employing agency to reverse its decision through evidence that the charges are false or through mitigating circumstances. Binkley v, City of Long Beach, (1993) 16 Cal.App.4th 1795, 1806. While the precise details of the procedure required by Govt. Code section 3304(b) are left to local law enforcement, the administrative appeal requires at a minimum an “independent reexamination” of an order or decision made, conducted by someone who has not been involved in the initial determination. Caloca v. County of San Diego, (2002) 102 Cal.App.4th 433, 443-44. The administrative decisionmaker must “set forth findings to bridge the analytic gap between the raw evidence and ultimate decision or order.” Id. at 444.

Continuing Professional Training (“CPT”) is required for certain peace officer and dispatcher personnel who are employed by departments that participate in Peace Officer Standards and Training (“POST”). 11 CCR §1005(d). The purpose of CPT is to maintain, update, expand, and/or enhance an individual's knowledge and/or skills. Id. CPT exceeds the training required to meet or requalify in entry-level minimum standards. Id.

All peace officers below the middle management position are required to complete Perishable Skills training. 11 CCR §1005(d)(4). In lieu of completing the training, the requirement may be met by successfully passing a presenter-developed test that measures the approved training objectives. 11 CCR §1005(d)(4). Perishable Skills training shall consist of a minimum of 18 hours in each two-year period. 11 CCR §1005(d)(4)(A). Of the total 18 hours required, a minimum of 4 hours each is required for Arrest and Control, Driver Training/Awareness, Firearms, and Use of Force. Id. A minimum of two hours is required for Communications. Id.

A deputy-involved shooting resulted in the death of Arturo Cabrales (“Cabrales”) on March 7, 2012. At 2:55 p.m., LASD Homicide Detectives Robert Kenney (“Kenney”) and Joe Espino (“Espino”) reported to the scene and found Cabrales dead. AR 1278.

Members of the LASD Operation Safe Streets and Gang Enforcement Team (“GET”) briefed the detectives and explained that at 2:49 p.m., Deputies Steve Espericueta (“Espericueta”), William Turpin (“Turpin”), and Paez were working that area as a three-man GET team. AR 1278, 1518. The three deputies observed Cabrales with Freddie Solis (“Solis”) at a home inside a wrought iron gate while Jen Ramos (“Ramos”) talked to them seated on a bicycle outside the gate. AR 376-77.

Homicide detectives Kenney and Espino interviewed all three GET deputies within hours of the incident. AR 1093, 1164, 1221. They interviewed other witnesses in the following weeks. AR 1136-37. Pertinent information from the homicide detectives’ witness interviews is as follows.

At the time of his interview, Solis was on probation for receipt of stolen property. AR 921-22. He would remain on probation for one more year. AR 922.

For less than a year before the incident, Cabrales was living with his wife and child at his grandmother’s property. AR 946. Cabrales’ grandmother, Maria De La Cruz, was in Mexico at the time of Solis’s interview. AR 946, 1286.

The three deputies approached Solis and Cabrales and asked if any of them were on probation or parole. AR 968. Solis admitted that he was and Cabrales said he was not. AR 968. The deputies asked if they had any guns. AR 968. Solis lifted his shirt without being asked to show that he did not have a gun. AR 968.

When asked if Cabrales told him not to open the gate, Solis thought he did not but was unsure because everything happened so quickly. AR 974-75. He was focused on the officer saying that he needed to come outside of the gate. AR 975. Cabrales then took off running, maybe because Solis was walking towards the gate and was going to open it and come out. AR 975.

Solis initially denied knowing that Cabrales was a gang member. AR 988. He asserted that he never would have hung out with Cabrales if he knew Cabrales was a gang member that because that would have been a parole violation. AR 988. The interviewer stated that Solis could be honest about Cabrales’ gang status because he was interviewing Solis as a witness and would not violate Solis’ probation. AR 988. Solis then admitted that Cabrales was a Gangsters gang member with the moniker “Ghost,” but he was from a different clique than Solis. AR 988-90. Both Cabrales’s clique, the Gangsters, and Solis’s clique are part of a larger gang called Varrio Watts Grape Street, or WVGG. AR 989.

Solis knew that Cabrales carried guns, or at least that he had a 0.25 silver gun when they used to hang out. AR 990. He did not know if Cabrales had a gun at the time of the incident. AR 990-91. He also did not know if Cabrales had a gun the last time they met, which was two days earlier. AR 991.

When the three GET deputies approached the suspects, the trunk of a nearby car had on it what looked like a bottle of alcohol and cups. AR 1107. Paez asked the two persons inside the gate if they were hanging out and drinking, which they confirmed. AR 1107, 1110. Deputy Espericueta approached Ramos on his bike while Paez asked Solis and Cabrales to open the gate and step outside. AR 1107, 1109-10.

A hostile Cabrales replied “Fuck you guys, fuck no, get the fuck out of here.” AR 1109. At the same time, Solis said that the deputies could come in and moved to slide the gate open. AR 1110. Paez began to walk towards the opening Solis made, but Cabrales held the gate in place to keep Solis from opening it. AR 1110.

As Paez walked through the fence line, Cabrales adopted an expression Paez interpreted as startled or scared. AR 1114-15. He fast-walked northeast towards the front of his vehicle, which prompted Paez to yell for him to put his hands up. AR 1115, 1117. Cabrales ignored him and continued to walk towards his car and a second gate on the side of the house. AR 1116-17. Paez saw that Cabrales had a gun holster with a black handgun on his right side. AR 1116, 1118, 1122. Paez started to yell “417” to warn the other deputies about the gun. AR 1122. By this point, Paez had his gun out. AR 1118.

As Paez kept telling Cabrales to put his hands up, Cabrales pushed the second gate open and out towards the street. AR 1118. Paez followed him partway around the corner and continued to command Cabrales to raise his hands. AR 1118, 1133. Cabrales turned to Paez and pulled out his weapon as he did so. AR 1118. Fearing for his own life and the lives of his GET partners, Paez fired three to four shots and Cabrales fell to the ground. AR 1118.

Turpin has been with GET for almost three years. AR 1147. When the GET deputies first arrived at the house, some alcohol and cups were on the back of a parked car. AR 1146. Turpin saw that Solis had a “South side” tattoo on the back of his hands, which made him suspect that Solis was in the Southsiders gang. AR 1147. When asked, Solis said that he no longer was a member of the gang. AR 1147.

Turpin asked Solis to open the gate, and he was very cooperative. AR 1145. Solis held his hands up as he started to walk out and open the gate. AR 1145, 1147. Solis started to slide the gate open, but Cabrales stopped him. AR 1145, 1147. Cabrales said “Fuck you, you can’t come in here” and “This is my house.” AR 1145. Solis still managed to get the gate open enough to get out and walk towards the deputies, and he did not close it behind him. AR 1148.

Cabrales then began to walk towards the back of the house. AR 1145. Paez asked him to stop so they could talk, but he refused and kept walking back. AR 1146.

On September 18, 2012, the District Attorney issued a Letter of Opinion that Paez had acted lawfully in self-defense. AR 1518-21. The letter stated that, while Deputy Espericueta patted Ramos down on his bike, Deputy Turpin asked Solis to step outside to talk. AR 1519. Solis agreed and walked toward the driveway gate with his hands in the air. AR 1519. Cabrales yelled to Solis that he did not have to do that, and that Turpin could not come in, cursing with both statements. AR 1519. Solis still complied with the order and opened the gate, but Cabrales kept him from opening it further. AR 1519. He then looked scared and walked away as Paez walked through that gate. AR 1519. Cabrales pointed his gun at Paez, who believed Cabrales was about to shoot him and fired six times. AR 1519.

The District Attorney concluded that the GET deputies contacted the males to investigate possible gang activity and public drinking violations. AR 1521. Cabrales did not comply, and Paez saw a gun holster on Cabrales’ hip as he turned away. AR 1521. Paez commanded Cabrales to stop walking away and show his hands, but Cabrales instead pointed a weapon at Paez. AR 1521. This put Paez in fear of great bodily injury or death, so he fired his weapon in self-defense and ended the threat. AR 1521. The District Attorney declined to take further action on the incident. AR 1521.

LASD’s Internal Affairs Bureau (“IAB”) issued an investigative summary that summarized the witness statements. AR 1074-91. Paez remained employed from the end of the criminal investigation until February 27, 2013. At that point, he was fired for his membership in a group of deputies called the Jump Out Boys. See AR 98; Pet. Op. Br. at 4.

On August 14, 2013, the Executive Force Review Committee (“EFRC”) issued findings that the force used against the uncooperative and armed Cabrales was reasonable and justified. AR 1053-54. However, Paez’s tactics were not within LASD policy. AR 1054. The EFRC determined that Paez violated LASD Manual of Policy and Procedures (“MPP”) section 3-01/050.10, Performance to Standards. AR 1054.

Paez displayed a lack of knowledge about (1) his ability to enforce the city or county statutes regarding drinking an alcoholic beverage within the curtilage of private property, and (2) his authority to enter a fenced-in yard within the curtilage of a residence without the owner’s permission or a legal privilege. AR 1054-55. Specifically, Paez contacted and tried to detain Cabrales within the curtilage of private property without reasonable suspicion or probable cause of any criminal act. AR 1055. Paez entered a gated area within private property after Cabrales denied access, which was within Cabrales’s authority. AR 1055. Paez had no permission, reasonable suspicion, or probable cause that a crime had been committed. AR 1055.

Paez’s failures resulted in a tactical incident that cost Cabrales his life. AR 1055. Based on these facts, the EFRC recommended Paez’s discharge and a tactical debriefing of the other deputies regarding the unique circumstances of the incident. AR 1055.

Despite the EFRC’s recommendation of discharge, LASD took no action because Paez already had been discharged for his membership in the Jump Out Boys. See AR 99, 681. Paez appealed that discharge and the Commission ultimately decided that he should not be discharged but rather suspended for 15 days. See AR 683.

Before the conclusion of Paez’s appeal, LASD decided to reopen its investigation of the March 7, 2012 shooting. See AR 99. According to the testimony of Chief Chris Marks (“Marks”), he did not think it appropriate to discharge Paez based on the EFRC findings without giving him an opportunity to explain his legal authority for entering the yard. AR 363. Therefore, IAB interviewed Paez on November 19, 2018. AR 746.

At his IAB interview six years after the shooting, Paez stated that he, Espericueta, and Turpin were in a patrol car and the first person he saw was Ramos on his bike. AR 751-52. Deputy Espericueta contacted Ramos while Turpin and Paez contacted the two individuals in the driveway, Solis and Cabrales. AR 752.

There were a few alcoholic beverages and cups on the vehicle parked in the driveway. AR 752. When asked, Solis and Cabrales admitted that they had been drinking, although Paez did not remember whether he saw them drink. AR 752, 756. Paez asked if they were on parole or probation. AR 752. Solis admitted that he was on probation. AR 752, 758.

Solis went to open the gate so that the deputies could come in. AR 752, 758. However, Cabrales tried to keep the gate closed. AR 759. Paez did not know whether Solis had the authority to let them in or Cabrales had authority to keep them out. AR 758-59.

Solis opened the gate and Paez walked in to contact both of them. AR 752-53. While Turpin talked to Solis, Cabrales began to walk away. AR 760. He walked around the side of the vehicle in the driveway with the alcohol on top of it. AR 753, 760. Paez could not see him from the other side of the car, so he told Cabrales to put his hands up and stop. AR 753. Cabrales ignored the commands and continued to walk around the side of the car. AR 753. That is not normal behavior, and Paez could not know if Cabrales was eating something or holding a gun. AR 770.

Cabrales eventually walked around the car and Paez was directly behind him. AR 753. At this point, the two were parallel to each other and Paez saw Cabrales’s holster. AR 753. Paez started to yell “417, 417, 417, the guy's got a gun” so his partners could hear. AR 753-54. Paez also told Cabrales to stop unlatching the second gate that was in front of him. AR 754. Cabrales ignored the order, opened the gate, and walked a few feet down the side of the walkway while Paez followed. AR 754.

Just after Paez passed the threshold of the second gate, Cabrales pulled his gun and turned to Paez. AR 754. Paez fired. AR 754. He then took cover and Turpin called for Espericueta to contact dispatch for backup. AR 754-55. By this point, Paez and Cabrales were a bit closer to each other than when the interaction began. AR 768.

Paez stated that he was investigating Cabrales when he walked through the gate. AR 773-74. In response to a question whether Cabrales was “arrestable” as he walked away, Paez said that he could have been arrested for drinking in public. AR 773-74. Cabrales and Solis had admitted that they had been drinking. AR 775. In Paez’s mind, the driveway was an open public area because people could see them from the other side of the gate. AR 779. Despite the fact that an officer must observe a misdemeanor in order to make a warrantless arrest, Cabrales could have been arrested for drinking in public because they had admitted to drinking even though Paez did not observe it. AR 774-75. If Cabrales had stopped when Paez ordered him to do so, Paez would have cited him for whatever crime he fulfilled the elements of under the county or city municipal code. AR 778. Paez could not say what that crime would be. AR 779.

Solis would be violating his probation by drinking in public. AR 775. Solis also would be in violation of his probation if either of the people he was hanging out with were active gang members. AR 775. LASD deputies always have legal standing to detain and check if a probationer is complying with the terms of probation. AR 775. Solis gave them consent to come in for that reason. AR 775. The GET deputies planned to check for warrants and any tattoos. AR 777.

LASD defines a foot pursuit as chasing a feeling or felonious suspect to catch them. AR 768. Paez did not consider this a foot pursuit because he was not trying to catch Cabrales; he was just trying to keep him in view because his hands were not visible. AR 768. Paez never closed the distance between them, but he never lost sight of Cabrales entirely either. AR 768.

In the aftermath of the incident, Paez got a personal email from his captain saying that he acted within the law and did a good job. AR 756, 809. A lieutenant later told Paez the same thing. AR 757.

As of this interview, Paez had difficulty remembering a lot of what happened in full detail. AR 772. Even after he reviewed the transcript of his previous interview, he did not remember everything. AR 772. Nothing really stood out as something he should not have done, except for a few commands where he used profanity in an attempt to deescalate the situation. AR 772-73.

On March 28, 2019, Detective Division Chief Patrick Nelson (“Nelson”) issued a memorandum in which he decided to suspend Paez for 30 days. AR 1051. His decision was based on part on Paez’s two prior 15-day suspensions. AR 1050. Between 2010 and February 2012, Paez joined the Jump Out Boys, a clique with a creed and tattoo contrary to LASD’s mission statement. AR 1050. Separately, on February 2, 2012, Paez received a 15-day suspension for conducting an improper detention and search of Shawn Nee (“Nee”) and his property. AR 1050-51. Paez also called Nee a derogatory name during that encounter. AR 1051.

On April 3, 2019, LASD issued a Letter of Intent to suspend Paez for 30 days. AR 1033-38. The letter cited a violation of MPP section 3-01/050.10, Performance to Standards. AR 1033. Paez displayed a lack of knowledge about (1) his ability to enforce the city or county statutes regarding drinking an alcoholic beverage within the curtilage of private property and/or (2) his authority to enter a fenced-in yard within the curtilage of a residence without the owner’s permission or a legal privilege. AR 1033.

On August 1, 2019, LASD issued a Letter of Imposition which imposed a 30-day suspension. AR 1040-42. The letter explained that, although Paez had exercised his right to respond to the Letter of Intent, the Department had decided to implement the recommended 30-day suspension without pay, effective August 5, 2019. AR 1040.

The Letter of Imposition again cited a violation of MPP section 3-01/050.10, Performance to Standards. AR 1041. The letter explained that Paez had displayed a lack of knowledge about (1) his ability to enforce city or county statutes regarding drinking an alcoholic beverage within the curtilage of private property and/or (2) his authority to enter a fenced-in yard within the curtilage of a residence without the owner’s permission or a legal privilege. AR 1041.

These conclusions were supported by the following facts. Paez contacted and tried to detain Cabrales within the curtilage of private property without establishing reasonable suspicion or probable cause of any criminal act. AR 1041. Paez entered a gated area within private property after Cabrales denied access, which was within Cabrales’s authority to do. AR 1041. Finally, Paez had no permission, reasonable suspicion, or probable cause that a crime had been committed. AR 1041.

On April 6, 2019, Paez grieved the substance of Chief Nelson’s March 28, 2019 memorandum. See AR 100. In a grievance presentation to Chiefs Marks and Nelson, Paez asserted that although he was questioned by IAB about his treatment of Nee in 2012, no discipline had been imposed. AR 860-61. Despite this fact, LASD used the Nee incident to justify the 30-day suspension in connection with the Cabrales shooting. AR 861.

On July 17, 2019, Paez also grieved the Nee matter on the basis that he had never been shown the supporting documents and had been denied an opportunity to contest it. AR 100.

On October 29, 2019, Chief Nelson agreed that the 15-day suspension for Nee’s detention and search was improper where Paez had no opportunity to dispute it as required by POBRA. AR 675. Therefore, Nelson revised Paez’s disciplinary record to read “Founded, no Discipline.” AR 676. Nelson still believed that 30-day suspension in connection with Cabrales’s death was proper. AR 676.

On July 30, 2020, the superior court granted Paez’s petition for a writ of mandate setting aside the Commission’s decision to impose a 15-day suspension based on Paez’s participation in Jump Out Boys. AR 679-80, 691. The Commission had ruled that LASD failed to show that Paez knew of the group’s creed or espousal of unlawful policing. AR 679. Without that, LASD has essentially punished Paez for either having a tattoo or being part of a group without knowledge of its inappropriate mission. AR 679.

Paez appealed his 30-day suspension in connection with the Cabrales shooting. AR 1-3. The Commission granted an appeal hearing. AR 18. The Commission’s hearing officer heard the case in the early months of 2021. AR 171. Paez submitted the investigative interviews of Solis and Ramos as part of his evidence. AR 916, 999. Pertinent testimony is as follows.

Marks is a deputy sheriff with the rank of Chief. AR 316. The State requires peace officers to go through 24 hours of CPT training every two years. AR 320. CPT includes lectures on search and seizure. AR 320. Officers must also keep abreast of current laws and study changes in laws to inform decisions on the field. AR 320.

Nelson was LASD’s decisionmaker for Paez’s discipline. AR 346. IAB investigates any issue and submits the package to the EFRC for consideration. AR 346. Chief Nelson told Marks that there should be consideration of a discharge and asked Marks to review the package, which included the Homicide Bureau investigation, its interviews, and EFRC findings. AR 347.

GET officers are not assigned to a specific station. AR 375. They instead go on saturation patrols countywide to gather gang intelligence. AR 375. Their orders are to contact people who look like gang members. AR 375. To that effect, job training typically emphasizes baggy and oversized clothing and short or bald hair. AR 376.

In this case, the GET patrol first noticed Ramos on his bike, a common vehicle for gang members. AR 376-77. All three deputies agreed to contact Ramos to see what gang he is in and with whom. AR 377. The stop was proper for this purpose. AR 377. The officers only noticed Solis and Cabrales in the driveway after they stopped Ramos. AR 377-78.

Everyone that IAB interviewed admitted that there was open alcohol on the trunk of the parked car, but none of the deputies saw it in the suspects’ hands. AR 349. The suspects admitted that they were drinking. AR 349, 378. The fact that no deputy saw anyone drinking alcohol was relevant insofar as Paez suggested that a violation of law for drinking in public justified detention. AR 351. An ordinance prohibits drinking alcohol in a public place, but people can drink on their own property, including a fenced-in front yard. AR 351.

Deputy Espericueta began a pat-down search of Ramos while Turpin and Paez engaged the other two males. AR 349. Deputy Turpin asked one of them (Solis) to come outside because there were gang-related tattoos on the outside of his hands. AR 349. Solis started to walk over to the fence when Cabrales objected with profanity and said that the deputies could not come in. AR 349. Cabrales said that it was his house and physically held onto the gate to prevent it from rolling open. AR 350.

At that point, Paez decided to enter through the opening of the gate and into the yard. AR 350. Cabrales either walked or ran towards the side of the house that leads to the back. AR 350. Paez followed him and ordered him to stop and show his hands. AR 350. During this pursuit, Paez saw a holster under Cabrales’s untucked shirt on his waistband. AR 350. At some point, Cabrales reached the side of the house, turned to Paez, and grew his gun. AR 350. Afraid for his life, Paez shot Cabrales and killed him. AR 350.

After reviewing the investigation file, Marks did not feel comfortable discharging Paez without further interview. AR 363. LASD had not heard from him on what reasonable suspicion he had to penetrate that curtilage line through the fence to effect a detention of Cabrales. AR 363. An IAB interview would give Paez that opportunity. AR 363.

Marks believed that there was no IAB interview of Paez. AR 391-92. He was shown to be wrong. AR 392. During his IAB interview, Paez never said that he heard Cabrales say the house was his, though Turpin said he did. AR 402, 406-07. Counsel asked Marks whether it was reasonable to think that, assuming arguendo Cabrales had the authority to prohibit Paez from coming inside, he revoked that prohibition when he saw Paez come in and then turned and walked away. AR 406. Marks testified that this was not implied consent. AR 406.

The nexus that led to the shooting was Paez’s decision to enter the yard without consent or reasonable suspicion. AR 410. Although Turpin did the same, neither he nor Espericueta were disciplined. AR 410, 418. Paez entered the yard without consent or reasonable suspicion and attempted to detain Cabrales without reasonable suspicion. AR 410-11.

Paez gave Cabrales commands to stop even before he saw Cabrales’s holster. AR 411. Had Paez known Cabrales was armed to begin with, that would have provided the reasonable suspicion needed to detain him. AR 416. But he did not have this suspicion when he crossed the curtilage into the yard. AR 416. There is no constitutional requirement that one officer stop another from violating the constitution. AR 417-18.

For progressive discipline purposes, Marks considered Paez’s past discipline when he decided to suspend him for 30 days. AR 438.

Deputy Espericueta has worked with Paez a few times and considers him good at his job. AR 514-15. GET members receive constant training to learn how to encounter and identify gang members, recent shootings, and recent murders. AR 476. GET’s mission is to identify criminal activity caused by gang members and gang violence. AR 477. It attempts to reduce the violence via a saturated presence. AR 477. GET members try to speak to gang members to build a rapport and gather intelligence. AR 477. They study the area of murders and robberies and try to disrupt criminal activity. AR 477.

When the GET group first passed the scene, Espericueta noticed Ramos on his bike and the two other suspects inside a yard directly in front of Ramos. AR 485-86. Espericueta went to talk to Ramos while his partners talked to the other two. AR 486. Espericueta did not pay attention to Paez’s conversation with Solis and Cabrales. AR 487. GET protocol is to watch each other’s back while they are speaking to different persons. AR 487.

Ramos was very cooperative and transparent that he had been drinking with Solis and Cabrales. AR 488. At some point, Espericueta heard one of the suspects inside the yard say “Fuck you. You can’t come in.” AR 491. Within 30 seconds of the first “Fuck you,” Espericueta heard gunfire. AR 494-95.

Most of the people Espericueta interacts with as a GET officer are very cooperative and agree to let him check what he asks. AR 499. 90% percent of the time when a person is on probation or parole, there is a search condition that allows an officer to check them at any time. AR 500-01. Deputies typically ask why that person is on probation to determine whether that person’s probation has a search condition. AR 501. Search conditions also allow an officer to approach the person on probation inside the yard. AR 519. If someone who admits they are on probation lifts their shirt for inspection, it suggests that the person does in fact have a search condition. AR 501-02. Probationers know they have search conditions and can be searched at any time. AR 501-02.

Cabrales’s “fuck you” did not tell Espericueta that he was refusing consent to enter the yard. AR 512. It just meant that he was trying to hide something. AR 512. Solis and Ramos were both saying everything was “cool” and that they had no problems. AR 516.

Talking to someone on another side of a fence is usually dangerous because an officer does not know what is on the other side. AR 502. The general approach is to deescalate the situation, build a rapport, and get permission for a pat-down search. AR 503. If a person says “come on in” and opens the gate, that tells Espericueta that he has consent to come in. AR 517-18. If another person says “Fuck you” at the same time but does not close the gate, it does not negate the consent. AR 518.

GET’s mission is gang suppression. AR 525. The goal is to identify active gang members, talk to them, and find out about any involvement in criminal activity. AR 525.

99% percent of the time that someone is on probation or parole, there is a search condition that allows an officer to check them at any time. AR 533. Search conditions also allow an officer to approach the person on probation inside the yard. AR 533.

In the time that Turpin and Paez worked together, Paez observed Fourth Amendment requirements and LASD policy when contacting people on the street. AR 533-34. Paez was a hard-working deputy whose performance never caused concern. AR 534.

The incident occurred around 2:00 or 3:00 p.m. AR 534. Turpin could not remember why Ramos drew Turpin’s attention when the GET passed him. AR 526. In any case, all three GET members agreed to talk to him. AR 527. They drove to where Ramos was standing and noticed Solis and Cabrales in a nearby driveway. AR 527. They were 20 feet apart, close to the fence, and right behind the gate, speaking to Ramos over it. AR 540.

Turpin walked up to them, with the closed gate in between, while Espericueta spoke to Ramos. AR 527, 538. At this point, Turpin knew that he did not have the lawful authority to open and walk through that gate. AR 528. Turpin asked what was going on. AR 528. Solis answered that they were just hanging out and having some drinks. AR 528. Turpin noticed that Solis had a tattoo on the top of his hands that said “South Side.” AR 528. Turpin knew that was a gang tattoo and asked if Solis was a South Side member. AR 528. Solis said that he no longer was. AR 528. Turpin did not remember asking if Solis was on probation or parole, but that is a normal question. AR 530.

Turpin would have rather not had the gate separating him from Solis and Cabrales. AR 529. If Solis had a weapon, the gate would keep Turpin from finding it via pat-down. AR 529. He asked Solis if he could open the gate and talk to Turpin. AR 529. Solis was cooperative, said he had no problem and agreed to open the gate and come out to talk. AR 530, 542-43.

Solis never asked Turpin to come inside. AR 544. Still, Turpin believed that either he could now come in to talk or that Solis would come out to talk. AR 544-45. Turpin did not go in because it looked like Solis would come out to talk, which was all Turpin wanted. AR 545. So, Turpin did not enter the property at that point. AR 545.

Paez was speaking to Cabrales, who was about 20 feet away from Solis. AR 537. Up to this point, Turpin had no paid attention to what Paez said to Cabrales. AR 530. While Solis began to open the gate, Cabrales became upset and uncooperative. AR 531.

Turpin first testified that Cabrales told Turpin “Fuck you” and that the GET officers could not come in. AR 531. Turpin later clarified that Cabrales told Solis that he did not have to go out there. AR 546. Cabrales was objecting, but Turpin did not remember him saying that they cannot enter “my” house. AR 546. However, the transcript from Turpin’s IAB interview showed that he said that Cabrales said “This is my house. You can’t come in here.” AR 547-48. Turpin did not remember the words but trusted that his previous statement was accurate. AR 547.

Turpin admitted that Cabrales was expressing that the property was his home. AR 548. Consent to enter generally has to come from a homeowner, and it can be revoked. AR 549. If someone says police can come in and another person says they cannot, the consent has been revoked. AR 549. When Solis moved the open the gate, Turpin believed they had consent and that Solis had authority to give it. AR 550, 552. Solis never said whether he was the homeowner. AR 550-51. Turpin did not hear whether Cabrales revoked consent during the incident. AR 551. Nor did he interpret what Cabrales said as revocation of Solis’s consent. AR 552.

Solis opened the gate wide enough for someone to walk inside. AR 531. Cabrales never closed the gate. AR 532, 553. From what Turpin knew, this was enough consent to open the gate and enter. AR 531-32. Paez walked in just after Solis walked out. AR 531, 555. Within 15 seconds of this, Turpin heard the gunfire. AR 532.

Mark Sanchez (“Sanchez”) is a defense representative for Associates for Los Angeles Deputy Sheriff's Association (“ALADS”). AR 560.

Paez had a previous 15-day suspension. AR 564. That 15-day suspension was for detaining a person who was taking photographs of some minors out of the train station stops. AR 564. However, Paez had already been fired for another offense and never had an opportunity to grieve the 15-day suspension. AR 565.

Paez did not know about the 15-day suspension when the 30-day suspension was proposed for this matter. AR 565. A grievance was filed on Paez’s behalf for the 15-day suspension. AR 566-67. The outcome of the grievance was that the 15-day suspension was changed in the LASD database, PRMS, to a founded investigation with no discipline. AR 566-67.

Paez was discharged in 2013. AR 579. In September or October 2018, the Commission reinstated Paez into LASD’s Operation Safe Streets Bureau. AR 579. This was the group to which Paez belonged for about two years before Cabrales’s death. AR 579.

GET often rotated partners while Paez was a member. AR 579. He could not remember if Espericueta and Turpin were his partners on any day before March 7, 2012, but they were his partners on that day. AR 579-80. The GET detail’s job was to remove firearms from active gang members and from the streets. AR 582-83. They also sought to help reduce homicides and gang-involved violent crimes. AR 583.

When they saw Ramos, they decided to contact him as part of that mission. AR 583. Paez talked to both Solis and Cabrales. AR 586. He asked how they were doing and if they were just outside having a drink. AR 586. Solis and Cabrales responded that they were just hanging out and drinking. AR 586-87.

Paez asked whether either one was on probation or parole, a common question even outside of GET. AR 587. Solis admitted that he was on probation. AR 589. Paez did not recall Cabrales responding to the question. AR 589.

Paez asked for consent to come onto the private property to make contact and to verify that Solis was in compliance with his probation terms. AR 589. Probation terms typically include not being in contact with other gang members, as well as not having any contraband or illegal drugs in that person’s possession. AR 590. Because Solis was on probation, Paez believed he could come onto the property even without Solis’s consent. AR 590-91. He still asked as part of common practice for any conversation. AR 591.

While Solis responded that it was cool and the officers could come in, Cabrales responded with something close to “Fuck you” and a demand to get out of there. AR 591-92. Cabrales never said that it was his yard or house. AR 592. Solis remained cooperative as he walked to the gate and started to open it. AR 592. Paez felt that Solis asserted through these actions that he had the authority to let Paez in. AR 597.

Cabrales stopped the gate from opening, but he did not try to close it. AR 593, 598. There was enough room for someone to walk through. AR 594. Paez interpreted Cabrales’s actions as trying to avoid detection. AR 598. Paez could not recall training specific on what to do when two people who both have apparent authority over property disagree on whether an officer can enter. AR 598-99.

Paez believes that Solis opened the gate to let Paez and Turpin come onto the property to contact him. AR 619-20. Solis did not come outside the gate, and he said something to the effect that Paez and Turpin could come in. AR 619-20. Cabrales never expressly said that they could not come in; his demeanor just suggested that he was avoiding detection. AR 621.

Paez entered the gate because Solis had the authority to consent and did so. AR 599. Solis also was on active probation, and they had legal standing to search him. AR 599. During his 2018 IAB interview, Paez did say that he entered the gate because of his reasonable suspicion that one of them was drinking in public. AR 599-600. He did not go in the gate because he believed Cabrales to be arrestable, however. AR 600. While the possibility that the subjects were public drinking was the reason Paez chose to enter the property, that is not why he thought he had legal authority to do so. AR 604. Paez felt he had standing to enter the property because of both Solis’s probation and his consent, which enabled them to search him. AR 599. He was not trying to mislead IAB but rather attempting to explain why he was entering the property as opposed to his legal authority for doing so. AR 604.

He could not investigate that from outside of the gate because he needed to verify Solis’s and Cabrales’s identities and ages. AR 605. Officer safety protocol also requires an officer to ask for consent to check if the individual with whom the officer is speaking has any weapons. AR 606.

The person who has authority over the home has the right to consent. AR 623. After someone who can give consent does so, the person who has authority to consent can revoke such consent. AR 623. He did not recall that either Cabrales or Solis said that they owned the house. AR 622. Paez assumed that, because Solis asserted the authority to let them in, Cabrales did not have the authority to revoke consent. AR 624. In any case, they did not need Solis’s consent because of his probation. AR 624.

On June 8, 2021, the hearing officer issued a Proposed Decision recommending a 15-day suspension instead of a 30-day suspension. AR 97, 114.

The allegations at issue were that Paez (1) contacted and attempted to detain Cabrales within the curtilage of private property without reasonable suspicion or probable cause as to any criminal act, (2) entered a gated area within private property after Cabrales denied access, as was part of his authority, and (3) entered fenced and gated area of private property without permission, reasonable suspicion, or probable cause that a crime was committed or in progress. AR 99.

There was no dispute that Paez did not have a warrant to search the property. AR 103. LASD asserted that he lacked lawful consent to enter the property, lacked reasonable suspicion or probable cause of a crime, and should not have entered the curtilage of the residence. AR 103.

The hearing officer agreed that Paez lacked consent to enter the property and that he did not have a reasonable belief that a crime was being committed at the time. AR 104.

The hearing officer found Paez’s testimony to be inconsistent with his comments to IAB during the investigation. AR 104. Although the other two GET deputies gave testimony several years after the events in question, they are unbiased, and the hearing officer gave their testimony more weight. AR 104.

Paez testified that he engaged in open discussion with both Solis and Cabrales. AR 104. He asked if they were outside, hanging out and having drinks, and he received a cordial confirmation. AR 104. This makes sense from Solis, but Paez’s later testimony suggests that Cabrales was never as copasetic. AR 104. He instead said “Fuck you” multiple times. interspersed with “Get out of here.” AR 104-05.

The officers agree that the question about whether Solis and Cabrales were on probation or parole was a common GET practice. AR 105. However, while search conditions are a common probation term for gang members, they are not universal. AR 105. Paez never asked Solis if his probation included a search condition. AR 105.

Paez admitted that he never heard Cabrales invite the deputies into the yard or heard Solis say that he owned or resided in the house. AR 105. Paez still believed he had legal authority to walk through the open gate because of Solis’s consent. AR 105.

Although Ramos told Espericueta “We're just here drinking,” he never said which of the three men were drinking. AR 105. Nor did the GET see any of the suspects actively drinking. AR 105. After Ramos consented to a pat-down, Espericueta heard either Solis or Cabrales say “Fuck you, you can't come in.” AR 105-06. Espericueta urged Ramos to allow himself to be placed in the patrol car for his safety. AR 105-06.

LASD training teaches officers that they need to have reasonable suspicion of an active crime to enter property. AR 106. Espericueta did not know of any such suspicion, but he followed Paez and Turpin into the gate on the assumption that they knew more than he did. AR 106. In his experience, the words “fuck you” from a civilian do not mean consent to whatever the officer just asked. AR 106. That said, those statements do not change the fact that opening a door to let someone in constitutes consent. AR 106.

Turpin testified that he talked to Solis while Paez talked to Cabrales 20 feet away. AR 106. When asked what he was doing, Solis responded that he was hanging out with Cabrales and Ramos, and that the three were having drinks. AR 106. Turpin asked Solis “hey, can you come talk to me?” but did not ask specifically if the officers could come inside the gate. AR 106. Solis was cooperative. AR 106. He put his hands up and said he’ll come out and that he “got no problems.” AR 106.

As Solis began opening the gate, Cabrales said “You can't come in here. Fuck you. This is my house. You can’t come in here.” AR 107. Cabrales continued to say those things as he stopped Solis from opening the gate any wider. AR 107. Turpin still interpreted the partial opening as consent that the deputies could enter the yard. AR 107. He did not interpret Cabrales’s interference as revocation of consent. AR 107. Solis crossed the gate to the patrol vehicle while Paez walked through it the other way to enter the yard. AR 107.

The constitutional standard is whether it was reasonable for Paez to believe he possessed legal consent when he walked through the gate. AR 108. Nothing in Espericueta’s testimony suggests that he knew any facts from which to conclude that the deputies had consent. AR 108. Turpin seemed genuine when he testified that Cabrales’s anger and use of profanity toward the deputies did not show revocation of Solis’s apparent consent. AR 108. However, that subjective testimony is only tangentially related to whether a reasonable deputy in Paez’s shoes would have entered the curtilage under the circumstances as known to him at that time. AR 108.

Although Solis’s actions may have reasonably led Paez to believe he had Solis’s consent to enter the yard, Solis never expressly informed the deputies that he was the owner or a resident with authority to grant consent. AR 108. It was only reasonable to infer that for a few seconds, until Cabrales shouted a profanity twice and kept Solis from opening the gate any wider. AR 108. If Cabrales was just Solis’s guest, he would be unlikely to override Solis’s actions as to the property. AR 108. At a minimum, his actions should have led Paez to question if both Cabrales and Solis were owners or residents. AR 108.

At that point, a reasonable deputy would have questioned whether he had consent to enter the yard. AR 109. He would have attempted to determine who has a possessory interest. AR 109. Paez took no such step. AR 109. Turpin also interpreted Solis’s actions as consent, and he was closer to the gate than Paez. AR 109. If Paez was the first one through the gate, that means Turpin hesitated when Paez did not. AR 109.

The argument that Paez needed to investigate if Solis and Cabrales were drinking in public was unpersuasive. AR 109. He said that he needed to see if they were of the legal drinking age and whether they resided in the residence. AR 109. He also said that he needed to be inside of the gate for safety reasons. AR 109. Paez never explained why being outside the gate was a safety issue and his answers on that point were circular. AR 109.

A reasonable deputy would not have entered the yard to investigate a misdemeanor drinking in public. AR 109. Ramos was the only one of the three men who was on public property, and the photographic evidence suggests only two of the three were drinking. AR 109-10. The pictures show two glasses instead of three, and only one glass had any liquid. AR 110. As Espericueta did not detect alcohol on Ramos’s breath, the evidence shows that the only man on public property was not drinking. AR 110.

If Paez believed that illegal drinking had occurred, it would mean that he did not know that no city or county ordinance prohibits drinking inside a fence surrounding private property. AR 110. Ignorance of the law is not an excuse. AR 110. This leaves only the belief that Solis violated probation by consuming alcohol as the explanation for crossing the curtilage. AR 110. Paez never asked Solis if his probation prohibited alcohol consumption, and Paez did not explain why he would need to cross the curtilage to check if Solis was of legal drinking age. AR 110.

LASD proved two of the three allegations against Paez. AR 110. The question then was whether 30-day suspension was proper. AR 110. Insofar as any discipline was based on Paez’s membership in the Jump Out Boys, it was patently improper because he was ultimately exonerated of the charges. AR 110-11.

The hearing officer was not sure if Chief Nelson expressly rejected Chief Marks’ reliance on the Nee misconduct as his rationale for halving the 30-day suspension. AR 101. Chief Nelson determined that the disciplinary action concerning Nee was “founded, no discipline.” AR 111. He followed this finding with a question to Paez’s representative, Sanchez, whether he would prefer to have the disposition sheet changed to remove the reference to a previously founded investigation, suggesting that Nelson meant that a 30-day suspension was still appropriate. AR 101.

Chief Nelson did not testify, but Chief Marks did. He testified that he understood Chief Nelson removed the 15-day penalty for the Nee matter because a grievance was partly sustained. AR 101. When asked if Paez had any prior discipline, Chief Marks testified that he had no punishment but founded policy violations which was one of the factors he used to come to the 30-day recommendation. AR 102. Marks testified that the Jump Out Boys issue did not enter into his recommendation to former Chief Nelson of a 30-day suspension for this case. AR 102.

The hearing officer concluded that LASD handled the March 7 2012 incident and other events concerning Paez “very questionably”. AR 103. It is clear that the Jump Out Boys membership could not be used against him because he was exonerated. AR 110-11. The hearing officer did not know if the “founded, no discipline” determination for the Nee matter violated Paez’s POBRA rights. AR 111. In any case, it was inconsistent with concepts of the due process owed to non-probationary public employees. AR 111. Put another way, LASD cannot rely on the Nee finding as progressive discipline because that would be an oxymoron where no discipline was imposed. AR 111.

LASD also argued that a 30-day suspension is appropriate even without consideration of prior discipline because Paez’s failure to abide by County policy and the Fourteenth Amendment led to Cabrales’s death. AR 111. Given that Cabrales acted belligerently from the start and had a firearm, it is conjecture to conclude that he would not have shot someone if the deputies remained behind the fence. AR 111.

Without the prior discipline, the question becomes what level if discipline is appropriate. AR 111. LASD suggested that the 30-day suspension was appropriate at the time of the incident, but since so much time had passed it is conceivable that Paez should receive a lesser suspension of 15 days. AR 111-12.

Paez displayed a lack of knowledge of the law of revocation of consent, possibly also of search and seizure law for probationers, and a relevant local ordinance when he entered the curtilage. AR 112. The GET partners noticed Ramos on his bicycle. AR 112. Solis and Cabrales were in the driveway behind a gate, and alcohol was on a car trunk. AR 112. It was possible to see though the bars on the fence. AR 112.

When the deputies talked to Solis and Cabrales, Solis confirmed that he was on probation. AR 112-13. However, Paez did not ask about the conditions of his probation. AR 113. Turpin then asked Solis to step out onto the sidewalk, and Solis’s words suggested that he would. AR 113. He never gave consent for the deputies to enter the property. AR 113. Cabrales said, "Fuck you!" and stopped Solis from fully opening the gate. AR 113.

Paez entered the curtilage of the property because he believed either that he had the right to detain the suspects for public drinking or that Solis had given consent that Cabrales had not revoked. AR 113. Both conclusions were wrong. AR 113. This led to Paez shooting and killing Cabrales, which LASD and the District Attorney respectively found administratively and legally justified. AR 113.

In August 2013, Paez was discharged for membership in the Jump Out Boys. AR 113. After an appeal to the Commission, Paez’s discipline was reduced to a 15-day suspension, which the superior court then ordered to be rescinded. AR 113.

In 2019, Paez was suspended for 15 days for the Nee incident. AR 113. LASD later admitted that the discipline had been defectively administered, and the event did not constitute discipline. Despite this fact, LASD now relies on the prior Nee incident to justify the 30-day suspension. AR 113.

Paez did not have consent to enter the property. AR 113. LASD did not prove that Paez contacted and attempted to detain Cabrales within the curtilage of private property without reasonable suspicion or probable cause as to any criminal act. AR 114. It did prove that Paez entered a gated area within private property after Cabrales denied access, as was part of Cabrales’s authority. AR 114. It also proved that Paez entered fenced and gated area of private property without permission, reasonable suspicion, or probable cause that a crime was committed or in progress. AR 114.

The 30-day suspension was improper because it relied on at least one 15-day suspension that was not properly in his personnel file. AR 113. Even if the 30-day suspension was not based on a prior 15-day suspension, it was too severe and needed to be halved. AR 114.

Both LASD and Paez filed objections to the Proposed Decision. AR 125, 132. LASD asserted that a 30-day suspension is the appropriate discipline and Paez asserted that the Commission should revoke the suspension in full. AR 125, 154.

On June 23, 2022, the Commission gave notice that it had sustained LASD’s objections and issued a new Proposed Decision with Amended Conclusions that would impose a 30-day suspension. AR 168-69. The Amended Conclusions agreed with the hearing officer that LASD had proven two of the three allegations and that Paez did not have consent to enter private property. AR 169. The Amended Conclusions stated that LASD had shown that a 30-day suspension is the appropriate discipline. AR 169.

The Amended Conclusions did not adopt the hearing officer’s conclusions that the 30-day suspension improperly relied on one, if not two, prior 15-day suspensions that should not be in Paez’s personnel file and that a 30-day suspension is too severe even if not based on improper prior discipline. See AR 113.

On August 5, 2022, the Commission adopted its Proposed Decision as its Final Decision. AR 170.

Petitioner Paez seeks mandamus setting aside the Commission’s imposition of a 30-day suspension. He argues that the findings concerning his lack of knowledge are partly unsupported by the facts and partly a misapplication of law. He also argues that the 30-day suspension is an abuse of discretion.

The Letter of Imposition concluded that Paez had violated MPP Section 3-01/050.10, Performance to Standards, because he had displayed a lack of knowledge about (1) his ability to enforce city or county statutes regarding drinking an alcoholic beverage within the curtilage of private property and/or (2) his authority to enter a fenced-in yard within the curtilage of a residence without the owner’s permission or a legal privilege. AR 1041. This conclusion was supported by the following facts. Paez contacted and tried to detain Cabrales within the curtilage of private property without establishing reasonable suspicion or probable cause of any criminal act. AR 1041. Paez entered a gated area within private property after Cabrales denied access, which was within Cabrales’s authority. AR 1041. Finally, Paez had no permission, reasonable suspicion, or probable cause that a crime had been committed. AR 1041.

The hearing officer and Commission concluded that the Department did not prove that Paez contacted and attempted to detain Cabrales within the curtilage of private property without reasonable suspicion or probable cause of a criminal act. AR 114. The Department did prove that Paez did not have consent to enter the property. AR 113. It also proved that Paez entered a gated area within private property after Cabrales denied access, which was within Cabrales’s authority to do. AR 114. Finally, the Department proved that Paez entered fenced and gated area of private property without permission, reasonable suspicion, or probable cause that a crime had been committed or was in progress. AR 114.

The conclusions are supported by Commission’s Finding of Fact 9, which provides:

9.“Appellant entered the curtilage apparently under the erroneous belief that he had the right to do so to detain the suspects for public drinking, or under the erroneous belief that Solis had consented to Appellant’s entry and such consent had not been revoked by Cabrales.” AR 113.

Paez argues that Finding of Fact 9 is erroneous. The first clause of Finding of Fact 9 is not supported by any evidence and the second clause is based on an incorrect legal standard. Pet. Op. Br. at 5-6.

a. Paez Did Not Enter the Property Under Perceived Authority to Detain Cabrales for Drinking in Public

Paez argues that he testified at the hearing that he entered the yard because he believed Solis had properly provided consent. He did not testify that he believed he had the right to enter the yard to “detain the suspects for public drinking.” AR 603-06. Although he testified that he intended to investigate whether Solis, Cabrales, and Ramos were in violation of ordinances against drinking in public, he was not relying on that intention as his legal authority to enter the yard. Rather, Paez testified that he believed he had lawful authority to enter based on consent received from Solis. AR 507-99. Pet. Op. Br. at 6.

Paez notes that he did not contradict this testimony when he was interviewed by the homicide detectives on the night of the shooting. He never told the detectives that he believed he had authority to enter the yard to detain the suspects for drinking in public. AR 1109-10. Although this issue was not raised by the homicide detectives, his interview described his entry into the yard when Solis opened the gate. AR 1107, 1109-10. Pet. Op. Br. at 6.

Only when he was interviewed by IAB in 2018, more than six years after the incident (AR 746), was he asked if he “knew” whether Solis or Cabrales had authority to give consent to enter the yard, and if Cabrales was “arrestable” at the time Paez entered the yard. AR 758-59, 773, 775-76. IAB did not ask Paez if he believed he had lawful authority to enter the yard to detain the suspects for drinking in public, and he never told IAB that was the legal ground on which he entered the yard. See AR 758-59, 773, 775-76, 1107, 1109-10.

Paez concludes that the first clause of Finding of Fact 9 -- that he improperly entered the yard based on an incorrect belief that he had the right to do so to detain the suspects for drinking in public -- is therefore not based on any evidence in the record. Pet. Op. Br. at 6; Reply at 7.

Paez told IAB in his November 2018 interview that he was investigating Cabrales when he walked through the gate. AR 773-74. In response to a question whether Cabrales was “arrestable” as he walked away, Paez said that he could have been arrested for drinking in public. AR 773-74. They had admitted that they had been drinking. AR 775. In Paez’s mind, the driveway was an open public area because people could see them from the other side of the gate. AR 779. Despite the fact that an officer must observe a misdemeanor to make a warrantless arrest, Cabrales could have been arrested for drinking in public because they admitted to drinking even though Paez did not observe it. AR 774-75. If Cabrales had stopped when Paez ordered him to do so, Paez would have just cited him for whatever crime he fulfilled the elements of under the county or city municipal code. AR 778. Paez could not say what that crime would be. AR 779.

Paez plainly was wrong. He could not cite Cabrales for drinking in public. Not only did he not observe Cabrales or Solis drinking, which is required for a warrantless arrest for drinking in public, Marks testified that people are entitled to drink on their own property, including in a fenced-in front yard, without violating the law. AR 351.

Paez backed away from this position at the hearing. He testified that he entered the gate because Solis had the authority to give consent and that he did so. AR 599. Paez admitted stating in his IAB interview that he entered the gate because of his reasonable suspicion that one of the suspects was drinking in public. AR 599-600. However, he did not go through the gate because he believed Cabrales to be arrestable. AR 600. While the possibility that the subjects were drinking in public was the reason Paez chose to enter the property, that is not why he thought he had legal authority to do so. AR 604. Paez felt he had standing to enter the property because of Solis’s consent and because of his probation, which enabled them to search him. AR 599.

Paez is wrong that there is “no evidence” that he entered the property based on his incorrect belief that he had the right to do so to detain the suspects for drinking in public. That evidence exists from his IAB interview. Nonetheless, Paez’s distinction between entering the property because he had a reasonable suspicion of public drinking but relying on the authority of consent and/or probation search terms is legitimate. The court accepts his testimony in part because the IAB interviewers did not directly ask about his legal authority to enter. Rather, they asked whether Cabrales was “arrestable”, which led to a discussion of criminal offenses as opposed to Fourth Amendment search issues. The court therefore accepts Paez’ testimony on his search authority. [1]

Fact Finding 9 is an “either or” conclusion: either Paez thought he had a reasonable suspicion of public drinking, or he thought he had consent. It is undisputed that Paez did not have authority to enter the property based on a reasonable suspicion of any crime. Therefore, consent is the remaining basis for entry under Fact Finding 9.

Paez correctly argues that the analysis of the lawfulness of Paez’s entry into the gated yard is guided by the jurisprudence of the Fourth Amendment to the United States Constitution, which prohibits unreasonable searches and seizures. The law is well established that a police officer who acts reasonably, even if based on an incorrect understanding of the facts, does not violate the law. The Department’s policy sets no more stringent standard than Fourth Amendment jurisprudence. AR 446. Pet. Op. Br. at 7.

The Fourth Amendment generally prohibits the warrantless entry into a person’s home or curtilage, whether to make an arrest or to search for specific objects. Payton v. New York, (1980) 445 U.S. 573, 585-86. The prohibition does not apply to situations in which voluntary consent has been obtained, either from the individual whose property is searched (Schneckloth v. Bustamonte, (1973) 412 U.S. 218, 221-22), or from a third party who possesses common authority over the premises (United States v. Matlock, (1974) 415 U.S. 164, 171).

In Illinois v. Rodriguez, (“Rodriguez”) (1990) 497 U.S. 177, the high court explained that law enforcement can rely on a reasonable belief in the authority of a person to consent:

“It is apparent that in order to satisfy the “reasonableness” requirement of the Fourth Amendment, what is generally demanded of the many factual determinations that must regularly be made by agents of the government…is not that they always be correct, but that they always be reasonable.” Id. at 185.

Paez argues that Rodriguez holds that if an officer’s belief about authority is reasonable, a search is constitutionally acceptable, even without a warrant or the actual owner’s consent. Because Paez and Turpin entered the yard where Solis and Cabrales were standing pursuant to their identical and reasonable belief that their entry was authorized by Solis’s consent, which he had the apparent authority to grant, their entry into the yard was valid under the Fourth Amendment and not a violation of Department policy. Pet. Op. Br. at 8. Paez need not be correct, he need only be reasonable in his belief that Solis had authority to grant access to the yard. Reply at 3.

Paez argues that Solis answered all the questions that were directed at both him and Cabrales. He truthfully stated he was on probation and indicated that he was aware that his probation required him to consent to a warrantless search when he lifted his shirt to show the deputies that he had no weapons. Paez credibly testified that he asked both Solis and Cabrales together if he and Deputy Turpin could enter “their yard.” AR 589-91. Not only did Solis answer verbally in the affirmative, he opened the gate to allow the deputies to enter the yard. AR 591-92, 551-52. Based on Solis’s words and action, both deputies believed that he had authority and consented to that entry. AR 531-32, 544-46, 551-53, 597-99, 604-05, 622-24. Pet. Op. Br. at 9, 11.

Paez argues that the Commission’s conclusion that Cabrales was the actual resident of the property and only he had authority to consent to the deputies’ entry into the yard is incorrect. Police officers need not always be correct, they need only be reasonable. Apparent authority is sufficient to validly confer consent where the requesting officers act reasonably. In light of their belief that Solis had the authority to consent to their entry, and in light of Solis’s affirmative response to the request to enter “their yard,” Paez and Turpin violated neither the Fourth Amendment nor the charged Department policy. Pet. Op. Br. at 9.

The Commission correctly argues that there is no evidence of Solis’s actual or apparent authority to consent.[2] Solis was standing inside the fence and gate on the property. The only statement he made was that he was on probation, and he showed that he had no weapon on him. He did not say “come in” to the deputies. Nor did his actions do so. AR 975. Turpin asked Solis to open the gate. AR 975, 1147-48. Solis held his hands up as he started to walk out and open the gate. AR 1145, 1147. Solis started to slide the gate open, but Cabrales stopped him. AR 1145, 1147. Cabrales said “Fuck you, you can’t come in here” and “This is my house.” AR 1145. Solis still managed to get the gate open enough to get out and walk towards Deputy Turpin, and he did not close it behind him. AR 1148. Solis’s attempt to go out the gate cannot be construed as consent; he opened the gate to step out and not to let the deputies in.

Based on these facts, the deputies could not rely on Solis’s authority. An officer cannot rely on the consent of a houseguest, especially if the officer makes no effort to inquire whether the person who answers the door had any authority to consent to a search. United States v. Arreguin, (9th Cir. 2013) 735 F.3d 1168, 1176-77. Neither Paez nor the other deputies made any inquiry whether Solis had common authority over the premises. Paez stated to IAB that he did not know whether Solis had the authority to let them in or Cabrales had authority to keep them out. AR 758-59.

In any event, Cabrales answered Paez’s inquiry about coming onto the property with “Fuck you, you cannot come in,” “I live here,” “get out of here”. AR 592, 593, 756, 1110. Coupled with the fact that Cabrales tried to stop Solis from opening the gate, these statements were a clear indication that Cabrales had the authority to consent, and he denied entry.

When co-tenants are both present and one co-tenant consents while the other objects, law enforcement may not enter. Georgia v. Randolph, (2006) 547 U.S. 103, 114-15. This applies even if the objecting resident has a “lesser” possessory interest than the consenting resident. Id. at 114. At a minimum, Paez had a duty to inquire about who had authority and to refrain from entry if Cabrales had any authority. Ignorance of the law is no excuse for a civilian, much less a peace officer. See Hale v. Morgan, (1978) 22 Cal.3d 388, 396. Paez was required to be familiar with search and seizure law, especially because he had been a trained deputy for over six years.[3]

Paez did not have consent by a person with authority to enter the property, and he could not have reasonably believed otherwise.

If, arguendo, Solis gave consent, it may be revoked. “A suspect is free after initially giving consent, to delimit or withdraw his or her consent at any time. U.S. v. McWeeney, (1996) 454 F.3d 1030, 1034. Paez acknowledged as much. AR 623.

Paez relies on a federal district court case, United States v. Lopez, (E.D. Wis. Nov. 15, 2005) 2005 U.S. Dist. LEXIS 28991, at *16-17, to conclude that “a person may limit or withdraw his consent to a search, and the police must honor such limitations, and “the standard for measuring the scope of a suspect’s consent . . . is that of ‘objective’ reasonableness-what would the typical reasonable person have understood by the exchange between the officer and the suspect?” Pet. Op. Br. at 9.

According to Paez, the evidence is clear that Cabrales never unequivocally withdrew the consent he heard and saw Solis give. While Cabrales objected to Solis’s consent, Paez never heard Cabrales say “This is my house, Solis does not live here and you cannot come in,” or anything like that. Although Cabrales stopped the gate from opening further, he did not close it to physically bar Paez and Turpin from entering the yard. None of Cabrales’s statements or actions constitute an “unequivocal act or statement of withdrawal” of the consent given by Solis. Pet. Op. Br. at 9-10.

This position is untenable. Turpin testified that “as he [Solis] was opening the gate, the suspect in red [Cabrales] said, ‘You can’t come in here. Fuck you. This is my house. You can’t come in here.” AR 592-93, 1145. Paez’s argument that this is not an unequivocal act of withdrawal is simply incorrect. If Solis had authority and gave consent by opening the gate, it was revoked by Cabrales. The court agrees with the Commission that Cabrales could not have made a stronger denial of entry. Opp. at 12.

Paez adds that Cabrales abandoned his objection and walked away as he saw Paez approaching the open gate. AR 752-53. Cabrales did not repeat that Paez and Turpin should go away and did not continue to object to entry once he saw Paez approaching. AR 760. Therefore, Paez was objectively reasonable in his belief that Cabrales’ objection was not a withdrawal of Solis’s consent. Pet. Op. Br. at 10.

Cabrales did not abandon his objection to entry by the deputies. The facts show that he strongly objected to entry by Paez and stopped the gate from opening. AR 1110. Solis, however, used the opening to go out the gate. This was something Cabrales could not prevent, and he walked away. He had a scared look on his face as Paez entered. AR 1114-15.[4] This in no way was an abandonment of his objection to entry.

Paez argues that he reasonably believed that he could enter the property based on Solis’ probation. Paez testified that most gang members have probation terms which prohibit them from associating with other gang members. AR 590. Solis had the gang name “South Side” tattooed across his hands, creating a reasonable suspicion that he was an active South Sider gang member. AR 528. To determine if Solis was in violation of his probation by associating with gang members, the deputies needed to enter the property to confirm whether Cabrales was an active gang member.

Paez notes that Solis told the homicide detectives on March 7, 2012 that the deputies who came to the gate asked if he was on probation and he answered affirmatively. AR 968. Solis’s probationary status included, as was evident from his statements to the homicide detectives, terms which required him to submit to warrantless search and not to associate with known gang members. AR 975, 988. Solis admitted to initially lying to the homicide detectives about his knowledge of Cabrales’s active gang membership in order to avoid a probation violation. AR 988-91. Thus, the Commission’s conclusion that Paez did not ask Solis if he had search conditions is irrelevant. Paez’s belief, based on his training and experience, that gang members always had search conditions as well as no-association conditions to their probation, was in fact correct. AR 589-91. Pet. Op. Br. at 10-11; Reply at 6.

Obviously, Paez cannot rely on Solis’ after-the-fact confirmation that his probationary terms included a search condition. Only facts known to Paez at the time of the incident are relevant to his entry. As the hearing officer pointed out, none of the deputies verified whether Solis’ probation included a search term. AR 105.

The court does not find this failure particularly significant because it is reasonable for a law enforcement officer to assume, at least initially, that a probationer has a warrantless search term for their probation. However, that fact did not justify Paez’ entry onto private property to talk to Cabrales to ascertain whether he was a gang member with whom Solis should not be associating, and Paez cites no authority that it does.

This is particularly true because Solis left the property at Turpin’s request. The three deputies essentially split their conversations with the three persons. Turpin spoke to Solis (AR 530), Paez spoke to Cabrales (AR 530), and Espericueta spoke to Ramos (AR 486). They had each other’s back while doing so. AR 487. At Turpin’s request, Solis opened the gate partway, was stopped by Cabrales from opening it further, and came through the gate. AR 531, 555. Paez walked through the gate after Solis walked out. AR 531, 555. There was no reason for Paez to go through the gate to perform a warrantless search of Solis, and he had no right to enter the property to question Cabrales.

Paez did not have consent by a person with authority to enter the property, and he could not have reasonably believed otherwise. He also could not have reasonably relied on Solis’ probation to enter the property. Therefore, the Commission correctly concluded that Paez did not have consent to enter the property, he entered the gated area after Cabrales denied access, which was within Cabrales’s authority to do, and he entered without reasonable suspicion or probable cause that a crime was committed or in progress. AR 114. The Commission used the correct legal standard of reasonableness in reaching these conclusions. See AR 108.

The propriety of a penalty imposed by an administrative agency is a matter in the discretion of the agency, and its decision may not be disturbed unless there has been a manifest abuse of discretion. Lake, supra, 47 Cal.App.3d at 228. The Commission’s decision must be “an arbitrary, capricious, or patently abusive exercise of discretion” to be overruled by the trial court. If there is “any reasonable basis to sustain it,” the penalty should be upheld. Montez, supra, 40 Cal.App.5th at 877. “Only in an exceptional case will an abuse of discretion be shown because reasonable minds cannot differ on the appropriate penalty.” Ibid. Neither an appellate court nor a trial court is free to substitute its discretion for that of the administrative agency concerning the degree of punishment imposed. Nightingale, supra, 7 Cal.3d at 515. The policy consideration underlying such allocation of authority is the expertise of the administrative agency in determining penalty questions. Cadilla, supra, 26 Cal.App.3d at 967.

In determining whether there has been an abuse of discretion, the court must examine the extent of the harm to the public service, the circumstances surrounding the misconduct, and the likelihood that such conduct will recur. Skelly, supra, 15 Cal.3d at 217-18. In weighing such factors, the court considers the nature of the employee's profession, “since some occupations such as law enforcement, carry responsibilities and limitations on personal freedom not imposed on those in other fields.” Thompson v. State Personnel Board, (1988) 201 Cal.App.3d 423, 429. “The public is entitled to protection from unprofessional employees whose conduct places people at risk of injury and the government at risk of incurring liability.” County of Santa Cruz v. Civil Service Comm’n of Santa Cruz, (“Santa Cruz”) (2009) 171 Cal. App. 4th 1577, 1582; County of Santa Clara v. Willis, (1986) 179 Cal.App.3d 1240, 1252. In addition, “[a] deputy sheriff's job is a position of trust, and the public has a right to the highest standard of behavior from those they invest with the power and authority of a law enforcement officer. Santa Cruz, supra, 171 Cal. App. 4th at 1582.

The Department argues that the Commission correctly imposed the 30-day suspension for Paez’s violation of MPP Section 3-01/050.10, Performance to Standards, by failing to conform to the work standards established for his position as a deputy sheriff when he displayed a lack of knowledge regarding his authority to enter upon a fenced-in yard within the curtilage of a residence without the owner’s permission or a legal privilege. Paez’s suggestion to the IAB that he went through the gate to investigate public drinking was meritless because there is no ordinance that prevents drinking on private property. Paez’s argument that he went in to investigate whether Solis was drinking in violation of his probation is inconsistent with the evidence that Solis was already outside the gate when Paez went in. The Department concludes that the 30-day suspension was appropriate, if not too low, considering Paez’s position, his conduct, the danger he posed to the public, and the death of Cabrales at his own residence. Opp. at 14-15.

Paez does not really argue that a 30-day suspension is a manifest abuse of discretion. Nor can he. It is obvious that there was significant harm to the public service from Paez’s violation of the Fourth Amendment and Department policy, the circumstances of his misconduct resulted in Cabrales’ death, and there is a likelihood of reoccurrence where Paez was ignorant of search and seizure requirements. This supports a conclusion that a 30-day suspension is not a manifest abuse of discretion.[5]

Paez argues that Chief Marks, as well as the Commission, improperly justified the imposition of a 30-day suspension on the theory of progressive discipline, claiming that Paez was previously received a 15-day suspension for violating Nee’s Fourth Amendment rights by detaining him for illegally photographing a subway station. See AR 113, 169. As both Paez and Sanchez testified, the Department placed a letter of imposition of a 15-day suspension in Paez’s personnel file for the Nee matter while Paez was fired for the Jump Out Boys case. AR 861, 564-65, 1053-55. Pet. Op. Br. at 12.

Chief Nelson stated in the Disposition Worksheet -- required by the Department’s discipline policy to state all the reasons for imposing a specific penalty -- that the 30-day suspension was justified by both the 15-day suspension for the Nee matter and a 15-day suspension in the Jump Out Boys case, which was ultimately reversed. AR 680-91, 1050-51. Chief Marks testified that the 30-day suspension for the March 7, 2012 shooting incident was justified by the Nee matter. AR 438. In addition to the unlawful imposition of the 15-day suspension in the Nee case -- (which Chief Nelson acknowledged was unlawful when he granted Paez’s grievance (AR 676)) -- the Department relied on the 15-day suspension in the Jump Out Boys case to justify the 30-day suspension in this case. Pet. Op. Br. at 13.

According to Paez, the hearing officer correctly rejected the Department’s reliance on the two prior 15-day suspensions as progressive discipline. AR 113. Yet, the Commission, when it adopted its Amended Conclusions, rejected the hearing officer’s conclusion in direct contravention of Findings of Fact 12 and 13 (AR 113), and incorrectly determined that the 30-day suspension is appropriate progressive discipline. AR 169. Pet. Op. Br. at 13; Reply at 10.

It is not at all clear that the Department relied on the Jump Out Boys 15-day suspension as progressive discipline. The hearing officer did not believe so. He noted that Marks testified that the Jump Out Boys issue did not enter into his recommendation of a 30-day suspension in this case. AR 102. This makes sense because Paez was exonerated in that case before Marks testified. The Nee matter is another issue. It seems clear that Marks relied on Nelson’s corrected “founded, no discipline” finding in the Nee matter. AR 438. This reliance clearly violated Paez’s POBRA rights under Govt. Code section 3304(b) and due process because there was no notice, no Skelly hearing, and no opportunity to appeal. The hearing officer correctly disregarded this purported prior discipline. AR 113.

The question becomes whether the Commission adopted this portion of the hearing officer’s decision. As Paez argues (Reply at 10), the Commission accepted the hearing officer’s Findings of Fact 11-13 which stated that Paez was exonerated in the Jump Out Boys case (Fact 11), the Department admitted the Nee discipline was defectively administered and did not constitute discipline but appears to have been used to justify the 30-day suspension (Fact 12), and Nelson, who did not testify, issued the 30-day suspension based ono a confusing justification somewhat clarified by Marks’ testimony (Fact 13). AR 113, 124. The Commission did not adopt the hearing officer’s conclusion that the 30-day suspension was improperly issued in reliance on one or both of the Nee and Jump Out Boys prior 15-day suspensions which were not properly included in Paez’s personnel file. AR 113. Instead, the Commission’s Amended Conclusions deleted this conclusion and stated: “The Department established by a preponderance of the evidence that a 30 day suspension for this behavior is the appropriate discipline.” AR 169.

As a result, it is not clear that the Commission’s 30-day suspension was based on the March 7, 2012 shooting incident alone without improper consideration of the Jump Out Boys and Nee matters as prior discipline.

Paez argues that the evidence is uncontradicted that he, Turpin, and Espericueta all believed that Solis had the authority to consent to their entry into the yard and that Cabrales did not revoke that consent by stopping the gate’s movement. Turpin, in fact, followed Paez into the yard based on Solis’s consent. AR 531-33, 548-52. Neither Turpin nor Espericueta were disciplined for unlawfully entering the yard or for unreasonably believing that Solis granted consent for the entry. AR 416-17. This evidence establishes the disparate treatment of Paez. Two deputies who reached the identical conclusion, based on the same information, as Paez received no discipline. Pet. Op. Br. at 13-14.

The Department is required by law to ensure proper training of its peace offer employees in the areas of search and seizure. California requires a minimum of 24 hours of recurrent training in this and related areas every 24 months. AR 320. It is inappropriate to punish only Paez where the Department failed in its statutory obligation to ensure that Paez, Turpin, and Espericueta are fully cognizant of their obligations concerning consent to enter a gated property. Pet. Op. Br. at 14.

Paez has failed to show disparate treatment. Neither Turpin nor Espericueta was disciplined because neither of them made the decision to enter the property unlawfully. Espericueta did not enter the property at all, remaining outside the gate with Ramos. Espericueta entered the property after Paez, presumably to back up his partner, and cannot be faulted for doing so. Nor did Turpin or Espericueta commit the unhappy act of killing someone.

Paez is guilty of violating MPP Section 3-01/050.10, Performance to Standards, by failing to conform to the work standards established for his position as a deputy sheriff when he displayed a lack of knowledge regarding his authority to enter upon a fenced-in yard within the curtilage of a residence without the owner’s permission or a legal privilege. Paez entered a gated area within private property after Cabrales denied access, as was within Cabrales’s authority. He entered this fenced and gated area of private property without permission, reasonable suspicion, or probable cause that a crime was committed or in progress.

However, it is not clear that the Commission imposed the 30-day penalty without improperly considering the Nee or Jump Out Boys matters. Therefore, a judgment of remand and writ must issue requiring the Commission to evaluate the discipline without considering these matters as prior discipline.

Paez’s counsel is ordered to prepare a proposed judgment and writ, serve them on the Department’s counsel for approval as to form, wait ten days after service for any objections, meet and confer if there are objections, and then submit the proposed judgment and writ along with a declaration stating the existence/non-existence of any unresolved objections. An OSC re: judgment is set for September 28, 2023 at 9:30 a.m.

[1] Paez argues that the Department’s opposition unfairly impugns his credibility by asserting, with no factual basis, that he just “changed his story”, whereas his memory was refreshed at the hearing by his ability to review the investigation documents relied upon by the Department. Reply at 2. The court has accepted Paez’ testimony on this issue.

[2] As an initial matter, neither Paez and Turpin asked Solis and Cabrales if they could enter “their yard”. Paez testified that he asked Solis and Cabrales for consent to come onto the property; he did not testify that he said “yard”. AR 589. Turpin testified that neither Solis nor anyone else asked Turpin to come inside the gate. AR 544. Rather, Turpin wanted to talk to Solis outside the gate. AR 544. He specifically asked Solis “if he wanted to come out and talk to me.” AR 544. Thus, neither Paez nor Turpin asked to come in “their yard” and only Paez asked to come onto “their property”.

[3] Paez notes that Turpin stated in his interview by homicide detectives that Solis “acted like” he was coming out of the gate and did not say he was coming out. AR 1145. Additionally, despite the fact that Solis was coming out of the gate, Turpin believed that Solis had granted permission for Turpin and Paez to enter the property through the gate. Although Paez entered first, Turpin immediately followed him into the yard. AR 532. As such, Turpin reached the same conclusion as Paez that Solis had the apparent authority to, and did, consent to their entry into the yard. AR 531-32. Based on Turpin’s statement and testimony, Paez argues that the Department’s failure to discipline Turpin is an admission that Turpin’s interpretation of the events as consent was reasonable. Reply at 4-5.

The court views Turpin’s subjective conclusion as not significant. No reasonable officer, including Turpin, could conclude that when a person opens a gate to come out that is an invitation for another person to come through the gate and onto the property. Additionally, the fact that Turpin was not disciplined does not show the Department’s agreement that Paez’s actions were reasonable. See post.

[4] In hindsight, it is obvious why Cabrales walked away and looked scared; he had a gun in a holster on his hip.

[5] In reply, Paez argues that the Department unfairly relies on the provocation doctrine to conclude that he is responsible for Cabrales’ defensive use of deadly force. Yet, Paez’s use of deadly force in self-defense was not caused by his entry into the yard. Paez used deadly force only in response to Cabrales’ threat to shoot him. The Department’s heavy reliance on this rejected theory of liability, which was also rejected by the Commission, is improper and should be rejected. Reply at 8-9. The court agrees that Paez acted in self-defense and is not responsible for Cabrales’ death.