Filed 1/7/22

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION THREE

LOUIS LOZANO et al.,

Plaintiffs and Appellants,

v.

CITY OF LOS ANGELES et al.,

Defendants and Respondents.

B307412

Los Angeles County

Super. Ct. No.

19STCP00168

APPEAL from a judgment of the Superior Court of 

Los Angeles County, Mary H. Strobel, Judge. Affirmed.

Law Offices of Gregory G. Yacoubian and Gregory G. 

Yacoubian for Plaintiffs and Appellants.

Michael N. Feuer, City Attorney, Carlos De La Guerra, 

Assistant City Attorney, and Paul L. Winnemore, Deputy 

City Attorney, for Defendants and Respondents.

_________________________
2

Louis Lozano and Eric Mitchell (petitioners), former police 

officers for the City of Los Angeles (the City), filed a petition for 

writ of administrative mandate challenging the City’s decision to 

terminate their employment. A board of rights found petitioners 

guilty on multiple counts of misconduct, based in part on a digital 

in-car video system (DICVS) recording that captured petitioners 

willfully abdicating their duty to assist a commanding officer’s 

response to a robbery in progress and playing a Pokémon 

mobile phone game while on duty. Petitioners contend the City 

proceeded in a manner contrary to the law by using the DICVS

recording in their disciplinary proceeding and by denying them 

the protections of the Public Safety Officers Procedural Bill 

of Rights Act (Gov. Code, § 3300 et seq.) (POBRA or the Act).1 

The trial court denied their petition. We affirm.

FACTS AND PROCEDURAL HISTORY

Consistent with our standard of review, we state the facts 

established by the evidence at the board of rights hearing in 

the light most favorable to the trial court’s factual findings, 

drawing all reasonable inferences and resolving all evidentiary 

conflicts to uphold the court’s judgment. (Molina v. Board of 

Administration, etc. (2011) 200 Cal.App.4th 53, 61 (Molina);

Steinert v. City of Covina (2006) 146 Cal.App.4th 458, 462, 465

(Steinert); Jaramillo v. County of Orange (2011) 200 Cal.App.4th 

811, 815 (Jaramillo).)

1 Statutory references are to the Government Code, unless 

otherwise designated
3

1. Radio Call for a Robbery in Progress at the 

Crenshaw Mall

On Saturday, April 15, 2017, petitioners were working 

as partners assigned to a foot beat patrol in the Los Angeles 

Police Department (LAPD or Department) Southwest Division. 

Petitioners’ primary responsibilities included providing 

community services and addressing “quality of life” issues 

in the Crenshaw Corridor and Leimert Park area. Sergeant 

Jose Gomez was petitioners’ patrol supervisor that day. 

Captain Darnell Davenport was the patrol commanding officer 

for the Southwest Division.

It was a “busy” Saturday in the Southwest Division—

there were more calls than police cars available to respond and 

there had been a homicide earlier in the day. While en route 

to the homicide scene, Captain Davenport heard a radio call for 

“a 211 [robbery] in progress” with multiple suspects at the Macy’s 

in the Crenshaw Mall. When the call came in, the Captain 

could see the Macy’s from where he was stopped, and to his right

he noticed a police car tucked back in an alley just feet away. 

He was not able to identify the unit, and when the unit did 

not respond to the radio call, the Captain assumed it might be 

a traffic unit or a unit from a different division using a different 

radio frequency. Consequently, Captain Davenport decided 

he would respond to the call and notified communications he 

was going “Code 6 on the call”—i.e., responding to the location 

of the robbery. At around the same time, the Captain saw 

the police car start to back up down the alley, then negotiate 

a left-hand turn to leave the area.

Sergeant Gomez was in the watch commander’s office 

when the robbery in progress call went out. He described the 
4

next five to seven minutes as “chaotic,” with communications 

sending constant “updates as to what was happening at Macy’s.” 

As Captain Davenport went Code 6 on the robbery, Sergeant 

Gomez looked at the watch commander’s board and saw 

petitioners’ unit was Code 6 (located) in the Crenshaw Corridor. 

He attempted to radio petitioners’ unit and requested they 

respond to the Crenshaw Mall to assist the Captain, but he 

received no response. Simultaneously, a unit broke away from 

the homicide crime scene and went Code 3 (red lights and sirens) 

from across the division to assist at the mall. Sergeant Gomez 

queried communications again for petitioners’ response. 

Communications replied, “ ‘No,’ and that was it.”

2. Sergeant Gomez’s Meeting with Petitioners

When Sergeant Gomez returned to the station he realized 

petitioners had initiated their Code 6 on the Crenshaw Corridor 

at approximately the same time that Captain Davenport went 

Code 6 on the robbery in progress. This seemed “peculiar” to him 

and he “wanted to find out what happened.”

Sergeant Gomez contacted petitioners and arranged to 

meet with them later that evening at a 7-Eleven parking lot 

where they were conducting an illegal merchandise investigation. 

When the investigation concluded, the Sergeant asked petitioners 

to clarify what their duties were as the foot beat patrol car. 

Officer Lozano explained their primary responsibility was 

community relations with citizens and businesspeople, adding 

“the main issues are Leimert Park.”

After discussing their duties, Sergeant Gomez asked 

petitioners if they had heard a call for “backup at Crenshaw Mall 

for a 211.” Officer Mitchell said he had not, while Officer Lozano 

said he heard Captain Davenport was Code 6 at the Crenshaw 
5

Mall but he did not hear a request for backup. Sergeant Gomez 

counseled petitioners that “ ‘we have to listen to the radio,’ ” 

“ ‘[i]t’s what our livelihood and our safety depends on,’ ” and 

he asked them “if their radios were working.” Officer Mitchell 

responded that there was “a lot of music” and it was “really loud 

in the park . . . [,] especially on Saturdays.” Officer Lozano 

concurred, adding, “ ‘we have no control over the [public 

announcement] system and all the loud noise, it was loud.’ ” 

Sergeant Gomez acknowledged he “couldn’t dispute that,” and he

advised petitioners “to move to a location where [they] could hear 

the radio” if they found themselves in a loud area in the future.

Sergeant Gomez asked petitioners if they had any 

questions regarding his concerns and he reiterated that the best 

practice was to be in a location where they could hear the radio. 

In his testimony to the board of rights, the Sergeant explained: 

“At that point, my understanding was that the [robbery] call 

wasn’t heard because they were at the park. And like I said, 

I could not dispute that.” He concluded the meeting by advising 

petitioners that he was “counseling them for not listening to 

the radio” and “left it at that.”

3. The DICVS Recording and Misconduct Investigation

Sergeant Gomez was still uneasy about the timing of

petitioners’ Code 6 on the Crenshaw Corridor when he came into 

work the following day. It then dawned on him to review their 

patrol unit’s DICVS recording to “find out what they do on their 

average day.”

Sergeant Gomez’s review of the DICVS recording revealed 

new and disturbing facts: It had been petitioners’ patrol unit 

that Captain Davenport saw in the alley only a short distance 

from the mall; petitioners did hear the radio call about a robbery 
6

in progress; they discussed the call and whether they should 

assist Captain Davenport; and they went Code 6 on the 

Crenshaw Corridor to conceal that they had decided not 

to respond to the call.

The DICVS recording disclosed that, immediately after 

Captain Davenport’s Code 6 broadcast, Officer Lozano asked 

Officer Mitchell if they were Code 6 on the Crenshaw Corridor 

or on the corner near the mall where they were parked. Mitchell 

responded they were “[a]t the corner” and noted the broadcast 

radio call was “Davenport.” Lozano then instructed Mitchell to 

put them Code 6 “at the corridor,” adding (after some laughter) 

regarding Captain Davenport, “I don’t want to be his help.” 

Petitioners’ unit then moved backwards through the alley and 

turned away from the mall, as Captain Davenport had observed.

For the next several minutes the DICVS captured 

continued radio traffic regarding the robbery and pursuit of 

multiple suspects. After communications made a second attempt 

to contact petitioners, Officer Lozano asked if they should “ask 

[communications] if there’s a message.” Officer Mitchell replied, 

“It’s up to you. Whatever you think. I don’t want them to think 

we’re not paying attention to the radio.” Lozano responded, 

“Aw, screw it.” Petitioners made no attempt to respond over 

the radio when their unit was called.

Sergeant Gomez notified the watch commander about 

petitioners’ conduct and what the DICVS recording disclosed. 

His concerns were forwarded up the chain of command and 

the Sergeant was ultimately instructed to prepare the face sheet 

of a misconduct complaint against petitioners.

Detective Tracy McClanahan conducted the misconduct 

investigation, focusing on allegations that petitioners failed 
7

to respond to a robbery in progress call, made false statements

to a supervisor, and neglected to handle a radio call. Her 

investigation primarily involved multiple reviews of the DICVS 

recording and interviews with Captain Davenport, Sergeant 

Gomez, Commander Gerald Woodyard (who oversaw the foot beat 

units), and Officers Lozano and Mitchell.

Officers Lozano and Mitchell told Detective McClanahan 

they did not respond to the robbery in progress call because 

Captain Davenport did not request backup and because they 

were instructed to stay in their assigned area of the Crenshaw 

Corridor. Commander Woodyard said he did not give petitioners 

that instruction and insisted they should have responded to 

the call. Based on the interviews and the DICVS recording, 

Detective McClanahan concluded petitioners willfully failed 

to respond to the robbery call and attempted to conceal the fact 

by “placing themselves Code 6 somewhere else.”

After carefully listening to the DICVS recording a number 

of times, Detective McClanahan also became concerned that 

petitioners were playing “the Pokémon Go video game” while 

on duty the day of the robbery.2 The recording showed that, 

2 According to evidence admitted at the board of rights 

hearing, Pokémon Go is an “augmented reality” mobile phone 

game that “uses the mobile device GPS to locate, capture, battle, 

and train virtual creatures, called Pokémon, which appear 

as if they are in the player’s real-world location.” The game 

is credited with “popularizing location-based and [augmented 

reality] technology, promoting physical activity, and helping 

local businesses grow due to increased foot traffic.” However, 

the game also “attracted controversy for contributing to accidents 

and creating public nuisances.”
8

at approximately 6:09 p.m. (just five minutes after Officer Lozano 

said “screw it” to checking in with communications about the 

robbery call), Officer Mitchell alerted Lozano that “Snorlax”

“just popped up” at “46th and Leimert.”3 After noting that 

“Leimert doesn’t go all the way to 46th,” Lozano responded, 

“Oh, you [know] what I can do? I’ll [go] down 11th and swing 

up on Crenshaw. I know that way I can get to it.” Mitchell 

suggested a different route, then told Lozano, “We got four 

minutes.”

For approximately the next 20 minutes, the DICVS

captured petitioners discussing Pokémon as they drove to 

different locations where the virtual creatures apparently

appeared on their mobile phones. On their way to the Snorlax 

location, Officer Mitchell alerted Officer Lozano that “a Togetic 

just popped up,” noting it was “[o]n Crenshaw, just South 

As players move within their real world surroundings, 

their in-game “avatars” move within the game’s map. Upon 

encountering a Pokémon, the player’s mobile device “display[s] 

an image of [the] Pokémon as though it were in the real world,” 

and the “player may throw a Poké Ball at it by flicking [the ball] 

from the bottom of the screen up toward the Pokémon.” If the 

Pokémon “is successfully caught, it will come under the 

ownership of the player,” and the player “is awarded two types 

of in-game currencies: Candies and Stardust,” which are needed 

to “raise a Pokémon’s ‘Combat Power’ ” or “to evolve a Pokémon.” 

The game’s “ultimate goal” is to “complete the entries in the 

Pokédex, a comprehensive Pokémon logbook, by catching and 

evolving [Pokémon] to collect every one in it.”

3 According to evidence admitted at the board of rights 

hearing, “Snorlax” is a Pokémon creature known as “the Sleeping 

Pokémon.”
9

of 50th.”4 After Mitchell apparently caught the Snorlax—

exclaiming, “Got ‘em”—petitioners agreed to “[g]o get the Togetic” 

and drove off. When their car stopped again, the DICVS recorded

Mitchell saying, “Don’t run away. Don’t run away,” while Lozano 

described how he “buried it and ultra-balled” the Togetic before 

announcing, “Got him.” Mitchell advised he was “[s]till trying 

to catch it,” adding, “Holy crap, man. This thing is fighting 

the crap out of me.” Eventually Mitchell exclaimed, “Holy Crap. 

Finally,” apparently in reference to capturing the Togetic, and 

he remarked, “The[ ] guys are going to be so jealous.” Petitioners

then agreed to return to the 7-Eleven (where Sergeant Gomez 

later met them) to end their watch. On the way, Mitchell 

remarked, “I got you a new Pokémon today, dude.”

Detective McClanahan conducted a second round of 

interviews with petitioners to discuss her concern that they 

were playing a video game while on duty. Petitioners denied 

playing a video game. They claimed they were merely “having 

a conversation about Pokémon Go” and Officer Mitchell had 

been receiving text messages and alerts from a Pokémon Go 

players group where “people [were] bragging about their scores.” 

Detective McClanahan determined petitioners were not being 

truthful.

4. The Board of Rights Hearing and Discharge Orders

The Department charged petitioners with multiple counts 

of on-duty misconduct, including: (1) Failing to respond to a 

robbery-in-progress call; (2) Making misleading statements 

4 According to evidence admitted at the board of rights 

hearing, “Togetic” is a Pokémon creature known as a “happy, 

cheerful and a ditsy” Pokémon.
10

to Sergeant Gomez when asked why they did not hear the radio; 

(3) Failing to respond over the radio when their unit was called; 

(4) Failing to handle an assigned radio call; (5) Playing 

Pokémon Go while on patrol in their police vehicle; and (6) 

Making false statements to Detective McClanahan during 

a complaint investigation. Petitioners pled “guilty” to the first 

and third counts and “not guilty” to the remaining counts.

After opening statements, petitioners’ representative 

objected to the admission of everything captured on the DICVS 

recording up to petitioners’ conversation with Sergeant Gomez 

at the 7-Eleven that evening. She argued the conversations 

between petitioners preceding the meeting with Sergeant Gomez 

were “private,” as petitioners did not realize the DICVS was 

running at the time, and she asserted the Board of Police 

Commissioner’s Special Order No. 45 precluded the use of the 

DICVS to “monitor private conversations between Department 

employees.” The Department stipulated to the admission of 

Special Order No. 45, but argued it did not apply because the 

DICVS had captured petitioners engaged in police business—

not private affairs. The board ruled the DICVS recording could 

be offered as evidence subject to petitioners’ continuing objection 

“to testimony about private conversations on the video.”

The board of rights received testimony from Captain 

Davenport, Sergeant Gomez, Detective McClanahan, and 

Officers Lozano and Mitchell. Both petitioners characterized 

their willful failure to respond to the robbery in progress and 

to provide assistance to Captain Davenport as an “error” or “lack” 

in judgment. But they continued to insist they did not respond 

to the call because they believed they needed to remain within 

the boundaries of their “assigned . . . foot beat area.” Both also 
11

denied that they had made misleading statements to Sergeant 

Gomez, describing their comments about noise in the park as 

“generaliz[ed]” observations that were not meant as a specific 

response to the Sergeant’s questions about why they had not 

heard the radio.

Petitioners also denied playing Pokémon Go while on duty. 

They claimed they were monitoring a “Pokémon tracker” 

application on their phone, but not playing the game itself. 

As for “catching” Pokémon, Officer Lozano insisted this referred 

to “capturing [an] image” of the Pokémon on the tracking 

application to share with friends, while Officer Mitchell said his 

statements about “fighting” the Togetic referred to “relaying that 

information to the groups on my app,” adding that, “in order to 

take the picture, occasionally, the creature will fight.” Lozano

said they were not engaged in a game; rather, it was a “social 

media event.” Mitchell said he did not consider the application 

a game because it was not “advertised as a game.” Petitioners 

admitted leaving their foot beat area in search of Snorlax, 

but they insisted they did so “both” as part of an “extra patrol” 

and to “chase this mythical creature.”

After the presentation of evidence, petitioners’ 

representative moved to strike the count alleging petitioners 

made misleading statements to Sergeant Gomez. She argued 

their meeting violated petitioners’ rights under POBRA, because 

the Sergeant interrogated them on matters that could lead 

to punitive action without affording them the opportunity to 

have a representative present.

The board of rights denied the motion and overruled 

petitioners’ objection to the DICVS recording. Regarding 

POBRA, the board found the meeting with Sergeant Gomez 
12

“was in the normal course of Sergeant Gomez’[s] duty” and 

his counseling and instruction “was routine and expected 

of a supervisor.” As for the DICVS recording, the board 

received evidence that, subsequent to Special Order No. 45, 

the Professional Standards Bureau published Notice 13.5, 

which authorized the use of unintentionally recorded personal 

communications in disciplinary matters if there was “evidence of 

criminal or egregious misconduct.” Consistent with the notice, 

the board determined the DICVS recording could be used as 

evidence in the disciplinary proceeding because the misconduct 

captured “would certainly be classified as egregious.”

The board of rights reached a unanimous verdict, finding 

petitioners guilty on all but the count alleging they failed to 

handle an assigned radio call. Regarding the penalty, the 

board found petitioners “were disingenuous and deceitful in 

their remarks throughout the board [hearing]”; their willful 

failure to respond to the robbery in progress and attempt to 

conceal their whereabouts “demonstrated a severe negative 

attitude and disdain towards Captain Davenport, and reflected 

poorly” on the Department; their inattention to duty while 

playing a mobile phone game “violated the trust of the public, 

and represent[ed] unprofessional and embarrassing behavior”; 

and petitioners’ “overall behavior [was] inconsistent with 

the values and principles expected of our police officers who 

serve this community.” The board unanimously recommended 

petitioners be removed from employment with the Department.

The Chief of Police adopted the board’s penalty 

recommendations and issued orders discharging petitioners 

from their positions as LAPD officers.
13

5. The Administrative Mandamus Proceedings

Petitioners challenged their discharge orders by a petition 

for administrative mandamus. They argued the board of rights 

did not proceed in the manner required by law when it allowed 

the DICVS recording to be used as evidence, and they maintained 

their procedural rights under POBRA were violated because 

Sergeant Gomez questioned them without affording them the 

opportunity to have a legal representative present. Petitioners 

also asserted discharge was “too harsh” a penalty under the 

circumstances.

In their reply to the City’s opposition, petitioners argued—

for the first time—the DICVS recording was inadmissible under 

Penal Code section 632, subdivision (d). The City objected to 

the argument on the grounds that petitioners had not cited the 

Penal Code section in their opening brief and the statute was 

not part of the administrative record.

The trial court denied the petition. Regarding Penal Code 

section 632, the court sustained the City’s objection, concluding 

petitioners forfeited the argument by “improperly” raising it for 

the first time in reply. The court also found the board of rights 

properly admitted the DICVS recording into evidence under 

Notice 13.5. And the court concluded there had been no POBRA 

violation, because Sergeant Gomez questioned petitioners in 

the “ ‘normal course’ ” of his duty as a supervisor to counsel and 

instruct them. The court rejected the argument that the City 

abused its discretion by discharging petitioners from employment 

with the Department.

The trial court entered judgment denying the petition. 

Petitioners filed a timely notice of appeal.
14

DISCUSSION

1. Standard of Review

Administrative mandamus is available to obtain judicial 

review of a public agency “decision made as the result of a 

proceeding in which by law a hearing is required to be given, 

evidence is required to be taken, and discretion in the 

determination of facts is vested in the inferior tribunal, 

corporation, board, or officer.” (Code Civ. Proc., § 1094.5, 

subd. (a).) In a proceeding for administrative mandate, 

the judicial inquiry extends to whether the public agency 

“has proceeded without, or in excess of, jurisdiction; whether 

there was a fair trial; and whether there was any prejudicial 

abuse of discretion.” (Id., § 1094.5, subd. (b).) An abuse of 

discretion is established if the public agency “has not proceeded 

in the manner required by law, the order or decision is not 

supported by the findings, or the findings are not supported 

by the evidence.” (Ibid.)

Where the public agency’s decision affects a fundamental 

vested right—such as a tenured police officer’s employment—

the trial court examines the administrative record for errors of 

law and exercises its independent judgment in assessing whether 

the evidence is sufficient to support the agency’s findings. 

(Bixby v. Pierno (1971) 4 Cal.3d 130, 143; Molina, supra, 200 

Cal.App.4th at pp. 60–61.) In such cases, the court conducts 

a limited trial de novo and “abuse of discretion is established if 

the court determines that the findings are not supported by the 

weight of the evidence.” (Code Civ. Proc., § 1094.5, subd. (c); 

Mann v. Department of Motor Vehicles (1999) 76 Cal.App.4th 

312, 320.) “In all other cases, abuse of discretion is established 

if the court determines that the findings are not supported by 
15

substantial evidence in the light of the whole record.” (Code 

Civ. Proc., § 1094.5, subd. (c).)

The trial court’s factual findings are subject to our 

substantial evidence standard of review. (Molina, supra, 200 

Cal.App.4th at p. 61.) We must uphold the court’s findings 

unless they are so lacking in evidentiary support as to render 

them unreasonable. (Ibid.) We do not reweigh the evidence, but 

instead are bound to consider the facts in the light most favorable 

to the respondent, giving it every reasonable inference and 

resolving all conflicts in its favor. (Ibid.)

On questions of law, including the interpretation of 

statutes, city charters, and administrative regulations, we apply

our de novo standard of review. (Molina, supra, 200 Cal.App.4th 

at p. 61; Don’t Cell Our Parks v. City of San Diego (2018) 21 

Cal.App.5th 338, 350 (Parks).) 

2. The City Properly Used the DICVS Recording 

in Petitioners’ Disciplinary Proceeding

Petitioners contend the City did not proceed in the manner 

required by law when it used the portions of the DICVS recording 

that captured their purported “ ‘private conversations’ ” in the 

disciplinary proceeding against them. First, they argue use

of the recording violated Special Order No. 45, and they 

maintain the City was compelled to follow that order under 

the Los Angeles City Charter (Charter), notwithstanding a 

supposedly conflicting authorization in Notice 13.5. Second, 

they argue Penal Code section 632 precluded admission of their 

“confidential communication[s]” at the board of rights hearing. 

Finally, assuming Notice 13.5 governs, petitioners insist there 

was no independent evidence of “egregious misconduct” to 

permit the initiation of a disciplinary investigation involving 
16

the recording. None of these contentions advances a reasonable 

interpretation of the relevant statutes, Charter sections, or 

administrative regulations.

a. The City Charter and Special Order No. 45

A city charter is “the supreme law of the City, subject only 

to conflicting provisions in the federal and state Constitutions 

and to preemptive state law.” (Domar Electric, Inc. v. City of 

Los Angeles (1994) 9 Cal.4th 161, 170 (Domar); Parks, supra,

21 Cal.App.5th at p. 349.) A “charter city may not act in conflict 

with its charter” and “[a]ny act that is violative of or not in 

compliance with the charter is void.” (Domar, at p. 171.)

“The principles of construction that apply to statutes also 

apply to the interpretation of charter provisions.” (Parks, supra,

21 Cal.App.5th at p. 349.) “We look first to the language of the 

charter, giving effect to its plain meaning. [Citation.] Where 

the words of the charter are clear, we may not add to or alter 

them to accomplish a purpose that does not appear on the face 

of the charter.” (Domar, supra, 9 Cal.4th at p. 172.) While we 

apply our independent judgment in construing a city charter, 

“[a]dministrative interpretations [of city charter provisions] of 

longstanding are entitled to great weight unless they are plainly 

wrong.” (Baird v. City of Los Angeles (1975) 54 Cal.App.3d 120,

123; United Assn. of Journeymen v. City and County of 

San Francisco (1995) 32 Cal.App.4th 751, 759, fn. 6; see also 

Yamaha Corp. of America v. State Bd. of Equalization (1998) 

19 Cal.4th 1, 8; Parks, at pp. 349–350.)

Charter section 574, subdivision (c) authorizes the Chief 

of Police to “appoint, discharge, discipline, transfer and issue 

instructions to the employees of the department,” other than 

certain enumerated department employees not implicated in 
17

this case. (Italics added.) Additionally, Charter section 574, 

subdivision (g) authorizes the Chief of Police to “exercise further 

powers in the administration of the department conferred 

upon the Chief of Police by the Board of Police Commissioners.” 

Consistent with that provision, Charter section 571, subdivision 

(b)(1) grants the Board of Police Commissioners authority to 

“issue instructions to the Chief of Police concerning the exercise 

of the authority conferred on the Chief of Police by the Charter, 

other than the disciplinary authority conferred by Section 1070.”5

Petitioners maintain Special Order No. 45 precluded the 

City from taking disciplinary action based on the portions of 

the DICVS recording that captured their private conversations. 

They rely on a single line in the special order, appearing at 

the end of a paragraph introducing the procedures for using 

the DICVS as part of the pilot program approved by the Board 

of Police Commissioners. The line reads: “The Digital In-Car 

Video System is being deployed in order to provide Department 

employees with a tool for crime documentation and prosecution, 

and not to monitor private conversations between Department 

employees.”

Six years after the Board of Police Commissioners 

approved Special Order No. 45, the Professional Standards 

Bureau published Notice 13.5 to provide commanding officers 

with “guidelines” for “determining appropriate and reasonable 

5 Charter section 1070 establishes the scope of the authority 

of the Chief of Police to discipline a peace officer “[a]fter following 

predisciplinary procedures otherwise required by law.” Thus, 

by its express terms, Charter section 1070 does not apply to 

predisciplinary matters, such as the use of DICVS recordings 

in disciplinary proceedings.
18

responses to possible misconduct and other deviations from 

established procedures discovered during the review of [ ]DICV[S]

recordings.”6 With respect to “Unintentionally Recorded Personal 

Communications” (boldface omitted), Notice 13.5 reaffirms, 

consistent with Special Order No. 45, that “the DICV[S] system 

was not deployed ‘to monitor private conversations between 

Department employees.’ ” However, Notice 13.5 adds, if 

“a sensitive personal communication between employees is 

recorded, the personal communication will not be used to initiate 

a personnel complaint investigation or used against an employee 

in the adjudication of a personnel complaint, or during any 

subsequent hearings, unless there is evidence of criminal 

or egregious misconduct.” (Italics added.)

The trial court concluded the board of rights properly 

admitted the DICVS recording under Notice 13.5. Petitioners 

contend this was error. Because the Board of Police 

Commissioners approved the DICVS pilot program with the 

express understanding, as stated in Special Order No. 45, that 

it be used “for crime documentation and prosecution, and not to 

monitor private conversations between Department employees,”

petitioners argue Charter section 571, subdivision (b)(1) 

6 The Professional Standards Bureau oversees the forces 

investigations, special operations, and internal affairs divisions, 

which comprise the investigative arm of the Chief of Police with 

respect to employee misconduct that either violates the law or 

Department policies, procedures, or practices. (Quezada v. City 

of Los Angeles (2014) 222 Cal.App.4th 993, 998, fn. 3.) The 

Commanding Officer of the Professional Standards Bureau and 

the Chief of Staff of the Office of the Chief of Police approved 

Notice 13.5.
19

precluded the Chief of Police from approving Notice 13.5. 

Their implicit premise is that Notice 13.5 conflicts with Special 

Order No. 45 and, therefore, the Chief of Police exceeded the 

authority granted to him under Charter section 571, subdivision 

(b)(1) by implementing the guidelines set forth in the notice. 

That premise is flawed.

As the trial court correctly reasoned, Notice 13.5 does 

not run afoul of Charter section 571, subdivision (b)(1), because 

Special Order No. 45 does not provide instructions or mandates 

to the Chief of Police when, through unintentional conduct, 

the DICVS records a private communication. Following its 

introductory paragraphs, Special Order No. 45 sets forth the 

procedures officers are to follow in using the DICVS for “law 

enforcement activities” (italics added, boldface and capitalization 

omitted), including when the DICVS must be activated and 

when it may be deactivated for traffic stops, pursuits, suspect 

transports, and pedestrian stops. The order provides officers 

with instructions for reviewing and documenting material 

recorded with the DICVS, and instructions for reviewing 

the recordings in advance of a use of force interview. Finally, 

Special Order No. 45 specifies that “[a]ll data and imagery 

captured by the DICVS are the sole property of the Los Angeles 

Police Department” and warns employees that misuse of 

DICVS recordings “may result in disciplinary action.” Thus, 

Special Order No. 45 contemplates and exclusively concerns 

the intentional use of the DICVS for law enforcement activities. 

Because the Board of Police Commissioners did not give 

instructions on the use of unintentionally recorded conversations 

in disciplinary proceedings, Special Order No. 45 does not restrict 
20

“the exercise of the authority conferred on the Chief of Police 

by the Charter” under Charter section 571, subdivision (b)(1).

More to the point, the guidelines set forth in Notice 13.5 

are consistent with the general purpose of the DICVS embodied

in Special Order No. 45. Notice 13.5 reaffirms that the DICVS

was not deployed to monitor private conversations, but it 

recognizes there may be instances when the system records 

personal communications that evidence “criminal or egregious 

misconduct” by Department personnel. Because the DICVS’s

purpose, as stated in Special Order No. 45, is to “provide 

Department employees with a tool for crime documentation and 

prosecution,” it would be preposterous to require commanding 

officers and internal affairs investigators to ignore evidence 

of “criminal or egregious misconduct” simply because it was 

unintentionally captured on a DICVS recording. Charter section 

574, subdivision (g) authorizes the Chief of Police to “exercise 

further powers in the administration of the department conferred 

upon the Chief of Police by the Board of Police Commissioners.” 

Because the guidelines set forth in Notice 13.5 are consistent 

with Special Order No. 45, the Chief of Police and Professional 

Standards Bureau acted well within their authority in issuing 

the guidance. 

b. Penal Code section 632

Penal Code section 632 “prohibits the intentional

eavesdropping to a confidential communication by means of 

any electronic amplifying or recording device, without the consent 

of all parties.”7 (Marich v. MGM/UA Telecommunications, Inc.

7 Penal Code section 632, subdivision (a) provides: “A person 

who, intentionally and without the consent of all parties to a 

confidential communication, uses an electronic amplifying or 
21

(2003) 113 Cal.App.4th 415, 421 (Marich).) Under Penal Code 

section 632, subdivision (d), “evidence obtained as a result of 

eavesdropping upon or recording a confidential communication 

in violation of this section is not admissible in any judicial, 

administrative, legislative, or other proceeding,” except “as 

proof in an action or prosecution for violation of this section.” 

Petitioners contend the statute precluded admission of the 

DICVS recording in the board of rights hearing. We disagree.

The text of Penal Code section 632 plainly requires proof

of “intentional conduct” to establish a statutory violation and 

to invoke the evidentiary sanction set forth in subdivision (d). 

(Marich, supra, 113 Cal.App.4th at p. 421.) Under the statute, 

“the recording of a confidential conversation is intentional if 

the person using the recording equipment does so with the 

purpose or desire of recording a confidential conversation, or 

with the knowledge to a substantial certainty that his use of 

the equipment will result in the recordation of a confidential 

recording device to eavesdrop upon or record the confidential 

communication, whether the communication is carried on 

among the parties in the presence of one another or by means 

of a telegraph, telephone, or other device, except a radio, shall 

be punished by a fine not exceeding two thousand five hundred 

dollars ($2,500) per violation, or imprisonment in a county jail 

not exceeding one year, or in the state prison, or by both that fine 

and imprisonment. If the person has previously been convicted 

of a violation of this section or Section 631, 632.5, 632.6, 632.7, 

or 636, the person shall be punished by a fine not exceeding 

ten thousand dollars ($10,000) per violation, by imprisonment 

in a county jail not exceeding one year, or in the state prison, 

or by both that fine and imprisonment.”
22

conversation.” (People v. Superior Court of Los Angeles County

(1969) 70 Cal.2d 123, 134 (Smith); Marich, at p. 421.)

Consistent with the statute’s intentional conduct 

requirement, Notice 13.5, by its terms, authorizes the use 

of only “Unintentionally Recorded Personal Communications” 

in disciplinary proceedings. (Italics added, boldface omitted.) 

Notwithstanding this evident consistency, petitioners argue

Notice 13.5 actually proves just the opposite—that the City 

(acting through the Department and Chief of Police) intentionally

uses the DICVS to record the confidential communications of 

Department personnel. In petitioners’ telling, Notice 13.5 shows

the City was “aware that equipping police cars with recording 

devices could record ‘sensitive personal communications between 

employees,’ ” and this, petitioners contend, “establishes intent 

within the meaning of [Smith and Marich].” We are not 

persuaded.

Almost a decade after Smith, our Supreme Court revisited

the definition of “ ‘intentionally,’ ” summarizing its holding in 

Smith as follows: “This court held that ‘intentionally’ in [the 

invasion of privacy] statute required an intent to bring about 

the proscribed result rather than an intent merely to do an act 

which unintentionally brought about that result. Thus, the 

[Smith] court concluded that the Penal Code section required 

an intent to record a confidential communication, rather 

than simply an intent to turn on a recording apparatus which

happened to record a confidential communication.” (Estate of 

Kramme (1978) 20 Cal.3d 567, 572, fn. 5, second italics added.) 

To the extent Notice 13.5 says anything about the City’s 

intent with respect to recording confidential communications, 

the notice squarely situates the City’s intent in the latter 
23

category described in Estate of Kramme. In recognizing there 

could be “Unintentionally Recorded Personal Communications” 

(italics added, boldface omitted), Notice 13.5 proves only that 

the City understood it was deploying recording devices that 

might happen to record a confidential communication—not that 

the City intended to record those communications. Moreover, 

the procedures outlined in Special Order No. 45 suggest that

only the officers in the vehicle can activate the DICVS. Although 

petitioners testified they were unaware the DICVS was running 

on the day in question, they presented no evidence to establish

who activated the system. Without that critical piece of evidence, 

petitioners plainly could not prove “[a] person . . . , intentionally

and without the consent of all parties to a confidential 

communication,” used the DICVS to record their purportedly 

confidential communications that day. (Pen. Code, § 632, 

subd. (a).)

Because there was no evidence that a person intentionally 

recorded a confidential communication in violation of the statute, 

petitioners cannot show the trial court prejudicially erred by

rejecting their Penal Code section 632 argument.

c. Notice 13.5

Finally, petitioners contend Notice 13.5 did not authorize 

the Department’s use of the DICVS recording in their 

disciplinary proceedings because there was no independent 

evidence, apart from the recording itself, of egregious misconduct. 

Because Notice 13.5 states a “personal communication will not 

be used to initiate a personnel complaint investigation . . . unless 

there is evidence of criminal or egregious misconduct” (italics 

added), petitioners argue Sergeant Gomez was not authorized 

to review the DICVS recording unless he had some other evidence 
24

of egregious misconduct to initiate the review. The argument 

misconstrues Notice 13.5.

Contrary to petitioners’ construction, Notice 13.5 does 

not impose an evidentiary threshold on a commanding officer’s 

authority to review a DICVS recording. Rather, the notice

means exactly what it says—that “a personal communication 

will not be used to initiate a personnel complaint investigation

. . . unless there is evidence of criminal or egregious misconduct.” 

(Italics added.) Nothing in Notice 13.5 suggests there must be

independent evidence of criminal or egregious misconduct before

the DICVS recording may be reviewed. Indeed, because the 

Professional Standards Bureau published the notice to provide 

“guidelines” for “determining appropriate and reasonable 

responses to possible misconduct . . . discovered during the review 

of [ ]DICV[S] recordings” (italics added), the only reasonable 

reading of the text is that it authorizes the initiation of 

disciplinary proceedings when the DICVS recording itself 

discloses evidence of criminal or egregious misconduct. Thus, 

while Notice 13.5 ensures that Department personnel will not 

be subject to discipline for minor infractions or purely private 

communications unrelated to their police work (as long as the 

private communications do not evidence criminal misconduct), 

the notice reasonably provides that commanding officers will not 

be forced to ignore egregious misconduct that is unintentionally 

captured on a DICVS recording. 

Petitioners do not dispute that the DICVS recording 

constituted evidence of egregious misconduct. And the record 

plainly shows Sergeant Gomez initiated a misconduct complaint 

investigation based on this evidence.
25

We conclude the City proceeded in the manner required 

by law with respect to the DICVS recording.

3. Sergeant Gomez’s Questioning Did Not Violate 

Petitioners’ Rights Under POBRA

POBRA “provides a catalog of basic rights and protections 

that must be afforded all peace officers by the public entities 

which employ them.” (California Correctional Peace Officers 

Assn. v. State of California (2000) 82 Cal.App.4th 294, 304.) 

The Act’s purpose is “to maintain stable employer-employee 

relations and thereby assure effective law enforcement.” 

(Lybarger v. City of Los Angeles (1985) 40 Cal.3d 822, 826.) 

“Although notions of fundamental fairness for police officers 

underlie the Act, a number of its provisions also reflect the 

Legislature’s recognition of the necessity for internal affairs 

investigations to maintain the efficiency and integrity of the 

police force serving the community.” (Pasadena Police Officers 

Assn. v. City of Pasadena (1990) 51 Cal.3d 564, 572.) POBRA 

thus reflects the Legislature’s balancing of two competing 

interests: “the public interest in maintaining the efficiency 

and integrity of its police force, which, in enforcing the law, 

is entrusted with the protection of the community it serves”; 

and the peace officer’s “personal interest in receiving fair 

treatment” during an investigation that may subject the officer 

to punitive action. (Pasadena Police, at p. 569; White v. County 

of Sacramento (1982) 31 Cal.3d 676, 681.)

Like POBRA generally, section 3303, subdivision (i) 

balances an officer’s interest in a fair disciplinary process with 

the public’s interest in maintaining an efficient police force. 

The statute protects the officer’s interest by affording an officer 

the right to have a representative of his or her choosing present 
26

“whenever an interrogation focuses on matters that are likely to 

result in punitive action against” the officer.8 (§ 3303, subd. (i).) 

But, critically, the statute also ensures that this protection does 

not generate needless inefficiency by expressly specifying that 

the right to representation does “not apply to any interrogation 

of a public safety officer in the normal course of duty, counseling, 

instruction, or informal verbal admonishment by, or other routine 

or unplanned contact with, a supervisor or any other public 

safety officer.” (§ 3303, subd. (i).) This provision “was included 

to avoid claims that almost any communication is elevated to an 

‘investigation’ ” by expressly “exclud[ing] routine communication 

within the normal course of administering the department,” as 

well as “innocent preliminary or casual questions and remarks 

between a supervisor and officer.” (City of Los Angeles v. 

Superior Court (1997) 57 Cal.App.4th 1506, 1514 (Labio).)

Petitioners contend the right to representation under 

section 3303, subdivision (i) attached to their meeting with 

Sergeant Gomez because the Sergeant arranged the meeting with 

the express purpose “to find out why they had not responded to 

a ‘high priority call’ that had the potential to create a dangerous 

situation for Captain Davenport.” The trial court rejected 

this argument, finding the “meeting did not violate POBRA” 

because it “ ‘was in the normal course of Sergeant Gomez’[s] 

duty [to provide] counseling [and] instruction and was routine 

and expected of a supervisor.’ ”

8 The Act defines “punitive action” as “any action that may 

lead to dismissal, demotion, suspension, reduction in salary, 

written reprimand, or transfer for purposes of punishment.” 

(§ 3303.) 
27

We review the trial court’s factual finding regarding 

the nature of the meeting for substantial evidence. (Steinert, 

supra, 146 Cal.App.4th at p. 462; Shafer v. Los Angeles County 

Sheriff’s Dept. (2003) 106 Cal.App.4th 1388, 1396.) We are thus

“required to resolve all evidentiary conflicts, draw all reasonable 

factual inferences, and uphold all express or implied findings in 

[the Department’s] favor, if supported by substantial evidence.” 

(Jaramillo, supra, 200 Cal.App.4th at p. 815.)

Substantial evidence supports the trial court’s finding. As 

the court explained in its written decision, the evidence showed 

the events surrounding the robbery call “unfolded rapidly,” and 

Sergeant Gomez characterized the minutes that followed Captain

Davenport’s radio call as “ ‘chaotic.’ ” While the Sergeant 

found it “peculiar” that petitioners had initiated their Code 6 

at approximately the same time Captain Davenport responded 

to the robbery, the frenzied pace of the incident and the hectic 

radio chatter surrounding it also gave him reason to believe 

petitioners had not responded because they were occupied with 

other business and did not hear his attempt to contact them 

on the radio.

When Sergeant Gomez met with petitioners later that 

evening, he first asked them to clarify their duties, recognizing, 

as the trial court observed, there “could be any number of 

reasons, consistent with [their] duties as foot beat officers, that 

[petitioners] would be Code 6 on Crenshaw Corridor at the time 

of the robbery call.” Officer Lozano explained they were 

charged with making community contacts with citizens and 

businesspeople in the area, and their main focus was the Leimert 

Park area of the Crenshaw Corridor. Sergeant Gomez then asked 

petitioners if “their radios were working” and if they had heard 
28

what he believed was a call for “backup at Crenshaw Mall” for 

a robbery in progress. Petitioners explained the area around 

the park was often very loud, especially on Saturdays when 

parkgoers played music or used the public announcement system. 

Sergeant Gomez acknowledged this was a credible explanation 

for why they had not heard the radio, remarking in his testimony 

about the meeting: “I couldn’t dispute that. If there’s loud 

noise and you can’t hear the radio, I have nothing to say.” 

The Sergeant instructed petitioners that they should have 

moved to a location where they could hear the radio, advised 

them that he “was counseling them for not listening to the radio,” 

and “left it at that.”

Consistent with Sergeant Gomez’s characterization of the 

meeting, Officer Mitchell acknowledged the meeting constituted 

“a normal exchange between supervisor and subordinate” and 

it was “the same type of discussion or . . . supervisory oversight 

that’s provided daily to the patrol units.” This admission, 

coupled with Sergeant Gomez’s testimony, and other reasonable 

inferences that can be drawn from the Sergeant’s perception of 

the events that day support the trial court’s finding that Sergeant 

Gomez met with petitioners as part of his normal duty to provide 

“counseling, instruction, or informal verbal admonishment” 

to subordinate public safety officers. (§ 3303, subd. (i).) 

Independently applying the law to the trial court’s factual 

findings, we conclude POBRA did not apply. (See Steinert, supra,

146 Cal.App.4th at pp. 463–465 [where commanding officer 

“knew no facts that would have caused him to believe” petitioner 

engaged in serious misconduct, apparent minor infraction that 

“could have been properly addressed by a training/educational 
29

meeting” did not implicate right to representation under § 3303, 

subd. (i)].) 

Petitioners maintain Labio, supra, 57 Cal.App.4th 1506

is directly on point. We disagree.9 Officer Labio was on duty 

as an airport police officer when a fatal accident occurred near 

the airport. (Id. at pp. 1509–1510.) Shortly after the accident, 

Labio’s commanding officer learned that a male Filipino officer 

drove past the accident scene in a marked police vehicle and, 

without stopping to render aid, went to a donut shop. (Id. at 

p. 1510.) The commander checked the deployment log and 

confirmed Labio was the only officer matching the description, 

and he spoke with the donut shop’s owner, who confirmed a male 

Filipino officer had been there at about the time of the accident. 

(Ibid.) The commander also discovered Labio did not have 

permission to use a vehicle that evening and asked another 

officer “to write a report documenting that fact.” (Ibid.)

Before questioning Officer Labio, the commander “knew 

that passing by the scene of the accident without stopping to 

render aid was a serious offense and that the officer could face 

9 The other case petitioners cite—Hanna v. City of 

Los Angeles (1989) 212 Cal.App.3d 363—is totally irrelevant. 

In a nonpublished opinion preceding Hanna, the appellate court 

had determined an interrogation violated an officer’s rights under 

POBRA and remanded the case to the trial court “ ‘for the limited 

purpose of determining whether the violations of the Act warrant 

the suppression of evidence.’ ” (Id. at p. 369.) In view of this 

procedural posture, the Hanna opinion naturally addresses only 

the suppression issue and says nothing about when an officer 

is entitled to representation under section 3303, subdivision (i). 

(See Hanna, at pp. 371–375.) The trial court understandably

declined to address Hanna in its ruling denying the petition.
30

disciplinary action if the allegation were sustained.” (Labio, 

supra, 57 Cal.App.4th at p. 1510.) He also “realized the 

matter would have to be forwarded to the department’s 

internal affairs division.” (Id. at p. 1511.) Nevertheless, 

the commander summoned Labio to his office and, upon 

Labio’s arrival, immediately began questioning him about his 

whereabouts and use of a police vehicle during the shift, without 

informing Labio that he was under investigation or informing 

him of his rights under POBRA. (Ibid.) 

The trial court concluded the questioning violated Labio’s 

rights under POBRA and the appellate court agreed, concluding 

“the questioning [could] only be characterized as part of an 

investigation of Officer Labio for sanctionable conduct.” (Labio, 

supra, 57 Cal.App.4th at p. 1514.) Because the trial court 

had found a violation, the Labio court gave short shrift to the 

city’s contention that the questioning constituted a routine or 

unplanned contact within the normal course of duty, stating only: 

“There probably are cases in which routine questions and 

remarks begin to shade into an investigation to which 

subdivision (i) does not apply. We need not decide just where 

that point is reached because it is clear that under our test 

an investigation was underway in this case.” (Ibid.)

In contrast to Labio, here, Sergeant Gomez did not have 

evidence that petitioners had committed a crime or egregious 

misconduct when he met with them to discuss the radio calls 

earlier that evening. To be sure, the record shows Sergeant 

Gomez was uneasy about the timing of petitioners’ Code 6, 

both before and after their meeting; however, because he had 

not had “much contact” or “other issues” with them, he testified 

the informal admonishment and counseling normally would have 
31

been the “end” of it. It was only the next morning that it dawned

on him to look at their vehicle’s DICVS recording to “find out 

what [petitioners] do on their average day.” At the time, of 

course, the Sergeant had no reason to know the DICVS had 

recorded petitioners’ conversation regarding Captain Davenport 

or the mall robbery, as, under Special Order No. 45, petitioners 

had been instructed to activate the DICVS “during the initiation” 

of activities such as vehicle stops, pursuits, suspect transports, 

or pedestrian stops, and to deactivate the unit after the 

“incident or field contact has stabilized or the contact has ended.” 

Nevertheless, by happenstance the DICVS did capture 

petitioners’ conversations, and the record shows it was 

uncovering this evidence of egregious misconduct—after his 

meeting with petitioners—that led Sergeant Gomez to initiate 

formal disciplinary action against them. Even if some of the 

Sergeant’s “questions and remarks beg[an] to shade into an 

investigation” during the meeting (Labio, supra, 57 Cal.App.4th 

at p. 1514), the record amply supports the trial court’s finding 

that this was, as Officer Mitchell acknowledged, a routine 

exchange between supervisor and subordinate within the normal 

course of administering the department. POBRA did not apply. 

(See Steinert, supra, 146 Cal.App.4th at p. 466 [evidence that 

commanding officer “had no intention to punish [petitioner],” 

and only sought “to make sure she knew the proper procedure 

for future” action, supported trial court’s refusal to suppress 

evidence of petitioner’s apparent lie during questioning].)
32

DISPOSITION

The judgment is affirmed. The City and the Chief of Police 

are entitled to costs, if any.

CERTIFIED FOR PUBLICATION

EGERTON, J.

We concur:

EDMON, P. J.

WINDHAM, J.∗

∗ Judge of the Los Angeles County Superior Court, assigned 

by the Chief Justice pursuant to article VI, section 6 of the 

California Constitution.