Appeal from two judgments of the Superior Court of Orange County, Andrew P. Banks, Judge. (Super. Ct. No. 05CC04220)
The opinion of the court was delivered by: Rylaarsdam, Acting P. J.
CERTIFIED FOR PUBLICATION
Request to take judicial notice. Request denied. Judgments affirmed.
County of Orange (the County) appeals from a judgment awarding former Orange County Assistant Sheriff George Jaramillo (Jaramillo) backpay for the period from his March 2004 summary dismissal from the sheriff's department until his January 2007 plea of no contest to two state law felony counts. The 2007 no contest plea made it impossible for him to continue to work as a law enforcement officer in any event. (Gov. Code, § 1029; all further undesignated statutory references are to that Code.) There is no dispute that the summary termination without notice, or the opportunity for an administrative appeal, violated the Public Safety Officers Procedural Bill of Rights Act (POBRA), section 3300 et seq. (See generally Riverside Sheriffs' Assn. v. County of Riverside (2011) 193 Cal.App.4th 20, 30 (Riverside Sheriffs) [dismissals are considered punitive actions under POBRA and require opportunity for administrative appeal].) The County argues, however, that the trial court erred in not affording preclusive effect either to (a) Jaramillo's 2007 felony convictions, or (b) certain waivers he signed in 1998 and again in 2000 waiving POBRA protections. For reasons explained below, the County's arguments are unpersuasive. We affirm the judgment.
This appeal comes to us after a court trial giving judgment for respondent Jaramillo. Accordingly, we are required to resolve all evidentiary conflicts, draw all reasonable factual inferences, and uphold all express or implied findings in Jaramillo's favor, if supported by substantial evidence. (People v. Alexander (2010) 49 Cal.4th 846, 883.)
Jaramillo worked for the Garden Grove Police Department for 14 years. He left the department in 1997. He met Mike Carona in 1996 at a political breakfast. The two became friends. Carona asked Jaramillo to become his campaign manager for Carona's upcoming run for county sheriff. Jaramillo agreed. Carona won the election. Carona appointed four or five "assistant" sheriffs to be right under him in the department hierarchy. One was Jaramillo. Another was Don Haidl.
In 2002, a videotape surfaced showing Haidl's son and two of the latter's friends gang-raping a comatose 16-year old girl. The potential for political embarrassment of Carona was obvious. Carona asked Jaramillo to speak to District Attorney Tony Rackaukas to try to have him go easy on Don Haidl's son. Jaramillo objected. He thought it was "the wrong thing to do." Carona insisted. If Jaramillo didn't approach Rackaukas, Carona would "look bad in front of Don Haidl." Despite his "real problem" with "talking to another department," Jaramillo went to the district attorney. The errand had no effect. Haidl's son and his two friends were prosecuted and ultimately convicted of rape by intoxication and other related sexual crimes.
But Jaramillo's hesitation about the Haidl errand did not sit well with Carona. More conflicts arose between the two. Carona determined that one of his campaign donors should become a harbor captain in the context of a new harbor contract with several beach cities. Jaramillo registered his disapproval. In 2003, Jaramillo warned Carona about Carona's use of a sheriff's department helicopter to conduct trysts with a number of women, one of whom had been Jaramillo's former law partner. Jaramillo also warned Carona about the practice of, in effect, selling badges and concealed weapons permits to campaign donors.
Matters came to a head at a dinner meeting between Carona and Jaramillo in August 2003. Carona planned a run for lieutenant governor in 2006. Jaramillo told Carona that he wanted to succeed Carona as county sheriff. Jaramillo wanted Carona's endorsement.
Carona told Jaramillo he would not endorse him. Jaramillo asked why. Carona said it was because Jaramillo "was no longer being the loyal guy" he had been.
Jaramillo launched into his grievances against Carona. He was "done covering" for Carona. "I pointed out to him that the function of my not being a loyal guy was that, instead of being the clean-cut sheriff that I started out with, he was doing these things that were not only, in my opinion, illegal, but they were just flat stupid, they were creating all sorts of grief for him and for me; and I didn't want to be a party to that; and that from that day forward he needed to know, since we were having an honest interaction, that I was done. I'm done covering with his wife. I'm done covering for him at meetings. I'm done covering with members of the board of supervisors. He's got to find somebody else to cover for him."
The Sunday before March 17, 2004, Jaramillo and Carona met at a mutual friend's wedding. Jaramillo wanted to "fix" the enmity that had developed between them. Carona rebuffed the olive branch. The "train had left the station." Jaramillo had "screwed" Carona.
Then came the firing. Carona called Jaramillo into a meeting on March 17, 2004. Present were Carona, the county's human resources officer, four other sheriffs, and the County Counsel. Carona asked Jaramillo to resign. Jaramillo refused. He said he had "no reason" to resign. Carona then fired him, making reference to a document Jaramillo had signed in 2000 classifying Jaramillo as an "at-will" employee.
Jaramillo knew his rights under POBRA. He had never seen a peace officer "just summarily dismissed." He told Carona he needed to have "some sort of a hearing." The county human resources officer asked Jaramillo to talk in his office. When he closed the door, she started to cry. "This was the most unfair thing she had ever seen." Jaramillo reiterated his request for a hearing. She said, "there's nothing I can do."
Jaramillo never did receive an administrative hearing. He filed this lawsuit in 2005 on the first anniversary of his firing.
Jaramillo had other problems besides the loss of his job. In March 2006, almost two years after the firing, the Orange County grand jury handed down a 13-count indictment, charging Jaramillo with various crimes, including (1) lying to the grand jury in 2004 about whether his wife had been paid $10,000 from a certain safety technology company, CHG Enterprises, and (2) misappropriating public funds by using a sheriff's helicopter for personal travel.
At about the same time (though our record is not precisely clear when) the
United States Attorney's Office for the Central District of California investigated Jaramillo and filed an information charging Jaramillo with (1) willfully filing a false federal income tax return; and (2) committing "honest services fraud" under 18 U.S.C. sections 1341 and 1346.
Both sets of criminal charges were resolved in plea agreements. The state plea agreement involved Jaramillo pleading no contest to the charges of misappropriation of public resources and perjury before the grand jury. The federal plea agreement resulted in guilty pleas to the false tax return and "honest services fraud" charges. The state plea agreement came first, on January 29, 2007. The federal agreement came after, on March 12, 2007.
This lawsuit was in progress at the time. As a condition of accepting the federal plea agreement, the federal district court judge required that any recovery Jaramillo might receive from this lawsuit would have to be immediately paid back to Orange County as "restitution" for the honest services fraud.
However, in February 2011, the Ninth Circuit set aside the honest services fraud conviction. (See U.S. v. Jaramillo (9th Cir. 2011) 413 Fed.Appx. 979 (Jaramillo I).) The Ninth Circuit held that under Skilling v. United States (2010), -- U.S. --, 130 S.Ct. 2896, 177 L.Ed.2d 619, Jaramillo could not be convicted of "honest services" fraud because honest services fraud is limited to bribery and kickback schemes. The Ninth Circuit ruled that the federal information charging him with honest services fraud contained no allegations of bribery or kickbacks. (Jaramillo I, supra, at p. 1.) The Ninth Circuit also vacated and remanded the restitution order, which was based on the honest services fraud count.
In this appeal Jaramillo has made a formal motion asking us to take judicial notice of the Ninth Circuit's decision, filed between the opening and respondent's brief. We deny the motion as unnecessary. (See Navellier v. Sletten (2002) 29 Cal.4th 82, 87, fn. 5 [denying request to take judicial notice of Ninth Circuit opinion involving same parties as "unnecessary"]; Quelimane Co. v. Stewart Title Guaranty Co. (1998) 19 Cal.4th 26, 45, fn 9 ["A request for judicial notice of published material is unnecessary. Citation to the material is sufficient."].) All Jaramillo needed to do was to cite the opinion. (Cal. Rules of Court, rule 8.1115; Farm Raised Salmon Cases (2008) 42 Cal.4th 1077, 1096, fn. 18 [California court rules allow citation of unpublished federal opinions].)
In the trial of this case, Jaramillo testified (on cross-examination) that the perjury count arose out of his testimony concerning dealings he had with CHG Enterprises, a firm that was hoping to market a device to law enforcement agencies that would disable the electronics in cars being chased. He testified that, two or three years after a grand jury was investigating the relationship between CHG and the sheriff's department, prosecutors read his earlier testimony and concluded Jaramillo had committed perjury. Jaramillo testified in the case before us (over objection from the County's attorney), that he had not committed perjury, but had pled no contest only because people were using the district attorney's office to "destroy" him. "I pled no contest to stop the beating," by which he explained, "the destruction I was told about that would ultimately happen to George Jaramillo and his family, it wasn't going away."
As to the misappropriation of public funds, Jaramillo testified that he had ridden in a sheriff's department helicopter from a hospital where he had just visited his comatose mother to catch a Jet Blue flight out of Long Beach to attend a White House function. When the story surfaced, Jaramillo paid $241 to the County to reimburse it for the cost of the flight because Carona did not want Carona's own use of the helicopter to come out. Jaramillo's explained that the reason for his no contest plea was personal and financial exhaustion. "But I came to the conclusion that I would actually drop dead from ...