February 18, 2016 Board Meeting Minutes

The California Victim Compensation and Government Claims Board (Board) convened its meeting in open session at the call of Marybel Batjer, Secretary, California Government Operations Agency, at 400 R Street, Sacramento, California, on Thursday, February 18, 2016, at 10:02 a.m. Also present were members Richard Chivaro, Deputy State Controller and Chief Counsel, acting for and in the absence of Betty T. Yee, Controller, and Michael Ramos, San Bernardino County District Attorney.

Executive Officer Julie Nauman and Chief Counsel Wayne Strumpfer were in attendance. Tisha Heard, Board Liaison, recorded the meeting.

The Board meeting commenced with the Pledge of Allegiance.

Item 1. Approval of Minutes the January 21, 2016, Board Meeting

Chairperson Batjer was not in attendance at the January 21, 2016, meeting; however, she explained that she spoke with her General Counsel, Holly Pearson, who was the Acting Chairperson at that meeting. Ms. Pearson reviewed the minutes and allowed Chairperson Batjer to be her proxy.

The Board approved the minutes of the January 21, 2016, meeting.

Item 2. Public Comment

The Board opened the meeting for public comment. No comment was provided.

Change in the Order of Items on the Agenda

Due to time constraints, the Board changed the order of the items on the agenda to accommodate Chairperson Batjer and Member Ramos.

The Board took up Item 8 next. The Board moved Item 3 to be heard after Items 4–7.

Item 8. Claim of Luis Galicia (Pen. Code, § 4900 et seq.)

Luis Galicia, claimant, and his representative, John T. Richards, were in attendance. Heather Gimle and Larenda Delaini attended on behalf of the California Department of Justice, Office of the Attorney General. Christine Ward, Executive Director of Crime Victims Action Alliance and iCan, provided comment.

Wayne Strumpfer, VCGCB Chief Counsel explained that Luis Galicia was convicted of two counts of sexual assault and was sentenced to concurrent 15 years to life sentences. Less than three years later, his habeas corpus was granted by the San Diego Superior Court and he was released. He served 1,068 days in prison. Mr. Strumpfer explained that the hearing officer’s recommendation in the Proposed Decision was to approve the claim and recommend the matter to the Legislature for payment.

Mr. Richards explained that Mr. Galicia served 1,068 days in prison, five months of which were spent in administrative segregation where he was locked up 23 hours a day. He stated that the facts of the case were that Mr. Galicia was convicted based upon a medical report that was later discredited by the District Attorney's own SART expert. Mr. Richards explained that while Mr. Galicia was serving his time in prison, Child Protective Services took Mr. Galicia’s sister. His sister immediately recanted the allegations several months after being taken into custody of Child Protective Services, but was not returned home for several years.

Mr. Richards stated that when Mr. Galicia’s sister finally returned home, her mother took her to three different doctors who performed an examination, all of which were contrary to the original findings of the doctor who testified on behalf of the prosecution. Those three doctors led to the District Attorney allowing a new examination with their expert team at Children's Rady Hospital where it was confirmed that the original report that convicted Mr. Galicia was inaccurate.

Mr. Richards explained that Mr. Galicia’s sister attempted to date an 18-year-old gang member. Mr. Galicia stopped that relationship, but his sister got very angry with him for doing so. As a result, she tried to run away from home. When she was caught running away from home, she made the allegation of the sexual abuse against Mr. Galicia. Within two months, she recanted again. At trial, Mr. Galicia’s sister testified that there was no sexual conduct at all. Mr. Galicia’s release was unopposed by the District Attorney's Office and it was stipulated by the Attorney General's Office. The habeas petition was filed three days later.

Mr. Richards showed a video clip of Mr. Galicia’s story of his wrongful conviction that was covered by Univision Communications. He explained that it was a huge story in the San Diego Latino community. He explained that although the video was in Spanish, it showed the actual release of Mr. Galicia. The video also showed Mr. Galicia’s sister apologizing to him and Mr. Galicia accepting her apology. He added that more importantly, the video showed District Attorney Bonnie Dumanis giving an interview in which she said it was the right thing to release Mr. Galicia.

Chairperson Batjer asked Mr. Richards the timeframe between the examination of Mr. Galicia’s sister and when her mother took her for the examination for the incident.

Mr. Richards explained that the examinations occurred in mid to late 2009, after the release of Mr. Galicia’s sister from the custody of Child Protective Services.

Ms. Gimle explained that crimes committed in the family home present unique challenges to law enforcement because by their nature they often involve secrecy, power and control dynamics, divided loyalties, and many times love for the perpetrator. Because of these varied emotions, victims of child abuse and domestic violence are often reluctant to disclose the abuse. When the abuse is disclosed, victims can face the new stress of prosecution and the family structure being impacted when the perpetrator is in jail. She stated that the complicated family dynamics were fully present in the case of Mr. Galicia and affected the behavior of the victim before, during, and after trial.

Ms. Gimle stated that the Hearing Officer failed to appreciate the importance of the evidence of child sexual abuse accommodation syndrome that was presented at the hearing because that evidence was not mentioned in the finding supporting the proposed decision; nevertheless, she stated the Board should not ignore that evidence. The facts in the case present an uncanny illustration of the complex and, at times, counterintuitive behaviors of victims of sexual abuse. The syndrome involves secrecy, helplessness, entrapment, and accommodation, delayed and unconvincing disclosure, and retraction or recantation, all of which were present in the case. She stated that after six years of abuse, Mr. Galicia’s sister kept the secret because of his threats. His sister first disclosed the abuse to a friend, minimizing what happened. She then wrote a note to her mother asking what she would do if one of her sons were raping one of her daughters and eventually disclosed to her mother; however, after taking her to a doctor in Mexico, her mother then dropped the subject and did nothing to protect her. It was at that point that his sister ran away. Once out of family home, she disclosed the abuse to a school counselor, a detective, medical personnel, a forensic interviewer, her foster mother, another child in foster care, and a social worker. Nonetheless, after being in foster care for many months, seeing how upset her siblings were away from home and being ignored and made to feel that she had caused all this trouble by her mother, she recanted.

Ms. Gimle stated that Dr. Urquiza, an expert in child abuse who testified at the hearing, said that 25 percent of all children who are brave enough to disclose abuse, which is very difficult in the first instance, later recant the allegation. She explained that Dr. Uriquiza testified that the main correlation to that recantation is lack of maternal support, which was regrettably present in the case. Dr. Uriquiza further testified that false reports of child molestation are very uncommon or rare. Ms. Gimle stated that the Hearing Officer also completely disregarded Mr. Galicia’s confession to molesting his sister, even though it had the semblance of veracity. Additionally, Mr. Galicia provided details of the crime, the timeframe, and the abuse itself. She explained that the confession also contained justifications and rationalizations for his behavior that he had been molested at age six and that he did not force his sister; instead, she was the initiator.

Ms. Gimle stated that Mr. Galicia’s excuses for criminal behavior contradicts an acknowledgement of wrongdoing that should not be dismissed thoughtlessly, especially when coupled with Mr. Galicia’s failure of memory about the interview on cross-examination at the hearing followed by his impeccable memory about it on direct examination. She stated that the Hearing Officer failed to appreciate that the medical evidence in the case did not exonerate Mr. Galicia. She explained that the medical personnel who were actually qualified to render medical opinions on child sexual abuse, a specialty, were Drs. Spencer, Ticson, and Suresh and Nurse Practitioner Cathy Boyle, who were evenly split between findings and no findings of abuse in this case. Yet, they all agreed that findings in non-acute cases such as this case were rare with normal exams in 90 to 95 percent of cases of reported abuse. She explained that when that fact was combined with Dr. Urquiza's testimony that false reports of sexual abuse by children are uncommon or rare, it is clear that a normal medical exam does not mean that abuse did not occur. She stated that the Hearing Officer's proposed decision finding that Mr. Galicia was innocent, by extension, finds that his sister lied.

Ms. Gimle played a video clip taken from the beginning of Mr. Galicia’s sister’s forensic examination shortly after she ran away. She explained that a witness' demeanor could be very useful in determining credibility. She explained that initially in the clip his sister gives background information, then she was asked to explain what happened. His sister began answering that question by saying “everything started when I was six years old. I was a happy little girl. And then one day I stayed with my brother.” After showing the video clip, Ms. Gimle stated that after his sister broke down and cried, she went on to say that Mr. Galicia “put his part inside my part. I was crying. And after that he told me if I told anyone that something could happen to me or my family. That's why I did not say anything, because I was afraid he would do something to my family.” Ms. Gimle stated that the young girl breaking down in that video was not lying when she painfully and courageously admitted she was the victim of molestation for six years. The fact that she recanted that disclosure after six months of standing by it, under family pressure, does not mean that she lied. Lastly, Ms. Gimle requested the Board reject Mr. Galicia’s claim.

Chairperson Batjer asked Ms. Gimle whether the note written by the daughter to her mother was a part of the record.

Ms. Gimle stated she believed it was part of the testimony in the trial and would be in the reporter’s transcripts from the jury trial where Mr. Galicia was convicted; however, she was unsure whether the actual note was admitted as an exhibit in that jury trial.

Mr. Richards clarified that the note was never found. He explained that it was an issue in the trial because a note was never produced. Instead, there was only the mention that there was a note. The idea that Mr. Galicia’s sister had been taken to Mexico to have an examination that pre-dated all of this by her mother for pregnancy was also discredited in the trial. No records, including pregnancy records, were ever produced.

Ms. Ward explained that she has worked with victims of trauma for nearly 25 years. Part of her area of expertise is working with child sexual assault and child abuse victims. She explained that in reading the proposed decision, it concerned her that there were many issues that were brought up that were disregarded by the Hearing Officer; specifically, the information provided by Nurse Practitioner Cathy Boyle, a national expert in sexual assault on child sexual assaults whom she stated she considered her word the word of God. Additionally, there were a lot of issues that were brought up such as the recanting of a victim, which, especially at his sister’s age, is more common than not. She stated it was disturbing that the Hearing Officer found Mr. Galicia innocent, because she believed it was very difficult to determine in this case.

Mr. Richards remarked that he devoted the past three years of his life to Mr. Galicia’s case. He explained that he has taken 42 depositions, read the trial testimony over a dozen times, and knows the case inside and out in addition to every fact that occurred. He commented that to say that Cathy Boyle is the word of God is an overstatement. He clarified that Cathy Boyle is a nurse who testified in the hearing that she knows more than any pediatrician and any gynecologist, including the District Attorney's expert witnesses on SART exams. Dr. Premi Suresh testified that she performed over a 1,000 of those types exams and testified on behalf of the District Attorney's Office exclusively as an expert. Dr. Suresh found that the report and the medical evidence in the case were false. The report of Dr. Spencer was false. Nurse Boyle said that she never examined Mr. Galicia’s sister; instead, she only looked at photographs. She acknowledged that, in looking at photographs, one cannot tell conclusively one way or another if the findings were there or not. Therefore, it was not as if she came in with definitive evidence. The definitive evidence is the District Attorney's expert witness, Dr. Premi Suresh. Mr. Richards stated that District Attorney Bonnie Dumanis evaluated the interpretation of that evidence. Moreover, he explained that simply because there is a recanting in this case does not mean that every single recantation is not true. In this case, the recantation was true.

Mr. Richards explained that there was a mention of a confession, but the confession was thrown out of Court; Judge Weber ruled it inadmissible in this case because Mr. Galicia denied ever touching his sister for over four-and-a-half hours. At the conclusion of the interview, the detective promised that the children, his siblings who had been taken into Child Protective Services custody two months earlier, would be returned to his mother if he would just acknowledge touching his sister. Mr. Galicia then, after being promised that they would return the children the next day, said “I'll say whatever you want, I touched my sister.” Mr. Richards clarified that the confession never came into the criminal trial; it was completely ruled inadmissible by the Judge. Lastly, Mr. Richards commented that simply saying there was a confession was misleading.

Chairperson Batjer asked Mr. Richards whether the details mentioned in the confession were dismissed.

Mr. Richards clarified that the confession never came into the criminal trial. The only evidence that came into the criminal trial was the foster mother admitting that she knew the recanting started three to four months later. The District Attorney's Office did not admit the recanting for eight months. The official record shows a recanting eight months later; however, in the criminal trial, the foster mother said the recanting started in March or April, three to four months later. By the time of the criminal trial, his sister vehemently said nothing happened. The only evidence that impeached her testimony that nothing happened was the report of Dr. Spencer. That was the only piece of physical evidence that came into the case. Not only was the report under scrutiny, but 10 other reports by Dr. Spencer were also scrutinized. He remarked that Dr. Spencer is no longer allowed to examine children in SART exams. The entirety of this suggests that Mr. Galicia was wrongfully convicted. He stated that the Hearing Officer did her due diligence. She listened to lengthy testimony and reviewed over 1,000 pages of material. Lastly, Mr. Richards requested the Board uphold the hearing officer’s proposed decision.

Member Ramos asked Mr. Richards whether he filed a motion for factual innocence.

Mr. Richards stated that a motion for factual innocence was not filed and he did not have an explanation other than the case is being pursued civilly.

The Board voted 3-0 to reject the claim.

Item 4. Consent Agenda (Nos. 1–293)

Nicholas Wagner, Government Claims Program Manager, requested the Board approve consent agenda item numbers 1–293, with the exception of item numbers 54, 64, 277, and 289, which were continued, and item number 46, which was removed to allow the claimant an opportunity to address the Board.

The Board approved the consent agenda with the exception of item numbers 46, 54, 64, 277, and 289.

Consent Agenda Item Number 46: Claim of Fernando Serna (617162)

Fernando Serna appeared and addressed the Board. Peter Vu attended on behalf of the California Department of Transportation. Christine Allison and Kim Herlache attended on behalf of the California Department of Human Resources.

Nicholas Wagner, Government Claims Program Manager, explained that Fernando Serna requested compensation from the California Department of Transportation (Caltrans) in the amount of $28,032.00 for pay differential. Mr. Wagner stated Government Claims Program staff recommended the Board reject the claim.

Mr. Serna stated he promoted to a supervisory position in 2001 and at that time he was entitled to receive Class A differential pay. He stated he was not aware that a form had to be completed in order to receive the pay differential; consequently, for 13 years he assumed the State was paying him the pay differential. Mr. Serna explained that in 2013, his superintendent performed an audit and discovered that $96 was not paid, which amounted to the differential pay. Accordingly, a secretary filed the Caltrans driver’s license differential authorization form, backdated it to October 31, 2001, and his superintendent signed it. Later, without advance notification, he stated he began receiving checks. He acknowledged that Caltrans compensated him for three years of back pay; however, he requested Caltrans pay the remainder of the pay differential still owed to him. He explained that he submitted to drug and alcohol testing as mandated by the policy of the State in order to receive the pay differential.

Mr. Vu commented that in Mr. Serna’s testimony, he described $96 in differential Class A pay; however, in his government claim, he requested $28,032, which was calculated at $192 a month for 12 years and two months beginning October 2001-December 2013. He explained that $192 a month is the commercial driver’s license (CDL) differential pay. He clarified that the fact that an employee is a supervisor does not automatically make them eligible for the CDL differential. The CDL differential was not based on being a supervisor; wide varieties of Caltrans employees are eligible for the CDL differential. He explained that supervisors are compensated at the rate of $192 per month and other positions are compensated at a lesser rate. He explained that in order to become eligible to receive the pay differential, the employee must complete form PM0016, receive approval from their immediate supervisor, the Office of Drug and Alcohol Programs, and the Division of HR, and pass a federal drug test. Lastly, he stated that Mr. Serna did not apply for the pay differential until December 2013; therefore, he was not legally entitled to the differential pay prior to that time.

Chairperson Batjer asked Mr. Vu to explain the process an employee would follow to receive differential pay.

Mr. Vu stated he was unfamiliar with the process; however, the recommendation to reject the claim would allow Mr. Serna to sue civilly and would be the appropriate course the Board should take.

Mr. Serna commented that he had a copy of the authorization form in his possession. He stated there was no place on the form for his signature. He explained that the form should have been signed by his immediate supervisor at the point of his transition from rank and file to management. He remarked that he was not requesting payment for the three years he had previously been paid. He reiterated that he was asking for $96 a month.

Chairperson Batjer asked Mr. Serna the date he received the form and asked if he signed it.

Mr. Serna stated he received the form after the audit was conducted. He explained that his immediate supervisor signed the form on December 23, 2013.

Mr. Vu explained that the amount in dispute was not based upon Mr. Serna’s promotion to supervisor; rather, it was based on the CDL differential.

Chairperson Batjer asked how an employee would know that the form exists.

Ms. Allison remarked that CalHR would not be able to speak to the process that Caltrans employees were required to follow to secure the pay differential; however, she could explain the pay differential criteria and eligibility. She stated that CalHR was not aware of the form mentioned by Mr. Vu because it was an internal form used by Caltrans and only Caltrans could explain their process. Ms. Allison explained that CalHRs position was that the State’s liability was one year based on the statute of limitations and pursuant to Government Code sections 911.2 and 19815.8.

Chairperson Batjer asked Mr. Vu to explain Caltrans’ justification for paying Mr. Serna for three years, which was beyond the one-year statute of limitations.

Mr. Vu explained that Government Code section 19818.16 allows the department to give compensation to employees for the performance of duties outside the scope of their duties for one year. He explained that he was told that occasionally it was Caltrans’ policy to extend the period to three years out of generosity.

Chairperson Batjer pointed out that it was illegal to give a gift of public funds. She asked if Caltrans had a written policy to that effect.

Mr. Vu commented that the policy was one to three years but was unsure whether it was a written policy.

The Board referred the claim back to staff and directed staff to recalculate the amount Mr. Serna would be entitled to receive. The Board asked staff to bring the claim back to the Board next month.

Item 5. Claim of Metropolitan Van and Storage: Claim Number G621737

Dave Smart, claimant, was in attendance. Rosemarie Ruggieria and Allison Stanick attended on behalf of the Department of Motor Vehicles.

Nicholas Wagner, Government Claims Program Manager, explained that Metropolitan Van and Storage requested compensation from the California Department of Motor Vehicles in the amount of $9,428.94 for unpaid invoices. He stated that Government Claims Program recommended that the Board reject the claim because it raised complex issues of fact and law beyond the scope of analysis and interpretation typically undertaken by the Board.

Mr. Smart explained that his claim was for compensation for one line item pursuant to the contract and the bid; specifically, compensation for employees traveling to and from particular sites. The travel item only applied for travel to worksites greater than 50 miles away from the awarded contractors or subcontractor’s base of operations, whichever is closest to the worksite. He claimed that DMV changed the contract language for compensation of travel expenses that differed from the language used when Metro calculated its bid.

Chairperson Batjer asked whether the details regarding travel expenses were outlined in the contract.

Mr. Smart confirmed that the details were provided in the contract; however, after providing several service request fulfillments based on jobs that paid the stipend for travel, at some point DMV chose not to compensate pursuant to the contract; instead, they changed the wording of the contract from base of operations to nearest office capable of providing those services.

Ms. Ruggieria explained that there was a large amount of evidence in the bid, the contract, and supporting documents that weighed heavily against the claim. The base of operations in the contract was in West Sacramento. Metro did not provide substantiating documentation required by the contract for verification of travel distances and times in order to calculate appropriate payment; instead, they demanded payment. Ms. Ruggieria requested the Board reject the claim.

Chairperson Batjer explained that the claim required reviewing evidence, the contract, and invoices, among others, which were beyond the Board’s scope of authority. The Board rejected the claim because it raised issues of fact and law beyond the scope of analysis and interpretation typically undertaken by the Board.

Member Ramos Excused

After voting on Item 5, Member Ramos excused himself from the meeting at 11:15 a.m.

Item 6. Claim of Melanie Ripley: Claim Number G623250

Melanie Ripley, claimant, and Stephen Stapleton, her representative, were in attendance. Kali Christ, Angel McCullar, and Shane Buffington attended on behalf of the Employment Development Department. Ms. Buffington provided the Board with documentation in support of EDD’S claim.

Nicholas Wagner, Government Claims Program Manager, explained that Melanie Ripley sought compensation from the California Employment Development Department (EDD) in the amount of $14,470.91 for a lien placed on her real property. Mr. Wagner stated that Government Claims Program staff recommended that the Board allow the claim under authority of Government Code section 965 (agency pay).

Mr. Stapleton explained that Allison Ripley, Melanie Ripley’s ex-husband, originally tried to steal community resources from Melanie which he later compensated by signing a Quit Claim Deed on the family home. After their divorce and his sex change operation, Allison filed for unemployment compensation, which she was not entitled, resulting in an EDD lien. Mr. Stapleton explained that Melanie had nothing to do with the unemployment compensation fraud; it never benefitted her. He admitted that the lien was properly attached to a piece of property; however, that was the result of a paperwork error. Lastly, he stated that the EDD had every right to place a lien on the property, but in equity, it was wrong.

Ms. Buffington explained that in October 2011 Allison Ripley was notified that she had an overpayment in unemployment insurance benefits. In June 29, 2012, EDD filed a summary judgment and an abstract of judgment. Ms. Buffington stated that EDD contends that the deed was not a valid transmutation of community property to separate property. She explained that the law was clear that unrecorded deeds are not effective to the third parties that do not have notice. Lastly, Ms. Buffington requested the Board reject the claim.

The Board adopted the staff recommendation and allowed the claim.

Item 7. Applications for Discharge From Accountability for Collection

There were no applications for discharge from accountability for collection.

Item 3. Executive Officer Statement

In the interest of time, Executive Officer Nauman deferred her report to next month.

Victim Compensation Program

The Board commenced the Victim Compensation Program portion of the meeting at 11:22 a.m.

Closed Session

Pursuant to Government Code section 11126(c)(3), the Board adjourned into Closed Session with the Board’s Executive Officer and Chief Counsel at 11:22 a.m. to deliberate on proposed decision numbers 1–71.

Open Session

The Board reconvened into Open Session pursuant to Government Code section 11126 (c)(3) at 11:25 a.m. The Board adopted the hearing officer’s recommendations for proposed decision numbers 1–71, with the exception of number 67, which was removed and referred back to staff.

Adjournment

The Board meeting adjourned at 11:26 a.m.