September 15, 2016 Board Meeting Minutes

The California Victim Compensation 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, September 15, 2016, at 10:07 a.m.  Also present was Member Richard Chivaro, Deputy State Controller and Chief Counsel, acting for, and in the absence of, Betty T. Yee, Controller, and Member Michael Ramos, San Bernardino County District Attorney.

Executive Officer Julie Nauman and Acting Chief Counsel Dorothy Le were in attendance.  Tisha Heard, Board Liaison, recorded the meeting.

The Board meeting commenced with the Pledge of Allegiance.

Item 1. Approval of Minutes of the August 18, 2016, Board Meeting

The Board approved the minutes of the August 18, 2016, Board meeting. 

Item 2. Public Comment

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

Item 3. Executive Officer Statement

In observance of the September 11 attack, Executive Officer Nauman reported CalVCB covered the 9/11 Memorial at Cal Expo with social media outreach.  Staff took pictures and video of the event and shared it on Facebook and Twitter, two very effective ways of communicating with the public about issues associated with the CalVCBs mission.  The memorial featured a massive steel beam that was extracted from Ground Zero that had been the horizontal support beam from the North Tower of the World Trade Center.  Ms. Nauman reported local Boy Scout troops raised the American flag and visitors had the opportunity to view media coverage from various newspapers around the world.

October is Domestic Violence Awareness Month.  CalVCB will partner with the California Partnership to End Domestic Violence to coordinate social media outreach with them while promoting other awareness events around the state.  CalVCB will issue press releases on its own activities and conduct proactive media outreach in targeted areas with higher levels of domestic violence calls.

CalVCB will observe Domestic Violence Awareness Day on October 20, 2016 with CalVCB staff, which coincides with the next Board meeting. 

CalVCB staff exhibited at the 30th Annual Children’s Network Conference in Ontario.  Staff networked with service providers and shared information about CalVCP.  Ms. Nauman reported Robin Foemmel Bie, CalVCP Branch Manager, gave a presentation about increasing access to compensation benefits for underserved crime victims.

Next week the California Probation, Parole & Correctional Associations will hold its 85th Annual Training Conference & Vendor Show in Sacramento.  Executive Officer Nauman reported CalVCB would network with first responders and law enforcement.

Item 4. Contract Report

Cambria Solutions will provide consulting services to meet state and federal web accessibility remediation requirements for the CalVCB’s external and internal websites.  The Board approved the amendment to the contract in the amount of $160,000 and the extension of the contract term to March 21, 2017. 

Item 5. Legislative Update

SB 835, the Budget Trailer Bill, contained cleanup language needed to complete the transfer of the Government Claims Program and other duties to the Department of General Services.  Ms. Nauman reported the bill was signed by the Governor. 

Item 6. Claim of Juan Mermejo (Pen. Code, § 4900 et seq.)

Neither the Claimant Juan Mermejo nor his representative, Ken Karan, were in attendance.  Clifford Zall attended on behalf of the Department of Justice, Office of the Attorney General.

Dorothy Le, CalVCB Acting Chief Counsel, explained that Mr. Mermejo sought compensation pursuant to Penal Code section 4900 arguing that he did not commit a crime subject to a gun enhancement.  After a fair hearing on the written record and thorough review of all the evidence,
the hearing officer recommended the Board deny Mr. Mermejo’s claim because he did not offer any evidence that he was innocent of the underlying crime of shooting at an occupied vehicle to which he pled no contest. 

Mr. Zall stated Mr. Mermejo did not present any evidence that he was factually innocent of the act of shooting a firearm at a moving vehicle with two individuals inside the vehicle.  He explained that there was a plea bargain agreement among all of the parties and the judge.  Mr. Mermejo was facing a significant prison sentence and received a probation sentence with a 17-year prison term hanging over his head.  The plea bargain arranged for Mr. Mermejo to plead guilty to Count 1, a Penal Code section 246 crime of shooting at an occupied car, inadvertently attached the gun enhancement to that particular crime.  He explained that technically that was in error because a firearm enhancement cannot attach to a crime in which an element of the offense is shooting a firearm; thus, it was a plea bargain snafu. 

Mr. Zall stated Mr. Mermejo received a tremendous benefit from the plea bargain glitch.  First, he received a probationary sentence at the outset so he agreed to the unartfully constructed plea bargain.  It was only after Mr. Mermejo had additional problems with law enforcement and his probation was violated that the sentence was imposed.  Second, when the error in the construction of the plea bargain was discovered, the trial judge eliminated the 10-year sentence.  The judge did not notice the Attorney General’s Office so there was no opportunity for everyone to make sure the plea bargain was properly constructed.  Mr. Zall stated Mr. Mermejo was not wrongfully incarcerated for something he did not do; therefore, he was not entitled to compensation. 

Chairperson Batjer asked Mr. Zall to explain the error in the construction of the plea bargain regarding the firearm enhancement. 

Mr. Zall stated Mr. Mermejo was originally charged with three counts--two counts of assault with a deadly weapon and one count of shooting at an occupied vehicle.  He explained that the enhancement was a separate 10-year additional term for using a firearm in the commission of the offense.  The error was that an enhancement cannot attach to an offense where an element of the offense is already shooting a gun. Technically, it would have been proper to attach the 10-year enhancement to the assault with a deadly weapon count.  Nevertheless, there was no evidence that Mr. Mermejo did not shoot a gun at the two individuals; therefore, he should not receive compensation. 
Member Ramos complimented Mr. Zall on presenting a good analysis.  He stated he was surprised that Mr. Mermejo was granted felony probation for shooting at an occupied vehicle.  Member Ramos stated Mr. Mermejo used a gun and he is not innocent.

The Board adopted the hearing officer’s recommendation and denied the claim.

Item 7. Claim of Claim of Shirley Ree Smith (Pen. Code, § 4900 et seq.)

Robert Humphreys, Akin Gump Strauss Hauer & Feld, attended on behalf of the claimant Shirley Ree Smith.  Clifford Zall attended on behalf of the Department of Justice, Office of the Attorney General.

Dorothy Le, CalVCB Acting Chief Counsel, explained that Shirley Ree Smith sought compensation pursuant to Penal Code section 4900 for 3,168 days she was in custody from the date of her conviction to release on July 12, 2016, and additional compensation for an additional 2,058 days for the time she was under release-related restrictions for 5,226 days.  Ms. Le explained that after a full and fair hearing and careful consideration of all the evidence, the hearing officer recommended the Board deny the claim because Ms. Smith did not prove beyond a preponderance of the evidence that she was innocent of the crime of assault of a child causing death. 

Mr. Humphreys stated the factual presentation and positions being advanced before the Board were very different from those presented to the jury at trial, the Ninth Circuit Court of Appeals, and the United States Supreme Court.  Throughout the process, the courts that looked at the case questioned the reason a grandmother who had no history of violence would suddenly and for no apparent reason attack and kill her grandson in a roomful of her other grandchildren and with the mother in the next room.  At trial, they said it sounded crazy and defied common sense, but science told them that it happened. 

Member Ramos stated that at the time of the crime, the grandmother was 34 years of age and her daughter was 18 years of age.  He stated grandparents are typically a little older than 34 years old.

Chairperson Batjer asked Mr. Humphreys to explain the sleeping arrangement.

Mr. Humphreys explained that one child was with the infant on the sofa, another child was on the loveseat, and the grandmother was alone on the floor.  The mother of the children was in the next room.  He agreed that Ms. Smith was not an old, decrepit person without physical strength; however, she did not have motive.  He explained that Ms. Smith cared for children her entire life.  She babysat, raised her own children, and helped raise the other grandchildren and none of the children showed any no signs of abuse; therefore, it defied common sense that a person who lived that kind of life would suddenly turn into a sociopathic killer and just as quickly revert to her law abiding ways. 

Mr. Humphreys stated at trial it could only be explained that the grandmother got up, picked up the baby and shook it with so much tremendous violence that its brain stem was sheared in some way and that death was so instant that it prevented any sign of injury to the brain stem itself.  He stated that on its face, it sounded probable; however, because there were serious questions about her guilt, Governor Brown granted clemency to Ms. Smith.  Mr. Humphrey explained that looking at the experts retained by the Attorney General’s Office, that evidence supported her innocence by a preponderance of the evidence.  Experts provided their opinions on the cause of the victim’s death.  Dr. James Ribe, a Los Angeles Senior Deputy Medical Examiner and leading child abuse expert, found that the victim did not the show signs of injury that would be expected in a shaken baby case.

Chairperson Batjer stated that, pursuant to the proposed decision, Dr. Ribe stated the cause of death should be diagnosed as undetermined.

Mr. Humphreys stated Dr. Ribe said it was more likely than not that Ms. Smith was innocent.  Mr. Humphreys stated that, as a general point, he did not need the science to prove conclusively that Ms. Smith was innocent because unlike the trial prosecution team, he was not proposing something that on its face sounded ludicrous.  Additionally, there was no evidence of external trauma.  There were no bruises on the torso or armpit; there was only a tiny bruise on the head, which Dr. Ribe believed occurred during the autopsy.  There were no bruises consistent with a shaking incident. 

Member Ramos asked Mr. Humphreys whether he had a doctor’s statement confirming his statements or if he received training on abusive head trauma because all of the training regarding shaken baby syndrome showed that it is an internal injury, not external, that was typically not discovered until an autopsy is performed. 

Mr. Humphreys stated he was not providing his personal opinion but rather the opinions from experts retained by the Attorney General’s Office to review the case.  He stated Dr. Ribe said it was almost diagnostic that the baby had subdural injuries that went back to birth and it was more likely than not that Ms. Smith was innocent. 

Member Ramos explained that the Board had an opportunity to read the proposed decision.  He recommended Mr. Humphreys refrain from making conclusionary statements but instead only provide facts. 

Mr. Zall stated there was a lot of uncertainly and varied opinions on the matter.  Scientifically it was a very difficult case.  The cause of death was uncertain in the sense that some experts said it was clear that the baby was killed by shaken baby syndrome by Ms. Smith while other experts could not say for certain and could not pinpoint the time of death or the perpetrator.  Additionally, other experts said the trauma in the brain may have been caused at birth. 

Mr. Zall explained that the burden was on the claimant.  It was not good enough for the claimant to poke holes in the theories and raise questions.  He clarified that the Attorney General’s Office never retained any of the experts.  Rather, the Attorney General’s Office re-interviewed the experts to gain a better understanding.  Dr. Ribe stated he was limited because he did not see the body.  Additionally, Ms. Smith’s stories kept changing resulting in a tremendous credibility problem for her.  Lastly, Mr. Zall stated Ms. Smith had not established her innocence and was not entitled to compensation.  

Member Ramos stated it was a very difficult case because oftentimes there are no external injuries because the shaking of the baby impacts the brain.  Scientific evidence is first and foremost in these types of cases and a history of the timeline must be taken.  Additionally, Ms. Smith was referred to as a “grandmother,” but she was not the typical age of a grandparent so that too must be taken into consideration.  The social worker, a detective, medical evidence, and the experts must also be considered.  Member Ramos stated one doctor said the cause was a violent trauma, another shaken baby, and one doctor believed it was a homicide.  None of the experts could say who did it, but they could give their opinion about what happened to the baby.  Additionally, no one said Ms. Smith was factually innocent.  She did not reach her burden. 

The Board adopted the hearing officer’s recommendation and denied the claim.

Victim Compensation Program

The Board commenced the Victim Compensation Program portion of the meeting at 11:14 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 Acting Chief Counsel at 11:14 a.m. to deliberate on proposed decision numbers 1-60.

Open Session

The Board reconvened into Open Session pursuant to Government Code section 11126 (c)(3) at 11:21 a.m.  The Board adopted the hearing officer’s recommendations for proposed decision numbers 1-60.

Adjournment

The Board meeting adjourned at 11:22 a.m.