California Victim Compensation Board September 17, 2020, Board Meeting Minutes

The California Victim Compensation Board convened its meeting in open session upon the call of the Chair, Yolanda Richardson, Secretary of the Government Operations Agency, via Zoom, on Thursday, September 17, 2020, at 10:00 a.m. Also present via Zoom was Member Richard Chivaro, Deputy State Controller and Chief Counsel, acting for, and in the absence of, Betty T. Yee, Controller.

Chief Executive Officer Lynda Gledhill, Chief Counsel Kim Gauthier, and Andrea Burrell, board liaison, were also present in the Board room at 400 R Street, Sacramento, California.

The Board meeting commenced with the Pledge of Allegiance.

Item 1. Approval of Minutes of the August 20, 2020, Board Meeting

The Board approved the minutes of the August 20, 2020, Board meeting.

Item 2. Public Comment

The Board opened the meeting for public comment and Ms. Burrell reminded everyone that, consistent with the Bagley-Keene Open Meeting Act, non-agendized items may not be discussed by the Board but may be put on a future agenda.

Marlene Mooshian participated and provided public comment. She wanted to share her experience with CalVCB. Ms. Mooshian is a victim of stalking, and death threats by a man she has known for over 20 years. In 2019, she obtained a temporary restraining order, and it was violated daily. The individual stalking her has been arrested four times for felony stalking, has over ten misdemeanor charges, and was sentenced in May of 2020. The perpetrator pled no contest, was released, and is on probation.

The stress of this process has compromised her immune system, which has caused oral decay to the point that she has lost multiple teeth. She has spent over $20,000 in medical/dental bills so far and she is looking at additional expenses to replace her teeth.

When she filed her claim with CalVCB in October 2019, it was initially denied because there was no actionable event or arrest. Upon appeal, her claim was also denied. She obtained assistance through the University of California, Davis’ Center for Advocacy Resources & Education, which resubmitted her application. After the District Attorney’s office sent over the crime report, her application was approved. She is hoping that somehow upon receipt of applications there could be more done by CalVCB to avoid delays in processing claims by reaching out to law enforcement for documentation or to victim’s advocates. Also, she hopes more victims will be aware of the need for this information when applying.

Chair Richardson thanked her for her bravery in sharing, her desire to help others and her comment about hoping to make a difference for other victims. She stated that the board will always continue to look for ways we can improve our processes.

Gabriel Garcia, Policy and Advocacy Manager of Youth Alive, spoke next. First, he thanked Ms. Mooshian for her willingness to share her story, especially in a public forum, and acknowledged her bravery. Youth Alive was a co-sponsor of Assembly Bill 767, the legislation to assist victims of police violence in obtaining compensation and removing barriers that prevent victims from getting the support and resources they need to heal. Unfortunately, the bill did not pass. However, there was a meeting last week with Executive Officer Gledhill and her team to discuss the goals of the bill and how to move forward. CalVCB has done so much to support the victims they serve at Youth Alive, and Mr. Garcia expressed his gratitude for the continued partnership.

Item 3. Executive Officer Statement

Chief Executive Officer Lynda Gledhill updated the Board on a few items:

First, she acknowledged Ms. Mooshian for her bravery and strength to share her experience with the Board.

AB 767 Update

The bill did not pass off the Suspense File and, therefore, did not move forward during this legislative session. Ms. Gledhill acknowledged how disappointing this was to sponsors of the legislation and explained it is one of the reasons why she has committed to continue to work on this very important issue. Last week, there were several meetings with those who supported the legislation and additional meetings are scheduled on this topic. Ms. Gledhill expressed her appreciation that CalVCB was able to express some of its concerns regarding the proposed legislation and felt that it was a fruitful dialogue. She reported that there appears to be consensus that CalVCB cannot make changes administratively and legislation is necessary. Ms. Gledhill committed to continuing to work with interested parties to see if we can find common ground on this very important topic before the next legislative session.

Online Applications/System upgrade

In other news, CalVCB continues to see growth in its online applications, although overall application numbers remain down. It is predicted that online services will continue to be used more widely and CalVCB will continue to make improvements to expand access.

Further, an upgrade was recently implemented that allows advocates in four counties, San Francisco, San Diego, Fresno and San Joaquin, to create an account and track online all the applications for which they are the representative. They can upload documents and bills and complete applications for victims. This will allow the advocates to more easily track the applications and provide better service to victims.

CalVCB will monitor the activities in the four test counties and hopes to roll out the advocate portal statewide soon.

Additional Highlights

A few weeks ago, all CalVCB staff participated in Implicit Bias training with Dr. Bryant Marks, who is the Chief Equity Officer and Principal Trainer at the National Training Institute on Race and Equity. Arranged by the Government Operations Agency, this was originally supposed to be an in-person training in the spring but was delayed due to COVID-19. Fortunately, an online version of the training session was arranged and all CalVCB staff participated.

Ms. Gledhill acknowledged the importance that all employees learn and discuss the meaning of implicit bias, the causes, how it is measured, the effect it has on attitudes and behaviors and ways to reduce and manage implicit bias individually and as a group. The sessions received very positive feedback and it is an issue that will be revisited on a regular basis.

Ms. Gledhill also participated in the annual Victim of Crime Act National Training conference, which was held virtually this year. She, along with representatives from New York and Texas, discussed their experiences with “Emerging Processes for Compensation Coverage.” The presentation focused on Assembly Bill 629, which gives human trafficking victims the ability to apply for income loss compensation using alternative documentation.  California is the first state to offer this specific benefit. This forum provided a good opportunity to connect with other states and learn how they are tackling issues we all are facing. Follow-up meetings have also been scheduled with Texas and New York.

Domestic Violence Awareness Month

CalVCB is preparing for Domestic Violence Awareness Month in October.

We plan to conduct social media outreach to raise awareness about the compensation and services available through CalVCB, including emergency awards for victims if they need immediate relocation.

Route 91 Harvest Festival Anniversary

The third anniversary of the Route 91 Harvest Festival mass shooting in Las Vegas is in October.

The nonprofit, Give an Hour, recently partnered with CalVCB to offer support services to victims in eight counties: Kern, Los Angeles, Orange, Riverside, San Bernardino, San Diego, Santa Barbara and Ventura. The project, called “SoCal Route 91” will offer no-cost services including, support groups, emotional wellness training, and referrals for mental health services. Approximately 65 percent of the more than 24,000 attendees of the festival were from California.

Chair Richardson thanked Ms. Gledhill for following up on AB 767 as was discussed at the last Board meeting. She also thanked Ms. Gledhill for her leadership around implicit bias. She noted that this is important for all of us around the state to be aware of and she was happy to hear it was well received. Lastly, Chair Richardson encouraged Ms. Gledhill to reach out to Board members if CalVCB needs support for Domestic Violence Awareness Month.

Item 4. Legislative Update

Chief Counsel Kim Gauthier presented the legislative update:

Assembly Bill 767

AB 767 was held on the Suspense File in the Senate Appropriations Committee.

Assembly Bill 2028

This bill that would have made changes to the Bagley-Keene Open Meeting Act but failed to move off the Senate floor.

Item 5. Joshua Gonzales (Pen. Code §§ 4900, et seq.)

Chief Counsel Kim Gautier presented an overview of the erroneous conviction application filed by Joshua Joel Zamora Gonzales, based on his convictions for three counts of attempted murder and shooting from a motor vehicle.

On October 5, 2008, 20-year-old Jose Arreola, 18-year-old Omar Vargas, and 18-year-old Bryan Padilla were shot multiple times while standing on a street corner in Colton, California. One of them was wearing a Los Angeles Dodgers jacket.

Earlier that night, the victims and bystanders had attended a large party at a residence near the intersection where the shooting occurred. Mr. Gonzales, who was 17 years old at the time, had also attended the party. The victims and multiple bystanders told police the shots were fired from a dark colored vehicle, possibly a newer model Cadillac. At least one shooter was seated behind the driver with the window down. He shouted to the victims immediately before firing, demanding to know where they were from. A possible second shooter, who was in the front passenger seat, stepped out of the Cadillac before firing. All three victims were struck by multiple bullets, rushed to the hospital, and survived.

Following a jury trial, Mr. Gonzales was convicted. The jury specifically found that Mr. Gonzales had personally and intentionally fired a gun at three separate victims, striking all three, and causing each to sustain great bodily injury. The jury further found that Mr. Gonzales committed all of these acts for the benefit of a criminal street gang. The trial court sentenced Mr. Gonzales to an aggregate indeterminate term of 86 years and 8 months to life.

Mr. Gonzales’ convictions were affirmed by the California Court of Appeal, the California Supreme Court, as well as by the Federal District Court, and initially, a split panel of the Ninth Circuit Court. In July 2017, a majority of that same Ninth Circuit panel concluded upon rehearing that the trial evidence was constitutionally insufficient to support Mr. Gonzales’ conviction because no rational jury could find, beyond a reasonable doubt, that Mr. Gonzales was the shooter. Mr. Gonzales was released from prison on July 25, 2017, after serving a total of 3,216 days.

On August 8, 2017, Mr. Gonzales submitted an application to CalVCB seeking compensation as an erroneously convicted offender pursuant to Penal Code section 4900. Because Mr. Gonzales lacked a finding of factual innocence, the administrative proceeding was stayed pending his motion for a finding of factual innocence, which was denied by the San Bernardino County Superior Court on July 24, 2018.

In the Proposed Decision, the Hearing Officer recommends denying Mr. Gonzales’ application because he has not met his burden of proof. Overall, the Hearing Officer concluded that compensation should be denied because the weight of the evidence presented in the administrative proceeding did not prove by a preponderance of the evidence that Mr. Gonzales was more likely innocent than guilty.

Throughout these proceedings, Mr. Gonzales has been represented by his attorney Mr. Jarrett Adams. The Attorney General’s Office is represented by Deputy Attorney General Barton Bowers.

Chair Richardson acknowledged Mr. Adams as Mr. Gonzales’ representative.

Jarrett Adams thanked the Board for allowing him to present on behalf of Mr. Gonzales. He began his presentation with a summary of the events which led up to the shooting.

Mr. Adams explained that there are crucial facts that the Board should review and encouraged the Board to go back through the record in its entirety throughout all levels of this appeal until the conviction was reversed. He shared that Mr. Gonzales grew up in Rialto, California. His father was in and out of prison, his mother was not always present in the nurturing of her son to ensure he did not find his role models in the street.

Until the age of 16, Mr. Gonzales had no trouble and received stellar grades while in school. It was when Mr. Gonzales had to venture out of his neighborhood to go to different events that issues arose. He was getting attacked in his neighborhood – his neighborhood was a bad neighborhood, and his neighborhood was dominated by two gangs.

Mr. Gonzales, trying to protect himself, started hanging around his grammar school friends who were identified gang members, but Mr. Gonzales was never officially joined in any capacity into a gang. Those decisions would lead to 10 years of his life being robbed from him. Mr. Adams stated that the Attorney General would likely argue that Mr. Gonzales’ credibility should not be trusted because he has the propensity for doing something as if he was a life-long criminal coming out of the womb. According to Mr. Adams, that is not accurate. Mr. Gonzales started hanging out with his cousin and other boys as a form of protection. He was hanging out with his cousin in an alley playing basketball. They found a rusty revolver in the alley and each took turns firing shots into the air. They were immediately arrested; Mr. Gonzales pled.

In less than three months after this event, Mr. Gonzales was attending a funeral of another family member in a different neighborhood. While riding home in a car with three other passengers, one of the passengers saw a rival gang member, jumped out of the car and fired shots, and then jumped back in the car. Everyone in the car was arrested as accessories after the fact. Mr. Gonzales was never alleged to have fired shots, was never alleged to have advance knowledge of what was going to transpire. Mr. Gonzales pled guilty to being an accessory after the fact and served three months in juvenile hall. He was released in July 2008.

As for the incident at issue in this matter, Mr. Gonzales attended a party with two friends in October, the same night of the shooting. He was speaking to a young lady at the party and trying to get her number. He gave her his name and his nickname of Knuckles, a nickname related to his aspirations of becoming a boxer. After talking to the young lady, he bumped into another party goer, but that had no correlation with the incident that occurred after the party.

The party had over 100 attendees throughout the night. When the party was ending, Mr. Gonzales was leaving along with many other cars and patrons. Upon leaving, the many cars had to pass through a particular intersection where the shooting occurred. There were a group of men, who are now the victims. These men were standing on a street corner, not selling water, they were gang banging, throwing up gang signs, and flashing guns at every car that passed, including the car Mr. Gonzales was in. As soon as Mr. Gonzales’ car pulled away, he later told investigators that is when he heard shots fired. These men on the corner were heckling everyone; and it was obviously “their neighborhood.” There were multiple witnesses and victims on scene.

The police arrived on scene, they interviewed everyone left over from the party, one of which was the young lady Mr. Gonzales talked to hours before. The description that was given by witnesses and the victims was that there were three guys in a dark colored newer car, but no one ever stated the model of the car. Mr. Gonzales later told the police that he was in a light red Cadillac and told them who he was with. He did not know the address of his friends but explained he could show police where to find the car. They refused and did not do that.

Law enforcement interviewed the victims in the hospital and witnesses who were still at the scene. The witnesses said that a dark colored vehicle passed. Some witnesses said shots were fired from the vehicle and some witnesses said someone got out of the car and fired shots; and some said that maybe the person in the back seat had on a baseball cap, possibly backwards. Investigators took that information and questioned other witnesses at the party, which is when the young lady Mr. Gonzales met earlier told them she met someone named Knuckles who had a baseball cap on. This ended the investigation. As soon as the police found out, they called around to other law enforcement agencies, which is what led them to Rialto and Mr. Gonzales who was on probation for accessory after the fact. They didn’t need a warrant, immediately went to his house, took him out of his bedroom, searched his house, car, and outside. Nothing was found – not a gun, not a magazine, gun cartridge, bullets, nothing linking Mr. Gonzales to the shooting. Despite that, they took Mr. Gonzales down to the police station where they interviewed him.

Mr. Adams asked the Board again to consider that up until this year, Mr. Gonzales was a 16-year-old and had not been in any trouble. In Mr. Gonzales’ interview with investigators, they kept asking the same questions over and over until they heard what they wanted him to say. There were statements that Mr. Gonzales made in that interview that are damning and don’t look right, but it is not evidence that Mr. Gonzales took part in any shooting. Mr. Gonzales told the police that he saw these gentlemen on the street corner, throwing up gang signs, giving hard stares, and heckling everyone who passed the intersection. Mr. Gonzales again provided the names of the individuals he went to the party with and said he could show them the address where they lived, but police did not look for anyone else to substantiate Mr. Gonzales’ alibi.

When Mr. Gonzales was arrested and taken to the police station, he was given a gunshot residue (GSR) test in which two particles of gunshot residue was found. A big to do was made of the residue found on Mr. Gonzales’ hands. When it got to trial, the State’s expert witness said that two particles of gunshot residue should not be there within two hours and a more reasonable explanation would be from transfer. Mr. Adams reiterated that Mr. Gonzales was taken out of bed by officers who carry guns, put on the ground by officers who carry guns, cuffed by officers who carry guns, put in a police car by officers who carry guns, taken into the police station by officers who carry guns, placed on a bench by officers who carry guns, and interrogated by officers who carry guns. Mr. Adams argued that the gunshot residue particles are nothing the Board should base its’ findings on.

In all of Mr. Gonzales’ statements, he never admitted to any involvement in the shooting nor did shots come from the car he was in. Although some of the things he said could be considered questionable, he did not fire any shots. He gave investigators the opportunity to rule him out and they did not because he was wearing a hat.

First, there is Anthony who was a victim. He was asked about the car. He told officers the car was black, it was kind of a new car, not sure what model, and that it had rims. Michael, Anthony’s brother, who was also shot that night, said that there were a lot of cars that drove by. When asked if he remembered a black car, he said no. Then when asked if he recognized Mr. Gonzales, he also said no. A third victim stated that he saw the shooter, that it was not Mr. Gonzales, and he didn’t remember seeing Mr. Gonzales at the party. Mr. Gonzales was still tried for the shooting.

At trial, a prejudicial gang expert testified and talked about the propensity for violence that gang members have, specifically documented gang members that Mr. Gonzales was associated with. The defense attorney for Mr. Gonzales at the time did not call any witnesses. He is now disbarred. Mr. Gonzales was found guilty.

In prison, Mr. Gonzales decided to go to the law library and research his own case. He drafted his own Habeas petition and litigated his way all the way to the Ninth Circuit Court of Appeal. He also tried to locate the two friends from that night. Usually the Ninth Circuit Court overturns cases because of the lawyers’ deficiencies, but in this case they overturned this case based on the fact that the evidence was constitutionally insufficient to find him guilty and he is more than likely innocent.

Mr. Adams stated that he was able to find one of Mr. Gonzales’ friends from that night, Anthony, who has since submitted a written an affidavit in support of this hearing; and the factual finding of innocence, which did not go in Mr. Gonzales’ favor.

Mr. Adams shared that he was in Mr. Gonzales’ shoes. He was wrongly convicted of a crime and served 10 years in prison. He was saved through the Wisconsin Innocence Project and is now an attorney and happy to be able to help others in a similar situation. He also shared that he has had conversations in the middle of the night with Mr. Gonzales when he has been unable to sleep. Mr. Adams states that he believes that the Ninth Circuit Court’s decision is binding. He thought that when they went to the factual finding of innocence there was no way that the same evidence would be found sufficient to try anyone. Mr. Adams asked the Board to overrule the determination and thanked the Board members for their time.

Mr. Barton Bowers, Deputy Attorney General responded. He argued that the Proposed Decision is correct in all essential respects and it should be adopted, based on all the evidence in the record, including the evidence presented at the hearing before the Hearing Officer. Mr. Bowers stated his position that the Hearing Officer came to reasonable credibility determinations and reasonable conclusions based on the facts and the law and stated the decision should be upheld. Mr. Bowers concluded his presentation and asked if there were any specific questions.

There was no public comment.

Board member Chivaro moved for adoption of the Proposed Decision in its entirety.  The motion was seconded by Chair Richardson. The motion passed and the Proposed Decision was adopted.

Mr. Adams asked to confirm that the Board was denying Mr. Gonzales. Chair Richardson explained that the Board adopted the Proposed Decision.

Victim Compensation Program

Conclusion of Board Meeting/Closed Session

The Board convened into Closed Session pursuant to Government code Section 11126(c)(3) to discuss numbers 1-47 of the Victim Compensation program. The Board adjourned into Closed Session with the Chief Executive Officer and Chief Counsel at 10:54 a.m.

Open Session

The Board reconvened in Open Session pursuant to Government Code section 11126(c)(3) at 10:59 a.m.

The Board adopted the hearing officers’ recommendations for Proposed Decision numbers 1-47 of the Victim Compensation Program.

Adjournment

The Board meeting adjourned at 11:00 a.m.

The next Board meeting is scheduled for Thursday, October 15, 2020.