2} 22 29 THE VICTIM COMPENSATION AND GOVERNMENT CLAIMS BOARD OF THE STATE OF CALIFORNIA In the matter of the Claim of: James ochoa Proposed Decision Claim No. G565437 (Penal Code 4900) Introduction An in-person hearing 'on this claim was held on October 11, 2007, in Sacramento, California, by Kevin Kwong, Hearing Officer, California Victim Compensation and Government Claims Board (Board). The claimant, James Ochoa, was represented by attorney Joshua Stock. The California Attorney did not appear at this hearing. Therecord remained open for the submittal of additional documents. Additional documents were received on November 29, 2007, and the record closed. As explained below, Ochoa has not met the statutory requirements to receive compensation under Penal Code section 4900 because he contributed to his conviction byipleading guilty. Procedural Background On May 23, 2005, Ochoa was arrested for two counts of armed robbery and carjacking which allegedlyoccurred outside a Buena Park earlier in the morning. On December 8, 2005, after three days of his jury trial, Ochoa pled guilty to second degree armed robbery and was sentenced to two years in state prison. 20 21 in October 2006, James who was in police custody on an unrelated auto theft charge, confessed to the robbery and carjacking crimes to which Ochoa had pled guilty. On October 19, 2006, the District Attorney filed a petition for a writ of habeas corpus.1 This petition was granted, and Ochoa was released from prison on October 20, 2006.2 On November 22, 2006, the court granted Ochoa's unopposed petition for a finding of factual innocencea Ochoa's application to the Board under Penal Code section 4900 was received on January 11, 2007. The Attorney General's Office decided to not present evidence opposing Ochoa's Penal Code section 4900 claim. However, in a brief to the Hearing Officer, the Attorney General's Office stated that satisfying the second element of Penal Code section 4903 was "problematic" because Ochoa pled guilty and therefore he contributed to his conviction and resulting imprisonment. Summary of Evidence in the early morning on May 23, 2005, co--workers Juan Carlos Orellana and Adalberto Gonzalezfwent to a in Buena Park. They each drove their own cars and parked in the parking lot of a closed auto shop. The line to enter the was too long, so Orellana and Gonzalez went back to their cars and stood outside as they planned where they should go. While talking, they were approached by what they described as a young Hispanic male who had a gun. The male demanded their wallets and one of their cars. Orellana gave the perpetrator his car because he had a Lojack security device installed that could shut the car off. The perpetrator escaped, but Orel ana's car, the perpetrator's clothing, and the weapon, which was actually a bb gun, were later recovered. The victims gave a description of the perpetrator to the-police at the crime scene. One of the officers had made a field stop of Ochoa a few hours earlier and thought that Ochoa matched the physical description of the perpetrator. The officer showed the victims a picture of Ochoa and the victims identified him as the perpetrator. The police went to Ochoa's home and arrested him. The 1 Exhibit D. All exhibits refer to the evidence submitted by Ochoa in his claim under Penal Code section 4900. 2 Exhibit E. 3 Exhibits and H. Ix) victims were taken to Ochoa's home and they visually identified Ochoa as the perpetratortas he sat on his driveway in police custody. Before trial, the interior of Orel ana's car and the objects found inside were subjected to DNA testing. The DNA results from the car and the recovered items did not match Ochoa's DNA. After three days of the trial, Ochoa pled guilty to second degree armed robbery. Ochoa told the Judge that he was innocent but was scared. Ochoa's attorney, Scott'Borthwick, refused to join the plea agreement. Ochoa was sentenced to two years in state prison. Approximately 10 months after Ochoa pled guilty, it was discovered that the DNA found on the items recovered in Ore lana's car belonged to McCollum. Ochoa's Testimony During his hearing before the Board,'Ochoa provided the following testimony. On May 22, 2005, he returned homesometime between 10:00 and 11:00 p.m. He went to bed later that evening- and awoke when the police entered his home to arrest him. Ochoa thought that the incident was a_ mistake or a set-up, but was confident that the truth would come out. Ochoa retained Borthwick, whom his parents knew, to be his defense attorney. Ochoa stated that he believed that Borthwick did a good job reprehsenting him. Ochoa refused to accept any plea bargain because he wanted to prove his innocence. Through Borthwick, Ochoa learned that the Judge was not happy that he' declined a two year plea bargain, and that the Judge would sentence him to life in prison if the jury returned a guilty verdict. Ochoa became nervous when the trial began. Ochoa said that he was threatened and harassed by the Judge. He felt that the Judge was trying to get him convicted. The Judge kept speaking out and making facial expressions that Ochoa believed to be against him. Even though Ochoa knew that he was innocent he felt that he was not going to get a fair trial, Ochoa, who was 20 years old at the time of the trial and had a young son, believed that he could not take the risk of being sentenced to life in prison. He testified that he was willing to "do my time and get out." Ochoa decided that taking the two year prison term plea bargain was his only option because he could not gamble with his life. 21 22 Borthwick's Testimony During the hearing before the Board, Borthwick provided the following testimony. The prosecution's case against Ochoa relied solely on the eyewitness testimony from thetwo victims. In a pretrial motion, Borthwick sought to exclude the victims' photo identification of Ochoa at the crime scene as being highly suggestive and a violation of Ochoa's due process rights.' Additionally, the - Orange County DNA lab results showed that the DNA found in Orellana's vehicle and on the perpetrator's clothing did not match Ochoa's DNA. Borthwick pointed out that these DNA test results were from the county crime lab and not from an independent forensic test paid for by Ochoa. Ochoa faced a sentence of 15 years to life in prison if convicted. Two plea bargains were presented to Ochoa. The district attorney presented an offer of two years in prison and one strike against Ochoa's record. The Judge suggested a second offer of credit for time served and two strikes. Immediately after Ochoa rejected t_he offers, the Judge's demeanor changed. Borthwick felt that the Judge was pressuring him to get Ochoa to take one of the offers. The Judge told Borthwick that Ochoa would be sentenced to the maximum life sentence if convicted. Borthwick stated that the Judge has a reputation as being a judge that sentences criminals to and maximum prison terms. Once trial began, Borthwick encountered many problems -with the Judge. Borthwick described the Judge as being hostile to the defense and that he tried to undermine the defenses case. The Judge denied Borthwick's pretrial motion to suppress the victims' photo identification without allowing Borthwick to make an oral argument as to why the photo identification violated Ochoa's due process rights. Borthwick stated that he was interrupted numerous times during his opening statement. When the court resumed afterlunch, the Judge wanted to proceed to the prosecution's case in-chief even though Borthwick was not finished with his opening statement. The Judge told Borthwick that he had 10 minutes to finish his opening statement. Borthwick described two other specific instances involving the Judge's behavior. in the first instance, during the examination of one of the victims, the Judge spoke for the victim and the prosecution by stating "so you could see the face of the perpetrator." Since the prosecution of Ochoa relied solely on witness identification, Borthwick felt that the Judge was trying to help prove that the victims had a good look at the perpetrator. Borthwick said the second instance showed the pettiness and lack of professionalism of the Judge. Borthwick was yelled at for stepping in the wrong place, but he testified at the hearing that he only stepped six inches away from the podium as he was pointing at an exhibit. The Judge then yelled at Borthwick for "going crazy" during his opening statement and made a sarcastic remark about whether or not Borthwick was going to comment about Ochoa's shoelaces. Borthwicki's testimony regarding the statements made at trial is supported by the trial transcriptf' After three days of the trial, Ochoa told Borthwick that he wanted to plead guilty. According to Borthwick, Ochoa felt that the Judge was trying to get him convicted. Borthwick tried to talk Ochoa out of his decision to plea and told him to talk to his family, who also did not want Ochoa to plead guilty. Borthwick testified that there was a "mountain of exculpatory evidence" and that he thought that Ochoa was innocent. However, Borthwick told Ochoa that juries can be unpredictable and that if he was wrong it would be Ochoa, and not himself, who would have to pay the consequences. Borthwick did not join Ochoa's.plea because he felt that.Ochoa was innocent. The day after Ochoa plead guilty, Borthwick wrote a letter to the Judicial Council of California.5 The letter detailed Borthwick's belief that the Judge acted unethically and improperly as a judge. The Judicial Council found insufficient evidence of judicial misconducte Finally, Borthwick testified that Ochoa had an illusionary choice in this matter. Although Ochoa had a choice to plea or go through with the trial, he really did not have a choice because the risk of going forward with trial was extremely high and the Judge was acting unethically. Borthwick said that no person could put their life in the jury's hands when there was a short plea agreement available. 4Exmbni 5ExmbfiJ. Statement from Scott Baugh During the hearing, Ochoa presented a news article from the Los Angeles Times that contains statements from Scott Baugh, and a declaration from Baugh supporting the statements he made in the article? Baugh was described by Ochoa as one of the draftersa of the Penal Code section 4900 et seq. statute. Baugh stated in the article that Ochoa should receive compensation under the statute and that Ochoa had a "Hobson's Choice." Baugh stated that excluding somebody in Ochoa's position from compensation is not the spirit of the statute, and that the second element of the statute (that the wrongfully convicted felon not have contributed to his own arrest) was meant to stop frivolous and fraudulent claims. Findings A preponderance of the evidence supports each of the following findings: 1. Ochoa did not commit the crimes for which he was arrested. 2. Ochoa faced a sentence of 15 years to life in prison if he was convicted by the jury. 3. The Judge told Borthwick that he would sentence Ochoa to life in prison if thejury returned a guilty verdict. 4. Borthwick and Ochoa's family did not want Ochoa to plead guilty and advised him not to do so. 5. Ochoa voluntarily and intelligently pled guilty. 6. Borthwick did not join the guilty plea because he believed in Ochoa's innocence. Determination of Issues A person convicted and imprisoned for a felony may submit a claim to the Board for pecuniary injury sustained as a result of his erroneous conviction and imprisonment9 Penal Code section 4903 7 Exhibits and M. 8 Penal Code section 4900 was originally drafted in approximately 1941. Baugh served in the California State Assembly from 1995-2000. Currently, Baugh is chairman of the -Republican Party of Orange County. During the 2000-2001 legislative session, Baugh authored AB. 1799 which amended Penal Code section 4904. 9 Pen. Code, 4900. provides that in order to state a successful claim for compensation, the claimant must prove the foliowing by a preponderance of the evidence:1? 1. That the crime with which he was charged was either not committed at all, or, if committed, was not committed by him; 2. That omission on his part, either intentionally or negligently, contribute to the bringing about of the arrest or conviction for the crime; and 3. That he sustained a pecuniary injury through his erroneous conviction and imprisonment. If the claimant meets his burden of proof, the Board shall recommend to the legislature that an appropriation of $100.00 per day of incarceration served subsequent to conviction be made for the claimant." The evidence establishes that Ochoa did not commit the crimes of armed robbery and car jacking. Mccollum, the true perpetrator, confessed to the crimes, and his DNA matches the DNA found in the stolen car. Ochoa's petition for habeas corpus was granted and he received a finding of factual innocence. Therefore, Ochoa has met his burden of proving that he did not commit the crimes with which he was charged. However, the evidence also establishes that Ochoa contributed to his erroneous conviction because he pled guilty. The jury never determined that Ochoa was guilty of any crime and they could have found him innocent. Without the DNA evidence matching Ochoa's DNA, and with what Borthwick called "a mountain of exculpatory evidence," it was possible that Ochoa would have been acquitted. Since Ochoa admitted guilt when he had the possibility of being_found innocent, his own action caused him to be erroneously convicted. The evidence shows that Ochoa's plea was voluntary and intelligent. He was represented by an attorney of his own choosing. The evidence indicates that Borthwick vigorously defended the case, 1? Diola v. Board of Control (1982) 135 Cal.App.3d 580, 588, fn'7; Tennison v. Victim Compensation and Government C/aims Board (2000) 152 Cal. App. 1184. Preponderance of the evidence means "evidence that has more convincing force than that opposed to it. (People v. ll//ilIer(1916) 171 Cal. 649,652) 11 Pen. Code, ?4904. and Ochoa testified that Borthwick did a good job. Ochoa contempiated his decision to plead guilty with Borthwick and his family, and decided to go against their advice and plead guilty. Ochoa argues that his guilty plea did not contribute to his conviction because he had no choice but to plead guilty. Ochoa explains that he was threatened by the Judge with life in prison and that he could not put his life into the hands of a jury when a two year plea bargain was on the table. Even if Ochoa made a rational choice in pleading guilty, Penal Code section 4903 does not provide for the consideration of mitigating factors when determining if the claimant contributed to his own conviction. Ochoa had the choice to not plead guilty. By choosing to plead guilty, Ochoa was given the more lenient sentence of a two year prison term. In return, he waived his right to a jury trial, the ability to be acquitted by a jury, and he admitted guilt to the crimes with which he was charged. Despite Ochoa's allegations that the Judge acted improperly in this case, thereis no evidence that Ochoa was not going to receive a fair trial. The. Judicial Council of California did not take adverse action against the Judge based on the complaint filed. Also, Borthwick advised Ochoa to not accept the plea bargains. Borthwick believed that Ochoa still had a chance to be acquitted despite the alleged improper conduct of the judge. Although receiving a life sentence would have been a severe punishment, Borthwick testified that life in prison was within the scope of the sentencing length. Ochoa's plea was motivated by his fear of spending life in prison combined with his belief that the Judge wanted him convicted. Fear of the sentence is frequently a motivating factor for a criminal defendant to plead guilty but is not a basis for overturning a plea aslong as the plea was voluntary and intelligent." Finally, the statements from Baugh regarding the spirit of Penal Code section 4900 are given little weight. While it is determined that Ochoa is not bringing a frivolous claim, it is also true that Ochoa told the court that he was guilty of the crimes with which he was charged despite his attorney's advice to not admit guilt. Now, Ochoa is stating that he was erroneously convicted despite his guilty plea. Ill '2 See Brady v. United States (1970) 397 u.s. 742, 755-755. 24 25 Ochoa has not proven by a preponderance of the evidence that he did not contribute to his own conviction. Thus, his claim under Penal Code section 4900 is denied. Ke\fin/ D. Kwong Hearing Officer California Victim Compensation and Government Claims Board Dated: February 5, 2008 California Victim Compensation and Government Claims Board Open Meeting Minutes April 22, 2008, Board Meeting The California Victim Compensation and Government Claims Board convened its meeting in open session at the call of Rosario Marin, Secretary, State and Consumer Services Agency, at 400 R Street, Sacramento, California, on Tuesday, April 22, 2008, at 2:03 p.m. Also present were Board members Les Kleinberg, Deputy Controller, acting for and in the absence of John Chiang, Controller, and Michael Ramos, San Bernardino County District Attorney. Board staff present included Karen McGagin, Executive Officer; Tom O'Connor, Chief Deputy Executive Officer; and Garry Ness, Chief Counsel. Tisha Heard, Board Liaison, recorded the meeting. The Board meeting commenced with the Pledge of Allegiance. Chairperson Marin stated the order of items on the agenda would be changed. Chairperson Marin stated the Board would take up Items 1 and 2 first then move into closed session. Item 1. Minutes of the March 20, 2008, Board Meeting The Board voted to adopt the minutes of the March 20, 2008, Board meeting. Item 2. Public Comment The Board opened the meeting for public comment. No public comment was offered. Closed Session Pursuant to Government Code section 11126(e)(1), the Board adjourned into Closed Session with the Board's Executive Officer, Chief Deputy Executive Officer, Chief Counsel, and Counsel for the Department of Personnel Administration at 2:05 p.m. to confer with counsel regarding arbitration DPA No. 06-01-0022 (SEIU v. VCGCB). After meeting and conferring with counsel regarding DPA No. 06-01-0022 (SEIU v. VCGCB), the Board reconvened into open session at 2:31 p.m. Item 3. Executive Officer's Statement The Executive Officer thanked the State and Consumers Services Agency for their assistance with expanding awareness of victims' issues during National Crime Victims' Rights Week and the State Controller's Office for including information about Victims' Rights Week on all state pay warrants. The Executive Officer congratulated San Bernardino County for initiating the pilot project billboard in Victorville during Victims' Rights Week. The Executive Officer reported VCGCB staff attended a number of events and conferences in recognition of Victims Rights' Week. The Executive Officer gave her report to the Board, which included the following information: o o Governor Schwarzenegger proclaimed April 13-19 as Crime Victims' Rights Week in California. Governor Schwarzenegger presented the 2008 Crime Victim Advocacy Awards to 12 individuals and organizations that made exceptional contributions to the support and service of victims of violent crimes. Dan Eddy, Executive Director of the National Association of Crime Victim Compensation Boards, was the recipient of the Ronald Wilson Reagan Public Policy Award. In addition, two Californian's also received national recognition. Victim Compensation and Government Claims Board Open Meeting Minutes April 22, 2008 Page 2 of 4 o The VCGCB completed an update of its 2008-2012 Strategic Plan. The four-year plan has an updated Vision, Mission, Core Values, and Strategic Goals. In May the new plan will be rolled out to staff for review and input. The final plan will be provided to the Board. Item 4. Contract Report The Executive Officer presented the Contract Report to the Board. Item 5. Legislative Update Gary Longholm, Deputy Executive Officer, Legislation and Public Affairs Division, presented the Legislative Update to the Board. Item 6. Mileage Reimbursement for Elected Officers and Members of the Judiciary The Board voted to adopt the staff recommendation to amend the California Code of Regulations, title 2, section 714 to automatically adjust the mileage reimbursement rate for elected state officers and members of the judiciary to correspond with the mileage reimbursement rate set by the Department of Personnel Administration for non-represented employees. Government Claims Program Item 7. Consent Agenda (Nos. 1- 379) The Board voted to adopt the staff recommendations for numbers 1-379 with the exception of the following: number 368, G573109, was removed pending review of additional information received from the claimant's attorney; number 229, G573691, was removed pending review of additional information received from the claimant; and number 173, G573117, was removed to allow the claimant to address the Board. The Board voted to adopt the staff recommendations for numbers 1-379 with the exception of numbers 368, 229, and 173. Consent Agenda Item Number 173 Bill Courtney addressed the Board. The Board voted to adopt the staff recommendation to reject the claim. Item 8. EVault Claim Number G569911 Stan Bajorin, Deputy Director of Administration, appeared on behalf of the Department of Mental Health. The Board voted to adopt the staff recommendation to allow the claim in the total amount of $185,435.57 to be paid under authority of Government Code section 965 (agency pay). Item 9. Knox Attorney Services, Inc. Claim Number G570660 The Board voted to adopt the staff recommendation to partially allow the claim in the amount of $49,429.95 to be paid under authority of Government Code section 965 (agency pay). Victim Compensation and Government Claims Board Open Meeting Minutes April 22, 2008 Page 3 of 4 Item 10. UA 393 B Holdings, LLC Claim Number G572583 Jason Hoffman appeared on behalf of UA 393 B Holdings, LLC. The Board offered partial payment of the claim in the amount of $39,141.85. Mr. Hoffman rejected the offer. The Board voted to reject the claim. Item 11. Pitney Bowes Claim Number G569625 The Board voted to adopt the staff recommendation to partially allow the claim in the amount of $32,711.74 to be paid under authority of Government Code section 965 (agency pay). Item 12. Michael Agliano Claim Number G569100 The claim was removed from the agenda pending additional discussion with the California Department of Corrections and Rehabilitation. Item 13. AAA Office Solutions 4 Less Claim Number G571576 The Board voted to adopt the staff recommendation to allow the claim in the amount of $1,260.36 to be paid under authority of Government Code section 965 (agency pay). Item 14. Julie Phang Claim Number G569555 Susan Coats appeared on behalf of the Department of Personnel Administration. The Board voted to adopt the staff recommendation to partially allow the claim in the amount of $768.00 to be paid under authority of Government Code section 965 (agency pay). Item 15. Tri-American, Inc. Invitation for Bid No. 5115 The Board voted to adopt the staff recommendation to dismiss the protest. Item 16. James Ochoa (Pen. Code sec. 4900 et seq.) Claim Number GG565437 Scott Borthwick, attorney, appeared on behalf of James Ochoa. Claimant James Ochoa appeared. The Attorney General's Office did not appear or present evidence in opposition to Mr. Ochoa's claim. The Board approved the claim without objection. Victim Compensation Program The Board commenced the Victim Compensation Program portion of the meeting at 3:51 p.m. Victim Compensation and Government Claims Board Open Meeting Minutes April 22, 2008 Page 4 of 4 Consent Agenda (Nos. 1- 3) The Board voted to adopt the staff recommendations. Requests for Reconsideration Recommendation: Deny (Nos. 4 & 5) The Board voted to adopt the staff recommendations. Recommendation: Deny (Nos. 6-10) The Board voted to adopt the proposed decisions. Proposed Decisions Following Failure to Respond (Nos. 11 & 12) The Board voted to adopt the proposed decisions. Proposed Decisions Following Failure to Appear (Nos. 13- 25) The Board voted to adopt the proposed decisions from numbers 13-25 with the exception of number 23 which was removed. Closed Session Pursuant to Government Code section 11126(c)(3), the Board adjourned into Closed Session with the Board's Executive Officer, Chief Deputy Executive Officer, and Chief Counsel at 3:52 p.m. to deliberate on the proposed decisions, numbers 26-59. The Board reconvened into open session at 4:01 p.m. Open Session The Board voted to adopt the proposed decisions for numbers 26-59. Adjournment The Board meeting adjourned at 4:01 p.m. Karen McGagin Executive Officer __________________________________ I certify that the California Victim Compensation and Government Claims Board adopted these minutes at its meeting of May 15, 2008, at Sacramento, California. Date: May 15, 2008 By: ______________________________ Board Liaison (Affix Seal here)