Opinion
B308559
09-29-2022
DANIEL CLARKE, Plaintiff and Appellant, v. CALIFORNIA VICTIM COMPENSATION BOARD, Respondent; THE PEOPLE OF THE STATE OF CALIFORNIA, Real Party in Interest and Respondent.
Fay Arfa for Plaintiff and Appellant. Rob Bonta, Attorney General, Danielle F. O'Bannon, Assistant Attorney General, Elizabeth S. Angres and Molly S. Murphy, Deputy Attorneys General, for Respondent California Victim Compensation Board. Rob Bonta, Attorney General, Michael P. Farrell, Assistant Attorney General, Eric L. Christoffersen and Craig S. Meyers, Deputy Attorneys General, for Real Party in Interest and Respondent State of California.
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County, No. 19STCP02425 Mary Strobel, Judge.
Fay Arfa for Plaintiff and Appellant.
Rob Bonta, Attorney General, Danielle F. O'Bannon, Assistant Attorney General, Elizabeth S. Angres and Molly S. Murphy, Deputy Attorneys General, for Respondent California Victim Compensation Board.
Rob Bonta, Attorney General, Michael P. Farrell, Assistant Attorney General, Eric L. Christoffersen and Craig S. Meyers, Deputy Attorneys General, for Real Party in Interest and Respondent State of California.
COLLINS, J.
Appellant Daniel Clarke was charged with rape, assault, and related claims arising from two incidents in 2005 involving T.G., the mother of his children. After a jury convicted him of all charges, appellant appealed. The Court of Appeal reversed his convictions, finding that appellant's attorney rendered ineffective assistance for failing to call medical experts to testify about the source of T.G.'s wounds, which she claimed were inflicted by appellant during the incidents.
During the retrial, appellant presented medical expert testimony that T.G.'s wounds were likely self-inflicted. A jury convicted appellant a second time. After the trial, appellant discovered a new report by a third expert, an intended prosecution witness, who also opined that the victim's knife wounds were likely self-inflicted and were older than the victim claimed. Appellant again appealed. The Court of Appeal reversed once more, finding that the trial court erred in denying appellant's motion for a new trial based on the newly discovered expert report.
Prior to the commencement of the third trial, appellant agreed to plead no contest to one count of infliction of corporal injury upon T.G. The remaining counts were dismissed and appellant was sentenced to four years in prison. Appellant was then released, as he had already served more than ten years of his original 32-year sentence.
Appellant filed a petition with respondent Victim Compensation and Government Claims Board (the Board), seeking compensation for the time he contends he was wrongly incarcerated. He argued that he should be compensated for his time served in excess of the four-year sentence imposed on the single count to which he pled. The Board disagreed, finding that he failed to meet his burden to establish his innocence of the charged crimes. Appellant petitioned the trial court for an administrative writ overturning the Board's decision pursuant to Code of Civil Procedure section 1094.5. The court agreed with the Board, concluding that appellant failed to prove his innocence by a preponderance of the evidence.
Appellant now appeals from the trial court's denial of his writ. As he did below, he contends that the Board failed to give proper weight to the factual findings and credibility determinations set forth in the two prior appellate decisions, particularly the court's reliance on the medical expert opinions in twice reversing his convictions. He contends that these opinions, and the court's use of them, established that T.G. lied in her trial testimony and further conclusively prove his innocence. He also argues that the Board ignored evidence of prosecutorial misconduct and made improper credibility determinations regarding T.G. and appellant.
We find no error by the Board. The Board's lengthy opinion exhaustively analyzed over 4,000 pages of evidence and made credibility findings supported by substantial evidence. Moreover, appellant has not demonstrated that the Board failed to adhere to any binding factual findings, or failed to consider any relevant evidence. We therefore affirm the trial court's denial of appellant's petition.
BACKGROUND
We draw this factual summary largely from the two prior appellate opinions in this matter, as well as the transcripts from both trials.
A. Prosecution Evidence
The charges arose from two alleged incidents in 2005 involving victim T.G. Appellant and T.G. began dating in 2000. They had two children together: K., born in 2003, and Z., born in 2005 after the events in this case.T.G. also had two older sons from former relationships. The children all lived with T.G., but she and appellant had no formal custody agreement.
T.G.'s youngest child is alternately identified as "C." and "Z." throughout the record, as well as by his first name spelled correspondingly. We use "Z." as consistent with the spelling given by T.G. during trial.
During their relationship, T.G. and appellant maintained separate residences. Appellant lived in an apartment in Los Angeles. As of 2004, T.G. lived in a house in Palmdale. T.G. stated that she did not give appellant a key to her house because she did not want him coming in while she was sleeping; she did, however, keep a spare key under a flowerpot by the front door.
T.G. testified that appellant was sometimes abusive toward her during their relationship. He would push and slap her, and tell her she was stupid or to "shut up." Appellant also shoved T.G. while she was pregnant with K., causing her to fall, and on one occasion punched T.G.'s older child in the head with his fists. After these abusive episodes, T.G. stated that she would stop seeing appellant, but he would apologize, say he was going to get help, and they would reconcile.
1. Incident of February 13, 2005 (Uncharged)
According to T.G., as of February 2005, she and appellant were not together, but she was pregnant with his child and had told him so. At approximately 11:00 p.m. on February 13, 2005, appellant arrived unexpectedly at her house in Palmdale. He knocked on the door and banged on the windows, telling her he would break the windows if she did not open the door. When T.G. eventually opened the door, appellant said he wanted to see his son. T.G. replied that it was too late and K. was asleep. When appellant announced that he had driven too far to return to Los Angeles and refused to leave, T.G. threatened to call police.
T.G. used the kitchen telephone to call appellant's mother. As she was explaining the situation, appellant snatched the phone from her hand and ripped it from the wall. He then wrapped the telephone cord around her neck, and choked her until she could barely breathe. He told her, "'Bitch, you don't be calling my momma on me.'" Appellant then pushed T.G. into the stove with sufficient force that the stove moved and the oven door handle broke. As she tried to get away from him, he pushed her into a kitchen window, breaking the window and almost causing her to fall out of it. She testified that she had cuts on her back from the broken window and her stomach began to cramp.
Appellant said he was going to take K. and leave. To prevent him from doing so, T.G. used a kitchen knife to puncture one of appellant's car tires. Appellant followed her outside and started cursing. T.G. locked the children inside the house, ran to a neighbor's house, and asked the neighbor to call the police. Appellant was gone by the time sheriff's deputies arrived.
T.G.'s children woke her to tell her that appellant was in the kitchen. He apologized for his actions the night before, telling T.G. that he loved her and did not mean to hurt her. T.G. surreptitiously called 911 and appellant was arrested. A few days later, T.G. obtained a restraining order against appellant, although there is no evidence that he was ever served with it.
Los Angeles County Sheriff's deputy Cheryl Clark testified that she responded to T.G.'s home on the night of February 13. She observed the broken kitchen window and the phone ripped from the wall. She also advised T.G. to get a restraining order. T.G. testified that she did not see appellant again until May, but he left her 10 to 20 voicemail messages per day, asserting that he could come to her house any time he wished, sometimes threatening to take their son away, and sometimes threatening to kill her if he ever found her with another man.
In April 2005, appellant filed a petition seeking legal and physical custody of K. T.G. testified that she was "okay with" a formal custody and visitation agreement because then appellant would not come to her house "at midnight or just whenever he felt like it" to see K., and there might also possibly be a child support order. T.G. said she was not concerned that she would lose custody of K., because she was a good parent and K. had never lived with appellant. T.G. received notice that a mediation was scheduled for May 20, 2005. She testified that she arranged to speak to the mediator by phone because she was afraid of appellant's reaction if he discovered she was participating in the mediation.
2. Incident of May 19, 2005 (counts six and seven)
On May 19, 2005, the day before the scheduled mediation, at approximately 11:00 p.m., T.G. was doing laundry in her garage. T.G. testified that when she returned to the house, she found appellant inside. He said that he had come to see his son and had brought diapers. They argued about him coming over unannounced and appellant told T.G. that he was going to get custody of K. and that she was a "terrible mother." T.G. opened the refrigerator and felt appellant come up behind her. Appellant pressed a knife against her neck and told her "that he was going to get [K.] and not to go to court." T.G. responded that she intended to go to court. Appellant then punched T.G. in the stomach three times; she was about seven months pregnant at the time. Eventually, T.G. told appellant that she would not go to court. She testified that she did so because she knew he did not care about their unborn child and was worried he would hurt her. Appellant told her not to call the police and left.
T.G. did not call the police that night. The next morning, she went to the sheriff's station and reported the incident, and a deputy photographed the cut on her neck from the knife. Deputy Baker, who met with T.G., testified that he saw a wound on her neck, which he described as a "bruise." T.G. stated that she had put medication and a bandage on her wound, and it "eventually scab[bed] over." The prosecution introduced the photograph of the wound taken at the sheriff's station on the morning of May 20, 2005. After this incident, T.G. testified that she started keeping a knife under a pillow on her bed.
Later that day, T.G. participated in the mediation by telephone. She asked the mediator not to tell appellant that she had called. No agreement was reached.
3. Incident of May 21-22, 2005 (counts one through five)
On May 21, 2005, T.G. went to bed around 10:00 p.m. and was awakened around 11:00 p.m. by someone touching her face. Appellant was sitting on the edge of her bed. She asked what he was doing there and he replied, "'I told you not to talk to the mediator.'" He told her that K. did not need her and appellant would make her suffer. He undressed and pulled off T.G.'s pajamas, despite her resistance.
Appellant lay on top of T.G., sucked her breasts, and penetrated her vagina "a little bit" with his penis, while she told him to stop. T.G. testified that she fought back, kicking her legs and "trying to prevent him from having sex" with her. She then remembered the knife under her pillow. As she reached for it, appellant threw the pillow aside, snatched the knife from her hand, and said that he was going to kill her. He held the knife to her chest. T.G. testified that she was cut with the knife as she struggled and moved around underneath appellant. During redirect examination at the second trial, she testified that she was not moving her upper body while appellant was holding the knife against her chest and neck, but was struggling by moving her legs.
Appellant then put his face between her legs, and she felt his tongue on her vagina. She kicked him in the chin. He called her a "bitch" and held the knife between her legs. T.G. testified that appellant was "rubbing" the knife "back and forth" on her inner thighs and she was "getting cut." She did not know if it caused bleeding but could feel stinging and burning. Appellant then placed the knife at the entrance of her vagina and said "'I am going to tear this pussy up.'" She felt the tip of the knife at the entrance of her vagina but did not think she was cut by it. She was frightened because she knew he did not want the baby. At trial, T.G. identified the knife wounds to her chest, neck, and thighs from photographs taken at the hospital on the morning of May 22.
Appellant got back on top of T.G. and penetrated her vagina again with his penis, and although she was telling him to stop, he continued until he ejaculated. T.G. stated that when he laid on top of her, she could feel "the baby, like balling up and I felt tightening on my stomach," so she told him he was hurting the baby, but he said he did not care. Appellant next told T.G. to get on top of him, threatening her that otherwise he would make her lie on her stomach and "do it from the back." Not wanting to hurt the baby by lying on her stomach, she complied. He placed his penis inside her vagina, and after several minutes ejaculated again. T.G. testified that during the encounter, the room was "somewhat dark, although there was some light from the adjoining bathroom and from the television."
When appellant went to use the bathroom, T.G. ran to another bathroom, pretending that she was going to vomit. She turned on the light and, leaving the bathroom tap running, ran into the kitchen to call 911. Barely whispering, T.G. told the 911 operator to please help her and that appellant had been raping her for hours and was going to kill her. T.G. returned to the bathroom, saw appellant with the knife in his hand, and complied with his command to go back to the bed.
When the sheriff's deputies arrived, appellant sat up and said, "What did you do? Did you call the police on me?" T.G. grabbed her pajama top and ran out of the house naked. Appellant eventually came out of the house and was arrested.
Deputies took T.G. to the hospital, where she was examined and photographed. The sheriff's detectives and deputies who responded to T.G.'s home on May 22 testified that they saw T.G. rapidly exit the home naked below the waist, crying and extremely frightened. They also noticed wounds on her neck, chest, and thighs, some of which appeared to be fresh. Deputies recovered the knife from the bedroom under a pillow at the head of the bed; it contained a stain that tested positive for human blood. The deputies, however, did not recall seeing any blood on her pajama top, in the bedroom, or anywhere else in the house. They also found no sign of forced entry.
While in custody and awaiting trial, appellant sent T.G. cards and love letters, copies of which were introduced at trial. T.G. did not respond and moved to a new address. She testified that she experienced some pregnancy complications following this incident, including spotting and cramping, but Z. was ultimately born healthy.
4. Medical Examination Evidence
Joshua Ireland was employed by the Antelope Valley Hospital Emergency Department as a physician's assistant and forensic examiner for the sexual assault response services (SARS) team. On May 22, 2005, Ireland performed a sexual assault examination on T.G. and photographed her injuries. He noted linear abrasions to her chest and right breast, a group of linear abrasions to her neck area, an older healing abrasion on her neck, and linear abrasions to both inner thighs. He noted that some of T.G.'s wounds were "still somewhat inflamed" and swollen, and had not yet scabbed at the time of the examination. In his opinion, this indicated that those wounds were in the inflammatory stage. He also explained the difference in a wound's appearance based on its age and the different stages of healing, but that he could not identify the age of a particular wound. Ireland testified that by "abrasion" he meant an injury to the top layer of the skin, while a "laceration" was an injury that went through the top layer and into the layer beneath it.
During cross-examination, Ireland acknowledged that his observations regarding the possible age of the wounds were not documented in his report. He stated that while some redness was visible from the photographs, "the extent of the redness and the extent of the inflammation that I see is more obvious and present during clinical examinations." Thus, he opined that it "would be very difficult to age a wound" from the photos.
Ireland also described two "lacerations" to T.G.'s posterior forchette, the collection of skin just below the opening to the vagina. He could not offer an opinion as to the cause of the injury to T.G.'s posterior forchette, stating that the injury was consistent with consensual or nonconsensual intercourse and could also be consistent with a knife.
B. Defense Evidence
1. Appellant's version of events
Appellant testified that he was in a relationship with T.G. from 2000 until his arrest in 2005. He testified to an incident around the time that he helped T.G. move to Palmdale. T.G.'s second oldest child, T., was "cussing" and appellant was "hitting on him," and T.G. kicked appellant out of the house and did not let him see K. for a while afterward. Appellant then denied ever hitting T., stating that he just told T.G. he was "going to give him a whooping."
As to the incident of February 13, 2005, appellant testified that he came to see T.G. that day and she told him she was pregnant with Z. At some point she tried to take the phone out of his hands, and he "attempted to smash the window out." He apologized, but T.G. slashed his car tires with a knife. He left to go to the tire store. T.G.'s neighbor testified that T.G. came across the street to use the neighbor's phone to call the police, and T.G. seemed "more angry than anything else."
During the first trial, appellant testified that he accidentally broke the window with his elbow while struggling with T.G. over the telephone.
After that incident, T.G. refused to let appellant see K. According to appellant, this was the third time she had cut off contact between appellant and K. After T.G. threatened that he would never get to see or have a relationship with his son, appellant filed a petition for full custody of K.
Appellant denied visiting T.G. on May 19, 2005. He spent that evening at his apartment with two friends, who so testified.
Appellant attended the scheduled mediation on May 20, 2005. He testified that T.G. did not attend, so he gave the mediator T.G.'s phone number.
Regarding the incident of May 21, 2005, appellant testified that T.G. called him that morning. She told him it was wrong of her to keep him from seeing K., and she said she was sorry. She sounded "very nice and apologetic" on the phone, invited him over, and called him repeatedly throughout the day to encourage him to come.
Appellant's friend drove him to T.G.'s house, and he arrived between 10:30 and 11:00 p.m. His friend stayed for a few hours and then left. Appellant and T.G. talked about possible names for the new baby, he rubbed her stomach, and they later had consensual intercourse "once or twice or three times." Appellant testified that he noticed some scratches on T.G.'s neck, which she said had been inflicted when she was robbed a few days earlier. He testified that he did not see any other scars on her body while they were having sex, even though she was naked and there was light from the television and the bathroom. He saw the knife that she kept in the bed, and T.G. told him she had forgotten it was there. Appellant stated that he moved the knife "off the bed" and "put it on the dresser." He testified that he never held a knife against T.G.'s neck or elsewhere, punched her or slapped her, threatened to kill her, or called her a "bitch."
During the first trial, appellant testified that he believed T.G. had staged the evening's events and his arrest so that she could maintain full custody of K. He speculated, with respect to T.G.'s other injuries, "I think she must have did it during the middle of the night because I didn't see those things until after I got arrested and was shown the pictures."
After they had sex, appellant fell asleep. He woke up later that morning when T.G. got out of the bed, but he then lay down again before hearing officers calling his name and telling him to come out of the house.
During cross-examination in both trials, appellant acknowledged that after his friend left in the evening on Saturday, May 21, appellant did not have a car available to return to Los Angeles. He explained that he intended to stay with T.G. through the weekend, until Monday, May 23, 2005, and then he planned to take a bus or train to downtown Los Angeles in order to attend the custody hearing scheduled for Monday at 8:30 a.m. Upon further questioning, he agreed that if he left Palmdale on Monday morning using public transportation, he would have been late to the hearing. He then asserted that he could have called someone for a ride, but had no specific plan to do so. He also admitted that he did not bring a change of clothing or toothbrush to T.G.'s house. During the first trial, when asked whether he planned to wear the same clothing to court on Monday, appellant stated, "No. No. No. No. Now that I remember, I didn't even plan on staying. I planned on just dropping the things off, seeing the kids and leaving, but things turned out differently." At the second trial, he testified that because he and T.G. had reunited and were getting along that weekend, "it wasn't that pressing of a need for me to go to the child custody hearing."
2. Defense medical experts (second trial)
As we discuss further below, appellant did not present any medical expert testimony in his first trial. However, at the second trial, he presented the expert testimony of Drs. Paul Bronston and Paul Sinkhorn.
Bronston testified that he had been an emergency room physician for over 20 years and had examined tens of thousands of patients. As part of his training in emergency medicine, he was taught how to determine whether wounds were self-inflicted. Bronston explained that self-inflicted wounds "tend to be very superficial," "usually more than one," and "tend to be parallel with each other." Thus, a person presenting with multiple "very superficial, long, linear" wounds would be "extremely characteristic" of someone who had self-inflicted those wounds. Bronston also testified that self-inflicted wounds tended to be in areas of the body that a victim could easily access by hand. By contrast, wounds inflicted in a struggle would be "highly variable," "deeper," randomly placed rather than in "parallel lines," and "wouldn't have that classic pattern."
When shown the photographs of T.G.'s wounds, Bronston opined that all of them appeared to be self-inflicted, noting the "numerous long parallel lines," "constant parallel, very superficial type of wounds," and "superficial parallel lines." He concluded that the wounds are "not consistent with a struggle." Bronston also estimated that the wounds appeared to be "something around one to three days" old, noting that scabbing started to develop within 24 hours of the injury. On cross-examination, Bronston acknowledged that not all of T.G.'s wounds were parallel.
Sinkhorn, a practicing obstetrician and gynecologist, testified that he had examined the photographs of T.G. and found no injuries to her genitalia other than a small tear in her posterior forchette. Such a tear "occasionally happens when a patient . . . rubs over [it] vigorously or the patient has long fingernails" or could even be caused by "simple spreading of the labia," because the tissue is so thin. The injury could also be caused by consensual or nonconsensual intercourse. Sinkhorn stated that it would be possible to cause such a tear with the knife that T.G. testified was used in the attack, but that it would be "improbable" and would have required T.G. to be perfectly still while the cut was made. He opined that there were "many more probable ways to create an injury like that." However, he acknowledged that there was no way to know what caused the injury from looking at a photograph.
II. Procedural History
A. Charges and First Trial
In 2006, appellant was charged in a second amended information with seven counts: forcible rape (Pen. Code, § 261, subd. (a)(2) ; count one), attempted forcible oral copulation (§§ 664, 288a, subd. (c)(2); count two), burglary (§ 459; count three), criminal threats (§ 422; count four), false imprisonment by violence (§ 236; count five), inflicting corporal injury on a spouse, cohabitant, or child's parent (§ 273.5, subd. (a); count six), and dissuading a witness by force or threat (§ 136.1, subd. (c)(1); count seven). The information further alleged as to count one that appellant committed the offense during the commission of a burglary with the intent to commit rape (§ 667.61, subds. (a) &(d)) and personally used a dangerous or deadly weapon (§ 667.61, subds. (a), (b), &(e)). As to all counts, the information alleged that appellant used a firearm and a deadly weapon (a knife) (§§ 12022.3, subd. (a), 12022, subd. (b)(1)).
All further statutory references are to the Penal Code unless otherwise indicated.
The jury in appellant's first trial found appellant guilty on all counts. The jury found not true the allegation that appellant committed count one during the commission of a burglary with intent to commit forcible rape, but found all other allegations true. The trial court sentenced appellant to 32 years to life in prison.
B. First Appeal
Appellant appealed his conviction and also filed a petition for writ of habeas corpus. He raised numerous claims, including that his trial counsel was ineffective for failing to present medical expert testimony concerning T.G.'s wounds.
Division One of this district ordered the superior court to conduct an evidentiary hearing on appellant's ineffective assistance claim. During that hearing, appellant presented testimony from Drs. Bronston and Sinkhorn. Bronston opined that T.G.'s wounds appeared to be older than she claimed and also were self-inflicted. Sinkhorn opined that the injury to T.G.'s forchette was likely not caused by a knife and T.G.'s wounds did not appear to have been inflicted during a struggle.
The trial court denied appellant's habeas petition. Appellant then filed a new habeas petition with the appellate court. The court consolidated the habeas proceeding with the pending appeal and granted the petition. (People v. Clarke (June 30, 2011, B203220, B228831) [nonpub. opn.] (Clarke I).) The court noted that "the prosecution's case rested almost entirely on T.G.'s credibility," and that "no physical evidence directly corroborated her claims of the assaults with a knife." Based on those circumstances and appellant's denial that he inflicted the knife wounds on T.G., the court concluded that "reasonably diligent counsel would have investigated to determine whether medical or other scientific evidence might reveal the age of the wounds and whether they were self-inflicted." Further, appellant's trial counsel provided "no reasoned basis for his failure to investigate."
The appellate court also concluded that these failures were prejudicial to appellant, as the testimony by Bronston and Sinkhorn "would have substantially undermined T.G.'s credibility." The court reasoned that Bronston's opinions that T.G.'s wounds were not inflicted on May 21 or 22 and were self-inflicted by T.G. were "flatly inconsistent with T.G.'s account of the events of that night; if either opinion is true, then T.G. would appear to have fabricated her story." As such, "if the jury had heard Bronston's testimony and believed at least one of Bronston's opinions, then the jury would have had good reason to reject T.G.'s testimony in its entirety and acquit Clarke on all counts." Sinkhorn's opinions that T.G.'s vaginal injury was not inflicted by a knife and the wounds on her thighs did not appear to have been inflicted in a struggle also seemed inconsistent with T.G.'s testimony regarding her injuries, thus "further casting doubt on T.G.'s honesty and the accuracy of her account." Noting that the physical evidence in the case was equivocal and the only eyewitness was the victim, the court concluded that medical evidence from witnesses like Bronston and Sinkhorn "would have been highly probative of [T.G.'s] credibility, which was the central issue in the case," and therefore defense counsel's failure to introduce such evidence was prejudicially deficient.
Notably, however, the court rejected appellant's argument that his convictions were not supported by substantial evidence, finding that "viewing the evidence-principally T.G.'s testimony-in the light most favorable to the prosecution, a rational trier of fact could have found the elements of the charged crimes beyond a reasonable doubt." The court accordingly granted the habeas petition, vacated the judgment, and remanded the matter.
C. Second Trial
On remand, the prosecution elected to retry appellant on the same charges. As detailed above, during the second trial, appellant presented testimony from experts Bronston and Sinkhorn that T.G.'s wounds were not inflicted when and how she said they were and instead were self-inflicted. The prosecution initially indicated that it intended to call a medical expert in rebuttal but ultimately did not present any additional medical expert evidence. In September 2012, the jury again convicted appellant on all counts and again found all allegations true except the same allegation on count one regarding burglary with intent to commit rape under section 667.61, subdivisions (a) and (d).
After the verdict, appellant moved for a new trial based on a newly discovered report from the Los Angeles County Department of the Coroner. According to the motion, on August 20, 2012, prior to the start of the second trial, the prosecutor informed defense counsel that he planned "on consulting an expert on the victim's wounds" and that he would let defense counsel know when he had "a name and/or reports from that expert." A few days later, at the prosecution's request, the court ordered the coroner's department to examine the photographic evidence in the case and provide opinions based on that examination.
The second trial began on August 28, 2012. At that time, the prosecutor stated on the record that he had an expert witness, identified as Dr. Rauch, reviewing the victim's wounds, but he did not yet have a report. On September 6, 2012, while trial was ongoing, the prosecution informed defense counsel that the case had been assigned to Lisa Scheinin from the coroner's department but she would not have a final report until September 12. The prosecution also provided the defense with a summary of Scheinin's initial impressions, including that the wounds could be self-inflicted based on their placement, superficial nature, and varying age. The prosecution also told defense counsel that the intended prosecution expert, Rauch, said this was not his area of expertise and he would defer to the medical examiners.
The prosecution rested on September 10, 2012, having presented no medical evidence apart from Ireland's testimony regarding the SART examination of T.G. The defense rested the same day. The jury convicted appellant on September 12, 2012. On September 20, 2012, defense counsel spoke to Scheinin, who stated that the wounds had characteristics of selfinfliction and did not appear consistent with T.G.'s account of the time and manner in which she was injured. Defense counsel did not receive a copy of the report until September 27, 2012.
In the report, signed on September 10, 2012, deputy medical examiner Scheinin detailed her examination of photographs taken of T.G. on May 22, 2005, as well as the sexual assault examination report of the same date and the police report. Scheinin described T.G.'s injuries as "numerous very superficial linear abrasions" on the anterior neck, all of which appeared to have been made at approximately the same time and which she opined were "at least 24 hours old and could easily be older (a few days)." She described these injuries as "minimal" and stated that they "could easily be selfinflicted," noting that many of the abrasions "extend from a single area of confluence" which "indicates a deliberately repetitive action that is very consistent with self-infliction. (Infliction by another person is not excluded.)"
On the right lateral neck, she observed a few abrasions that "may represent marks from the raking of the dull edge of a blade across the skin; if so, they are most likely recent (a few hours old)." She opined that the injuries to this part of T.G.'s neck were "minimal injuries that could easily have been selfinflicted, but infliction by another person is not excluded."
On T.G.'s right chest area, Scheinin observed multiple linear abrasions that were "close together and nearly parallel." She opined that the abrasions were "recently inflicted," "extremely superficial," and "could easily have been self-inflicted, but infliction by another person cannot be excluded." She also noted another faint abrasion with scabbing indicating it was at least 24 hours old, and thus inflicted at a different time than the other chest injuries.
Scheinin additionally observed numerous linear abrasions on both of T.G.'s thighs, which appeared to be well-healed and therefore "at least two weeks old." She opined these injuries "could easily be self-inflicted." In sum, she opined that the observed injuries could have been self-inflicted, and were "consistent with a sharp instrument being drawn very lightly over the skin." Scheinin reported that the "type of instrument cannot be determined," but the "double contour of many of the wounds" on T.G.'s neck suggested a thicker cutting edge than a kitchen or pocket knife, such as "something like a scissor blade, but a piece of glass or other instrument cannot be excluded." She noted that the marks on T.G.'s neck suggested "repeated injuries inflicted with consistent pressure and is much more consistent with selfinfliction than an attack by another person.... [I]t is also inconsistent with a blade held motionless against the victim's throat." She stated that the "extremely superficial nature of the injuries is consistent with self-infliction," and that the varying ages of the wounds was inconsistent with a single attack. However, she also stated that "while all of the injuries could have been self-inflicted, infliction by another person is not excluded. Sexual assault is not excluded, but the temporal relationship of the injuries to any sexual assault that reportedly occurred on [May] 22, 2005 is not clearly established. Only the wounds of the right lateral neck and right chest appear to have been inflicted within the time of the reported assault."
The trial court denied the motion for a new trial. The court again sentenced appellant to 32 years to life in prison.
D. Second Appeal
Appellant again appealed, arguing that the trial court erred in denying his motion for a new trial. Division One of this district agreed in an unpublished opinion, People v. Clarke (Oct. 31, 2014, B244775) [nonpub. opn.] (Clarke II)) The court first concluded that Scheinin's report was newly discovered, as it did not exist until September 10, 2012 and defense counsel only learned of the report's completion after appellant was convicted. Second, the court found the evidence was not merely cumulative. While the prosecution at the second trial had attacked the credibility of expert Bronston because he was being paid by the defense, Scheinin's report "is not vulnerable to any such attacks-it is an opinion from the county coroner's office, commissioned by the prosecution." Third, the court concluded that Scheinin's report would render a different result probable upon retrial. In addition to its enhanced credibility, the court found that the "substance of Scheinin's report presents an even more compelling refutation of T.G.'s testimony than Clarke's retained experts did." The court noted that Scheinin concluded that the wounds on T.G.'s thighs were at least two weeks old when photographed on May 22, 2005, contrary to T.G.'s testimony that those wounds were inflicted on May 21 to 22 when appellant held the knife between her legs. Similarly, T.G. testified that all but one of the wounds on her neck were inflicted in the evening on May 21 or the early morning of May 22, and thus would have been less than 24 hours old when photographed during the SART examination in the morning on May 22. But Scheinin opined that many of T.G.'s neck wounds were at least 24 hours old and possibly older and appeared not to have been inflicted with a knife but rather "something like a scissor blade." As such, the court concluded that "it is at least probable that a jury would reach a different result upon retrial."
The appellate court declined to reach appellant's argument that the prosecutor violated his rights under Brady v. Maryland (1963) 373 U.S. 83 by willfully withholding exculpatory evidence and therefore committing prosecutorial misconduct. The court concluded that the "present record is inadequate for determination of the merits of such a claim," but that appellant was "free to pursue the claim on remand, including the introduction of evidence to support it."
Finally, the court rejected appellant's argument that his convictions were not supported by substantial evidence. Noting that it was a "very close case," the court concluded that, based on T.G.'s testimony and "viewing the evidence in the light most favorable to the prosecution, a rational trier of fact could have found the elements of the charged crimes beyond a reasonable doubt." However, the court noted that the trial record did not contain Scheinin's report, and thus "express no opinion as to whether, considered in light of the whole record, the evidence supporting the convictions would rise to the level of substantial evidence if Scheinin's report had been admitted."
E. Remand Proceedings and Plea
On remand, the prosecution again elected to retry appellant on the same charges. Before the trial, appellant's counsel filed a motion to dismiss the charges based on prosecutorial misconduct and to exclude T.G.'s testimony as false. While those motions were pending, appellant agreed to plead no contest to count six, inflicting corporal injury on a child's parent (§ 273.5). The trial court accepted the plea and sentenced appellant to four years in prison, with credit for time served. At that time, appellant had already served over ten years in prison. The remaining charges were dismissed and he was released from custody in November 2015. The court also issued a protective order prohibiting appellant from contacting T.G.
F. Section 4900 Claim
On November 14, 2016, appellant submitted his claim under section 4900, which provides a procedure for an erroneously imprisoned person to present a claim to the Board for compensation for injuries sustained from that conviction and imprisonment. He contended that the forensic evidence proved that T.G. lied and inflicted her own injuries, and that he was factually innocent of the charged crimes. He sought compensation for the time spent in custody in excess of the sentence on count six, totaling $432,600. The parties agreed to have the matter decided on the written record.
In July 2018, the hearing officer issued a 92-page proposed decision recommending that appellant's claim be denied because he failed to prove, by a preponderance of the evidence, that he was innocent of the crimes for which he was convicted. The Board adopted the proposed decision on April 18, 2019 and rejected appellant's claim.
In the Board's decision, the hearing officer extensively summarized the facts based on a review of all of the evidence in the case, including Sheriff's Department incident reports for the February and May 2005 incidents, the transcript of the preliminary hearing, transcripts of both trials, the record from appellant's two new trial motions, including the evidentiary hearing testimony by the defense medical experts, the probation report, and the two appellate court opinions.
Taking first appellant's argument that the Board was bound by factual findings made in Clarke I, the Board agreed that it was bound under section 4903 by any factual findings or credibility determinations establishing the appellate court's basis for granting a writ of habeas corpus in Clarke I. With respect to findings in Clarke II, the Board noted that the parties disputed "whether the Board is bound by any factual findings made by an appellate court in reversing a conviction on direct appeal," but reasoned that "it behooves the Board to consider the findings made by the Court of Appeal" in finding error in the trial court's decision denying the motion for a new trial. The Board found that the Court of Appeal's statements in Clark II that Scheinin's "report would have cast doubt on the credibility of T.G.'s testimony as to the origin of her cuts and may well have led to a different outcome upon retrial . . . are not equivalent to findings that T.G. lied or that Dr. Scheinin's report pointed unerringly to Clarke's innocence." The Board noted that neither appellate opinion found appellant factually innocent, instead limiting the findings "to pointing out the weaknesses of the prosecution's case," and, in Clarke II, "backed those findings with quotations from Dr. Scheinin's report."
Reviewing both Clarke I and Clarke II, the Board found that the appellate court never concluded "that T.G. completely lacked credibility or that a jury would have, in fact, reached a verdict of not guilty." Similarly, in both decisions, the Court of Appeal "did not make any credibility determinations" regarding T.G.'s or appellant's testimony; instead, the court "necessarily rejected the argument that T.G. lacked credibility when the court twice found the evidence sufficient to support Clarke's convictions."
The Board also noted that both juries "clearly found T.G. more credible than Clarke," after having the opportunity to hear their testimony and observe their demeanor.
The Board also concluded that even assuming T.G. "lied about the origin of her cuts, that finding would be insufficient for Clarke to satisfy his burden of proving his innocence," because "substantial evidence was presented throughout Clarke's criminal proceedings which established that, not only are his representations of the events unbelievable, but that he did commit" the charged crimes. Having conducted an exhaustive review of appellant's testimony from both trials, "as well as his statements to law enforcement at the time of his arrest," the Board concluded that the evidence "demonstrates his complete lack of credibility." The Board detailed multiple pieces of evidence undermining appellant's credibility. This included the fact that he "comes before this Board a convicted felon," having admitted to the charge of inflicting corporal injury, which alleged that on May 19, 2005 he pressed a knife against T.G.'s throat, scraped the blade on her neck, and punched her in the abdomen when she was seven months pregnant.
The Board also noted "the numerous and significant discrepancies in [appellant's] statements, as well as his obvious fabrications while testifying in front of the jury." The Board outlined several examples, including appellant's changing testimony about his living situation; the details of the incident on February 13, 2005, including whether he had accidentally or intentionally broken the window and whether he and T.G. had argued; his denial that he saw T.G. on May 19, 2005, compared with his eventual admission to injuring her on that date; and multiple inconsistencies regarding the May 21 incident, including the reason for his trip to visit T.G., the feasibility of his claimed transportation plans to return to Los Angeles, and his claim that he placed the knife on the bedroom dresser, contrary to law enforcement testimony that the knife was found under a pillow. The Board also found implausible appellant's "contention that the sexual acts were all consensual," noting that appellant testified that T.G. fabricated the rape allegations because "she felt cheated when he fell asleep about 1:00 a.m. to 2:00 a.m., leaving her sexually unsatisfied. This assertion defies logic." The Board also cited evidence of appellant's history of violence.
The Board next turned to assessing T.G.'s credibility. The Board again detailed the evidence in support of appellant's version that T.G. inflicted her own injuries, and then discussed Ireland's testimony as the "only medical expert to have personally examined T.G." The Board found that Ireland's testimony about the freshness of T.G.'s wounds was supported by the observations of the responding officers on May 22. The Board also cited appellant's testimony that he did not see any injuries on T.G. other than the prior injury to her neck, despite spending "several hours with T.G. while she was completely naked and illuminated by the ambient light from the bathroom and television." The Board found it "difficult to imagine that [appellant] would miss [the other] injuries had they been present prior to the rapes, especially given T.G.'s un-contradicted testimony that he not only licked her vagina, but actually licked her inner thighs." The Board also relied on the testimony of the responding officers that T.G. was "tearful, frightened, and hysterical," as well as "naked from the waist down, suggesting a rapid, desperate departure from the home." Moreover, appellant's claim that T.G. fabricated the allegations on May 21 in the face of the impending custody proceedings "completely overlooks the existence of the February 13, 2005 incident," which occurred months before appellant's custody petition and was documented by police reports from that day. The Board also found that even if T.G.'s "wounds were not inflicted in the manner which she alleged, that determination would be insufficient to destroy the credibility of her allegations that Clarke raped her; orally copulated her; burglarized her home; and imprisoned, threatened, and beat her."
The Board concluded that "viewing the record in its entirely, there is sufficient evidence demonstrating Clarke's guilt of all seven charges. While the medical evidence may have cast some doubt on the origin of T.G.'s cuts, those issues are insufficient for Clarke to meet his burden of demonstrating actual innocence, by a preponderance of evidence."
G. Writ Proceedings
Appellant filed a petition for writ of administrative mandamus pursuant to Code of Civil Procedure section 1094.5 on June 17, 2019. He asked the superior court to reverse the Board's decision and remand for further proceedings.
Appellant argued that the Board "erroneously based its findings solely on uncorroborated and discounted hearsay," including the transcripts of both trials, and failed to properly consider Scheinin's report. He also argued that the Board was bound under section 4903, subdivision (b) to the findings made in Clarke I regarding the strength of the medical evidence, and that the Board overlooked the court's findings in Clarke II regarding the significance of Scheinin's report. Additionally, he argued that the Board should have considered the prosecutor's misconduct in failing to disclose Scheinin's report.
The court first analyzed appellant's contention that the Board "overlooked" the impact of the court of appeal decisions and instead relied on improper evidence. The court found that appellant waived any objection to the Board's consideration of testimony from trial transcripts and further found that the Board was authorized to consider the transcripts under the applicable regulations.
Next, the court reviewed appellant's contention that the Board was bound by findings made in Clarke I. The court noted that the Board had analyzed the court of appeal's decision, as well as the expert testimony of Bronston and Sinkhorn given in the second trial, and found that the Board "concluded, correctly, that no court had made a finding that Petitioner was factually innocent." The court noted that the Court of Appeal twice rejected appellant's claims of insufficient evidence to support the convictions, including in Clarke II, which followed the second trial at which Sinkhorn and Bronston testified. In light of the repeated determination by the Court of Appeal that appellant's convictions were supported by substantial evidence, the trial court found that "the Court of Appeal's conclusion in [Clarke I] that Bronston and Sinkhorn 'had the potential to undermine the prosecution's entire case' did not bind the Board with respect to T.G.'s credibility. [Citation.] The Court of Appeal found that a reasonable trier of fact could credit T.G.'s testimony with respect to the elements of the alleged crimes, even on a record that contained the expert opinions of Drs. Bronston and Sinkhorn." The court found that appellant had not cited any Board credibility findings that directly conflicted with those made in Clarke I with respect to the medical experts, and therefore that appellant had not shown a prejudicial abuse of discretion in "how the Board considered and gave weight to the Court of Appeal's findings" in Clarke I.
The court further rejected appellant's contention that the Board overlooked findings made in Clarke II. First, the court noted that appellant did not cite any authority binding the Board to any findings made in that decision. Even assuming the Board was so bound, the court found that appellant failed to show any abuse of discretion. Appellant failed to cite to any Board findings conflicting with the determination in Clarke II that "Scheinin's report cast doubt on the credibility of T.G.'s testimony about the origin of her cuts," and the Court of Appeal expressly declined to find that T.G. "necessarily lacked credibility as a result of Scheinin's report." The court also found sufficient evidence in the record "from which the Board could credit T.G., even in light of the expert opinions about the origin of her cut wounds."
The court also disagreed with appellant that the Board should have given more weight to his claim of prosecutorial misconduct. The court noted that the court declined to find prosecutorial misconduct in Clarke II and that appellant's motion to dismiss on that basis was never decided by the trial court prior to his plea. Moreover, appellant provided no basis to establish that the Board was required to decide whether the alleged misconduct supported his claim for compensation under section 4903.
Finally, the court rejected appellant's argument that substantial evidence did not support the Board's decision. The court found that appellant failed to meaningfully challenge the Board's extensive findings that he lacked credibility and that the Board could reasonably consider his no contest plea and conviction for count six when assessing the credibility of his testimony. Further, the court noted that although the Board acknowledged that the medical evidence cast doubt on the origin of T.G.'s cuts, the Board "generally found T.G. to be a credible witness," relying on other evidence in support of that conclusion. The court found that "considering T.G.'s testimony in full and in light of the whole record," the Board could reasonably conclude that appellant had not met his burden to establish his innocence. Having weighed the evidence, the Board could reasonably find that "despite the conflicting medical evidence from Drs. Bronston and Scheinin, that T.G. was a credible witness, including with respect to her testimony that she was forcibly raped by [appellant]."
The court therefore denied appellant's petition and issued judgment for respondent on September 30, 2020. Appellant timely appealed.
DISCUSSION
I. Standard of Review
Code of Civil Procedure section 1094.5, the administrative mandamus statute, provides for judicial review of administrative orders or decisions. The party filing a petition for writ of mandate under Code of Civil Procedure section 1094.5 "must show that the agency acted without or in excess of jurisdiction, failed to afford a fair trial, or prejudicially abused its discretion. [Citation.] An abuse of discretion is shown if the agency failed to proceed in the manner required by law, the decision is not supported by the findings, or the findings are not supported by the evidence. [Citation.]" (Schafer v. City of Los Angeles (2015) 237 Cal.App.4th 1250, 1260 (Schafer), citing Code Civ. Proc., § 1094.5.)
In cases such as this that do not involve a fundamental vested right, "the superior court's review is limited to examining the administrative record to determine whether the adjudicatory decision and its findings are supported by substantial evidence in light of the whole record." (JKH Enterprises, Inc. v. Department of Industrial Relations (2006) 142 Cal.App.4th 1046, 1057 (JKH), citing Bixby v. Pierno (1971) 4 Cal.3d 130, 143-144.) "Substantial evidence, of course, must be '"of ponderable legal significance,"' which is reasonable in nature, credible and of solid value." (JKH, supra, 142 Cal.App.4th at p. 1057, quoting Kuhn v. Department of General Services (1994) 22 Cal.App.4th 1627, 1633.)
"An appellate court in a case not involving a fundamental vested right reviews the agency's decision, rather than the trial court's decision, applying the same standard of review applicable in the trial court." (Schafer, supra, 237 Cal.App.4th at pp. 1260-1261; see Code Civ. Proc., § 1094.5, subd. (c); Madrigal v. California Victim Comp. &Government Claims Bd. (2016) 6 Cal.App.5th 1108, 1113 (Madrigal).) Thus, we review the administrative record to determine whether the agency's findings were supported by substantial evidence, resolving all conflicts in the evidence and drawing all inferences in support of them. (JKH, supra, 142 Cal.App.4th at p. 1058, citations omitted.)
The petitioner in the administrative mandamus proceeding "has the burden of proving that the agency's decision was invalid and should be set aside, because it is presumed that the agency regularly performed its official duty." (Desmond v. County of Contra Costa (1993) 21 Cal.App.4th 330, 335.)
II. Exonerated Inmate Compensation Statute
"California has long had a system for compensating exonerated inmates for the time they spent unlawfully imprisoned." (People v. Ethridge (2015) 241 Cal.App.4th 800, 806.) Section 4900 provides that a person erroneously convicted and imprisoned for a felony may present a claim to the Board for injuries sustained thereby. The claim must be based on grounds the crime was "not committed at all, or, if committed, was not committed by" the claimant. (§ 4900; see also Diola v. State Board of Control (1982) 135 Cal.App.3d 580, 584 (Diola).) Sections 4901 through 4906 set forth the procedure for filing and establishing the claim.
It is the claimant's burden "'to introduce evidence in support of the claim'" (§ 4903) and to carry the burden of proof. (See Diola, supra, 135 Cal.App.3d at p. 588; see also Cal. Code Regs., tit. 2, § 644, subd. (c) ["The claimant has the burden of proof on all issues necessary to establish eligibility."].) "Innocence might well be predicated upon a reasonable doubt of guilt. But the board's section 4900 determination is a civil determination of culpability. To prevail claimant must carry the burden of proof of innocence by a preponderance of the evidence." (Diola, supra, 135 Cal.App.3d at p. 588, fn. 7, citing Cal. Code Regs., tit. 2, § 641; see also Cal. Code Regs., tit. 2, § 644, subd. (c)(1) ["The standard of proof is a preponderance of the evidence."].)
III. Analysis
Appellant contends that the Board abused its discretion by failing to properly consider the import of the findings in Clarke I and Clarke II. He argues that those findings, particularly Scheinin's report, prove that T.G. inflicted her own wounds, thereby completely undermining her credibility and establishing his innocence by a preponderance of the evidence. We are not persuaded.
As an initial matter, appellant argues that the materials considered by the Board, including police reports and transcripts from the preliminary hearing, both trials, and the evidentiary hearing, "should have been excluded as null and void because the [Court of Appeal] reversed the verdicts in both trials," and because none of those proceedings "contained Dr. Scheinin's findings." He does not address the fact that the relevant regulations expressly authorize the Board to consider such evidence, despite the trial court's citation to this authority. (Cal. Code Regs., tit. 2, § 641, subd. (b) ["The Board may consider as substantive evidence the prior testimony of witnesses claimant had an opportunity to cross-examine, and evidence admitted in prior proceedings for which claimant had an opportunity to object."]; id. at § 641, subd. (f) ["The Board may also consider any other information that it deems relevant to the issue before it."].) Nor does he cite any authority to support his position that the appellate decisions render this evidence "null and void." His lone citation, Odlum v. Duffy (1950) 35 Cal.2d 562, addresses an unrelated issue regarding the position of the parties following the reversal of the denial of a motion to vacate the judgment. (Id. at p. 564 ["It is well settled that the reversal of a judgment or order ordinarily leaves the proceeding in the same situation in which it stood before the judgment or order was made."].) We also note that both parties agreed to have the matter decided based on the written record before the Board, and appellant raised no objection to the inclusion of these materials at the time. The Board did not err in considering and relying on these materials.
Appellant also contends that the Board was bound by factual findings made by the appellate court in Clarke I, but instead, the Board "discount[ed]" these findings in denying his claim. Section 4903, subdivision (b) provides, in relevant part: "In a hearing before the board, the factual findings and credibility determinations establishing the court's basis for granting a writ of habeas corpus . . . shall be binding on the Attorney General, the factfinder, and the board." (See also § 1485.5, subd. (c) ["the express factual findings made by the court, including credibility determinations, in considering a petition for habeas corpus . . . shall be binding on the Attorney General, the factfinder, and the California Victim Compensation Board"]; § 1485.5, subd. (d) ["For the purposes of this section, 'express factual findings' are findings established as the basis for the court's ruling or order."].) Because Clarke I involved the granting of appellant's writ of habeas corpus, we agree with appellant that the Board was bound under section 4903 by any "factual findings and credibility determinations establishing the court's basis for granting" the writ.
We disagree with appellant, however, in his assessment of what those binding findings are. Contrary to appellant's suggestion, the court in Clarke I did not make credibility findings as to either T.G. or the defense experts. The court's language is telling-it found that the testimony of Sinkhorn and Bronston could have undermined T.G.'s credibility "if either opinion is true," and "if the jury had heard Bronston's testimony and believed at least one of Bronston's opinions." (Emphasis added.) The court similarly concluded that the expert testimony had the "potential" to undermine the prosecution's case, again, if the jury found it credible. The court's finding that the expert medical opinions, if believed by the jury, could undermine T.G.'s credibility and therefore the entire case, established the basis for the court's conclusion that appellant's counsel had rendered ineffective assistance by failing to present those experts. The court did not find that appellant was factually innocent or that T.G. had lied about her injuries. To the contrary, it found that substantial evidence supported appellant's conviction. The Board was therefore entitled to assess the expert testimony and T.G.'s credibility based on the entire record, as it did.
Appellant's reliance on Madrigal, supra, 6 Cal.App.5th 1108 does not assist him. There, the defendant was convicted of attempted murder after an eyewitness identified him as a passenger in a car involved in a gang-related shooting. (Id. at p. 1111.) The defendant claimed he was at work at the time of the shooting. (Ibid.) A federal district court granted the defendant's habeas corpus petition on the basis of ineffective assistance of counsel, citing several deficiencies, including a finding that testimony by the defendant's supervisor, Howard, was "credible" and "would have provided 'a complete alibi and undermined the eyewitness' identifications." (Id. at p. 1112.) The appellate court found that these findings were binding on the Board, and rejected the argument that there were no binding findings because the habeas petition did not evaluate appellant's innocence, but rather whether his counsel was ineffective. (Id. at p. 1119 ["the district court found witness Howard's testimony was credible. That finding is binding on the Board."].)
Here, unlike in Madrigal, the appellate court made no direct findings as to the credibility of any witnesses. Thus, appellant does not identify any binding findings in Clarke I that the Board improperly discounted or ignored. The Clarke I court's finding that T.G.'s testimony was the only evidence linking appellant to the crimes was presumably binding on the Board, but is not in dispute.
Appellant contends that the Board similarly ignored the court's findings in Clarke II, particularly the significance of Scheinin's report. It is not entirely clear whether appellant is arguing that there were factual findings in Clarke II that should have been treated as binding pursuant to section 4903. Assuming so, he has not shown how any findings in Clarke II, which did not involve a habeas petition, would be binding under the statute. Such conclusory claims of error will fail. (See In re S.C. (2006) 138 Cal.App.4th 396, 408; see also Bayside Auto &Truck Sales, Inc. v. Department of Transportation (1993) 21 Cal.App.4th 561, 571 [deeming issue waived by appellant's "failure to cite authority or provide any separate legal analysis in support" of that argument"].) We also find no support for appellant's contention that the Board ignored the import of Scheinin's report as discussed in Clarke II. Instead, the Board discussed at length both appellate decisions and all of the medical expert testimony, and expressly took into consideration the potential effect of that testimony on T.G.'s credibility in reaching its ultimate conclusions. This was not error.
We note that appellant's briefing intermingles references to the two appellate decisions, arguing for example that the Board "fail[ed] to comply" with section 4903 subdivision (b) (regarding habeas petitions), followed by a citation from Clarke II (not a habeas petition).
Even absent binding findings, appellant asserts that the Board abused its discretion by failing to rely more heavily on Scheinin's report, which he contends established that T.G. was lying and therefore that he was innocent by a preponderance of the evidence. In essence, he contends that in the face of the medical expert evidence, the Board lacked substantial evidence to deny his claim. We disagree.
Appellant's argument reflects a fundamental misunderstanding of his burden of proof before the Board. Compensation under section 4900 requires an affirmative showing of factual innocence, not the absence of evidence of culpability. (Tennison v. California Victim Comp. &Government Claims Bd. (2007) 152 Cal.App.4th 1164, 1191 ["the question to be answered is not whether there is sufficient evidence to establish culpability, but whether or not claimants can establish they are not culpable"]; see Diola, supra, 135 Cal.App.3d 580, 588, fn. 7 ["[T]he board's section 4900 determination is a civil determination of culpability. To prevail claimant must carry the burden of proof of innocence by a preponderance of the evidence"].) A finding that it is probable a jury would not convict a defendant based on additional evidence is not a credibility determination as to the veracity of that evidence and is not equivalent to the factual finding required by section 4900 that there was no crime or that the defendant did not commit it.
As discussed by the courts in Clarke I and Clarke II, the medical expert testimony opining that T.G.'s wounds were likely self-inflicted was sufficient to establish error, because if believed by the jury, that evidence would likely lead to an acquittal. But expert opinion that T.G.'s wounds were not likely inflicted in the manner she claimed does not establish that she was lying. It provides ample ground to question T.G.'s credibility, but must be weighed against the other evidence presented. This is precisely what the Board did. It acknowledged the expert testimony, including that from Scheinin, who was not retained by the defense. That testimony strongly suggested that T.G.'s wounds were self-inflicted and that many of the wounds were too old to have been inflicted during the incidents with appellant. The Board noted, however, that none of the experts could rule out infliction by an assailant. The Board also cited the contrary testimony from SART examiner Ireland and the responders from the Sheriff's Department, the only witnesses to have seen T.G. in person, shortly after the incident.
Notably, the Board also exhaustively catalogued the inconsistencies in appellant's testimony and concluded that he lacked credibility, a conclusion that appellant largely ignores in this appeal. By contrast, the Board found T.G. generally credible, and concluded that her testimony regarding the crimes was bolstered by other evidence, including her 911 call, the observations of her demeanor by the responding deputies, her decision to obtain a restraining order against appellant several months prior to his petition for custody of K., appellant's own testimony that he did not see the wounds on T.G.'s body during their purportedly repeated sexual encounters on May 21 and 22, and his eventual admission that he had threatened her with a knife on May 19. In sum, we conclude that substantial evidence supports the Board's finding that T.G. was credible and appellant was not, and thus that the evidence did not satisfy appellant's burden to prove his innocence. We therefore find no abuse of discretion in the Board's conclusion that appellant failed to establish by a preponderance of evidence that he did not commit the charged crimes.
We also reject appellant's argument that the Board "overlooked the flagrant prosecutorial misconduct" by the prosecutor in withholding Scheinin's report. As he recognizes, the Board "may also consider any other information that it deems relevant to the issue before it." (Cal. Code Regs., tit. 2, § 641, subd. (f), emphasis added.) He cites no authority requiring the Board to consider his allegations of prosecutorial misconduct and does not articulate how any such misconduct would assist him in demonstrating his innocence. Nor is there any prior finding of misconduct on which the Board could, or should, have relied. The trial court never ruled on his motion to dismiss on this basis, and the court in Clarke II found there was insufficient evidence to establish the claim on appeal.
We therefore affirm the trial court's order denying appellant's writ petition.
DISPOSITION
The judgment is affirmed. The parties are to bear their own costs on appeal.
We concur: MANELLA, P. J. WILLHITE, J.