Judge Mitchell L. Beckloff, Case Number: 22STCP03783, Date: 2024-02-21 Tentative Ruling

Judge: Mitchell L. Beckloff, Case: 22STCP03783, Date: 2024-02-21 Tentative Ruling

Petitioner, Canelia Tarkington, a writ of administrative mandate directing Respondent, California Victim Compensation Board (Board), to set aside its decision denying the claim of LaMont Tarkington (Tarkington), who is now deceased, for compensation based upon a wrongful conviction pursuant to Penal Code[1] section 4900 et seq. The Board and Real Party in Interest, the State of California, oppose the petition.

Tarkington’s claim for compensation arises from his 2007 conviction of Tarkington (along with his co-defendant Darris Allen) for robbery and commercial burglary.

“On December 14, 2005, at approximately 10:14 a.m., police were notified of a robbery at the Bank of America located inside an Albertson’s supermarket in Palmdale, California. Witnesses reported three black males entered the bank and ordered everyone to get down on the floor

. . . . One robber stood in the lobby of the bank keeping time while the other two robbers jumped over the bank teller counter. The robbers kept a hand inside their jackets appearing as if they had guns. The two robbers behind the counter removed money from the bank tellers’ drawers and put the money into bags, including trays of coins. Each drawer contained bait money and dye packs designed to explode and spray dye. One robber removed money from Bank Teller Coordinator Claudia Rissling (Rissling) and Bank Teller Manager Yolanda Moore’s (Moore) teller drawers, while the other removed money from Bank Teller Yesenia Bahena’s (Bahena) drawer. After removing money from Bahena’s drawer, the robber opened the door to the back area of the bank and demanded Bahena open the vault. When Bahena advised she did not have keys for the vault, the robber located keys, and tried to open the vault. After he was unable to open the vault with the keys, he took Bahena’s keys and again attempted.” (AR 13640; see also AR 3673-3741, 1747-1799.)

“Witness Brandi Bateman (Bateman) was outside the bank and saw the robbers flee in a white SUV. She memorized the SUV’s license plate number, 5NNW366, and provided the license plate number to the bank’s assistant manager and a deputy from the Los Angeles County Sheriff’s Department. A Department of Motor Vehicles (DMV) records check revealed the vehicle was a stolen 2005 white Ford Explorer from Budget Rent-A-Car on Airport Boulevard in Los Angeles on December 11, 2005.” (AR 13641.)

“That same day, at approximately 6:44 p.m., the Los Angeles County Sheriff’s Department was dispatched to a suspicious vehicle less than half a mile away from the bank. There was an unoccupied white Ford Explorer, license plate number 5NNW366, idling on a residential street. Approximately $124 was found in the back seat and rear floor area. There was red dye in a line across the back seats and inside the rear passenger door between the window and the arm rest. On the outside of the exterior rear driver’s side door was a fingerprint matching Allen’s left middle finger.” (AR 13641.)

“Later that day, at approximately 9:00 p.m., Los Angeles County Sheriff’s Deputies James Wheeler (Wheeler), Dianne Moreno (Moreno) and Ronald Giovanni (Giovanni) conducted a traffic stop on a 2005 Dodge Magnum for no license plates and tinted front passenger and driver side windows. The traffic stop occurred east of Normandie and Century Boulevard in Los Angeles, about 60 to 70 miles from the bank. The Dodge Magnum was registered to Tarkington and a female. Allen was in the driver’s seat and Tarkington was in the front passenger seat. Allen indicated he did not have a driver’s license and his license was suspended. Deputy Giovanni asked Allen to exit the vehicle and detained him for driving on a suspended license. A check for Allen revealed he had an arrest warrant for driving with a suspended license. Tarkington provided Deputy Wheeler with a driver’s license with the name Michael Skaggs. Tarkington indicated Allen was driving because Tarkington had smoked too much marijuana and was tired. When asked if there was marijuana in the vehicle, Tarkington stated there was a some in a bottle in the driver’s door pocket. Deputy Wheeler had Tarkington exit the vehicle and detained him for a narcotics investigation. Both Tarkington and Allen were detained in the backseat of the deputies’ car. Deputy Wheeler ran a check for the name Michael Skaggs, which revealed he had an outstanding arrest warrant for driving without a license.” (AR 13642; see also AR 2045-2066, 2715-2717.)

“Deputies Giovanni and Moreno conducted a search of the vehicle for approximately 20 to 25 minutes in the dark lit by street lights and flashlights. Deputy Giovanni retrieved a small pill bottle containing a substance resembling marijuana from the driver’s door pocket and a black plastic bag between the driver’s seat and center console with approximately $3,138 in cash stained with red dye. The money was moist and smelled like bleach. In the back seat, Deputy Moreno found a jacket with bills stained with red dye in one of the front pockets. The money was bleached and had a scent of bleach.” (AR 13643.)

“During the search, deputies were informed by FBI there had been a bank robbery in Palmdale earlier that day, a stolen Ford Explorer was recovered near the scene of the robbery with red dye from an exploded bait pack in the backseat, and the money was likely taken from the robbery. Based on the information about the robbery, the money stained with red dye found in the vehicle, and Allen’s statements regarding how he obtained the money, deputies arrested Allen for robbery and Tarkington for his outstanding warrant. Deputies took Allen and Tarkington back to the station. When booking Tarkington, Deputy Moreno found $201 in cash stained with red dye in his left front pant pocket. The money also smelled like bleach. Tarkington spontaneously stated ‘Oh, he gave me that’ referring to Allen. Deputy Wheeler discovered two of the bills found inside Tarkington’s vehicle had serial numbers that matched bills taken in the Palmdale robbery.” (AR 13643; see also 2048-2059, 2143, 2719, 3713-3714.)

“When Detective Lauren Brown (Brown) and Detective James Murren (Murren) inventoried Tarkington’s vehicle, they found a black nylon stocking cap tied off at the top containing about $59 in coins with red dye in the back seat under a jacket. Police located in the hatch of the vehicle a blue beanie and red stained white shirt and towel.” (AR 13644.)

Law enforcement interviewed bank robbery witnesses as well as Tarkington and Allen. (AR 13644-13648.) Bank teller Claudia Rissling reported to the Los Angeles County Sheriff’s Department (LASD) that “the robber who removed money from her drawer was a black male, approximately 25 to 28 years old, approximately 170 pounds and five foot ten inches to six foot, wearing baggie grey Dickie pants, dark blue windbreaker or sweatshirt, Converse tennis shoes, black mask, and a cover on his head.” (AR 13645-13646.) Agents with the Federal Bureau of Investigation (FBI) also interviewed Rissling. (AR 13645-13646.) The LASD and FBI interviewed bank tellers Yesenia Bahena and Yolanda Moore as well. (AR 13644-13645.)

On December 15, 2005, Tarkington and Allen were charged with felony robbery and burglary. (AR 4379-4384.)

At a preliminary hearing conducted on March 9, 2006, with Allen and Tarkington present in court, Rissling testified that the robber who remained in the bank lobby was “light-skinned” and the robber who came to her station had a “darker black” skin color and was “taller and slimmer.” (AR 4705-4707, 4714-4715.) Rissling testified the robbers were wearing masks and she could only see the parts of the robbers’ faces around their eyes. (AR 4707.) Based on skin color and body type, Rissling identified Allen as the lighter-skinned robber who remained in the lobby and Tarkington as the darker skinned robber who came to her station. (AR 4705-4707, 4714-4715.) Rissling testified the robber who came to her station wore a hooded sweatshirt, a windbreaker-type jacket, and Converse shoes. (AR 4731.)

Rissling again identified Allen as the robber in the lobby with light skin and Tarkington as the robber who jumped the counter, was next to her, and had darker skin. (AR 1758-1760, 4818-4825.)

The trial court admitted evidence that Tarkington had a prior conviction for robbing a bank in Lancaster, California in 1997. (See AR 2247-2252.) As summarized in the administrative decision:

During the robbery, two robbers with guns jumped the teller counter and grabbed money from the tellers’ drawers while a third robber, Tarkington, remained in the lobby with a gun and walkie talkie while yelling for everyone to get down. The robbers fled in a car in the parking lot. Bank employees identified Tarkington as one of the robbers in a photographic line up. When he was interviewed in jail, due to a hit and run the previous day, he stated he knew he was wanted in connection with the bank robbery, admitted he was an 8 Trey Gangster Crip, but refused to identify the other bank robber. Tarkington initially pled not guilty, but later accepted a plea agreement and pled guilty to robbing the Bank of America in Lancaster in 1997. (AR 13651; see also 3242-3244 and People v. Tarkington (2009) 2009 WL 516666 at *3-4 [summarizing evidence of Tarkington’s prior robbery conviction].)[3]

Detective Lauren Brown testified about his inventory of Tarkington’s vehicle after LASD impounded it. Brown testified deputies found a nylon stocking containing $59 in coins both with red dye residue, and he found a towel and t-shirt in the rear compartment appearing to have the same red dye substance on them. (AR 4641-42.) Brown testified he smelled pepper spray in the red dye and the dye manufacturer generally places a contaminant in the dye to incapacitate the individual carrying it upon exploding. (AR 4641, 2092.) Brown testified he could smell pepper spray on the towel and t-shirt, and the odor was strong enough to affect his eyes and nose. (AR 2095-2096, 2098.) The following day, the judge commented to the attorneys, “I can tell you that the odor was not good . . . and the court was affected by it.” (AR 2130.)

Tarkington presented Phillip Wiley as an alibi witness. Wiley testified the last time he saw Tarkington was December 14, 2015, the morning of the robbery, around 10:30-10:45, at a recreation center in Los Angeles. Wiley explained he remembered the specific date from two years earlier because it was about two weeks before his son was born. He testified on that day he had to ensure he got his timecard in at 10:30 a.m. because he needed to pick up his wife to take her to a doctor’s appointment, as it was her last week of work before maternity leave. (AR 2425, 2429-2430; see also AR 13659-13660.)

The jury found Tarkington and Allen guilty of robbery and burglary. (AR 974-977.) The jury also found the defendants committed the robberies and burglary for the benefit of a criminal street gang and used a firearm in the commission of the crime. The court sentenced Tarkington to 39 years and 4 months in state prison. (AR 4637.)

On direct appeal, the Court of Appeal held the trial court abused its discretion in admitting evidence of Tarkington’s 1997 bank robbery conviction. Nonetheless, the Court found it was not reasonably probable Tarkington would have obtained a better result had the evidence of the prior bank robbery not been admitted. The Court reasoned:

The evidence against Tarkington, although circumstantial, was very strong. Less than 11 hours after the robbery the police arrested Tarkington while a passenger in his own car containing over $3000 in loot from the crime. The police even found some of that loot in Tarkington's pocket. Further supporting evidence of Tarkington's guilt included the testimony of one of the tellers who stated that Tarkington had the same or similar skin color, height and build as two of the robbers, Tarkington's giving the police a false identification at the traffic stop and the presence in his car of an unexplained bag of coins covered with red dye. (AR 3244, 13664-13665; see also People v. Tarkington (2009) 2009 WL 516666 at *4.)

The Court of Appeal also struck the gang and firearm enhancements. On remand, the trial court resentenced Tarkington to 24 years in state prison. (AR 4637-4638.)

In a declaration dated November 5, 2009, after the criminal trial and direct appeal, Allen admitted he committed the robbery. He also asserted Tarkington did not commit the robbery. (AR 13587:25-26.)

On October 14, 2011, Tarkington filed a petition for a writ of habeas corpus with the Court of Appeal. (AR 3400-3405.) The Court of Appeal directed the superior court to conduct an evidentiary hearing on the matter, which it did on multiple hearing dates in 2012 through 2015. (AR 3421-3475, 13637.) In June 2015, the superior court denied Petitioner’s request for habeas relief. (AR 3475, 13637.)

FBI Agent Sonja Nordstrom obtained “incoming outgoing call records as well as push-to-talk records” for the cell phone Tarkington had with him when he was stopped by the police on the day of the robbery. (AR 3491.) The records requested covered the time between September 1, 2005 through December 15, 2005. (AR 3514.) As summarized in the Board’s decision:

[Nordstrom] explained push to talk was a Nextel function and is a walkie-talkie type of function, where a button is pushed, the phone chirps, and the person speaks. Tarkington’s phone records showed no calls or use of the direct connect feature during the time of the robbery. On December 14, 2005, Tarkington received inbound calls at 12:34 a.m., 12:37 a.m., and 1:53 a.m., and outbound calls were made at 12:23 a.m. and 1:25 p.m. The 1:25 p.m. call was made to one of the other subpoenaed numbers. For push to talk, there was a call at 3:12 a.m. and 11:55 a.m. (AR 13666; see also AR 3519-3524, 3528, 3749-3752.)

Tarkington testified on his own behalf and denied he robbed the bank on December 14, 2005. (AR 3612.) He asserted the red stain on the white tank top (found in the back of his car on the night of the bank robbery) resulted from his having spilled a vodka and cranberry juice drink in his car a week prior and using the tank top to wipe it up. (AR 3657-3658, 3660.)

Carrie Foglesong was Tarkington’s defense counsel from December 2005 through the trial and his sentencing for the bank robbery. (AR 3758.) Her testimony in the habeas proceedings and her statements in a post-trial interview in 2012 were important to the Board’s decision and are discussed in detail in the Analysis section infra. (See AR 13669-13670, 13688-13689, 13704-13705.)[4]

“After subsequent evidentiary hearings revealed that certain items found in Tarkington's vehicle [a towel and shirt], and cited by the prosecution at trial, did not contain red dye from the bank's dye pack, Tarkington filed a supplemental habeas petition [in the Court of Appeal], alleging that trial counsel's failure to test these items constituted ineffective assistance of counsel.” (AR 3355; In re Tarkington at * 1.)

On October 20, 2017, in an unpublished decision, the Court of Appeal granted the supplemental habeas petition. (AR 3353-3393; In re Tarkington at * 1.) In concluding Tarkington received ineffective assistance of counsel, the Court of Appeal reasoned, in part:

Bluntly stated, there was simply no rational tactical purpose for counsel's failure to test the towel and shirt [for MAAQ] . . . .[5]

Neither the prosecution nor the defense had tested the items to determine if they actually contained MAAQ. Yet the detective effectively conducted a live “test” from the witness stand when he opened the paper bag containing the two items and claimed: “I could still smell the pepper spray that they used to put in it.” Adding to this pantomime, when asked if he wanted the bag taken away, the detective replied, “I know it's kind of a pain, but I can already feel it in my eyes.” After a break, he testified that he needed the break because he had felt a burning sensation in his eyes and nose.

Tarkington’s trial counsel tried to ameliorate the damage caused by this testimony by seeking permission to open the sealed plastic bag to show the shirt and towel to the jury. Trial counsel also cross-examined Detective Brown as to why he did not have the shirt and towel tested for DNA or for bank dye residue. Furthermore, in closing argument, trial counsel focused on the prosecution's failure to test the shirt and towel for bank dye residue, implying that Deputy Brown had lied about the odor from the items when he opened the brown bag. . . .

Nevertheless, trial counsel’s cross-examination and closing argument cannot be described as strategic. They were instead an unsuccessful attempt to staunch the damage caused by Detective Brown’s testimony and impromptu, in-court scientific “testing” which had been sprung on defense counsel without prior notice.

. . . . Tarkington’s trial counsel did not seek a continuance to test the shirt and towel and counsel’s testimony at the subsequent evidentiary hearing does not shed light on the matter. . . . (AR 3379-3382.)

In concluding Tarkington was prejudiced by that ineffective assistance of counsel, the Court of Appeal reasoned, in part:

Prejudice requires that the defendant show “there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.” (Strickland, supra, 466 U.S. at p. 694.) . . . .

The only item found on Tarkington that tied him to the robbery was the $200 in cash, which Allen said he gave to Tarkington as payment for the ride. The shirt and towel found in the back of the vehicle were thus used by the prosecution to help directly connect Tarkington to the robbery. . . . Indeed, it is not surprising that the jurors focused on the shirt and towel given that . . . they were the only items Tarkington argued were unconnected to the robbery. Thus, the shirt and towel were not merely cumulative pieces of evidence that tied Tarkington to the robbery without a viable explanation as to how they came into his possession; they were the only items to do so.

Given that only Allen's fingerprints were found inside the getaway car; that no DNA or other physical evidence put Tarkington either in the bank or the getaway car; that the DNA of two other people—but not Tarkington—were found on the nylon stocking containing the $59 in coins found in the back of his car; and that, as we have previously held, neither Tarkington’s prior bank robbery conviction nor his gang affiliation should have been admitted into evidence, there is a reasonable probability Tarkington would have obtained a more favorable result had counsel’s performance not been deficient. (Strickland, supra, 466 U.S. at p. 694.) Indeed, the case against Tarkington has been reduced to the false name he gave to law enforcement when pulled over—unsurprising given he was still on federal supervised release—and the alleged similarities between Tarkington’s height, build, and skin color to one of the robbers. (AR 3385-3389.)

The Los Angeles County District Attorney elected to retry Tarkington on the same charges. A jury trial began on June 1, 2018. (AR 3407-3408.)

The Deputy District Attorney produced an ORWITS[6] report on Detective Brown noting the Court of Appeal found, in granting Tarkington’s successive writ, that Brown “grossly exaggerated” his testimony regarding the towel and t-shirt. (AR 5952.)

Tarkington “sought to inspect three cell phones to show Detective Brown manipulated cell phone records to further frame him. The Superior Court Judge found the Sheriff’s Dept. lost or destroyed evidence (i.e. three cell phones, 911 calls, Sheriff Mobile Digital Transmissions, Sheriff radio transmissions, three disposable cameras, and ‘case file’ created by the investigating detectives) in violation of a Court Order and drafted a proposed jury instruction where the jury may presume the lost or destroyed evidence would have favored [Tarkington] and to consider the lack of documentation showing the three cell phones were released to the custody of the Superior Court when evaluating detective Brown’s credibility.” (Opening Brief 6:1-8 [citing AR 6002].)

On June 4, 2018, the prosecutor announced the People were unable to proceed as a result of the special jury instructions and unavailability of witnesses. (AR 5956-57.) That same date, the trial court ordered the case dismissed pursuant to Penal Code section 1382 after the prosecution announced it was not able to continue with the trial. (AR 3407-3408.)

On September 17, 2018, Tarkington filed a claim with the Board under section 4900 seeking compensation. (AR 3.) On October 27, 2020, the Board held a hearing. (AR 13533, 13537.) After the record was closed, and while the Board considered the claim, Senate Bill (SB) 446 was passed. SB 446 amended section 4903, subdivision (b) and assigned the burden of proof in claims for erroneous convictions to the Attorney General to prove by clear and convincing evidence that the claimant committed the underlying crime. (AR 13525-13527.)

On March 2, 2022, the administrative hearing officer issued a 71-page proposed decision to deny Tarkington’s claim finding that the “Attorney General has proven by clear and convincing evidence that Tarkington committed the acts constituting the offense of robbery.” (AR 13533.) On July 25, 2022, in a unanimous decision, the Board adopted the proposed decision and denied Tarkington’s claim. (AR 13634.)

Petitioner seeks relief from the court pursuant to Code of Civil Procedure section 1094.5.

Under Code of Civil Procedure section 1094.5, subdivision (b), the relevant issues are whether the respondent has proceeded without jurisdiction, whether there was a fair trial, and whether there was a prejudicial abuse of discretion. An abuse of discretion is established if the agency has not proceeded in the manner required by law, the decision is not supported by the findings, or the findings are not supported by the evidence. (Code Civ. Proc., § 1094.5, subd. (b).)

Because Tarkington did not have a fundamental vested right to compensation from the Board, the court reviews the Board’s decision to determine whether it is supported by substantial evidence. (Madrigal v. California Victim Comp. & Government Claim Bd. (2016) 6 Cal.App.5th 1108, 1113.) Substantial evidence is relevant evidence that a reasonable mind might accept as adequate to support a conclusion (California Youth Authority v. State Personnel Board (2002) 104 Cal. App. 4th 575, 584-85), or evidence of ponderable legal significance which is reasonable in nature, credible and of solid value. (Mohilef v. Janovici (1996) 51 Cal. App. 4th 267, 305 n. 28.) Under the substantial evidence test, “[c]ourts may reverse an [administrative] decision only if, based on the evidence . . ., a reasonable person could not reach the conclusion reached by the agency.” (Sierra Club v. California Coastal Com. (1993) 12 Cal.App.4th 602, 610.) The court does “not weigh the evidence, consider the credibility of witnesses, or resolve conflicts in the evidence or in the reasonable inferences that may be drawn from it.” (Doe v. Regents of the University of California (2016) 5 Cal.App.5th 1055, 1073.)

An agency is presumed to have regularly performed its official duties. (Evid. Code, § 664.) “[A] trial court must afford a strong presumption of correctness concerning the administrative findings.” (Fukuda v. City of Angels (1999) 20 Cal. 4th 805, 817.) The petitioner seeking administrative mandamus has the burden of proof and must cite to the administrative record to support its contentions. (See Alford v. Pierno (1972) 27 Cal.App.3d 682, 691.) A court reviewing an administrative decision “will not act as counsel for either party . . . and will not assume the task of initiating and prosecuting a search of the record for any purpose of discovering errors not pointed out in the briefs.” (Fox v. Erickson (1950) 99 Cal.App.2d 740, 742 [in context of appeal].)

Significantly, in an administrative writ proceeding, “the challenger must identify (with citations to the record) the factual findings made by the board that he or she is challenging. . . . [T]he challenger cannot simply ignore the evidence in the record that was relied upon by the board

. . . . Rather, the challenger must explain why that evidence is insufficient to support that finding.” (Shenouda v. Veterinary Medical Bd. (2018) 27 Cal.App.5th 500, 513; accord Toigo v. Town of Ross (1998) 70 Cal.App.4th 309, 317.)

“On questions of law arising in mandate proceedings, [the court] exercise[s] independent judgment.” (Christensen v. Lightbourne (2017) 15 Cal.App.5th 1239, 1251.) The interpretation of statute or regulation is a question of law. (See State Farm Mutual Automobile Ins. Co. v. Quackenbush (1999) 77 Cal.App.4th 65, 77.)

Section 4900 allows an individual, who has been erroneously convicted and imprisoned for a felony offense they did not commit, to submit a claim for compensation to the Board. As of January 1, 2022, section 4900, subdivision (b) mandates the Board’s approval for claimants whose convictions were vacated by a awrit of habeas corpus and where the charges were subsequently dismissed unless the Attorney General establishes by clear and convincing evidence “that the claimant committed the acts constituting the offense.” (§§ 4900, subd. (b), 4902, subd. (d), 4903, subd. (b).) To meet its burden, the Attorney General “may also not rely solely on the trial record to establish that the claimant is not entitled to compensation.”

(§ 4903, subd. (d).) Further, “[i]n a hearing before the board, the factual findings and credibility determinations establishing the court's basis for writ of habeas corpus . . . shall be binding on the Attorney General, the factfinder, and the board.” (§ 4903, subd. (c).)

Subject to these statutory restrictions, in deciding the claim, the Board is not bound by traditional rules of evidence. “All relevant evidence shall be admitted if it is the sort of evidence on which reasonable persons are accustomed to rely in the conduct of serious affairs.”

Petitioner contends the Board “ignored” and “disregarded” the clear and convincing standard of proof required by section 4903, subdivision (b) when considering Tarkington’s claim. As support, Petitioner cites evidence the Board relied upon—evidence Petitioner contends is “disputed.” Petitioner also highlights the Board’s findings Tarkington was not a credible witness based in part on Tarkington’s decision not to testify on his own behalf before the Board. (Opening Brief 7:6-21 [citing AR 13639, 13679, 13694].)

Section 4903, subdivision (b), effective January 1, 2022, states in pertinent part:

At the hearing, the Attorney General shall bear the burden of proving by clear and convincing evidence that the claimant committed the acts constituting the offense. The claimant may introduce evidence in support of the claim.

“The standard of proof known as clear and convincing evidence demands a degree of certainty greater than that involved with the preponderance standard, but less than what is required by the standard of proof beyond a reasonable doubt. This intermediate standard ‘requires a finding of high probability.’ ” (Conservatorship of O.B. (2020) 9 Cal.5th 989, 998-999.)

Here, the Board’s decision demonstrates it applied the clear and convincing standard of proof when it denied Tarkington’s claim. On the first page of its decision, the Board stated:

After considering all of the evidence in the record, the application is recommended for denial pursuant to subdivision (b) of Penal Code section 4900 because the Attorney General’s Office has proven by clear and convincing evidence that Tarkington committed the acts constituting the offense of robbery. (AR 13533.)

Both parties agree newly amended Penal Code section 4900, subdivision (b) and the corresponding amendments enacted on January 1, 2022, apply to Tarkington’s claim and since the Attorney General objects to Tarkington’s claim for compensation, the burden is on the Attorney General to prove by clear and convincing evidence that Tarkington committed the acts constituting the offense. (AR 13581.)

Later in the decision, the Board included a section entitled “There is Clear and Convincing Evidence that Tarkington Robbed the Bank of America.” (AR 13585; see also AR 13601 [same].) In this section, the Board acknowledged “clear and convincing evidence requires a specific type of showing—one demonstrating a ‘high probability’ that the fact or charge is true.” (AR 13585.) Throughout its analysis, the Board indicated the Attorney General met its burden to prove by clear and convincing evidence that Tarkington committed the charged offense. (See e.g. AR 13592:9-13, 13594:2-4, 13601:23-25.)[7]

As the Board argues, Petitioner’s arguments concerning the standard of proof are based on a flawed premise. Specifically, Petitioner incorrectly suggests that the burden of proof provision in section 4903, subdivision (b) prohibited the Board from weighing “disputed” evidence or drawing inferences unfavorable to the claimant. Contrary to Petitioner’s assertion, however, the Board was entitled, as the trier of fact, to weigh the evidence and draw its own conclusions about the relative weight of the evidence when determining whether the record demonstrated Tarkington’s guilt by clear and convincing evidence. (See Cal. Code Regs., tit. 2, §§ 615.2, subds. (4), (5), 619.1, subd. (c), 645, subd. (c); see also Gonzales v. California Victim Compensation Board (2023) 98 Cal.App.5th 427, 316 Cal.Rptr.3d 757, 770 [“the Board is charged with considering the trial record and any further ‘relevant’ evidence the parties elect to present” and the Board’s “task” is to weigh the evidence].)[8]

Contrary to Petitioner’s assertion, the Board’s statements that Tarkington elected not to testify on his own behalf at the administrative hearing also do not suggest the Board misapplied the burden of proof. Rather, the Board made such statements to explain, among other reasons, its finding that Tarkington’s credibility was “questionable.” (AR 13690-13694.)

Based on the foregoing, the court finds the Board applied the clear and convincing standard of proof required by section 4903, subdivision (b) when denying Tarkington’s claim. Petitioner has not met her burden of demonstrating otherwise through her Opening Brief.

Petitioner contends the Board’s findings and decision are not supported by substantial evidence. In Petitioner’s view, certain evidence relied upon by the Board cannot be deemed substantial. That evidence includes (1) the beanie found in Tarkington’s car; (2) red-stained money found on Tarkington and in his car; (3) the bank tellers’ descriptions of the robbers; and (4) Fogelsong’s statements.

The Board found the Attorney General proved “by clear and convincing evidence that Tarkington committed the acts constituting the offense of robbery.” (AR 13636.) On substantial evidence review, the court must determine “whether, in light of all the evidence, ‘any reasonable trier of fact could have found . . . ’ ” a “high probability” that Tarkington committed the charged offenses. (In re White (2020) 9 Cal.5th 455, 467.) As instructed by our Supreme Court, “when presented with a challenge to the sufficiency of the evidence associated with a finding requiring clear and convincing evidence, the court must determine whether the record, viewed as a whole, contains substantial evidence from which a reasonable trier of fact could have made the finding of high probability demanded by this standard of proof.” (Conservatorship of O.B., supra, 9 Cal.5th at 1005.)

As noted earlier, “[the court] do[es] not weigh the evidence, consider the credibility of witnesses, or resolve conflicts in the evidence or in the reasonable inferences that may be drawn from it. The administrative agency’s findings come before [the court] with a strong presumption as to their correctness and regularity. [The court] do[es] not substitute [its] judgment if the agency’s decision is one which could have been made by reasonable people.” (Doe v. Regents of the University of California, supra, 5 Cal.App.5th at 1073; accord Valenzuela v. State Personnel Board (2007) 153 Cal.App.4th 1179, 1184-85.)

Considering the entire administrative record and the applicable clear and convincing standard of proof, the court concludes the Board’s findings and decision are supported by substantial evidence.

In the proceedings before the Board, the Penal Code makes clear that the Attorney General could “not rely solely on the trial record to establish that [Tarkington] [was] not entitled to compensation. (§ 4903, subd. (b).) Further, after giving effect to the binding factual findings and credibility determinations made by the Court of Appeal in In re Tarkington, there was no DNA, physical, or other direct evidence putting Tarkington in the bank or getaway car. (§ 4903, subd. (c). See AR 13685.)

Nonetheless, the trial record contains circumstantial evidence of Tarkington’s guilt. Specifically:

Less than 11 hours after the robbery the police arrested Tarkington while a passenger in his own car containing over $3000 in loot from the crime. The police even found some of that loot in Tarkington's pocket. Further supporting evidence of Tarkington's guilt included the testimony of one of the tellers who stated that Tarkington had the same or similar skin color, height and build as two of the robbers, Tarkington's giving the police a false identification at the traffic stop . . .” (AR 3244 [2009 Court of Appeal decision]; see also AR 13688 [Board decision]; AR 2045-2093, 2715-2716 [trial testimony regarding traffic stop and inventory search of Tarkington’s vehicle]; AR 3715 [LASD Supplemental Report]; AR 3673-3675, 1758-1760 [statements of Rissling].)

In addition, as proven at the 2007 trial, Tarkington had a prior conviction for robbing a bank in Lancaster, California in 1997. (See AR 2247-2252, 13651, 3242-3244.) Petitioner contends the Board abused its discretion by considering the prior conviction because the “Court of Appeals found it should never have been admitted into evidence.” (Opening Brief 12:18-19.) The court disagrees.

In adjudicating claims for compensation under section 4900, et seq., the Board is not bound by traditional rules of evidence. Rather, “[a]ll relevant evidence shall be admitted if it is the sort of evidence on which reasonable persons are accustomed to rely in the conduct of serious affairs.” (Cal. Code Regs., tit. 2, § 641, subd. (c).) Further, “[e]vidence that qualifies under subdivision (c) may be admitted even though there is a common law or statutory rule which might make its admission improper over objection in any other proceeding.” (Id. at subd. (d).) “The Board may also consider any other information that it deems relevant to the issue before it.” (Id. at subd. (f).)

Evidence Tarkington had been convicted of “robbing two Bank of America branches, in the same county, by similar methods, eight years apart and approximately a year after being released from prison for his previous robbery conviction” (see AR 13691) is the type of evidence on which reasonable persons are accustomed to rely in the conduct of serious affairs. (Cal. Code Regs., tit. 2, § 641, subd. (c).) It is also “other information” the Board could deem relevant to the issues before it. (Id. at subd. (f).)

Given the Board’s broad latitude concerning evidentiary matters in hearings under section 4900 et seq., the Board could reasonably consider any similarities between Tarkington’s prior conviction and the 2005 bank robbery to assess his guilt in this administrative proceeding, even though the prior conviction was not admissible for that purpose in the criminal trial. (See AR 13691, 13704 [similar prior robbery considered to show common plan]; People v. Spector (2011) 194 Cal.App.4th 1335, 1379 [“the doctrine of chances is based on a combination of similar events” and is a “rough and instinctive process of reasoning”].) Petitioner has developed no persuasive argument to the contrary and does not address the applicable regulations. (See Opening Brief 12:18-19 and Replies generally.)

Moreover, even applying traditional rules of evidence, the Board could consider Tarkington’s prior conviction to assess the credibility of his testimony in the habeas proceedings that he did not commit the robbery. As stated by Board, “Tarkington’s prior conviction for robbing the Bank of America in Lancaster in 1997 is a crime of moral turpitude which reflects dishonesty.” (AR 13691.) “California courts have repeatedly held that prior convictions for burglary, robbery, and other various theft-related crimes are probative on the issue of the defendant's credibility.” (People v. Mendoza (2000) 78 Cal.App.4th 918, 925; see Evid. Code, § 788.) Because Tarkington did not testify at the 2007 criminal trial, his prior conviction was not relevant for impeachment in that trial. However, at the habeas evidentiary hearings, Tarkington testified on his own behalf that he was innocent and did not rob the bank on December 14, 2005. (AR 3612.) The Board did not abuse its discretion when it considered Tarkington’s prior conviction for robbery as evidence he was not a credible witness.

The Board also relied upon post-trial evidence, including testimony of Tarkington’s trial counsel, Foglesong, and cell phone records. (See AR 13669-13670, 13688-13689, 13704-13705.) As summarized by the Board:

[T]hrough her testimony at the habeas evidentiary hearing, Foglesong testified the day prior to the robbery, Tarkington drove Allen to the grocery store in Palmdale where the bank robbery took place, Allen purchased the nylons used in the bank robbery from the grocery store, and there was communication between Allen and Tarkington during the days leading up to the robbery. During her post-trial interview, Foglesong stated one of the reasons Tarkington did not want cell phone records to show his whereabouts was because he gave Allen a ride to Palmdale to case the bank prior to the robbery. Cell phone records introduced at the habeas evidentiary hearing show Allen and Tarkington increasingly contacted or attempted to contact each other through direct connect in the days leading to the robbery, yet there was no phone activity from either phone during the time of the robbery. Additionally, through her post-trial interview and testimony at the habeas evidentiary hearing, Foglesong indicated Tarkington’s alibi changed when she was unable to verify the alibi through investigation, Tarkington informed her cell phone information would not help him and possibly incriminate him, and Tarkington was complicit in allowing Allen to lie for him on the stand. (AR 13688-13689.)

While Petitioner argues Foglesong’s testimony was “disputed” and not “corroborated by any documentary record” (Opening Brief 15:5-6), Petitioner has not shown, with citation to the administrative record, that the Board’s summary of this evidence was inaccurate. The Board’s findings regarding the contents of Foglesong’s testimony and the cell phone records are supported by substantial evidence. (See e.g. AR 3761-3817 [testimony of Foglesong]; 3292-3350 [interview statement of Foglesong]; AR 3491, 3519-24, 3528, 3749-52 [cell phone records].)

A reasonable trier of fact could conclude that Foglesong’s testimony, if credited and when considered with other relevant evidence, including the cell phone records, incriminates Tarkington for the charged offense. As an example, Foglesong’s testimony that Tarkington cased the store where the robbery occurred and communicated with Allen, an admitted robber, in the days leading up to the robbery could suggest to a reasonable trier of fact that Tarkington was involved in planning the robbery. Thus, Foglesong’s testimony and the cell phone records, if credited, are additional circumstantial evidence that Tarkington committed the charged offense. Petitioner develops no argument to the contrary. (See Opening Brief 14:27-15:12.)

Petitioner argues Foglesong’s testimony in the habeas proceeding was not credible because Tarkington had “charged” her with malpractice; Foglesong paid Tarkington $100,000 to settle the lawsuit; and Foglesong’s credibility “was at issue” during the habeas proceedings. (Opening Brief 14:27-15:12.) Contrary to Petitioner’s position, the Board had discretion to weigh the evidence and make a credibility determination as to Foglesong. Petitioner does not show the Board abused its discretion by crediting Foglesong’s testimony. The opinion in In re Tarkington concluded Foglesong provided Tarkington with constitutionally ineffective legal assistance because she did not undertake testing of the towel and t-shirt found in Tarkington’s car. (AR 3355.) The Court of Appeal did not find Foglesong was dishonest in her habeas testimony or interview statements. While Foglesong did have a professional and financial interest in proving she was not guilty of malpractice or ineffective assistance of counsel, a reasonable trier of fact could find Foglesong, as a licensed attorney, did not lie in the habeas proceedings or her 2012 interview. Further, Foglesong could have settled the malpractice lawsuit (for $100,000) for multiple reasons that do not reflect negatively upon her credibility as a witness.

The Board could reasonably rely on Foglesong’s testimony and 2012 interview statements, as well as the cell phone records, to conclude Tarkington committed the charged offenses.

Petitioner argues “[t]he Board’s reliance on bank tellers’ identification of [Tarkington] as one of the robbers is illogical because the Court of Appeals pointed out [Tarkington] did not match the bank tellers’ identification, the bank tellers’ identification was inconsistent, and the Board cited no evidence to explain the inconsistencies.” (Opening Brief 14:13-15.)

Rissling told LASD that the robber who took money from her drawer was a black male, approximately 170 pounds, and five feet ten inches to six feet tall. (AR 3673-3675.) She later told the FBI the robber was a black male with a medium complexion, approximately 170 to 180 pounds and five feet nine inches to five feet ten inches tall with a medium build. (AR 3739-3741.) At the preliminary hearing, Rissling described one of the robbers who jumped over the teller counter as a darker black male who was taller and slimmer than the other robbers. (AR 502-503.) At the 2007 criminal trial, Rissling again identified Allen as the robber in the lobby with light skin and Tarkington as the robber who jumped the counter, was next to her, and had darker skin. (AR 1758-1760, 4818-4825.) “The prosecution had both defendants stand and, when asked if anyone in the courtroom had a height or build similar to the robber in the lobby, [Rissling] identified Allen and, when asked if anyone had a similar height and build as the robber next to her during the robbery, she identified Tarkington.” (AR 13650; see also AR 1787-1818.)

In granting Tarkington’s successive petition, the Court of Appeal stated, in pertinent part, “the case against Tarkington has been reduced to the false name he gave to law enforcement when pulled over . . . and the alleged similarities between Tarkington's height, build, and skin color to one of the robbers [fn. 9].” (AR 3385-3389.) In footnote 9, the Court of Appeal stated: “In interviews with the FBI, a teller said both robbers who jumped the counter had medium complexions, were five feet nine inches to five feet 10 inches tall, and had medium builds, weighing about 170 to 180 pounds. Other tellers said the robbers were similar, at five feet eight inches to five feet nine inches tall and 160 to 170 pounds. It is undisputed that Tarkington has a dark complexion, is about five feet 11 inches tall, and does not have a medium build, weighing about 200 pounds in late 2005.” (AR 3387-3388.)

The Court of Appeal did not make an express factual finding that Tarkington did not match the witnesses’ descriptions. The Court did not decide whether a reasonable trier of fact could find similarities between “between Tarkington's height, build, and skin color to one of the robbers.”

The Court of Appeal found “Tarkington has a dark complexion, is about five feet 11 inches tall, and does not have a medium build, weighing about 200 pounds in late 2005.” That factual finding was binding on the Board. However, the Board could reasonably conclude, as it did, that “the inconsistencies in the bank tellers’ description of Tarkington’s appearance do not . . . warrant his necessary exclusion as the robber.” (AR 13598.) “Rissling’s descriptions to the Los Angeles County Sheriff’s Department and FBI were the same or similar to Tarkington’s height and her estimation of his weight was off by approximately 20 or 30 pounds. These are not significant differences given the stress of the situation.” (AR 13598.) These findings are supported by substantial evidence. (See AR 3673-3675, 3739-3741, 502-503, 1758-1760, 4818-4825, 1787-1818.) It was not “illogical” or unreasonable for the Board to consider, and give evidentiary weight to, Rissling’s description of the robber who came to her station and her identification of Tarkington, at trial, as a person matching that description. As the trier of fact, the Board could also reasonably assess the weight to be given the statements and testimony of the bank tellers.

The Board made the following finding as to a beanie found in the trunk of Tarkington’s car:

Although no DNA test was performed on the beanie and the Court of Appeal did not cite to the beanie, Rissling testified the robber in the lobby, who she identified in court as Allen, was wearing a dark colored beanie. While no direct evidence links the dark colored beanie to the robbery, it is a striking coincidence a similar clothing item worn by one the robbers was discovered in Tarkington’s vehicle among the other incriminating items found in his vehicle and in his possession. (AR 13597.)

Petitioner does not show a prejudicial abuse of discretion in this finding, which is supported by substantial evidence. (See e.g. AR 1752, 2090.) Petitioner contends that “[p]hotographs show the beanie worn by the [robber] was light blue with a visible white mark and the beanie found in [Tarkington’s] car was dark blue without a white mark.” (Opening Brief 9:17-19 [citing AR 4467-4475, 4478, 4552, 6964, 7100.) Based on the court’s review of the cited evidence, a reasonable trier of fact could conclude that the beanies in the photographs are “similar” and that any perceived differences might be the result of different lighting, different camera angles, or the quality of the photographs.

Petitioner contends the “red-stained” money found on Tarkington’s person, in a plastic bag belonging to Allen, in Allen’s jacket in the rear seat of the car, and in a nylon stocking are not substantial evidence of Tarkington committing the underlying crimes because: (1) the Court of Appeal described some of this evidence as “scant”; (2) the “Board cited no evidence to show the $200 was not given to [Tarkington] for the ride”; (3) the $200 did not directly tie Tarkington to the crime; (4) “evidence shows Detective Brown planted the nylon stocking and $59 in coins” and Tarkington’s DNA was not on the nylon stocking. (Opening Brief 13:26-14:11.) Petitioner’s arguments are unpersuasive.

In concluding that an exception to the rule against successive habeas petitions applied, the Court of Appeal stated: “The scant evidence cited by the Attorney General in support of barring Tarkington's claim—that some of the money found in his possession bore serial numbers matching money from the robbery and at least one of the bills contained red dye—was never disputed by Tarkington.” (AR 3389.) This statement is not a factual finding or credibility determination. Rather, it was the Court of Appeal’s “commentary” about the relative strength or weakness of the trial record and part of the “legal basis” for its ruling. (See Gonzales v. California Victim Compensation Board (2023) 98 Cal.App.5th 427 [Gonzales].)[9] Accordingly, it was not binding on Board. Moreover, even if it was binding on Board, the Court of Appeal was only commenting upon the “red-stained money” found on Tarkington’s person. It is undisputed that a significant amount of red-stained money from the Bank of America was found in Tarkington’s vehicle 11 hours after the robbery, which, along with other circumstantial evidence, could be found by a reasonable trier of fact to incriminate Tarkington.

Contrary to Petitioner’s assertion, the Board explained the reasons it did not credit Tarkington’s and Allen’s testimony that Allen gave him the $201 in red-stained money. (See AR 13648, 13663, 13668 [testimony that Allen gave the money to Tarkington for a ride or for gas]; see AR 13595:5-7, 13689-94 [credibility determinations].) In granting the successive habeas petition, the Court of Appeal did not make a credibility finding, binding on the Board, as to whether Allen gave Tarkington the $201 to pay for gas or for a ride. Accordingly, as the trier of fact, the Board was entitled to make these credibility determinations, which are supported by substantial evidence. Since the Board did not credit Tarkington’s and Allen’s testimony about the $201, Tarkington’s possession of $201 of stolen money on his person, only 11 hours after the robbery was committed, was circumstantial evidence that he committed the charged offenses. (See AR 13594 and fn. 391, citing People v. Mulqueen (1970) 9 Cal.App.3d 532, 542. [“It is settled that when a person is shown to be in possession of recently stolen property slight corroborative evidence of other inculpatory circumstances which tend to show guilt supports the conviction of robbery.”])

The Board considered and rejected Petitioner’s allegation that Detective Brown planted the nylon stocking beneath a jacket in the backseat of Petitioner’s car, concluding that the more likely explanation was that the initial responding officers overlooked it. (AR 13591-13592, 13595-13596.) Relatedly, the Board found the absence of Petitioner’s DNA on the stocking to be inconsequential, given all three robbers wore gloves, and the third robber may have left DNA in Petitioner’s vehicle after coming into contact with someone else either before or during the robbery. (AR 13596.) These findings are supported by substantial evidence in the record. (See e.g. AR 2091, 2106, 2771-2772, 2794-2795.) As an example, Detective Murren testified that Detective Brown did not have the coins or bag before he started the search nor did he bring the items to the tow yard with him. (AR 2795.) Also, Deputy Moreno testified that it was “night, nighttime, dark hours” and the officers needed to use flashlights during the initial search. (AR 5226.) While Petitioner disagrees with the Board’s findings, Petitioner does not discuss all relevant evidence or demonstrate that a reasonable trier of fact could not have reached the findings made by the Board with respect to the red-stained coins and nylon stocking.

The court has considered all of the parties’ record citations related to the sufficiency of the evidence in support of the Board’s findings and decisions, including, but not limited to, evidence concerning Tarkington’s alibi witness (Philip Wiley) and the jury instructions proposed by the trial judge on retrial. (See e.g. AR 2425, 2429-2430; and Opening Brief 6:2-8 [citing AR 6002].) As the trier of fact, the Board could reasonably disbelieve or give less weight to Wiley’s testimony, including because of inconsistencies in Wiley’s statements or reasonable doubts about his ability remember specific details about December 14, 2005, in his trial testimony in 2007. (See AR 13694-95.) Petitioner does not show the proposed jury instructions were binding on the Board or required the Board to weigh the evidence regarding the lost evidence in any particular way.

The Board Gave Binding Effect to the Court of Appeal’s Factual Findings and Credibility Determinations from In re Tarkington

Petitioner contends the Board “ignored” and did not give binding effect to the Court of Appeal’s factual findings and credibility determinations from In re Tarkington. Petitioner’s position is unpersuasive.

In its decision, the Board summarized In re Tarkington and identified multiple factual findings and credibility determinations the Board “accepted” as “binding.” (AR 13582-13585.) The Board then explained why such findings and determinations did not preclude the Board from finding the Attorney General had proven, by clear and convincing evidence, that Tarkington committed the charged offenses. (AR 13582-13585.) Petitioner has not shown a prejudicial abuse of discretion in this section of the Board’s decision.

Earlier, the court discussed several of the Court of Appeal’s findings and credibility determinations were given binding effect by the Board or otherwise did not conflict with the Board’s findings and decisions. Petitioner also highlights the Court of Appeal’s statements that Detective Brown “greatly exaggerated” his testimony about bank dye and pepper spray on the towel and shirt and there was a “paucity of evidence in Tarkington’s criminal case.” (Opening Brief 11:28-12:18 [citing AR 4671-4672].)

As noted by the Board, “[a]lthough the Court of Appeal may have found Detective Brown’s testimony was ‘greatly exaggerated,’ the Court of Appeal did not make a finding that he fabricated the existence of bank dye and pepper spray on the towel and shirt.” (AR 13585.) The court agrees. The Board was not required by the Court of Appeal’s finding that Detective Brown “greatly exaggerated” testimony about the towel and shirt to conclude that he also “planted, suppressed, and destroyed” evidence. (Opening Brief 12:23-24.) Stated another way, a reasonable trier of fact need not view a detective’s exaggeration of certain testimony as evidence that the detective engaged in serious investigatory misconduct (i.e., planting evidence).

The Court of Appeal’s commentary on the relative strength or weakness of the trial record, including the “paucity of evidence,” arguably was not a factual finding or credibility determination binding on Board. (See Gonzales, supra, 98 Cal.App.5th at 427.) Moreover, even if the commentary was binding on the Board, the finding did not preclude the Board from weighing the entire administrative record, including the prior robbery conviction and post-trial evidence not considered by the Court of Appeal.

Stated more generally, the Court of Appeal’s factual findings and credibility determinations involved a “different burden of proof, legal issues, and evidence.” (AR 13583.) The Court of Appeal determined Tarkington received ineffective assistance of counsel when trial counsel neglected to test the towel and shirt for MAAQ. However, the Court of Appeal did not find that Tarkington was factually innocent of the charged offenses. Further, the Court of Appeal’s determination of prejudice was based predominately on the 2007 trial record and a legal standard that required the Court to determine whether there was a reasonable probability Tarkington would have obtained a more favorable result had counsel's performance not been deficient. The Court of Appeal found inadmissible and did not consider Tarkington’s prior robbery conviction in its factual findings and credibility determinations. In contrast, the Board was authorized to consider the entire trial record; the habeas evidentiary record, including the incriminating testimony of Foglesong and the cell phone records; Tarkington’s prior conviction for a robbery that occurred under similar circumstances and could be viewed as impeaching his own credibility; and other post-trial evidence. Considering the entire administrative record, the Court of Appeal’s binding factual findings and credibility determinations did not preclude the Board from finding that the Attorney General proved by clear and convincing evidence that Tarkington committed the charged offenses.

Based on the foregoing, the court concludes that Board’s findings and decision are supported by substantial evidence. Petitioner has not shown a prejudicial abuse of discretion in any specific finding by the Board or its decision.

Lastly, Petitioner contends the Board abused its discretion by “ignoring” section 4903, subdivision (d) which provides in relevant part that the Attorney General “may also not rely solely on the trial record to establish that the claimant is not entitled to compensation.”

As discussed, the Board denied Tarkington’s claim after considering and giving weight to evidence taken after the 2007 criminal trial, including, but not limited to, Foglesong’s statements at a post-trial interview in 2012 and her testimony at the habeas evidentiary hearings. (See AR 13669-13670, 13688-13689, 13704-13705.) While Petitioner opines this new evidence is not “substantial,” section 4903, subdivision (d), by its plain terms, is satisfied as long as the Attorney General does not rely “solely” on the trial record. There is no requirement in section 4703, subdivision (d) that the evidence outside the trial record must—by itself—satisfy the Attorney General’s burden of proof. Because the Board did not rely solely on the trial record in determining that Tarkington is not entitled to compensation, the Board complied with section 4903, subdivision (d).

[1] All undesignated statutory references are to this code.

[2] For facts not disputed by the parties, the court may quote directly from the administrative decision (AR 13633-13736) or to the unpublished Court of Appeal decision granting Tarkington’s petition for writ of habeas corpus (In re Tarkington (2017) 2017 WL 4707964 [In re Tarkington]).

[3] As discussed infra, Petitioner contends the Board should not have considered or relied upon Tarkington’s prior robbery conviction. (Opening Brief 12:18-19.) However, Petitioner has not disputed the accuracy of the Board’s summary of this evidence.

[4] As summarized in the Board’s decision and the State’s opposition, other evidence was submitted during the habeas evidentiary hearings. (AR 13666-13676.) Where relevant to this court’s ruling on the petition, such evidence is discussed in the Analysis section infra.

[5] MAAQ refers to “methylamino anthraquinone . . . which is a chemical used in bank red dye packs.” (AR 376; see also AR 385, 4258.)

[6] “Officer and Recurrent Witness Information Tracking System (ORWITS) is a database used to track and alert prosecuting deputy district attorneys of information that may discredit testifying Department members.” (Opening Brief 5, fn. 1.)

[7] Petitioner has not cited any misstatements of the applicable standard in the Board’s decision.

[8] Thus, Petitioner’s arguments concerning the standard of proof are actually a challenge to the sufficiency of the evidence to support the Board’s findings. The court reviews the Board’s findings for substantial evidence infra.

[9] Gonzales was decided on December 29, 2023, after Board filed its opposition and the same day Real Party filed its opposition, and a full month before Petitioner filed her replies on January 29, 2024. Petitioner did not cite or address Gonzales in reply, even though the decision is highly relevant to the question of which parts of In re Tarkington were binding on the Board. In any event, while Gonzales is helpful guidance, the court has not found it to be dispositive to any issue. Counsel may address Gonzales at the hearing.