Larsen v. California Victim Compensation Board ( 2021 )

Filed 5/11/21
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FIVE
DANIEL LARSEN, B297857
Plaintiff and Appellant, (Los Angeles County
Super. Ct. No. BS170693)
v.
CALIFORNIA VICTIM
COMPENSATION BOARD,
Defendant and Respondent.
APPEAL from a judgment of the Superior Court of Los
Angeles County, James C. Chalfant, Judge. Reversed and
remanded with directions.
Singleton Schreiber McKenzie & Scott, Benjamin I.
Siminou; Thorsnes Bartolotta McGuire, Brett J. Schreiber;
California Innocence Project, Katherine N. Bonaguidi for Plaintiff
and Appellant.
Xavier Becerra and Rob Bonta, Attorneys General, Lance
E. Winters, Chief Assistant Attorney General, Michael P. Farrell,
Senior Assistant Attorney General, Michael A. Canzoneri,
Supervising Deputy Attorney General, and Heather S. Gimle,
Deputy Attorney General, for Defendant and Respondent.
After a federal district court granted a petition for writ of
habeas corpus triggering plaintiff Daniel Larsen’s (Larsen’s)
release from prison after 13 years of confinement, Larsen filed a
claim with the California Victim Compensation Board (the
Board)1 seeking compensation as a wrongfully convicted person.
The Board denied Larsen’s claim, concluding it was entitled to
make its own determination of whether Larsen was factually
innocent because the district court’s finding that no reasonable
juror would convict Larsen did not predetermine the question and
obviate the need for a Board hearing. Larsen then sought
mandamus relief in the trial court, and the court upheld the
Board’s determination. We consider whether the Board was
entitled to hold a hearing on Larsen’s compensation claim, which
leads us to opine on what qualifies as a finding of “factual
innocen[ce]” under the pertinent statutory provision.
I. BACKGROUND
As we shall explain in more detail, in 1999 a jury convicted
Larsen of a felony violation of former Penal Code2 section 12020,
subdivision (a), which prohibited carrying a concealed dirk or
dagger. Larsen admitted he sustained three prior felony
convictions and the trial court sentenced him to 28 years to life in
prison. Larsen’s direct appeal and state court habeas petitions
were unsuccessful, but in 2010, the United States District Court
1
Until 2016, the California Victim Compensation Board was
known as the California Victim and Government Claims Board.
(Stats. 2016, ch. 31, § 103.)
2
Undesignated statutory references that follow are to the
Penal Code.
2
for the Central District of California made an actual innocence
finding (the particulars of which we will describe) and granted
his petition for writ of habeas corpus, which led to his release
from custody.
A. Larsen’s Criminal Trial
The prosecution called three Los Angeles Police
Department witnesses at Larsen’s trial: officers Thomas
Townsend and Michael Rex and detective Kenneth Crocker.
Larsen’s attorney put on no defense case.
Officer Townsend testified he and his partner, Officer Rex,
responded to a report of shots fired at the Gold Apple bar around
1:00 a.m. on June 6, 1998. The reporting party claimed the
shooter was a man with a long ponytail wearing a green flannel
shirt.
When they arrived at the bar’s parking lot, Officer
Townsend immediately focused on “a person with a green
flannel,” who was later identified by the officer as Larsen. Officer
Townsend and his partner were standing 20 to 30 feet from
Larsen, and because Officer Townsend believed Larsen might be
armed, he initially had “tunnel vision” and focused his gaze on
Larsen’s hands.
Officer Townsend testified he saw Larsen crouch and reach
beneath his untucked shirt to remove an object from his
waistband that he then tossed under a nearby vehicle. According
to Officer Townsend, he saw where the object landed and found in
that location a knife with a double-edged blade and a “finger
guard.” Officer Townsend also found a short copper bar wrapped
in cloth tape nearby, but in the opposite direction from that
3
where he saw Larsen throw the knife. Officer Townsend testified
he did not see anyone throw the copper bar.
On cross examination, Officer Townsend acknowledged he
was mistaken when he previously testified Officer Rex was
driving the patrol car that night. Officer Townsend also conceded
he did not mention in previous testimony that the knife was
concealed. Although the knife was extremely sharp and Larsen
did not have anything on him to sheath the knife when he was
arrested, Officer Townsend did not recall any cuts to Larsen’s
body or clothing.
Similar to Officer Townsend, Officer Rex testified he
focused on Larsen when arriving at the bar because Larsen
resembled the description of the reported gunman. Officer Rex
testified he saw Larsen reach under his green flannel shirt, pull a
shiny metal object from his waistband, and toss the object
beneath the vehicle next to him. While Larsen and others were
being taken into custody, Officer Rex kept an eye on the object
Larsen threw under the vehicle to “mak[e] sure nobody walked
up and discarded” it. Officer Rex then saw Officer Townsend
retrieve the item, which turned out to be a knife. Officer Rex did
not see anyone throw the copper bar Officer Townsend found, and
Officer Rex was certain the bar was not the object he saw Larsen
throw because it was wrapped in tape and would not have
reflected his patrol car’s spotlights as the knife did.
Detective Crocker testified Larsen was originally booked
into custody under a false name and that the knife was not
examined for fingerprints.
During a hearing to determine whether certain prior
convictions could be used to impeach Larsen if he decided to
testify, Larsen’s trial counsel made an offer of proof that Larsen
4
would testify the copper bar was in his pocket and he discarded it
when the police arrived.
B. Direct Appeal and State Court Habeas Petitions
On direct appeal of his conviction at trial, Larsen
challenged certain evidentiary rulings, a jury instruction
regarding consciousness of guilt, and his sentence. The Court of
Appeal affirmed the judgment, and our Supreme Court denied
review. Larsen’s efforts to obtain habeas relief in state court
were unsuccessful.
C. Larsen’s Federal Habeas Petition
1. The court’s actual innocence finding permitting
consideration of the procedurally barred
petition
In 2008, Larsen filed a petition for writ of habeas corpus in
federal district court contending his trial attorney was
constitutionally ineffective for (among other things) failing to
present testimony from two eyewitnesses who would have said he
was not the one who threw the knife. The Attorney General
moved to dismiss the petition because it was untimely under the
Antiterrorism and Effective Death Penalty Act, which establishes
a one-year statute of limitations running from “the date on which
the judgment became final by the conclusion of direct review or
the expiration of the time for seeking such review.” (28 U.S.C.
§ 2244(d)(1)(A).)
Procedural limitations on habeas corpus relief like this
timely filing rule will not prevent a federal court from deciding
the merits of a habeas corpus petition if the petitioner presents
evidence (e.g., “exculpatory scientific evidence, trustworthy
5
eyewitness accounts, or critical physical evidence”) that
establishes “‘a constitutional violation has probably resulted in
the conviction of one who is actually innocent.’” (Schlup v. Delo
(1995) 513 U.S. 298, 324, 326-327 (Schlup).) The magistrate
accordingly held an evidentiary hearing to determine whether
Larsen’s petition could be considered on the merits under Schlup.
Larsen called three witnesses: James McNutt (Mr. McNutt),
Elinore McNutt (Mrs. McNutt), and Brian McCracken
(McCracken). Larsen also presented declarations from two other
witnesses: William Hewitt (Hewitt) and Jorji Owen (Owen).
Mr. McNutt, a former police chief in North Carolina,
testified he accompanied his wife to the Gold Apple bar to meet
his step-son, Daniel, on the night of Larsen’s arrest. Mr. McNutt
parked his vehicle near Daniel and observed two men, Larsen
and a man he heard Daniel call “Bunker” (Hewitt’s moniker),
arguing with Daniel. Mr. McNutt approached and “had words
with” Hewitt from about two feet away. Hewitt wore a loose,
short-sleeved shirt. After about two minutes, when Mr. McNutt
heard someone yell the police had arrived, Mr. McNutt saw
Hewitt throw something—an object he characterized as
“probably” a knife—under a vehicle parked next to Daniel. The
item was 10-12 inches long and made a “light metallic sound”
when it hit the ground. When asked whether the item could have
been a “copper weight,” Mr. McNutt testified a copper weight
would have made a different sound. Larsen, according to
6
Mr. McNutt, “just went ahead, turned around, [and] walked
normal” when the police arrived.3
Mrs. McNutt testified that as she and Mr. McNutt walked
from their truck to the bar, she saw Larsen and a man she knew
as Bunker approaching Daniel’s car. She did not know Larsen,
but she knew Hewitt’s moniker because he had “come to the
house” a week or two earlier. Hewitt was wearing a baggy
Hawaiian shirt. Mrs. McNutt saw Larsen and Hewitt “hurrying”
in a manner that “didn’t look right” and she told Mr. McNutt
something was “going on.” Mrs. McNutt waited near her truck as
Mr. McNutt approached Daniel’s car. When someone yelled that
the police had arrived, Mrs. McNutt saw Hewitt throw something
under a car. She was not certain it was a knife, but it made a
“metal, clank, skidding . . . noise.” Larsen, on the other hand,
“just stood there, kind of, dumbfounded” and turned and walked
away. Mrs. McNutt testified she did not see anything in Larsen’s
hands.
McCracken testified he was seated inside the bar before the
incident in the parking lot. He knew Larsen and did not see
Larsen with a knife that evening. But a different man, who
McCracken did not know, approached him at the bar and they
“had some words.” The man flashed a knife and threatened
McCracken. McCracken testified he had a “really clear”
recollection of the knife and it looked “pretty similar” to a photo
of a knife found in Larsen’s trial attorney’s file.
3
Police handcuffed Mr. McNutt but released him without
asking what he had seen when they discovered he was a retired
police officer.
7
Hewitt’s 2001 declaration, which was part of the evidence
presented to the federal magistrate judge, admitted the knife
found by the police was his. Owen’s declaration (she was
Hewitt’s girlfriend at the time) averred Hewitt told her that
Larsen was arrested for possession of Hewitt’s knife and Hewitt
sold his motorcycle to raise funds for Larsen’s bail because he felt
responsible for Larsen being in jail.
The magistrate judge’s report and recommendation to the
district court concluded Larsen satisfied the Schlup standard to
have his petition considered on the merits. Among other things,
the magistrate judge found the McNutts and McCracken to be
credible witnesses. The judge found the McNutts were standing
“at least as close, if not closer” to Larsen than Officers Townsend
and Rex were, and “it appear[ed] that Mr. McNutt was standing
between [Larsen] and the police officers.” Moreover, unlike
Officers Townsend and Rex, “who were looking through a chain
link fence,” the McNutts had an “unobstructed” view of Larsen
and Hewitt. The McNutts both testified “unequivocally that it
was [Hewitt], not [Larsen], who threw something metallic
sounding under a nearby car.” The magistrate judge found:
“[H]ad the jury been able to consider this same evidence, ‘no
reasonable juror would [have found [Larsen]] guilty beyond a
reasonable doubt.’”
The district court adopted the magistrate judge’s findings,
conclusions, and recommendations, which meant Larsen’s
petition would be considered on the merits.
8
2. Habeas corpus relief and Larsen’s release from
custody
The magistrate judge held a second evidentiary hearing on
the merits of Larsen’s petition. Among other things, Larsen’s
trial attorney testified Larsen told him, after conviction but
before sentencing, that the McNutts were witnesses to what
happened on the night in question. The trial attorney, who was
disbarred in 2008, decided not to contact the McNutts and move
for a new trial because he felt the trial judge was
“pro prosecution” and worried that he might “screw up any
chance [Larsen] ha[d] on appeal.”
The magistrate judge found Larsen’s trial counsel
performed deficiently by failing to investigate and locate
exculpatory witnesses. Specifically, the judge found counsel
should have interviewed Daniel, a known witness who likely
would have directed the attorney to his parents (the McNutts),
and should have, in any event, moved for a new trial when
Larsen later told him about the McNutts.4 The magistrate judge
further found Larsen was prejudiced by his attorney’s ineffective
assistance based on the judge’s earlier analysis of the Attorney
4
The magistrate judge rejected the Attorney General’s
contention that the McNutts’ testimony was not credible.
Discrepancies regarding the time at which the incident occurred,
the judge reasoned, were “unremarkable” given that more than a
decade had passed. The fact that the McNutts’ testimony
conflicted with Larsen’s trial attorney’s proffer that Larsen would
testify that he threw the copper bar did not mitigate the
prejudice to Larsen because it would be “unreasonable to assume
[Larsen’s trial attorney] would have made such an offer of proof
knowing that the McNutts planned to offer testimony that
apparently conflicted with it.”
9
General’s motion to dismiss the habeas petition as untimely. The
judge wrote: “[D]emonstrating prejudice under [People v.]
Strickland [(1984) 466 U.S. 668] requires a lesser showing than
that required to pass through the Schlup actual innocence
gateway. As this court has already found that [Larsen] meets the
more stringent Schlup test, it necessarily follows that he also
satisfies the prejudice test under Strickland.”
The district court adopted the magistrate judge’s findings,
conclusions, and recommendations; granted Larsen’s petition;
and ordered Larsen to be retried or released within 90 days. The
Ninth Circuit Court of Appeals affirmed the district court’s ruling
in a published opinion and Larsen was released from prison in
March 2013 without being retried.
D. Larsen’s Civil Suit
In 2012—after the district court granted his habeas
petition but before he was released from custody—Larsen sued
the City of Los Angeles, Officer Townsend, Officer Rex, and
Detective Crocker for violating his civil rights. Larsen alleged
the officers arrested him without probable cause and knowingly
presented false evidence.
At trial on the civil complaint, Officers Townsend and Rex
both maintained they saw Larsen with a knife. Neither recalled
seeing anyone who looked like Mr. McNutt, who is six feet, seven
inches tall. Officer Rex did not recall seeing any women in the
area. The deputy district attorney testified her office decided not
to retry Larsen after his habeas petition was granted because he
had already served a longer sentence than could be imposed
under existing law.
10
Hewitt testified he was using various narcotics around the
time of Larsen’s arrest in 1998 and had no memory of that night
because he was high. He did, however, “always ha[ve] a weapon
on [him]” during this period. Hewitt claimed he was “super high”
when he signed his 2001 declaration and did not read it.
Larsen testified he was standing a few feet from Hewitt as
he argued with Daniel, whom Larsen had met a couple times.
Hewitt was wearing a flannel shirt and had his hair pulled back
in a ponytail. Larsen maintained he did not throw anything, but
he saw Hewitt throw something when the police arrived. Larsen
acknowledged he belonged to a gang at the time.
Mr. McNutt’s account of the incident was substantially
similar to his and Mrs. McNutt’s testimony in the habeas
proceedings, with perhaps two noteworthy variances. He
testified Hewitt threw a knife (as opposed to an object that was
“probably” a knife) and he testified, for the first time, that Hewitt
wore his hair in a ponytail (contradicting earlier testimony by
Mrs. McNutt that Hewitt’s hair was short).
The civil trial jury returned a complete defense verdict.
E. Motion for a Finding of Factual Innocence
In 2015, while his claim for compensation was pending
before the Board, Larsen filed in federal district court a document
styled as a “Motion/Request for Finding of Innocence.” Citing
Douglas v. Jacquez (9th Cir. 2010) 626 F.3d 501 at page 504 and
other authorities, the same magistrate judge that heard Larsen’s
habeas corpus petition ruled it had no jurisdiction to make such a
finding notwithstanding a provision of California law that
contemplated a court might make such a finding.
11
The magistrate judge also rejected Larsen’s alternative
proposal to construe his motion as a Federal Rule of Civil
Procedure 60(b)(6) request to clarify its previous order granting
his habeas petition. (The rule allows a court to “relieve a party or
its legal representative from a final judgment, order, or
proceeding” for any “reason that justifies relief.” (Fed. R. Civ. P.
60(b)(6).) The magistrate judge opined “[t]here was nothing
vague or ambiguous about the Court’s prior decisions in this
matter.” The court also remarked its Schlup order did not reach
an “affirmative[ ] conclu[sion] that [Larsen] was actually innocent
of possessing a dagger” and cited authority holding Schlup “‘does
not require absolute certainty about the petitioner’s guilt or
innocence.’”
The district court again accepted the magistrate judge’s
recommendation and denied Larsen’s motion.
F. The Board’s Denial of Larsen’s Claim
In 2014, Larsen filed his claim for wrongful felony
conviction and imprisonment, seeking compensation for 4,963
days in prison. The Board, believing itself unconstrained by
several aspects of the federal court habeas proceedings, denied
Larsen’s claim.
The Board first rejected Larsen’s most consequential
argument, i.e., that it must recommend compensation without
holding a hearing of its own because the federal habeas
proceedings resulted in a determination of factual innocence. In
the Board’s view, no such finding was ever made because the
pertinent California statute, section 1485.55, requires an
affirmative finding of factual innocence and the Schlup finding
12
that no reasonable juror would have convicted Larsen is “not at
all equivalent to finding him innocent.”
The Board additionally believed it was not bound by all the
factual and witness credibility determinations made during the
federal habeas proceedings. The Board concluded it could not
disregard the district court’s finding that the McNutts provided
credible testimony, but the Board believed it was bound only by
the district court’s findings in support of its order granting
Larsen’s habeas petition—not the findings made when
determining the untimely petition could proceed under Schlup.
Thus, in practical terms, the Board accepted the district court’s
finding that “‘the McNutts were credible and persuasive
witnesses’ whose informal statements and formal testimony
‘maintained a consistent version of events,’” but the Board
disregarded “the [court’s] findings when ruling on Schlup that
the McNutts had ‘no apparent reason to perjure themselves,’ they
both ‘had unobstructed views of [Hewitt] and [Larsen], unlike
Townsend and Rex,’ that Mr. McNutt ‘was standing only two feet
from [Hewitt] when [Hewitt] threw the object[,’] and it was
‘unbelievable’ that the McNutts would fly across the country ‘to
give perjurious testimony on behalf of [Larsen], with whom they
have no ties.’”
The Board did recognize it was bound by the district court’s
finding that McCracken credibly testified that someone other
than Larsen threatened him with a knife, but the Board
emphasized this did not preclude a finding that Larsen possessed
the knife (or a different knife) later that evening. The Board
determined the district court made no findings as to the
credibility of Hewitt and Owen’s declarations and, based on
Hewitt’s testimony at the civil trial, found neither declaration
13
provided credible evidence of Larsen’s innocence. The district
court’s only binding credibility finding as to Larsen himself, in
the Board’s view, related to his assertion that he learned of the
McNutts’ identities after his conviction.
The Attorney General also submitted exhibits in the Board
proceedings including prison records and criminal history reports
for Larsen, Hewitt, and Alfred, another son or step-son of the
McNutts. These indicated, among other things, that Larsen and
Alfred both had ties to Neo-Nazi gangs. (Hewitt admitted he
previously belonged to the same gang as Larsen in a 2015
deposition.) Although the allegation could not be corroborated,
Alfred was investigated for allegedly directing an associate to
solicit Larsen and Hewitt to kill two police officers in 1998. The
Board stated it considered this evidence “solely . . . to the extent
it show[ed] that Larsen ran in the same social circles” as Hewitt,
Alfred, and others.
Weighing the evidence, the Board found the McNutts must
have been mistaken about who threw the knife because Officers
Townsend and Rex had a compelling reason to focus on Larsen,
whose shirt matched the description of the reported gunman.
The officers were unlikely to have mistaken Larsen for Hewitt,
the Board believed, because both McNutts testified Hewitt wore a
different style of shirt. The Board also reasoned the officers, who
had been partners for only a short time, did not know Larsen and
had no motive to “frame” him. Additionally, the Board
highlighted several other considerations to “bolster[ ]” its
conclusion: (1) the prosecutor intended to retry Larsen but for a
change in the law, (2) the jury appeared to have found the officers
more credible than Mr. McNutt in the civil litigation, (3) Hewitt’s
association with Larsen made it “unlikely” Hewitt would have
14
remained silent on the night of Larsen’s arrest if the knife had
been his, and (4) Larsen’s account of the events preceding his
arrest contradicted the credible testimony of other witnesses in
several respects.
G. Petition for Writ of Mandate
Larsen challenged the Board’s denial of compensation via a
petition for a writ of administrative mandamus pursuant to Code
of Civil Procedure section 1094.5. The trial court found the Board
erred in concluding it was not bound by the district court’s
Schlup findings because the district court’s order granting
Larsen’s habeas petition “essentially incorporated” those
findings. The trial court determined the error was harmless,
however, because even if the McNutts and McCracken testified
credibly, Officers Townsend and Rex’s testimony established
Larsen threw the knife. The trial court further reasoned that
Larsen waived his argument that the Board’s decision was not
supported by substantial evidence and the argument lacked merit
in any event.
II. DISCUSSION
As we shall discuss, the trial court should have granted
Larsen’s mandamus petition because the federal court’s Schlup
finding and the later grant of habeas relief that resulted in
Larsen’s release from prison without retrial by the state amount
to a finding of factual innocence that the Legislature intended to
be binding, and to preclude holding a Board hearing.5 In
5
Although Larsen made this argument to the Board and in
his writ petition commencing the mandamus proceedings, he did
not raise it in his trial brief and the trial court did not consider it
15
concluding otherwise, the Board did not accord the Schlup
finding the significance it deserves and the Board construed
section 1485.55, subdivision (a) (hereafter section 1485.55(a)) in a
manner that undermines the Legislature’s intent and effectively
renders the statutory provision inoperative in practice.
A. California’s Exonerated Inmate Compensation
Statutes
“California has long had a system for compensating
exonerated inmates for the time they spent unlawfully
imprisoned.” (People v. Etheridge (2015) 241 Cal.App.4th 800,
806.) The Board “is vested with the power to recommend to the
Legislature that an inmate be compensated if it finds the inmate
eligible under the statutory scheme.” (Ibid.)
A person may present a claim to the Board “for the
pecuniary injury sustained by him or her through . . . erroneous
conviction and imprisonment or incarceration” when “the
evidence shows that the crime with which the claimant was
charged was either not committed at all, or, if committed, was not
committed by the claimant.” (§ 4900; see also § 4904.) If the
evidence shows the claimant “has sustained injury through his or
her erroneous conviction and imprisonment, the [Board] shall
report the facts of the case and its conclusions to the next
Legislature, with a recommendation that the Legislature make
in its ruling. We believe the point was sufficiently raised to
permit appellate review. It is also a purely legal issue involving a
matter of public interest that we would have discretion to resolve.
(Bialo v. Western Mutual Ins. Co. (2002) 95 Cal.App.4th 68, 73;
Nguyen v. Applied Medical Resources Corp. (2016) 4 Cal.App.5th
232, 258.)
16
an appropriation for the purpose of indemnifying the claimant for
the injury. The amount of the appropriation recommended shall
be a sum equivalent to one hundred forty dollars ($140) per day
of incarceration served . . . .”6 (§ 4904.) As we next discuss, the
findings made by a court granting habeas relief determine both
whether a Board hearing is necessary and the scope of the
Board’s duties.
Section 1485.55 describes the circumstances under which
court findings in postconviction litigation are binding on the
Board and require an automatic recommendation for
compensation to the Legislature. Under subdivision (a) of the
statute—the key provision for our purposes7—the Board “shall,
6
Board recommendations for compensation are just that,
recommendations. Legislators can—and do—vote against bills
making appropriations for the payment of such claims, as
evidenced by two votes cast against a recent appropriations bill.
(Sen. Bill No. 417 (2019-2020 Reg. Sess.) [bill appropriating
$5,087,040 to seven claimants passed by vote of 31 to 2 in the
Senate].)
7
Another subdivision, section 1485.55, subdivision (e),
makes specific reference to habeas corpus proceedings in federal
court: “If a federal court, after granting a writ of habeas corpus,
pursuant to a nonstatutory motion or request, finds a petitioner
factually innocent by no less than a preponderance of the
evidence that the crime with which they were charged was either
not committed at all or, if committed, was not committed by the
petitioner, the [B]oard shall, without a hearing, recommend to
the Legislature that an appropriation be made and any claim
filed shall be paid pursuant to Section 4904.” We invited the
parties to address, in supplemental briefing, whether subdivision
17
without a hearing, recommend to the Legislature that an
appropriation be made and the claim paid” when “[i]n a contested
proceeding . . . the court has granted a writ of habeas
corpus . . . and . . . has found that the person is factually
innocent.”8
In all other cases—i.e., in the absence of a court finding of
factual innocence—a hearing is required. (§ 4903, subd. (a).)
Certain findings made in earlier court proceedings are still
binding on the Board at such a hearing, but the Board is not
bound to recommend compensation. (See, e.g., § 4903, subd. (b)
[“In a hearing before the [B]oard, 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 [B]oard”]; § 1485.5,
subd. (c) [“In a contested or uncontested proceeding, the express
factual findings made by the court [meaning a state or federal
(e) is the governing statutory provision in this case. The parties
agree it is not.
8
Section 1485.55, subdivision (b) separately permits a
habeas corpus petitioner, when “the court has granted a writ of
habeas corpus,” to “move for a finding of factual innocence by a
preponderance of the evidence that the crime with which they
were charged was either not committed at all or, if committed,
was not committed by the petitioner.” Subdivision (b) applies to
contested and uncontested habeas corpus proceedings (whereas
subdivision (a) applies only to contested proceedings) and
subdivision (b) includes the “preponderance of the evidence”
language that subdivision (a) does not. A finding of factual
innocence under subdivision (b) is binding on the Board and
requires a recommendation for compensation just as a
subdivision (a) finding does. (§ 1485.55, subd. (c).)
18
court (§ 1485.5, subd. (e))], including credibility determinations,
in considering a petition for habeas corpus . . . shall be binding on
the Attorney General, the factfinder, and the . . . Board”].)
B. Schlup and Innocence
The resolution of this appeal turns on two questions: (1)
what does Schlup, supra, 513 U.S. 298 require a federal court to
find to avoid an otherwise applicable procedural bar to a habeas
corpus petition and (2) does that finding satisfy what the
Legislature meant by “factually innocent” in section 1485.55(a)?
We begin with the first of these two, carefully parsing Schlup and
briefly discussing its progeny.
As a general rule, claims that are forfeited under state law
or are otherwise procedurally barred “may support federal habeas
relief only if the prisoner demonstrates cause for the default and
prejudice from the asserted error.” (House v. Bell (2006) 547 U.S.
518, 536 (House); see also Schlup, supra, 513 U.S. at 318-319.)
An exception to the general rule applies, however, when a
petitioner “falls within the ‘narrow class of cases . . . implicating a
fundamental miscarriage of justice.’” (Schlup, supra, at 314-315.)
The high court in Schlup considered whether a “claim of
innocence” by the habeas petitioner in that case was sufficient to
satisfy the fundamental miscarriage of justice standard and
thereby permit a federal court to decide his ineffective assistance
of counsel and Brady v. Maryland (1963) 373 U.S. 83 claims of
constitutional error even though he did not raise them in an
earlier-filed habeas corpus petition. (Schlup, supra, at 301, 314.)
Schlup presented evidence he was “actually innocent” of the
prison murder for which he had been found guilty and sentenced
to death. (Schlup, supra, 513 U.S. at 307 [referencing, among
19
other things, “numerous affidavits from inmates attesting to
Schlup’s innocence”].) The district court evaluating the habeas
petition applied a stringent standard for evaluating Schlup’s
actual innocence showing—the so-called Sawyer9 standard that
requires clear and convincing proof—and the principal issue the
United States Supreme Court resolved was whether the district
court should have used that standard or a lower standard
espoused in another precedent, Murray v. Carrier (1986) 477 U.S.
478 (Carrier).
The high court held the district court erred and should
have used the Carrier standard of proof, namely, whether a
“‘constitutional violation has probably resulted in the conviction
of one who is actually innocent.’” (Schlup, supra, 513 U.S. at 326-
327, quoting Carrier, supra, 477 U.S. at 496; id. at 332
[remanding for further factual development].) “To establish the
requisite probability,” the Supreme Court held, “the [habeas]
petitioner must show that it is more likely than not that no
reasonable juror would have convicted him in light of the new
evidence [of actual innocence].” (Schlup, supra, at 327; see also
ibid. [“To satisfy the Carrier gateway standard, a petitioner must
show that it is more likely than not that no reasonable juror
would have found petitioner guilty beyond a reasonable doubt”].)
Significantly for our purposes, the Schlup court treated the
Carrier standard it adopted to govern actual innocence claims
like Schlup’s as functionally equivalent to the standard applied in
9
Sawyer v. Whitley (1992) 505 U.S. 333, 336 [a petitioner
“must show by clear and convincing evidence that, but for a
constitutional error, no reasonable juror would have found the
petitioner eligible for the death penalty under the applicable
state law”] (Sawyer).
20
Kuhlmann v. Wilson (1986) 477 U.S. 436 (Kuhlmann)—a
companion case decided on the same day as Carrier that used the
term “colorable claim of factual innocence” rather than Carrier’s
“actually innocent” terminology. (Schlup, supra, at 322 [“The
Kuhlmann plurality, though using the term ‘colorable claim of
factual innocence,’ elaborated that the petitioner would be
required to establish, by a ‘“fair probability,’” that ‘“the trier of
the facts would have entertained a reasonable doubt of his
guilt”’”].)
The Schlup court additionally clarified that the Carrier
standard does not require, or permit, a district court to make its
own “independent judgment as to whether reasonable doubt
exists that the standard addresses; rather the standard requires
the district court to make a probabilistic determination about
what reasonable, properly instructed jurors would do.” (Schlup,
supra, 513 U.S. at 329; see also ibid. [“The meaning of actual
innocence as formulated by Sawyer and Carrier does not merely
require a showing that a reasonable doubt exists in light of the
new evidence, but rather that no reasonable juror would have
found the defendant guilty”], italics added.) The Schlup court
further explained—and this is again important for our
purposes—that the reasonable doubt focus of Carrier’s actual
innocence standard “reflects the proposition, firmly established in
our legal system, that the line between innocence and guilt is
drawn with reference to a reasonable doubt.” (Schlup, supra, at
328; ibid. [“Thus, whether a court is assessing eligibility for the
death penalty under Sawyer, or is deciding whether a petitioner
has made the requisite showing of innocence under Carrier, the
analysis must incorporate the understanding that proof beyond a
reasonable doubt marks the legal boundary between guilt and
21
innocence”]; see also id. at 328, fn. 47 [“Actual innocence, of
course, does not require innocence in the broad sense of having
led an entirely blameless life”].)
The high court in Schlup also distinguished its adoption of
the Carrier standard from a different standard of actual
innocence discussed in another of its precedents,
Herrera v. Collins (1993) 506 U.S. 390 (Herrera). In that case,
the high court assumed habeas corpus relief may be available for
a defendant sentenced to death after “entirely fair and
error[-]free” criminal proceedings if the defendant could
nevertheless show by new evidence that he or she were actually
innocent of the crime. (Schlup, supra, 513 U.S. at 314; see also
House, supra, 547 U.S. at 554; Herrera, supra, at 417 [“We may
assume, for the sake of argument in deciding this case, that in a
capital case a truly persuasive demonstration of ‘actual
innocence’ made after trial would render the execution of a
defendant unconstitutional, and warrant federal habeas relief if
there were no state avenue open to process such a claim”].)
The Supreme Court explained a Herrera-based claim and a
claim of the type presented by Schlup both require presentation
of evidence of actual innocence that is distinct from asserted legal
error at trial. (Schlup, supra, 513 U.S. at 324 [a credible Schlup-
type claim of actual innocence “requires [a] petitioner to support
his allegations of constitutional error with new reliable
evidence—whether it be exculpatory scientific evidence,
trustworthy eyewitness accounts, or critical physical evidence—
that was not presented at trial”]; id. at 316 [“[I]f a petitioner such
as Schlup presents evidence of innocence so strong that a court
cannot have confidence in the outcome of the trial unless the
court is also satisfied that the trial was free of nonharmless
22
constitutional error, the petitioner should be allowed to pass
through the gateway and argue the merits of his underlying
claims”].) But the Court contrasted Schlup’s “procedural” claim
of innocence (i.e., a showing to enable review of his claims of
constitutional error at trial) with the “substantive” claim of
innocence discussed in Herrera (a showing assuming trial and
sentencing were free from prejudicial error) and explained
evidence of innocence adduced by a petitioner like Schlup “need
carry less of a burden.” (Id. at 314-316.) Specifically, the
Supreme Court explained a Herrera-type claim would have to fail
unless a federal habeas court is convinced that new facts
“unquestionably establish . . . innocence” while a Schlup-type
innocence showing is evaluated using the aforementioned Carrier
standard: whether it is more likely than not that no reasonable
juror would have found petitioner guilty beyond a reasonable
doubt. (Id. at 317 [“[I]f the habeas court were merely convinced
that those new facts raised sufficient doubt about Schlup’s guilt
to undermine confidence in the result of the trial without the
assurance that the trial was untainted by constitutional error,
Schlup’s threshold showing of innocence would justify a review of
the merits of the constitutional claims”].)
Though the high court explained a Schlup-type innocence
showing is not so high as a Herrera “unquestionabl[e],”
“extraordinarily high” showing (Schlup, supra, 513 U.S. at 317;
Herrera, supra, 506 U.S. at 417), the Supreme Court repeatedly
emphasized the Carrier-based requirement for a claim of actual
innocence like Schlup’s is still quite demanding—so much so that
substantial claims of such innocence are rarely advanced and
even more rarely successful. (Schlup, supra, at 321 [“[H]abeas
corpus petitions that advance a substantial claim of actual
23
innocence are extremely rare. Judge Friendly’s observation a
quarter of a century ago that ‘the one thing almost never
suggested on collateral attack is that the prisoner was innocent of
the crime’ remains largely true today”], footnote omitted; id. at
321, fn. 36 [“Indeed, neither party called our attention to any
decision from a Court of Appeals in which a petitioner had
satisfied any definition of actual innocence. Though some
decisions exist [citations], independent research confirms that
such decisions are rare”]; id. at 324 [because new, reliable
evidence of actual innocence “is obviously unavailable in the vast
majority of cases, claims of actual innocence are rarely
successful”].) In light of the observed rarity of substantial claims
of actual innocence like Schlup’s, the Supreme Court was
unconcerned with threats to judicial resources, finality, and
comity that collateral attacks on state court judgments might
otherwise pose. (Id. at 324.)
United States Supreme Court cases following Schlup
continued to emphasize the demanding nature of the actual
innocence showing that case requires and the rarity with which
such showings are made. (McQuiggin v. Perkins (2013) 569 U.S.
383, 386 (McQuiggin) [the “convincing showing of actual
innocence” required under Schlup is a “‘demanding’” standard
and “tenable actual-innocence gateway pleas are rare”]; House,
supra, 547 U.S. at 522 [Schlup permits merits review of
procedurally barred claims in “certain exceptional cases involving
a compelling claim of actual innocence”]; Bousley v. United States
(1998) 523 U.S. 614, 623 (Bousley).) At the same time, the cases
also recognize that “conclusive exoneration” is not required. (See,
e.g., House, supra, at 553.) Rather, under Schlup, a petitioner
must demonstrate it is “more likely than not, in light of the new
24
evidence, no reasonable juror would find him guilty beyond a
reasonable doubt” (House, supra, at 538), and such a finding
demarcates the legal boundary between guilt and innocence
(Schlup, supra, 513 U.S. at 328).
C. The Board Should Have Recommended Compensation
Without a Hearing, and a Recent Case That Would
Support a Contrary Conclusion Is Not Persuasive
We come now to the second of the questions outlined
earlier: whether a Schlup innocence finding as just described is
tantamount to what the Legislature meant by “factually
innocent” as used in section 1485.55(a). To reiterate, that
provision reads: “In a contested proceeding, if the court has
granted a writ of habeas corpus . . . and if the court has found
that the person is factually innocent, that finding shall be
binding on the . . . Board for a claim presented to the [B]oard, and
upon application by the person, the [B]oard shall, without a
hearing, recommend to the Legislature that an appropriation be
made and the claim paid pursuant to Section 4904.”
Other subdivisions in section 1485.55 use the term
“factually innocent” as well, and these subdivisions further
specify that a court finding of factual innocence must be made by
a preponderance of the evidence. (See, e.g., § 1485.55, subd. (c)
[“If the court makes a finding that the petitioner has proven their
factual innocence by a preponderance of the evidence pursuant to
subdivision (b), the [B]oard shall, without a hearing, recommend
to the Legislature that an appropriation be made . . .”]; § 1485.55,
subd. (e) [“If a federal court, after granting a writ of habeas
corpus . . . finds a petitioner factually innocent by no less than a
preponderance of the evidence that the crime with which they
25
were charged was either not committed at all or, if committed,
was not committed by the petitioner, the [B]oard shall, without a
hearing, recommend to the Legislature that an appropriation be
made . . .”].) Larsen not unreasonably argues the Legislature’s
use of somewhat different language in section 1485.55(a) is
intentional and should be read to indicate section 1485.55(a)
carries a different meaning, but we think the better view is that
all the statutory subdivisions mean the same thing: a court
finding of factual innocence must be made by at least a
preponderance of the evidence and must reflect a determination
that the person charged and convicted of an offense did not
commit the crime. (Katie V. v. Superior Court (2005) 130
Cal.App.4th 586, 594 [“When a statute is silent on the standard
of proof, the preponderance of the evidence standard ordinarily
applies,” citing Evidence Code section 115]; see also Pasadena
Police Officers Assn. v. City of Pasadena (1990) 51 Cal.3d 564,
575 [courts should strive to harmonize statutory sections relating
to the same subject to the extent possible].) The question still
remains, however, whether a Schlup innocence finding coupled
with a later grant of habeas relief that results in the permanent
release of a prisoner from custody satisfies section 1485.55(a) as
so understood.10
Pursuant to well-settled law, we presume the Legislature
was aware of the high court’s holding in Schlup (and its progeny)
when it amended section 1485.55 in 2016 to read (in pertinent
part) as it does today. (Leider v. Lewis (2017) 2 Cal.5th 1121,
10
By “permanent” we mean only that there is no subsequent
conviction that results in the petitioner’s reincarceration for the
same conduct for which the petitioner was previously in custody.
26
1135 [“We presume the Legislature was aware of existing judicial
decisions directly bearing on the legislation it enacted”]; People v.
Giordano (2007) 42 Cal.4th 644, 659 [“The Legislature is
presumed to be aware of ‘“judicial decisions already in existence,
and to have enacted or amended a statute in light thereof.
[Citation]”’”]; see also Stats. 2016, ch. 785, § 3.) That makes our
job easier: we need only compare the text and history of section
1485.55(a) with a rigorous exegesis of Schlup to see if a Schlup
finding is within the scope of what the Legislature intended as a
court finding of factual innocence that would obviate the need for
a Board hearing. For the reasons that immediately follow, it is;
the Schlup standard and the text and history of section
1485.55(a) match remarkably well.
Beginning at just a surface level analysis, the high court
itself in Schlup explains that the finding of “actual innocence” it
requires to overcome an otherwise applicable procedural bar is
functionally the same as a showing of “factual innocence.” As
highlighted in our earlier parsing of Schlup, the Supreme Court
explained the Carrier standard of proof it adopted for claims of
innocence like Schlup’s was functionally no different than the
“‘colorable claim of factual innocence’” standard in the Kuhlmann
case decided on the same day as Carrier. (Schlup, supra, 513
U.S. at 322 [“In addition to linking miscarriages of justice to
innocence, Carrier and Kuhlmann also expressed the standard of
proof that should govern consideration of those claims. In
Carrier, for example, the Court stated that the petitioner must
show that the constitutional error ‘probably’ resulted in the
conviction of one who was actually innocent. The Kuhlmann
plurality, though using the term ‘colorable claim of factual
innocence,’ elaborated that the petitioner would be required to
27
establish, by a ‘“fair probability,”’ that ‘“the trier of the facts
would have entertained a reasonable doubt of his guilt”’”]; see
also Bousley, supra, 523 U.S. at 623 [“‘actual innocence’ means
factual innocence, not mere legal insufficiency”].) The
Legislature therefore would have been aware that, as a matter of
terminology, using “factually innocent” in section 1485.55(a)
would not have meant something different than Schlup’s use of
“actually innocent.”
Proceeding beneath the surface, Schlup’s requirements for
what a habeas corpus petitioner must do as a matter of practice
to obtain relief closely resembles a preponderance of the evidence
showing that the petitioner—factually—is not the person who
committed the crime of conviction. Start, for instance, with the
evidentiary burden. Section 1485.55(a) as we construe it requires
a showing of innocence by a preponderance of the evidence. The
Schlup standard requires a petitioner to show a constitutional
violation has “probably” resulted in the conviction of one who is
actually innocent and this probability is measured by whether it
is “more likely than not” (Schlup, supra, 513 U.S. at 327)—which
is, of course, the preponderance of the evidence standard. In
addition to this identical evidentiary burden, Schlup also makes
clear that the requisite showing of innocence must be fact-based
in the sense of being separate from claims of legal error at trial
and grounded in new, reliable evidence. (Schlup, supra, at 324
[“[E]xperience has taught us that a substantial claim that
constitutional error has caused the conviction of an innocent
person is extremely rare. [Citation.] To be credible, such a claim
requires petitioner to support his allegations of constitutional
error with new reliable evidence—whether it be exculpatory
scientific evidence, trustworthy eyewitness accounts, or critical
28
physical evidence—that was not presented at trial”].) This new,
reliable evidence of innocence that is distinct from assertions of
constitutional error must be so strong that “no reasonable juror”
would have convicted the petitioner in light of the new evidence.
(Id. at 327; see also House, supra, 547 U.S. at 571 (dis. opn. of
Roberts, J.) [under Schlup, “House must present such compelling
evidence of innocence that it becomes more likely than not that
no single juror, acting reasonably, would vote to convict him”].)
Putting these elements together, a court making a Schlup finding
determines that new facts (i.e., new, reliable evidence bearing on
the crime of conviction) make it more likely than not that no
reasonable juror would vote to convict. And importantly, Schlup
explains that this juror-determination-based standard “reflects
the proposition, firmly established in our legal system, that the
line between innocence and guilt is drawn with reference to a
reasonable doubt.” (Schlup, supra, at 328.) The Legislature,
aware of Schlup in enacting and amending section 1485.55,
would have known this, and there is accordingly no reason to
believe the Legislature intended to prevent a fact-based showing
predicated on this firmly established legal boundary from
answering the question of whether a former prisoner now
released from custody committed the crime of conviction.11
11
We of course have no quarrel with the general concept that
a jury’s acquittal of a defendant after considering evidence
admitted during a criminal trial is not a determination that the
defendant is innocent, only that he or she is “not guilty.” But
here we are concerned with the concept of innocence as used in a
specialized area of the law—and, particularly, how the
Legislature and the Schlup court understood “innocence” in
postconviction litigation. For purposes of section 1485.55(a), and
for the reasons already given, the Legislature’s concept of factual
29
Our conclusion that a court’s Schlup finding coupled with a
permanent release from custody pursuant to a writ of habeas
corpus satisfies the requirements of section 1485.55(a) is thus
apparent on the face of the statute and Schlup itself. It also
flows equally from the legislative history of Senate Bill No. 1134
(2015-2016 Reg. Sess.) (SB 1134) the bill that (1) amended section
1485.55 as relevant for our purposes and (2) adopted a new
standard for deciding habeas corpus petitions that seek relief
based on new evidence.
Prior to SB 1134’s enactment, a prisoner in California could
obtain state habeas corpus relief based on newly discovered
evidence that “undermine[s] the entire prosecution case and
point[s] unerringly to innocence or reduced culpability.” (In re
Hardy (2007) 41 Cal.4th 977, 1016; accord, In re Lawley (2008) 42
Cal.4th 1231, 1238.) Former section 1485.55(a) mirrored this
common law standard: “In a contested proceeding, if the court
grants a writ of habeas corpus concerning a person who is
unlawfully imprisoned or restrained, . . . , and if the court finds
that new evidence on the petition points unerringly to innocence,
that finding shall be binding on the [Board] for a claim presented
to the [B]oard, and upon application by the person, the [B]oard
shall, without a hearing, recommend to the Legislature that an
appropriation be made and the claim paid . . . .” (Stats. 2013,
ch. 800, § 3, italics added.)
In addition to amending section 1485.55(a) in the manner
relevant for our purposes, SB 1134 also codified a new standard
innocence encompasses a Schlup innocence finding, i.e., that the
person charged probably did not commit the crime and hence no
juror would convict him or her.
30
to govern court determinations of whether habeas corpus relief
should be granted. Specifically, SB 1134 amended the pertinent
Penal Code provision to permit courts to grant habeas corpus
petitions presenting “[n]ew evidence . . . that is credible, material,
presented without substantial delay, and of such decisive force
and value that it would have more likely than not changed the
outcome at trial.” (§ 1473, subd. (b)(3)(A), italics added.) In what
legislative reports described as a “conforming” change (see, e.g.,
Assem. Com. on Appropriations, Analysis of Sen. Bill No. 1134
(2015-2016 Reg. Sess.) Aug. 3, 2016, at 5; Sen. Com. on Pub.
Safety, Analysis of Sen. Bill No. 1134 (2015-2016 Reg. Sess.) Apr.
5, 2016, at 9), SB 1134 similarly replaced former section
1485.55(a)’s reference to a “find[ing] that new evidence . . . points
unerringly to innocence” with the current text that refers to a
“[finding] that the person is factually innocent.”
This history demonstrates the Legislature intended to
lower the threshold at which a court finding would obviate the
need for a Board hearing, to preserve the link between the test
for granting habeas corpus relief based on new evidence on the
one hand and entitlement to compensation without a Board
hearing on the other, and to consider what a trial jury would do
as the line demarcating guilt and innocence. (See, e.g., Sen. Com.
on Pub. Safety, Analysis of Sen. Bill No. 1134 (2015-2016 Reg.
Sess.) Apr. 5, 2016, at 7 [author’s statement that the bill was
intended “to bring California’s innocence standard into line with
the vast majority of other states’ standards, forty-three in total,
and to bring it closer in line with other postconviction standards
for relief such as ineffective assistance of counsel, or prosecutorial
misconduct, and not so unreasonably high]; Sen. Com. on
Appropriations, Analysis of Sen. Bill 1134 (2015-2016 Reg. Sess.),
31
Apr. 18, 2016, at 1 [amendments to sections 1473, subdivision
(b)(3) and 1485.55(a) would work in tandem because “[p]otential
increases in the number of claims submitted for review [in light
of the lower standard for new evidence-based habeas corpus
relief] are estimated to be offset in whole or in part by the
reduced workload resulting from potentially fewer required
hearings in order to recommend an appropriation for claims
prospectively”].) Treating a Schlup finding combined with later
habeas corpus release from custody as satisfying the new SB
1134-created section 1485.55(a) threshold is fully consistent with
the intent suggested by the legislative materials because a
habeas court’s finding that new evidence “would have more likely
than not changed the outcome at trial” under section 1473,
subdivision (b)(3) is arguably a lesser showing than Schlup’s no
reasonable juror would convict standard—and certainly no
greater.
The realities of habeas corpus practice further cement our
conclusion that a compensation recommendation without a Board
hearing under section 1485.55(a) is required by a grant of habeas
corpus relief following a Schlup finding. As Schlup and
subsequent cases repeatedly emphasize, it is “extremely rare”
that a habeas corpus petitioner advances a substantial claim of
innocence and rarer still that these actual innocence claims
actually succeed. (Schlup, supra, 513 U.S. at 321 & fn. 36, 324;
accord, McQuiggin, supra, 569 U.S. at 386 [“tenable actual-
innocence gateway pleas are rare”]; House, supra, 547 U.S. at
538.) If a Board hearing is nevertheless required even in the
circumstance where a court concludes a habeas corpus petitioner
has succeeded in making the extremely rare and demanding
Schlup innocence showing, section 1485.55(a) is practically dead
32
letter; we can fathom few if any circumstances in which a court in
habeas corpus proceedings must make a more definitive
pronouncement of innocence than the pronouncement Schlup
requires. Indeed, a Herrera, supra, 506 U.S. 390 finding of
“unquestionabl[e]” innocence is all that immediately comes to
mind, but at least so far, Herrera innocence claims are legal
unicorns: assumed for argument’s sake to be viable by some
courts (see, e.g, McQuiggin, supra, 569 U.S. at 392) but never
seen as the ultimately successful predicate for the grant of
habeas corpus relief.
Treating habeas corpus relief after a Schlup finding as
insufficient to satisfy the factual innocence criterion in section
1485.55(a) accordingly makes no practical sense, especially in
light of the already-discussed evidence that the Legislature
intended to broaden the circumstances in which a
recommendation for compensation would be made without a
Board hearing. In addition, concluding habeas corpus relief after
a Schlup finding does not meet the section 1485.55(a) test is also
inconsistent with the legislative intent, identified in Madrigal v.
California Victim Comp. & Government Claims Bd. (2016) 6
Cal.App.5th 1108, “to streamline the compensation process and
ensure consistency between the Board’s compensation
determinations and earlier court proceedings related to the
validity of a prisoner’s conviction.”12 (Id. at 1118.)
12
The magistrate judge’s denial of Larsen’s motion for a
finding of innocence does not undermine the conclusion we reach.
The court denied the motion because it had no jurisdiction to
grant it, and without jurisdiction, the court had no proper basis
to reach the merits of the motion. The magistrate judge also
rejected Larsen’s alternative request to “clarify” its previous
order granting his habeas petition so as to predetermine the
33
A recent Court of Appeal opinion, however, reaches a
conclusion contrary to ours on the identical issue presented.
(Souliotes v. California Victim Comp. Bd. (2021) 61 Cal.App.5th
73 (Souliotes).) The Souliotes court determined the Board
properly held a compensation hearing and denied compensation
to a habeas corpus petitioner who succeeded in making a Schlup
actual innocence showing in federal court and was later released
from prison on a writ of habeas corpus. (Id. at 79-80; but see id.
at 80 [explaining the petitioner, after the grant of habeas corpus
relief, entered no contest pleas to involuntary manslaughter
charges to avoid retrial].) The rationale animating the result
reached in Souliotes is not persuasive.
Beginning where we agree, the Souliotes court concluded,
after fairly lengthy discussion, that section 1485.55(a)’s “factually
innocent” language means the same thing as the slightly
different language that appears in other subdivisions of section
then-pending claim for compensation before the Board, but this is
no more than an unremarkable example of the cardinal principle
of judicial restraint. (PDK Laboratories Inc. v. U.S. D.E.A. (D.C.
Cir. 2004) 362 F.3d 786, 799 (conc. opn. of Roberts, J.) [“if it is not
necessary to decide more, it is necessary not to decide more”].)
The magistrate judge was required to decide—and did decide—
whether Schlup permitted reaching Larsen’s claims on the
merits, but the judge abstained (appropriately) from deciding any
more than necessary. As we have explained, what the court
already had to decide and did decide was enough for section
1485.55(a) purposes. Further, even taking the magistrate judge’s
observations on their own terms, the judge rejected Larsen’s
motion apparently believing he was seeking an affirmative
finding of innocence in the Herrera sense.
34
1485.55 (i.e., that a petitioner was found by a preponderance of
the evidence not to have committed the crime charged).
(Souliotes, supra, 61 Cal.App.5th at 89-90.) We have already
explained that is indeed the best view of the statutory scheme.
Apparently overlooked in Souliotes, however, are the features
and implications of the Schlup opinion’s analysis. The Souliotes
court also casts aside good evidence of the Legislature’s intent in
amending section 1485.55 without good reason. We will
elaborate.
Souliotes rightly acknowledges that “the terms ‘actual
innocence’ and ‘factual innocence’ are used interchangeably”
(Souliotes, supra, 61 Cal.App.5th at 76), but it does not mention
Schlup itself understands the two terms to be functionally
equivalent, as evidenced by the discussion of Kuhlmann and
Carrier. Though not alone dispositive, that is a significant point
in favor of the conclusion we have already drawn, i.e., that
section 1485.55(a)’s “factual innocence” requirement should not
be read to exclude a Schlup “actual innocence” finding. The key
reckoning with Schlup in Souliotes instead comes in a single
sentence and citation: “In other words, ‘actual innocence’ as used
in a Schlup gateway finding is a finding that the petitioner could
not be found guilty, beyond a reasonable doubt, of the crime in
question and therefore is presumed innocent. But it is not a
factual finding that the petitioner did not commit the crime in
question. (See House, supra, 547 U.S. at p. 538[ ] [in determining
whether to allow a petitioner to pass through the Schlup
gateway, ‘[t]he court’s function is not to make an independent
factual determination about what likely occurred, but rather to
assess the likely impact of the evidence on reasonable jurors’].)”
(Souliotes, supra, at 88.)
35
This reasoning, in our view, is flawed. As we have already
explained, a Schlup innocence finding is a factual finding—it is
separate from constitutional error asserted as the grounds for
habeas corpus relief and it must be based on new, reliable
evidence. It is also a fact-based finding that must clear a high
threshold, namely, that it is more probable than not no juror
aware of the new evidence would vote to convict. A court that
makes such a determination of innocence does not “presume[ ]”
the habeas corpus petitioner innocent. Rather, there already
exists a judgment of conviction after a criminal trial and a court
must decide whether the petitioner’s evidentiary showing of
innocence is sufficiently strong to overcome the interest in
preserving the finality of that judgment via an otherwise
procedurally barred habeas corpus petition.13 Particularly when
13
Souliotes’s citation to House as authority for its contrary
view is not convincing, as the weaker “see” signal tends to reveal.
A reading of the full context for the quoted statement in House
confirms that the Supreme Court was not saying courts do not
make factual determinations about whether a habeas corpus
petitioner committed the charged crime when confronted by a
Schlup actual innocence claim. Rather, the high court was
merely describing how Schlup’s high standard of proof should
operate in practice, namely, a court should not decide itself
whether the evidence of innocence is compelling but should
instead consider whether any single juror could reasonably vote
to convict after considering the new evidence. (House, supra, 547
U.S. at 537-538 [“Our review in this case addresses the merits of
the Schlup inquiry, based on a fully developed record, and with
respect to that inquiry Schlup makes plain that the habeas court
must consider ‘“all the evidence,”’ old and new, incriminating and
exculpatory, without regard to whether it would necessarily be
admitted under ‘rules of admissibility that would govern at trial.’
[Citation.] Based on this total record, the court must make ‘a
36
“proof beyond a reasonable doubt marks the legal boundary
between guilt and innocence” in postconviction litigation, a
finding that evidence of the petitioner’s innocence is so strong
that it is more likely than not that no reasonable juror would vote
to convict, when coupled with a habeas corpus petitioner’s release
from custody, is a more likely than not determination that the
petitioner released did not commit the crime charged—as
contemplated by the Legislature in section 1485.55(a).
Souliotes also treats as unconvincing the legislative history
evidence we have already reviewed—in particular, the parallels
between the changes to section 1473’s standards for granting a
habeas corpus petition based on new evidence and the
“conforming” amendments made to section 1485.55(a).
Souliotes’s reasons for refusing to find this history illuminating
are not sound.
Souliotes concedes there is “no doubt that the Legislature
intended to broaden the class of innocence findings subject to
section 1485.55(a)” but concludes it “goes too far” to “suggest[ ]
that the amendment of that provision necessarily expands the
class to include Schlup gateway findings.” (Souliotes, supra, 61
Cal.App.5th at 92.) The argument appears to rest on the
incomplete understanding of Schlup that we have already
highlighted, and it does not reckon with one of the key points
probabilistic determination about what reasonable, properly
instructed jurors would do.’ [Citation.] The court’s function is
not to make an independent factual determination about what
likely occurred, but rather to assess the likely impact of the
evidence on reasonable jurors”]; see also Bousley, supra, 523 U.S.
at 623 [“‘actual innocence’ means factual innocence, not mere
legal insufficiency”].)
37
shown by SB 1134’s simultaneous amendment of section 1473
and section 1485.55(a): factual innocence showings, including a
demonstration of whether a compensation claimant committed
the crime charged, are to be judged by reference to what a trial
jury would do. (Stats. 2016, ch. 785, § 1 [amending section 1473,
subdivision (b)(3)(A) by replacing the former “points unerringly to
innocence” language with language that only requires evidence to
be “of such decisive force and value that it would have more likely
than not changed the outcome at trial”]; Stats. 2016, ch. 785, § 3
[analogously striking former section 1485.55(a)’s reference to a
“find[ing] that new evidence . . . points unerringly to innocence”
in favor of the current text that refers to a “[finding] that the
person is factually innocent”].) That focus on what jurors would
do in light of new evidence is fully consistent with, and satisfied
by, what a court determines when concluding a Schlup innocence
showing has been made.
Remarkably, the Souliotes court does recognize “the
sponsors of [SB] 1134 may have intended the bill to amend
section 1485.55 to require the Board, without holding a hearing,
to recommend the grant of compensation for a section 4900 claim
to a person who had obtained a finding by a habeas court that it
is more likely than not that a jury would not find the person
guilty beyond a reasonable doubt,” but the Souliotes court
concludes SB 1134 “did not accomplish this” and reasons it is
“bound by the expressed language of the Legislature’s
enactment.” (Souliotes, supra, 61 Cal.App.5th at 93, italics in
original.) This “may have intended” reference is a significant
understatement, but even on its own terms, the argument falters.
The judiciary is a coordinate branch of government, not a bureau
of exam proctors. The plain text of section 1485.55(a) does not
38
foreclose the conclusion we reach, and if the intent of the
Legislature can be discerned, which it can be here for the various
reasons we have given—as even Souliotes seems to see, we do not
disregard that intent because the Legislature did not accomplish
its intention in the manner we deem best.
We are, in short, convinced the Legislature did not go to the
trouble of enacting and amending section 1485.55(a) to require in
habeas corpus proceedings an evidentiary showing so demanding
and a court finding so rare as to be essentially impossible.
Rather, returning to one point where we agree with Souliotes,
“we have no doubt that the Legislature intended to broaden the
class of innocence findings subject to section 1485.55(a).”
(Souliotes, supra, 61 Cal.App.5th at 92.) A habeas corpus
petitioner who makes a showing of actual innocence strong
enough to convince a court to entertain an otherwise procedurally
barred collateral attack on a final judgment and who then wins
permanent release from prison on a writ of habeas corpus has
been found factually innocent by a preponderance of the evidence.
That is what Larsen did here, and the Legislature intended the
Board to defer to the considered court findings that led to this
point. It was error to hold a hearing when compensation should
have been recommended automatically.
39
DISPOSITION
The judgment is reversed and the matter is remanded to
the trial court to enter a new judgment reversing the Board’s
order denying Larsen’s compensation claim and directing the
Board to recommend, pursuant to section 4904, that an
appropriation be made and Larsen’s claim paid. Appellant shall
recover his costs on appeal.
CERTIFIED FOR PUBLICATION
BAKER, J.
We concur:
RUBIN, P. J.
MOOR, J.
40