The opinion
Filed 2/19/21
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FOUR
GEORGE SOULIOTES, B295163
Plaintiff and Appellant, (Los Angeles County
Super. Ct. No. BS170608)
v.
CALIFORNIA VICTIM
COMPENSATION BOARD,
Defendant and Respondent.
APPEAL from a judgment of the Superior Court for Los Angeles
County, Mary H. Strobel, Judge. Affirmed.
McLane, Bednarski & Litt, Marilyn E. Bednarski, David S.
McLane and Caitlin S. Weisberg for Plaintiff and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Michael P. Farrell, Assistant Attorney
General, Michael A. Canzoneri and Barton Bowers, Deputy Attorneys
General, for Defendant and Respondent.
California law provides that if a person has been imprisoned or
incarcerated for a crime, and that crime “was either not committed at
all or, if committed, was not committed by him or her,” he or she may
present a claim for compensation against the state to the California
Victim Compensation Board (the Board) for the injury he or she
sustained by reason of the erroneous imprisonment or incarceration.
(Pen. Code,1 § 4900.) The Board must hold a hearing on the claim
unless (as relevant here) a court has granted a writ of habeas corpus
and “has found that the person is factually innocent,” in which case that
finding is binding on the Board and the Board must, without a hearing,
recommend to the Legislature that the claim be paid. (§ 1485.55, subd.
(a), see also § 4902, subd. (a).) If a court has granted a writ of habeas
corpus but did not make a finding of factual innocence, “the factual
findings and credibility determinations establishing the court’s basis for
granting a writ of habeas corpus” are binding on the Board. (§ 4903,
subd. (b); see also § 1485.5, subds. (c), (d).)
Under federal law, a petitioner for writ of habeas corpus seeking
to overcome a procedural bar (such as the statute of limitations) to
federal habeas review of the merits of his or her constitutional claims
must pass through an “actual innocence” gateway first applied in
Schlup v. Delo (1995) 513 U.S. 298 (Schlup). To pass through that
gateway (the Schlup gateway), the petitioner must “persuade[] the
district court that, in light of the new evidence, no juror, acting
1 Further undesignated statutory references are to the Penal Code.
2
reasonably, would have voted to find him guilty beyond a reasonable
doubt.” (Id. at p. 329; accord, McQuiggin v. Perkins (2013) 569 U.S.
383, 386 (McQuiggin).) If the petitioner is successful, only then may the
district court consider the merits of the constitutional claims raised in
the habeas petition. (Herrera v. Collins (1993) 506 U.S. 390, 404-405;
McQuiggin, supra, 569 U.S. at p. 392.)
In this appeal we address two questions relating to the effect of
Schlup gateway findings on claims for compensation under section
4900. First, is a district court’s Schlup gateway finding of “actual
innocence” necessarily equivalent to a finding that the person is
“factually innocent” under section 1485.55, subdivision (a) (hereafter
section 1485.55(a)), thus requiring the Board to recommend payment of
that person’s claim without a hearing? Second, are the factual findings
and credibility determinations made by the district court in
determining that the habeas petitioner could pass through the Schlup
gateway necessarily binding on the Board in a hearing on a section
4900 claim?
We conclude, as did the trial court, that the answer to both
questions is “No.” Although the terms “actual innocence” and “factual
innocence” often are used interchangeably, the standard used by the
federal court to find “actual innocence” under Schlup is not equivalent
to the standard used by the California Legislature in defining “factual
innocence.” And, the language of sections 4309, subdivision (b) (section
4309(b)), and 1485.5, subdivisions (c) and (d) (section 1485.5(c) and
section 1485.5(d)), make clear that only those factual findings and
3
credibility determinations relied upon by the district court to grant the
writ of habeas corpus—as opposed to allowing the petitioner to pass
through the Schlup gateway—are binding on the Board. Accordingly,
we affirm the judgment.
BACKGROUND
A. Souliotes’s Conviction
George Souliotes was convicted of arson-murder and sentenced to
life without the possibility of parole after a mother and two children
died in a fire at a rental property that Souliotes owned. At trial, the
case against Souliotes rested primarily on three sources. First, fire
investigators testified that, based on several factors, there was no doubt
the fire was caused by arson. Second, a criminalist testified that
medium petroleum distillates (MPDs), which are flammable compounds
that could be used to start a fire, were found on samples taken from the
scene of the fire as well as on Souliotes’s shoes; the prosecutor argued
that the presence of MPDs both at the scene and on Souliotes’s shoes
was unusual and that this was conclusive scientific evidence that
Souliotes started the fire. Third, an eyewitness, Monica Sandoval,
testified that she saw from the balcony of her nearby apartment a
motorhome or recreational vehicle (an RV) drive back and forth past the
Souliotes rental house several times in the hours before the fire began.
The RV eventually stopped across from the rental house, and the driver
got out and walked to the house carrying a white sack, then returned to
the RV without the sack; a few minutes later, the house was on fire.
4
She later identified Souliotes as the driver, and Souliotes’s RV as the
one she had seen.2
B. The Federal Habeas Petition
Five years after Souliotes was convicted he obtained new evidence
that established, using a scientific method not previously available, that
the MPDs found on his shoes was chemically distinguishable from the
MPDs found at the scene of the fire, which established that the MPDs
came from different sources.3 Souliotes filed habeas petitions in state
and federal courts based on this new evidence. The federal petition,
which was filed in May 2006, originally was denied on the ground it was
filed beyond the statute of limitations set forth in 28 U.S.C. section
2244(d), part of the Antiterrorism and Effective Death Penalty Act of
2 We note that Souliotes was tried twice. The prosecution presented
virtually the same evidence at both trials. Defense counsel presented several
witnesses at the first trial, including (1) experts in mechanical engineering,
forensics, and fire investigation to contest the prosecution’s fire investigators’
and criminalist’s testimony; (2) a psychologist to testify about problems with
eyewitness testimony; and (3) lay witnesses to undermine the prosecutor’s
theories that Souliotes had a financial motive to commit arson and that he
bore ill-will toward the victims. The jury in that first trial could not reach a
verdict after three days of deliberations. At the second trial, although
defense counsel told the jury in his opening statement that he would be
presenting those witnesses, he did not do so, and rested after the prosecution
closed its case-in-chief. The jury reached a guilty verdict on all counts after
only a few hours of deliberation.
3 At the time of Souliotes’s trial, the MPDs from the shoes could not be
excluded as having come from the same source of MPDs found at the fire
scene. The Attorney General ultimately stipulated that the MPDs did not
originate from a common source.
5
1996 (the AEDPA). (Pub.L. No. 104-132 (Apr. 24, 1996) 110 Stat. 1214,
1217.) Souliotes appealed. For reasons that are not relevant to the
issues in this appeal, the Ninth Circuit Court of Appeals did not reverse
and direct the district court to conduct a Schlup gateway hearing until
August 2011.
1. The Schlup Gateway Ruling
By the time of the Schlup gateway hearing there had been
significant advances in fire science, and many of the factors the
prosecution’s fire investigators had relied upon to prove arson were
found not to be indicators of arson. Thus, the Attorney General
stipulated that it was not possible to determine the cause of the fire,
and that experts could not determine whether the fire was caused by
accident or arson.
The Schlup gateway hearing was held before a magistrate judge,
who reviewed the evidence that had been presented at trial as well as
party stipulations and additional evidence presented by both sides, and
issued detailed findings, including credibility determinations. The
magistrate judge noted that, given the parties’ stipulations that the
experts could not determine if the fire was arson and that the MPDs
found on Souliotes’s shoes were distinct from the MPDs found at the
fire, “the principal remaining evidence of [Souliotes’s] guilt” was
Sandoval’s testimony that identified Souliotes as the person who exited
the RV and went to the house just before the fire started. The
magistrate judge, however, found that Sandoval’s identification of
Souliotes was “wholly unreliable” based upon a number of factors,
6
including that (1) she only saw the lower portion of the RV driver’s face
from a great distance, under poor lighting conditions, 4 and through the
windshield; (2) her initial description of the driver’s age and facial
characteristics did not match Souliotes and changed over time; and (3)
she identified Souliotes as the driver only after she had been unable to
identify him in a photograph on the morning of the fire, had been shown
a photographic lineup with his photo in it, had seen at least one
newspaper photo of him identified as the arson suspect, and saw him
sitting in court in a red jail jumpsuit next to defense counsel (she finally
identified him after a break in court proceedings, during which she may
have spoken with the prosecutor, “who then unexpectedly reopened his
questioning of her to ask if she could then make the never-before-
possible identification”). The magistrate judge also found that
Sandoval’s identification of Souliotes’s RV as the one she had seen just
before the fire also suffered from infirmities that impacted its
credibility, such as that (1) Sandoval initially described the RV as a
Dodge Caravan, while Souliotes’s RV was a Winnebago that had a blue
“W” on it;5 (2) many of the distinctive features Sandoval described (such
as a ladder and a white curtain on the rear window) were not present
on Souliotes’s RV, while certain features that she had said were not on
4 Sandoval’s observations took place between 1:00 a.m. to 3:30 a.m. on a
cold misty night.
5 On the morning of the fire, the police took Sandoval to an RV sales lot
to look for an RV that looked similar to the one she had observed. Although
there were several RVs with a “W” there, Sandoval did not mention that the
RV she had seen also had a “W” on it.
7
the suspect RV (such as a spare tire and an air conditioner on the roof)
were on Souliotes’s RV; (3) Sandoval did not identify the RV when she
was brought by police officers to Souliotes’s home to look at his RV right
after she was interviewed the morning of the fire, but she subsequently
identified it when the police brought her back to Souliotes’s home a
short time later, when there were several police cars at the home.
The magistrate judge then examined the remaining
circumstantial evidence of Souliotes’s guilt and found it “flawed” and
“provid[ing] little support for a finding of guilt.” That evidence included
evidence that the tenants of the rental property had not timely vacated
the premises following eviction proceedings, which the prosecutor
suggested angered Souliotes and drove him to destroy the property and
kill the tenants, including the two young children. But the magistrate
judge noted that this theory made no sense in that Souliotes had
voluntarily allowed the tenants to remain past the eviction date so as
not to disturb their Christmas and New Year’s holidays, he had no
financial rationale for destroying the house (he had a prospective buyer
lined up at the time of the fire), and there was no evidence that
Souliotes was insane, unintelligent, or irrational. 6
The magistrate judge concluded: “Ultimately then, [Souliotes’s]
guilt hinges largely on the credibility of Sandoval’s identification of
[Souliotes’s] RV. The evidence might cause one to hesitate before
6 The magistrate judge also noted that other circumstantial evidence was
inconsistent with guilt, such as evidence that the engine of Souliotes’s RV
was cold to the touch shortly after the fire.
8
concluding there was no possibility [Souliotes] committed this crime. It
is, however, not necessary that the evidence conclusively exonerate him.
The test is whether any reasonable juror properly instructed and
conscientiously following these instruction[s] would be more likely than
not to find [Souliotes] guilty beyond a reasonable doubt. [Citations.] [¶]
For all the reasons set forth above, the Court answers the latter
question in the negative. The evidence remaining after the scientific
evidence was removed is so weak it is insufficient to support a finding of
[Souliotes’s] guilt beyond a reasonable doubt. [Souliotes’s] showing of
innocence leaves this Court without confidence in the outcome of
[Souliotes’s] trial. [Citation.] The Court concludes [Souliotes] should
pass th[r]ough the Schlup gateway.”
The district court conducted a de novo review of the case and
adopted the magistrate judge’s findings and recommendations. The
court found that Souliotes “has made a sufficient showing of actual
innocence to serve as an exception to the AEDPA’s one year statute of
limitations and is entitled to pass through the Schlup gateway and
present the merits of his underlying claims.”
2. Merits of the Habeas Petition and Souliotes’s Release
The magistrate judge then turned to the merits of Souliotes’s
habeas claims. Souliotes raised seven claims: (1) he is actually
innocent and entitled to relief; (2) his trial counsel was ineffective in
failing to present a fire expert in his defense; (3) his trial counsel was
ineffective in failing to present additional witnesses in his defense;
(4) his trial counsel was ineffective in failing to cross-examine the
9
prosecution’s fire experts using a widely accepted guide in the field of
fire investigation; (5) the jurors committed misconduct in considering
extrinsic information during deliberation; (6) his due process rights
were violated by the use of fundamentally unreliable expert testimony
and evidence; and (7) cumulative error. In his findings and
recommendation regarding Souliotes’s habeas petition, the magistrate
judge analyzed in detail the evidence presented at the first and second
trials and found that Souliotes was prejudiced by his trial counsel’s
unprofessional conduct in the second trial that resulted in the guilty
verdict. Therefore, the magistrate judge found that Souliotes was
entitled to relief as to claims two, three, and seven. In light of this
finding, the magistrate judge concluded that a determination of
Souliotes’s remaining claims (including his claim of innocence) was
unnecessary, and reserved judgment on those claims.
The district court conducted a de novo review and adopted the
magistrate judge’s findings and recommendation, with minor
modifications. The court granted the habeas petition as to claims two,
three, and seven, and ordered that Souliotes be released unless the
State of California notified the court that it intended to retry him and
commenced retrial within 90 days.
The District Attorney for Stanislaus County notified the district
court that her office intended to retry Souliotes. A short time later, the
parties reached a plea agreement. Under that agreement, Souliotes
10
would enter a West/Alford7 plea of no contest to three counts of
involuntary manslaughter and would receive a total sentence of six
years; with credit for time served (over 16 years8), he would
immediately be released from custody. As factual basis for the plea, the
parties stipulated that, as the owner of the rental property, Souliotes
had a duty to have an operable smoke alarm in the property; because
there was a fire at the property that resulted in the deaths of three
occupants, there was a factual basis to conclude that Souliotes did not
have an operable smoke detector in the property and as a result of his
negligent maintenance of the property, three occupants died.
C. Souliotes’s Section 4900 Claim
Souliotes filed a claim for compensation under section 4900 as an
erroneously-convicted person. After a two-day hearing, the hearing
officer issued a 63-page proposed decision, ultimately concluding there
was a preponderance of evidence that the fire was not caused by arson,
and there was not a preponderance of evidence that if arson was
committed it was committed by Souliotes.9 Therefore, the hearing
7 People v. West (1970) 3 Cal.3d 595; North Carolina v. Alford (1970) 400
U.S. 25.
8 Souliotes was incarcerated from the date of the fire (Jan. 15, 1997)
until July 3, 2013.
9 The hearing officer also found there was not a preponderance of the
evidence that Souliotes committed involuntary manslaughter due to a failure
to maintain smoke detectors at the property. The officer noted there was no
evidence of such a failure, that the property was a certified Section 8 house
11
officer recommended approval of Souliotes’s claim and found he was
entitled to $841,820 in compensation.
The Board rejected the proposed decision, providing a single
paragraph of purported findings without any citation to the evidence
presented (over 16,000 pages). The sole basis for the Board’s rejection
of the hearing officer’s recommendation was a statement by Board
member Ramos (one of the two Board members in attendance) that: (1)
“we cannot say how the fire started, which means we cannot rule out
arson”; (2) neither the Board, the hearing officer, nor the magistrate
judge saw Sandoval testify, and therefore the Board could not
determine whether she was credible; and (3) “You got two babies and
mother that . . . lost their lives.” He concluded that, “tak[ing] all those
factors into consideration,” the Board felt that Souliotes’s claim should
be denied.
D. Souliotes’s Petition in the Superior Court
Souliotes filed a petition for writ of administrative mandamus
(Code Civ. Proc., § 1094.5) and writ of mandate (Code Civ. Proc., § 1085)
in the superior court. He argued, among other things, that (1) the
Schlup gateway finding is a factual innocence finding under Penal Code
section 1485.55(a), which requires the Board to find, without a hearing,
and Section 8 would not have allowed him to rent the property without
working smoke detectors, and that the surviving tenant of the property
testified at a civil hearing that there was a working smoke detector at the
home (the tenant, however, had wanted to add more, and Souliotes agreed
that he could do so).
12
he is entitled to compensation; (2) Penal Code sections 1485.5(c) and
4903(b) require the Board to accept as binding the factual findings and
credibility determinations made by the federal court in the habeas
proceedings, which includes the Schlup gateway proceedings; and (3)
the Board’s decision was not supported by adequate findings. He asked
the court to issue a peremptory writ of mandate directing the Board to
set aside its decision and issue a decision approving his claim or, in the
alternative, to issue a peremptory writ of mandate directing the Board
to set aside its decision and conduct further proceedings.
The trial court issued a tentative decision before the hearing on
the writ petition in which it found that the Schlup gateway finding did
not constitute a finding of factual innocence under Penal Code section
1485.55(a), and therefore the Board did not have a ministerial duty to
grant his request for compensation (Code Civ. Proc., § 1085). The court
also found that the Board is bound by the “express factual findings” and
credibility determinations relied upon by the federal court to grant the
writ of habeas corpus, but not those relied upon by the federal court
solely for the Schlup gateway finding. Finally, the court found that the
Board failed to support its decision with sufficient findings supported by
evidence, as required by Topanga Assn. for a Scenic Community v.
County of Los Angeles (1974) 11 Cal.3d 506. Therefore, the court
indicated it would grant in part the petition, and that it would issue a
writ of mandate directing the Board to set aside its decision and,
without a further evidentiary hearing, to issue a new decision that
includes the requisite findings.
13
After hearing argument from counsel, the court announced it was
going to adopt its tentative decision as its final decision. It told counsel
that it could send the matter back to the Board either as an interim
order or as a writ of mandate. The court said that if counsel wanted to
get the issue regarding the effect of the Schlup gateway ruling to the
court of appeal, since it was a matter of first impression, the court could
issue a judgment writ. Counsel for Souliotes asked the court to issue a
final judgment.
The court subsequently entered a judgment (prepared by
Souliotes’s counsel) stating that the petition was granted in part and
denied in part as follows: (1) the claim that the Board abused its
discretion because its decision was not supported by factual findings
was granted; (2) the claim that the Board disregarded governing law
and abused its discretion by failing to accept as binding the factual
findings and credibility determinations made by the federal court was
granted in part; (3) the claim that the Board disregarded governing law
and abused its discretion by failing to approve Souliotes’s claim as
required by sections 1485.55(a) and 4902, subdivision (a) (section
4902(a)) was denied; and (4) the claim that the Board disregarded
governing law, abused its discretion, and denied Souliotes a fair hearing
by allowing the Attorney General to participate in the administrative
proceedings was denied. In light of its ruling that the Board abused its
discretion because its decision was not supported by factual findings,
the court declined to rule on Souliotes’s claim that the Board’s findings
were not supported by the evidence. The judgment directed that a writ
be issued remanding the proceedings to the Board and commanding it
14
to (1) set aside its decision; (2) “reconsider its action in the light of this
Court’s Statement of Decision and this Judgment and to take any
further action specially enjoined on it by law; but nothing in this
Judgment or in that writ shall limit or control in any way the discretion
legally vested in [the Board]”; and (3) determine, consistent with the
statement of decision and with statutory and case law, whether any
factual findings and credibility determinations made by the federal
district court in considering Souliotes’s habeas petition are binding on
the Board and the precise effect of those findings.
Souliotes timely filed a notice of appeal “from the portions of the
Judgment . . . which denied, in whole or in part, Petitioner’s claims for
relief.”
DISCUSSION
Souliotes raises three issues on appeal. First, he contends the
trial court erred by finding that the Board was not required, under
sections 1485.55(a) and 4902(a), to automatically grant him
compensation as a result of the federal district court’s Schlup gateway
finding. Second, he contends the court erred in ruling that the factual
findings and credibility determinations made by the federal court in its
Schlup gateway ruling are not binding on the Board. Third, he
contends the Attorney General’s stipulations and the federal court’s
binding factual findings and credibility determinations require the
Board to find he is factually innocent of the crimes for which he was
incarcerated. We conclude the trial court did not err with respect to the
first two issues, and that the third issue is not ripe for appeal.
15
A. Appealability
Upon our initial review of this case, including the issues Souliotes
raises in his appellant’s opening brief and the Attorney General’s
responses, we questioned whether Souliotes’s appeal was proper given
that the trial court had granted Souliotes’s primary request for relief
(the setting aside of the Board’s decision) and remanded the matter
with directions to the Board to reconsider its decision, and the issues
Souliotes raises could be subject to review in an appeal following the
reconsidered decision. We asked the parties to submit supplemental
briefing addressing whether the judgment in this case was a final
appealable judgment. Having considered those supplemental briefs, we
conclude that only the first two issues Souliotes raises are appropriate
for review.
“Under the one final judgment rule, ‘“an appeal may be taken only
from the final judgment in an entire action.”’ [Citation.] ‘“The theory
[behind the rule] is that piecemeal disposition and multiple appeals in a
single action would be oppressive and costly, and that a review of
intermediate rulings should await the final disposition of the case.”’
[Citations.] [¶] The one final judgment rule is ‘a fundamental principle
of appellate practice [citation], recognized and enforced in this state
since the 19th century.” (In re Baycol Cases I & II (2011) 51 Cal.4th
751, 756.)
“The existence of an appealable judgment is a jurisdictional
prerequisite to an appeal. A reviewing court must raise the issue on its
own initiative whenever a doubt exists as to whether the trial court has
entered a final judgment or other order or judgment made appealable
16
by Code of Civil Procedure section 904.1.” (Jennings v. Marralle (1994)
8 Cal.4th 121, 126.)
In Dhillon v. John Muir Health (2017) 2 Cal.5th 1109 (Dhillon),
the Supreme Court examined whether an order granting a petition for
writ of administrative mandamus and remanding the matter for
proceedings before the administrative body was appealable by the party
opposing the petition. The dispute in Dhillon involved a disciplinary
action by the operator of two hospitals (John Muir) against a physician.
After appointing an ad hoc committee to investigate a complaint lodged
against the physician and receiving the committee’s report, John Muir’s
joint medical executive committee imposed certain disciplinary
measures. The physician requested a hearing with John Muir’s judicial
review committee (the JRC), but John Muir responded that he was not
entitled to such a hearing. The physician filed a petition for writ of
administrative mandamus, asking the trial court to order a hearing
before the JRC or other appropriate body, to direct John Muir to vacate
its imposition of discipline, and for certain other relief. The trial court
granted the petition in part, finding that John Muir’s bylaws entitled
the physician to a hearing before the JRC or another appropriate body,
and that the physician was deprived of due process when John Muir
suspended his clinical privileges without providing him a hearing. The
court issued a peremptory writ directing John Muir to conduct a
hearing, and denied the petition in all other respects. (Dhillon, supra, 2
Cal.5th at pp. 1112-1113.)
John Muir appealed, and also filed a petition for writ of mandate
and/or prohibition. The court of appeal summarily denied the writ
17
petition and, after requesting briefing on the issue of appealability, the
court dismissed the appeal on the grounds the trial court’s order was
not a final appealable order, nor was the order and judgment
appealable as a final determination of a collateral matter. (Dhillon,
supra, 2 Cal.5th at p. 1113.)
In reversing the appellate court, the Supreme Court noted the
“long-standing conflict” among courts of appeal “concerning the
appealability of a trial court’s order, on a petition for writ of
administrative mandamus, remanding the matter for further
proceedings before the administrative body.” (Dhillon, supra, 2 Cal.5th
at p. 1113.) Although the Supreme Court did not “undertake to answer
‘the broad question whether remands to administrative agencies are
always immediately appealable,’” it concluded that the order at issue
was an appealable final judgment based upon certain considerations
present in the case before it. (Id. at p. 1116.) First, in its order, the
trial court either granted or denied each of the physician’s claims.
Second, the court did not reserve jurisdiction to consider any issues.
Third, as a practical matter, unless John Muir had a right of immediate
appeal, the trial court’s interpretation of its bylaws (i.e., that the bylaws
required a hearing before the JRC or other appropriate body) may evade
review. The Court noted that if the physician prevailed at the JRC
hearing, the bylaws provided for an internal appellate process in which
the internal appeal board could not overrule the trial court’s ruling, and
if the JRC decided against the physician, John Muir could not seek
review because it would not have been aggrieved by the ruling.
18
The Supreme Court emphasized that “practical unreviewability is
a relevant consideration in determining whether a remand order is a
final and appealable judgment.” (Dhillon, supra, 2 Cal.5th at p. 1118,
fn. 4.) The court observed that “[t]his practical consideration
distinguishes this case from Kumar [v. National Medical Enterprises,
Inc. (1990)] 218 Cal.App.3d 1050.” (Dhillon, supra, 2 Cal.5th at p.
1118, fn. 4.) As the Supreme Court described that case: “In Kumar, as
in this case, a doctor challenged the suspension of his hospital privileges
in a petition for writ of administrative mandamus, and the trial court
granted the petition in part: It set aside the decision by the hospital’s
governing board upholding the doctor’s suspension and remanded the
matter for further administrative proceedings, but it did not reinstate
the doctor’s privileges. The doctor appealed. The Court of Appeal
dismissed the appeal, holding that the judgment was not appealable
because the doctor was first required to exhaust his administrative
remedies. [Citation.] But the doctor in Kumar, unlike John Muir,
would have had a later opportunity to raise an appellate challenge to
the hospital’s discipline if he did not prevail in the administrative
hearing: He could file a second petition for administrative mandamus,
and if the trial court ruled against him, he could appeal from the denial
of his petition. Here, John Muir has no comparable guarantee of future
opportunities to raise its challenge to the trial court’s conclusion that its
bylaws require it to hold a JRC hearing before imposing disciplinary
measures. Thus, whether or not Kumar was correctly decided (a
19
question we need not decide here), it is distinguishable on its facts.” 10
(Dhillon, supra, 2 Cal.5th at p. 1118, fn. 4.)
In the present case, the trial court’s order (1) granted or denied
each of Souliotes’s claims and (2) did not reserve jurisdiction to consider
any issues. However, the order includes some rulings that fall on the
Dhillon side of “practical unreviewability” and other rulings that fall on
the Kumar side of having “a later opportunity to raise an appellate
challenge to [the Board’s decision] if he did not prevail in the
administrative hearing.” (Dhillon, supra, 2 Cal.5th at p. 1118, fn. 4.)
For example, the trial court’s ruling that the federal district
court’s Schlup gateway ruling did not require the Board to grant
Souliotes’s compensation claim without a hearing under sections
1485.55(a) and 4902(a) is, like the ruling in Dhillon, practically
unreviewable. This is because the purpose of sections 1485.55(a) and
4902(a) is to provide immediate compensation without a hearing where
the claimant has been found by a court to be “factually innocent,” and
that purpose would be thwarted (assuming Souliotes’s assertion of error
was correct) if his appeal was not heard until after two hearings and a
writ proceeding were held. Thus, we conclude that the trial court’s
order denying Souliotes’s claim on this issue is appealable.
10 We suggest there was an additional basis for distinguishing Kumar. In
that case, as in this case, the trial court granted the primary relief sought by
the appealing party—i.e., setting aside the challenged decision—whereas in
Dhillon, the trial court ruled against the appealing party.
20
In contrast, the trial court’s order declining to rule on Souliotes’s
claim that the binding factual findings made by the habeas court and
stipulations by the Attorney General require the Board to find he is
entitled to compensation is, like the ruling in Kumar, eminently
reviewable in a subsequent appeal (if an appeal is necessary). In fact,
since neither the Board nor the trial court (nor the parties) has specified
exactly what the relevant factual findings are, if the Board is bound
only by those findings relied upon by the habeas court in granting
Souliotes’s habeas petition (as we conclude, post), review of Souliotes’s
claim necessarily must wait for the Board’s decision on remand. In
other words, the trial court’s order on this issue is not ripe for appeal.
The trial court’s order on the remaining issue Souliotes raises on
appeal—that only those express findings relied upon by the habeas
court in granting Souliotes’s habeas petition are binding on the Board—
falls somewhere between the practical unreviewability of Dhillon and
the reviewable after the Board’s decision on remand of Kumar. If on
remand the Board once again denied Souliotes’s compensation claim
while adhering to the trial court’s ruling, Souliotes would not be
precluded from arguing in a subsequent appeal that under sections
4903(b), 1485.5(c) and 1485.5(d) the Board also is bound by the findings
made by the habeas court in making its Schlup gateway finding.
However, because this order raises a pure question of law, and resolving
it now could avoid further appeals, we will address it in this appeal.
21
B. Is a Schlup Gateway Finding a Finding of “Factual Innocence”
Under Section 1485.55(a) Such That the Board is Required to
Recommend Granting a Section 4900 Claim Without a Hearing?
Under section 4902(a), “[i]f the provisions of Section 851.865 or
1485.55 apply in any claim [for compensation for erroneous conviction
under § 4900], the California Victim Compensation Board shall, within
30 days of the presentation of the claim, calculate the compensation for
the claimant pursuant to Section 4904 and recommend to the
Legislature payment of that sum.” Section 1485.55 is a provision under
the chapter of the Penal Code that addresses writs of habeas corpus. 11
Currently, subdivision (a) of that statute provides: “(a) In a contested
proceeding, if the court has granted a writ of habeas corpus or when,
pursuant to Section 1473.6, the court vacates a judgment, and if the
court has found that the person is factually innocent, that finding shall
be binding on the California Victim Compensation Board for a claim
presented to the board, and upon application by the person, the board
shall, without a hearing, recommend to the Legislature that an
appropriation be made and the claim paid pursuant to Section 4904.”12
11 Section 851.865 relates to declarations of factual innocence under
section 851.8 and 851.86, and is not relevant to this case.
12 Although Souliotes relies only upon subdivision (a), other subdivisions
of section 1485.55 are relevant to the interpretation of “factually innocent.”
Therefore, we set forth those subdivisions (as currently in effect):
“(b) In a contested or uncontested proceeding, if the court has granted
a writ of habeas corpus or vacated a judgment pursuant to Section 1473.6 or
paragraph (2) of subdivision (a) of Section 1473.7, the person may move for a
finding of factual innocence by a preponderance of the evidence that the
22
Souliotes contends that he satisfied all three requirements of
section 1485.55(a)—(1) a contested proceeding was held on his habeas
petition, (2) the habeas court granted a writ of habeas corpus, and (3)
the habeas court found that he was factually innocent by making its
Schlup gateway finding—and therefore the trial court erred by not
directing the Board to grant his section 4900 claim without a hearing.
Whether Souliotes is correct turns on the meaning of “factually
innocent” as used in section 1485.55(a), and whether that meaning is
the same as the meaning of “actual innocence” as used in a Schlup
gateway finding.
1. “Actual Innocence”
We begin with the meaning of “actual innocence” as used in a
Schlup gateway finding. In Schlup, the United States Supreme Court
addressed the kind of showing of “actual innocence” that must be made
crime with which they were charged was either not committed at all or, if
committed, was not committed by the petitioner.
“(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 board shall, without a hearing, recommend to the Legislature that an
appropriation be made and any claim filed shall be paid pursuant to Section
4904. [¶] . . . [¶]
“(e) 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 board shall, without a hearing, recommend
to the Legislature that an appropriation be made and any claim shall be paid
pursuant to Section 4904.”
23
to allow a habeas petitioner to overcome a procedural bar to having his
or her habeas petition heard on the merits. (Schlup, supra, 513 U.S.
298, 301.) The Court began by noting the difference between a claim of
actual innocence for purposes of allowing a habeas petition to be heard
on the merits and a constitutional claim of actual innocence (i.e., a
claim that even if the petitioner’s trial was fair and error free, his
innocence would render his execution unconstitutional). The Court
observed that the former claim of innocence “need carry less of a
burden” (id. at p. 316) than a constitutional claim of innocence, and
thus the gateway claim of innocence should be subjected to a “more
likely than not” standard rather than a clear and convincing standard
(id. at pp. 326-327).
The Court then concluded that the appropriate standard for a
gateway claim of actual innocence would require the petitioner to show
“that it is more likely than not that no reasonable juror would have
found petitioner guilty beyond a reasonable doubt.” (Schlup, supra, 513
U.S. at p. 327; accord, McQuiggin, supra, 569 U.S. at p. 399; House v.
Bell (2006) 547 U.S. 518, 537 (House).) In reaching this conclusion, the
Court explained that this 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,” noting that “proof
beyond a reasonable doubt marks the legal boundary between guilt and
innocence.” (Schlup, supra, 513 U.S. at p. 328.) It emphasized,
however, that “[t]he meaning of actual innocence as formulated by [this
standard] does not merely require a showing that a reasonable doubt
24
exists in the light of the new evidence, but rather that no reasonable
juror would have found the defendant guilty.” (Id. at p. 329.)
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”].) Indeed, the
magistrate judge in Souliotes’s case emphasized this in his findings
(which were adopted by the district court), stating: “‘[W]here post-
conviction evidence casts doubt on the conviction by undercutting the
reliability of the proof of guilt, but not by affirmatively proving
innocence, that can be enough to pass through the Schlup gateway to
allow consideration of otherwise barred claims.’ [Citations.] . . .
[N]either conclusive proof of innocence or elimination of all evidence of
guilt is necessary to pass through the Schlup gateway.” And, in fact,
the magistrate judge’s ultimate finding underscores this understanding
of “actual innocence”: the magistrate judge found that “[t]he evidence
remaining after the scientific evidence was removed is so weak it is
insufficient to support a finding of [Souliotes’s] guilt beyond a
reasonable doubt. [Souliotes’s] showing of innocence leaves this Court
without confidence in the outcome of [Souliotes’s] trial. [Citation.] The
Court concludes [Souliotes] should pass th[r]ough the Schlup gateway.”
25
2. “Factually Innocent”
We turn now to the meaning of “factually innocent” as used in
section 1485.55(a). When construing a statute, “‘[w]e first examine the
words of the statute, “giving them their ordinary and usual meaning
and viewing them in their statutory context, because the statutory
language is usually the most reliable indicator of legislative intent.”’
[Citation.] ‘“If the language of the statute is not ambiguous, the plain
meaning controls and resort to extrinsic sources to determine the
Legislature’s intent is unnecessary.”’” (People v. Albillar (2010) 51
Cal.4th 47, 55.)
Although the term “factually innocent” is not specifically defined
in section 1485.55(a), the term is used in other subdivisions of section
1485.55 in a manner that explains its meaning in the context of section
4900 claims. Subdivision (b) provides that if a court has granted a writ
of habeas corpus or vacated a judgment under section 1473.6 or section
1473.7, subdivision (a)(2), “the person may 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 (c) provides that if a court
finds that the petitioner “has proven their factual innocence by a
preponderance of the evidence pursuant to subdivision (b),” the Board
must recommend that the claim be paid without a hearing. And
subdivision (e) provides that the Board, also without a hearing, must
recommend that a section 4900 claim be paid if, after granting a writ of
habeas corpus, a federal court finds, “pursuant to a nonstatutory motion
or request, finds a petitioner factually innocent by no less than a
26
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.”
There is no indication that “factual innocence” as used in
subdivisions (b) and (c), or “factually innocent” as used in subdivision (e)
is intended to have a different meaning from “factually innocent” as
used in subdivision (a). Thus, we conclude that “factually innocent” as
used in section 1485.55(a) means a finding, by a preponderance of the
evidence, that the crime with which the section 4900 claimant was
charged was either not committed at all or, if committed, was not
committed by the claimant. (See In re Bittaker (1997) 55 Cal.App.4th
1004, 1009 [“similar words or phrases in statutes in pari materia
ordinarily will be given the same interpretation”].)
This interpretation of “factually innocent” not only harmonizes the
meaning of the term across all subdivisions of section 1485.55, but it
also ensures that the statutory criterion for entitlement to
compensation under section 4900 is met. Section 4900 permits a person
to present a claim for compensation only if that person was “granted a
pardon by the Governor for the reason that the crime with which he or
she was charged was either not committed at all or, if committed, was
not committed by him or her, or who, being innocent of the crime with
which he or she was charged for either of the foregoing reasons, shall
have served the term or any part thereof for which he or she was
imprisoned in state prison or incarcerated in county jail.” (§ 4900; see
also § 4903, subd. (a) [when a hearing is required, the claimant must
“prove the facts set forth in the statement constituting the claim,
27
including the fact that the crime with which they were charged was
either not committed at all, or, if committed, was not committed by the
claimant”]; § 4904 [“If 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,” the Board must recommend that
the claim be paid].)13
Souliotes argues, however, that “factually innocent” as used in
section 1485.55(a) must be understood in the context of what he
contends is “a new standard for substantive factual innocence claims”
that was created by the Legislature in 2016, when it enacted Senate
Bill No. 1134 (Reg. Sess. 2015-2016) (S.B. 1134). That bill amended
section 1473 to allow a writ of habeas corpus to be prosecuted based
upon “[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); Stats. 2016, ch. 785, § 1.) Although Souliotes refers to this
13 As the Attorney General points out, this interpretation also is
consistent with the definition of “factual innocence” the Legislature declared
(but did not codify) when enacting Assembly Bill No. 316 in 2009, which
amended section 340.6 of the Code of Civil Procedure and sections 851.8,
4901, 4903, and 4904 of the Penal Code. As part of that enactment, the
Legislature found and declared: “(a) It is the intent of the Legislature to
remedy some of the harm caused to all factually innocent people who have
been wrongfully convicted and served time in state prison in California. [¶]
(b) A factually innocent person is a person who was convicted of a crime that
either was not committed or, if committed, was not committed by him or her.
[¶] (c) This act would remove some of the obstacles to compensation for the
factually innocent and would ease their transition back into society.” (Stats.
2009, ch. 432, § 1, italics added.)
28
basis for habeas relief as “factual innocence,” that phrase is not used in
section 1473.
S.B. 1134 also amended section 1485.55. (Stats. 2016, ch. 785,
§ 3.) Prior to its amendment, section 1485.55(a) reflected the standard
that then applied in California state courts to habeas claims based upon
actual innocence: habeas relief was available where the petitioner
presented newly discovered evidence that “‘“undermine[d] the entire
prosecution case and point[ed] unerringly to innocence or reduced
culpability.”’” (In re Lawley (2008) 42 Cal.4th 1231, 1239.) Thus, before
it was amended, section 1485.55(a) provided that the Board must
recommend payment of a claim without a hearing if a court granted a
writ of habeas corpus or vacated a judgment on the basis of new
evidence and if the court found “that new evidence on the petition
points unerringly to innocence.” (Former § 1485.55, subd. (a); Stats.
2013, ch. 800, § 3.) Former section 1485.55, subdivisions (b) and (c)
then provided that, if the court granted a writ of habeas corpus or
vacated a judgment “on any ground other than new evidence that points
unerringly to innocence or actual innocence, the petitioner may move
[the court] for a finding of innocence by a preponderance of the evidence
that the crime with which he or she was charged was either not
committed at all or, if committed, was not committed by him or her.”
(Former § 1485.55, subds. (b), (c); Stats. 2013, ch. 800, § 3.) Former
section 1485.55, subdivision (d) provided that “[i]f the court makes a
finding that the petitioner has proven his or her innocence by a
preponderance of the evidence pursuant to subdivision (b) or (c),” the
Board must, without a hearing, recommend that the section 4900 claim
29
be granted. (Former § 1485.55, subd. (d); Stats. 2013, ch. 800, § 3.)
Finally, as relevant here, the former provision regarding a grant of a
habeas writ by a federal court stated: “If a federal court, after granting
a writ of habeas corpus, pursuant to a nonstatutory motion or request,
finds a petitioner innocent by no less than a preponderance of the
evidence that the crime with which he or she was charged was either
not committed at all or, if committed, was not committed by him or her,
the board shall, without a hearing, recommend to the Legislature that
an appropriation be made and the claim paid pursuant to Section 4904.”
(Former § 1485.55, subd. (f); Stats. 2013, ch. 800, § 3.)
S.B. 1134 amended each of these subdivisions to use the term
“factually innocent” or “factual innocence.” Thus, it amended section
1485.55(a) to provide that the Board must recommend payment of a
claim without a hearing if a court “has granted a writ of habeas corpus”
or vacated a judgment pursuant to section 1473.6 and “the court has
found that the person is factually innocent.” (§ 1485.55(a); Stats. 2016,
ch. 785, § 3.) The bill also amended former subdivisions (b), (c), (d), and
(f) of section 1485.55 to add the word “factual” or “factually” before the
word “innocence” or “innocent” as used in the former versions (the bill
also made changes in subdivisions (b) and (c) to eliminate the references
to “new evidence [that] points unerringly to innocence”). (Stats. 2016,
ch. 785, § 3.) Thus, those post-amendment subdivisions referred to
findings of “factual innocence by a preponderance of the evidence that
the crime with which he or she was charged was either not committed
30
at all or, if committed, was not committed by him or her.” 14 (Former
§ 1485.55, subds. (b), (c); Stats. 2016, ch. 785, § 3.)
Citing Times Mirror Co. v. Superior Court (1991) 53 Cal.3d 1325
for the proposition that “‘[w]here changes have been introduced to a
statute by amendment it must be assumed the changes have a purpose’”
(id. at p. 1337), Souliotes argues that by amending section 1485.55(a) to
use the term “factually innocent” the Legislature must have intended to
expand the scope of that subdivision from a narrow class of innocence
findings—i.e., where “new evidence on the petition points unerringly to
innocence” (former § 1485.55, subd. (a); Stats. 2013, ch. 800, § 3)—to “all
habeas court determinations that a person is ‘factually innocent,’”
including Schlup gateway findings. While we have no doubt that the
Legislature intended to broaden the class of innocence findings subject
to section 1485.55(a), Souliotes goes too far by suggesting that the
amendment of that provision necessarily expands the class to include
Schlup gateway findings. For if all of the amendments made by S.B.
1134 are assumed to have a purpose, we must assume that by adding
“factual” or “factually” before the terms “innocence” or “innocent” in
subdivisions (b), (c), and (f) of former section 1485.55, the Legislature
intended to provide a context to understand the meaning of “factually
innocent” as used in section 1485.55(a), i.e., a finding, by a
14 The post-amendment language of subdivision (f) of section 1485.55 was
slightly different; it referred to a federal court finding the habeas petitioner
“factually innocent by no less than a preponderance of the evidence that the
crime with which he or she was charged was either not committed at all or, if
committed, was not committed by him or her.” (Former § 1485.55, subd. (f);
Stats. 2016, ch. 785, § 3.)
31
preponderance of the evidence, that the crime for which the person was
convicted either was not committed or, if committed, was not committed
by him or her.
We understand that the sponsors of S.B. 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 S.B. 1134 did not accomplish this. We are
bound by the expressed language of the Legislature’s enactment. As our
Supreme Court has warned, “‘[t]his court has no power to rewrite the
statute so as to make it conform to a presumed intention which is not
expressed.’” (California Teachers Assn. v. Governing Bd. of Rialto
Unified School Dist. (1997) 14 Cal.4th 627, 633.) Accordingly, we
conclude (as we must) that section 1485.55(a) applies only when a court
has granted a writ of habeas corpus and found by a preponderance of
the evidence that the crime for which the person at issue was charged
either was not committed at all or, if committed, was not committed by
that person.
3. Conclusion
Having determined the meaning of “actual innocence” as used in a
Schlup gateway finding and the meaning of “factual innocence” as used
in section 1485.55(a), it is clear the two terms are not interchangeable.
The Schlup gateway finding is based upon whether the evidence is such
that no juror could find the person guilty beyond a reasonable doubt.
32
But the finding referenced in section 1485.55(a) is based upon whether
the evidence shows either that no crime was actually committed or that
the person did not actually commit it. While we are not unsympathetic
to those who, like Souliotes, obtained a finding of “innocence” under
Schlup but must reprove their “innocence” under a different standard in
order to obtain compensation, we are bound by the language the
Legislature chose to enact. Therefore, we conclude that a Schlup
gateway finding does not constitute a finding that a person is “factually
innocent” that is binding on the Board under section 1485.55(a) and
requires the Board to recommend, without a hearing, that a section
4900 claim be paid.
C. Is the Board Bound by the Factual Findings and Credibility
Determinations From the Schlup Gateway Determination?
There are two statutes that address the binding effect on the
Board of factual findings and credibility determinations made by a
habeas court: section 4903 and section 1485.5. Section 4903(b)
provides, in relevant part: “In a hearing before the board, the factual
findings and credibility determinations establishing the court’s basis for
granting a writ of habeas corpus . . . shall be binding on the Attorney
General, the factfinder, and the board.” Section 1485.5(c) contains
similar, but not identical language. It provides, in relevant part: “In a
contested or uncontested proceeding, the express factual findings made
by the court, including credibility determinations, in considering a
petition for habeas corpus . . . shall be binding on the Attorney General,
the factfinder, and the California Victim Compensation Board.”
33
(§ 1485.5(c).) Section 1485.5(d) further explains: “For the purposes of
this section, ‘express factual findings’ are findings established as the
basis for the court’s ruling or order.”
As noted, in ruling on Souliotes’s petition for writ of
administrative and traditional mandamus, the trial court found that
the Board is bound by the “express factual findings” and credibility
determinations relied upon by the federal district court to grant
Souliotes’s petition for writ of habeas corpus, but not those relied upon
by the district court solely for the Schlup gateway finding. Souliotes
contends the trial court erred in its interpretation of the statutes at
issue. He argues that since section 1485.5(d) does not specify which
ruling or order section 1485.5 applies to, and since section 1485.5(c)
refers to findings and determinations made by the court in
considering—not just granting—a petition for habeas corpus, the
statute must be interpreted to include the findings and determinations
made by the court in ruling on the Schlup gateway issue because
resolution of that issue was a necessary part of the court’s consideration
of Souliotes’s habeas petition.
We disagree. First, although the Legislature used slightly
different language in the two statutes, we see no discernable difference
in their meaning. Second, even if the statutes could be found to have
different meanings, we conclude that a Schlup gateway ruling is not a
ruling the district court makes “in considering a petition for habeas
corpus.”
34
1. The Statutes Do Not Prescribe Different Standards For
Determining Which Findings Are Binding on the Board
The difference in the language used in section 4903(b) and the
language used in sections 1485.5(c) and 1485.5(d) is one of approach
rather than meaning. Section 4903(b) is concise and straightforward,
and needs no explanation: the court’s factual findings and credibility
determinations that establish the basis for its ruling granting a writ of
habeas corpus are binding on the Board. Sections 1485.5(c) and
1485.5(d) reach the same result, but require some reasoning to get
there.
Although section 1485.5(c) refers to findings made by the court in
considering a petition for habeas corpus, section 1485.5(d) makes clear
that the relevant findings are those that establish the basis for the
court’s ruling or order. Since a court “considers” a petition for writ of
habeas corpus for the purpose of determining the merits of the claims,
the court’s ruling or order upon consideration of the petition logically
can only mean to grant or deny it. Thus, under sections 1485.5(c) and
1485.5(d), the Board is bound by factual findings and credibility
determinations made by the court that establish the basis for the grant
of a petition for writ of habeas corpus.
The legislative history of the sections 4903(b), 1485.5(c), and
1485.5(d) supports our conclusion that despite the slight difference in
language, the Legislature did not intend different meanings. All three
sections were enacted in the same bill, Senate Bill No. 618 (2013-2104
Reg. Sess.). As originally introduced in the bill, section 1485.5 provided
that “factual findings, including credibility determinations, of the court
35
granting the writ [of habeas corpus] or reversing the conviction” were
binding on the Board, and section 4903 referred to section 1485.5
regarding the effect of those findings. (Sen. Bill No. 618 (2013-2014
Reg. Sess.) as introduced Feb. 22, 2013, §§ 1, 5.)
The bill was amended in the Senate to replace the language of
section 1485.5 as introduced with language similar to that currently
found in section 1485.5(c), referring to “[f]actual findings made by the
court . . . in considering a habeas petition”; section 4903 continued to
refer to section 1485.5 regarding the effect of the findings. (Sen.
Amend. to Sen. Bill No. 618 (2013-2014 Reg. Sess.) Apr. 15, 2013, §§ 2,
7.) The bill was then amended by the Assembly, which did not change
the language of section 1485.5 but amended section 4903 to replace its
reference to section 1485.5 with “The factual findings and credibility
determinations underlying the granting of a writ of habeas corpus . . .
shall be binding on the Attorney General, the factfinder, and the board.”
(Assem. Amend. to Sen. Bill No. 618 (2013-2014 Reg. Sess.) June 27,
2013, § 7.)
Finally, the bill was amended again by the Senate, which made
changes to both section 1485.5 and 4903. The amendment changed the
previous reference to “factual findings” in section 1485.5 to “the express
factual findings” and added section 1485.5(d) to provide the definition of
“express factual findings” that remains in the current statute (“findings
established as the basis for the court’s ruling or order”). (Sen. Amend.
to Sen. Bill No. 618 (2013-2014 Reg. Sess.) Sept. 3, 2013, § 2.) At the
same time, the Senate also amended section 4903 to change “findings
. . . underlying the granting of a writ of habeas corpus” to “findings . . .
36
establishing the court’s basis for granting a writ of habeas corpus.”
(Sen. Amend. to Sen. Bill No. 618 (2013-2014 Reg. Sess.) Sept. 3, 2013,
§ 7.) The amendment also amended the Legislative Counsel’s Digest to
add: “The bill would require, in a hearing before the board, that the
factual findings and credibility determinations establishing the court’s
basis for granting the writ of habeas corpus, a motion for new trial, or
an application for a certificate of factual innocence be binding on the
Attorney General, the factfinder, and the board.” (Sen. Amend. to Sen.
Bill No. 618 (2013-2014 Reg. Sess.) Sept. 3, 2013.) The bill was enacted
without further changes to the relevant language. (Stats. 2013, ch. 800,
§§ 2, 7.)
Although sections 1485.5 and 4903 underwent subsequent
amendments in the years that followed, the language relevant to the
issue before us did not change. Given the fact that, as originally
introduced, the two statutes’ treatment of the factual findings and
credibility determinations were expressly tied to one another, and that
as those sections were amended parallel changes were made to both, it
is evident that the Legislature intended that both sections be
interpreted to mean the same thing, i.e., that only the factual findings
and credibility determinations establishing the basis for the court’s
granting a writ of habeas corpus are binding on the Board.
2. A Schlup Gateway Finding is Not Part of the Court’s
Consideration of a Petition For Writ of Habeas Corpus
Even if the statutes could be found to have different meanings, we
conclude that a Schlup gateway ruling is not a ruling the district court
37
makes “in considering a petition for habeas corpus.” While Souliotes is
correct that the district court could not have granted the habeas
petition without first making the Schlup gateway finding, that finding
necessarily could not have been a part of the court’s consideration of the
petition. The entire—and only—purpose of the Schlup gateway
proceeding is to determine whether the district court will consider a
habeas petition that is procedurally barred. (McQuiggin, supra, 569
U.S. at p. 386 [in Schlup and its progeny, “a convincing showing of
actual innocence enabled habeas petitioners to overcome a procedural
bar to consideration of the merits of their constitutional claims”
asserted in the petition.) Thus, the factual findings and credibility
determinations made by the court in ruling that Souliotes could pass
through the Schlup gateway are not findings that establish the basis for
the court’s ruling or order in considering his habeas petition.
In short, the trial court did not err in ruling that the Board is
bound by the factual findings and credibility determinations that
established the basis for the federal district court’s grant of Souliotes’s
habeas petition, but that the Board is not bound by the factual findings
and credibility determinations from the district court’s order allowing
Souliotes to pass through the Schlup gateway.
//
//
//
//
38
DISPOSITION
The judgment is affirmed. The parties shall bear their own costs
on appeal.
CERTIFIED FOR PUBLICATION
WILLHITE, Acting P. J.
We concur:
COLLINS, J.
CURREY, J.
39