The opinion
Filed 11/17/21 White v. Cal. Victim Compensation Board CA2/7
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
DE'WANN WESLEY WHITE, B305678
Plaintiff and Appellant, (Los Angeles County
Super. Ct. No. 19STCP02070)
v.
CALIFORNIA VICTIM
COMPENSATION BOARD,
Defendant and
Respondent.
APPEAL from a judgment of the Superior Court of
Los Angeles County, James Chalfant, Judge. Affirmed.
Kravis, Graham & Zucker and Thomas Ian Graham for
Plaintiff and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Michael P. Farrell, Senior Assistant
Attorney General, Michael A. Canzoneri, Supervising Deputy
Attorney General, and Barton Bowers, Deputy Attorney General
for Defendant and Respondent.
_____________________________
After this court reversed for insufficient evidence De’Wann
Wesley White’s 2012 conviction for aiding and abetting the
murder of Maurillo Ponce (People v. White (May 11, 2015,
B249633) [nonpub. opn.]), White filed a claim for wrongful
incarceration with the California Victim Compensation Board
1
pursuant to Penal Code section 4900. The Board denied the
claim, finding White had failed to establish he was innocent of
the crime with which he had been charged. The superior court
denied White’s petition for a writ of administrative mandamus to
set aside the Board’s decision. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
1. Ponce’s Murder and White’s Trial
Ponce’s body was found in a rural area of Lancaster in the
early morning of October 7, 2008. He had been shot multiple
times, and bruises on his body were consistent with having been
kicked or stomped while still alive. Five nine-millimeter bullet
casings and one expended nine-millimeter bullet, likely fired from
a semiautomatic handgun, were found nearby. No other physical
evidence related to the crime was recovered at the scene. The
murder weapon was never found.
Three men were ultimately charged with the murder,
White, Anthony Wayne Smith and Charles Honest. The
prosecutor’s theory was that Smith had arranged for the three
men to meet with and kill Ponce in the Lancaster area. Smith
1
Statutory references are to this code.
2
was believed to be the actual killer, aided and abetted by Honest
and White.
In a joint trial before separate juries, Honest was convicted
of second degree murder as a direct aider and abettor; Smith’s
jury was unable to reach a verdict and a mistrial was declared.
Honest’s conviction was reversed by this court for insufficient
evidence. (People v. Honest (Sept. 30, 2104, B242979) [nonpub.
opn.].) At a retrial Smith’s jury was again unable to reach a
verdict on the charge of murdering Ponce but convicted him of
three unrelated murders.
At his separate trial White was convicted of first degree
murder on a direct aiding and abetting theory and sentenced to
an indeterminate state prison term of 25 years to life. We
reversed the conviction, agreeing with White the trial court had
erred in denying his section 1118.1 motion for acquittal at the
conclusion of the People’s case-in-chief. The evidence of White’s
involvement in the murder, which we reviewed when reversing
the conviction, consisted in large part of cell phone data that
linked Smith, Honest, White and Ponce; White’s statements
during police interrogation; and comments made by White and
his wife during a recorded telephone conversation while White
was in custody.
Ponce, who lived in Lancaster, was self-employed as a truck
mechanic and, using his commercial driver’s license, also worked
side jobs making truck deliveries. On the evening of October 6,
2008 Ponce borrowed his wife’s SUV, explaining to her he was
meeting someone named Tony near Santa Clarita or Valencia.
Ponce left his home around 11:00 p.m. His wife called his
cell phone several times later that night, initially getting no
answer and then around 2:00 a.m. a busy signal.
3
Law enforcement learned from Ponce’s cell phone call
records that Ponce received a call around 11:00 p.m. the night of
his death from a prepaid cell phone, registered with a false name
and address, that was determined to be owned by Smith. The
SUV Ponce had been driving the night of his murder was found
in Smith’s assigned space in the parking structure for Smith’s
apartment complex. Smith was in possession of the vehicle’s keys
when he was arrested. No fingerprints or other physical evidence
connected White to the SUV. Firearms, nine-millimeter
ammunition and an empty ammunition magazine for a handgun
were found in Smith’s apartment, but no nine-millimeter
handgun.
The Los Angeles County Sheriff’s Department began
investigating White after deputies discovered a cell phone
registered to White’s business had exchanged several calls with
Smith’s and Honest’s cell phones shortly before and after Ponce’s
death.
In his initial interview with sheriff’s detectives in May
2010, White acknowledged he and Honest had worked together as
longshoremen for several years. White initially denied working
jobs with Honest and also said he was not familiar with the
Lancaster area. He specifically denied being in Lancaster around
1:00 a.m. on October 7, 2008. He then said the only reason he
would have been in Lancaster that night would have been to
meet girls and denied ever being in Lancaster with Honest.
After being told Honest had recently been arrested on
suspicion of murder, White said he may have heard from Honest
about a job moving cargo in Lancaster on October 6, 2008. He
denied Smith was involved. After detectives showed White
records showing his cell phone had received calls from Smith’s
4
cell phone on October 5, 2008, White initially said he thought the
calls were coming from Honest to discuss the potential job. He
then admitted he knew Smith (but explained he was not as close
with Smith as he was with Honest). White said he learned the
job had fallen through during the late evening of October 6, 2008
or early morning of October 7, 2008 after he had arrived in
Lancaster. He met Honest by an off-ramp of State Route 14
(SR-14, the Antelope Valley Freeway). Honest seemed upset but
did not say why the job had been cancelled. In a subsequent
interview in March 2011 White admitted the Lancaster job
involved transporting stolen goods and said, when he met with
Honest off SR-14, there was a male passenger in the truck
Honest was driving.
After his initial interview with investigators White spoke to
his wife in a recorded telephone call from jail. At one point his
wife asked, “What are they charging you for?” White responded,
“They, they trying to charge me with the murder, but, I don’t
know, he, he said that . . . he’s going to check the DNA and if the
DNA don’t match than [sic] he’s going to cut me loose tomorrow.”
A moment later White’s wife asked, “You protect yourself when
you eat, correct?” White responded, “Yeah. I’m all right. I’m all
right.” His wife continued, “No. But I know you always clean up
after you eat.” White replied, “Yeah.” His wife persisted,
“Correct?” And White assured her, “Baby. Yeah.”
The People’s cell phone expert opined at trial regarding the
location of White’s, Smith’s, Honest’s and Ponce’s cell phones
leading up to and following Ponce’s death based on records from
the men’s cell phone networks. The lead investigator from the
sheriff’s department, Detective Robert Gray, provided a narrative
5
concerning the likely movement of the cell phones on October 6
and 7, 2008.
Smith called White twice during the afternoon of October 5,
2008. Detective Gray testified based on the phone records
White’s phone was near Honest’s house in South Los Angeles
around 9:00 or 9:15 p.m. on October 6, 2008 and then moved
toward Smith’s apartment in Marina del Rey around 9:45 p.m.
Shortly after 11:00 p.m. Smith’s and Honest’s phones travelled
north along Interstate 405 and Interstate 5 to SR-14 in Santa
Clarita. Around 11:07 p.m. Ponce’s phone was still at his house
when he received a call from Smith’s phone. At 11:43 p.m.
Smith’s phone made another call to Ponce’s phone. Detective
Gray opined Ponce’s phone had travelled south on SR-14 away
from Ponce’s home. Smith’s phone had not moved.
At 12:53 a.m. on October 7, 2008 Ponce’s phone made a call
that indicated it was travelling north back toward Lancaster on
SR-14. At 1:03 a.m. White’s phone called Honest’s phone; both
phones connected to the same cell tower in Lancaster, which was
approximately eight miles from the location where Ponce’s body
was found. White’s phone again called Honest’s phone a few
minutes later. White’s phone had not moved, but Honest’s phone
had connected during the call to a cell tower one mile closer to
the murder scene.
At 2:02 a.m. Ponce’s phone received a call and connected
with a cell tower located near SR-14 and Red Rover Mine Road in
Acton. At 2:04 a.m. one of Honest’s two phones called his second
phone, which connected to the same tower as Ponce’s call
two minutes earlier. Detective Gray opined that someone drove
Ponce’s SUV, which likely contained Ponce’s cell phone, from the
crime scene. The detective believed Smith and Honest were
6
communicating with each other through Honest’s phones, while
one drove Ponce’s SUV.
Thereafter, according to Detective Gray, White’s phone
travelled south in the same direction as Smith’s and Honest’s
phones but several miles behind them. White’s phone called
Honest’s again at 2:30 a.m. and once more at 3:00 a.m. when
White’s phone was in Inglewood. Based on the phones’ locations
during this period, Gray opined they were in the vicinity of
Lake Balboa and the Sepulveda Basin Wildlife Reserve in
Sherman Oaks. The phones contacted each other several more
times during the early morning hours. Honest’s phone called
Smith’s shortly thereafter when both were in Culver City.
Testifying in his defense White explained Honest spoke to
him about a possible driving job that involved moving cargo loads
and would pay $5,000. Honest gave White the phone number for
an individual Honest identified as “T.” On October 5, 2008 “T”
called White and said the job would happen in Lancaster at 12:30
or 1:00 a.m. Honest would provide additional details. The
following evening White got lost while driving toward Lancaster.
He contacted Honest, who told him to wait for a call back. White
and Honest ultimately met on the side of SR-14 near
Santa Clarita. Honest told him that “shit was bad” and there
was no job. White called Honest later to see if there was any
more information. He denied seeing Ponce, killing him or
knowing who did. When asked about the recorded telephone call
with his wife, White testified they were discussing the fact they
had oral sex the morning of his arrest.
2. Reversal of White’s Conviction on Appeal
In this court’s opinion reversing White’s conviction for
insufficient evidence (People v. White, supra, B249633), we
7
emphasized the prosecutor at White’s trial argued only that
White had directly aided and abetted Ponce’s murder. The
People did not assert White was guilty of felony murder
(committed during a robbery) or murder as the natural and
probable consequence of a different target offense (assault).
Because the issue on White’s direct appeal was whether the trial
court had erred in denying his section 1118.1 motion at the close
of the People’s case-in-chief, we did not consider any evidence
presented during White’s defense (including White’s testimony).
The cell phone evidence and White’s statements during his
interrogation and to his wife in their recorded telephone
conversation were insufficient, we held, even when viewed in the
light most favorable to the prosecution, to prove White intended
to kill Ponce or knowingly and intentionally facilitated the
perpetrator’s killing of Ponce.
We explained the cell phone evidence and White’s
inconsistent statements to investigators indicated White was in
communication with Honest, met with Honest and perhaps Smith
and traveled from the general area of the crime in the same
direction and at the same time as Honest and Smith and thus
supported a reasonable inference White was present at the scene
of Ponce’s murder, but not that he intended to kill Ponce or
knowingly aided and abetted the murder. White’s reference to
“the murder” in his call with his wife arguably supported the
inference he knew of Ponce’s murder because of his interactions
with Honest and Smith on October 6 and 7, 2008, rather than
because of the questioning by sheriff’s detectives, as the Attorney
General argued. But that, too, did not provide any affirmative
evidence concerning White’s mental state leading up to Ponce’s
murder. Similarly, disbelief of White’s statements concerning his
8
lack of involvement in any activity in Lancaster on the night of
the murder (which he thereafter contradicted) did not constitute
evidence of his actual participation in the murder.
Finally, we rejected the Attorney General’s argument that,
even if the evidence of White’s role as a direct aider and abettor
was insufficient, substantial evidence supported his conviction
under the natural and probable consequences doctrine as an
aider and abettor of a lesser offense that culminated in Ponce’s
death. That theory was not at issue at trial, we reiterated, and
2
could not be the basis for affirming his conviction on appeal.
3. White’s Section 4900 Petition
White filed a claim for compensation for wrongful
conviction and incarceration pursuant to section 4900 in August
3
2016. In support of his claim White presented this court’s
opinion reversing his conviction and a declaration under penalty
of perjury from Smith stating Smith and White barely knew each
other, Smith had a deal with Ponce to move a load of stolen goods
that did not go through, White had come to Lancaster on the
night of the murder to assist Smith with transporting the goods,
Smith never met White the night of the murder, and, to the best
of Smith’s knowledge, White had never met Ponce and had
nothing to do with his death. White also noted that no physical
evidence connected him to Ponce’s murder or to the stolen SUV
2
We filed our opinion reversing White’s conviction on
May 11, 2015. The remittitur issued July 14, 2015. White was
released from prison on August 6, 2015.
3
White requested $226,240 in compensation for 1,616 days
of wrongful incarceration.
9
and that the People acknowledged that Smith was Ponce’s actual
killer.
The Attorney General opposed the petition, contending
White failed to carry his burden of demonstrating his innocence
by a preponderance of the evidence. The opposition papers
argued White had provided little, if any, affirmative evidence of
his innocence, relying primarily on this court’s reversal of his
murder conviction, and asserted Smith was not a credible witness
regarding White’s role in Ponce’s death.
A contested hearing was held on August 1, 2017 before a
Board hearing officer. The Attorney General stipulated White
had sustained pecuniary injury as a result of his erroneous
conviction and incarceration. The only contested issue was
whether White had established he had not committed the murder
with which he had been charged.
White’s hearing was held jointly with the hearing for a
compensation claim filed by Honest. Both men testified; each
denied any involvement in Ponce’s murder. White’s testimony
was essentially the same as his testimony at trial, including his
denial that he had been present at the murder scene. He
acknowledged he had no additional evidence of his innocence.
Honest testified he hoped to make several thousand dollars from
the job moving cargo the night of October 6, 2008. He drove by
himself to the Lancaster area in Smith’s truck. Honest said he
did not know if Smith was involved with the murder, but
suggested it did not make sense for Smith to take Ponce’s SUV if
he were.
4. The Board’s Decision
The hearing officer issued a proposed decision on
February 16, 2018 denying White’s compensation claim, finding
10
he had failed to carry his burden of proving his innocence. The
hearing officer explained she had “carefully considered White’s
denial and the Court of Appeal’s decision; however, they are not
sufficient alone to warrant a recommendation for compensation
absent substantial independent corroborating evidence that
White is innocent of murder.”
White filed written objections to the proposed decision, and
the Board ordered a further hearing to permit the parties to brief
several issues, including what, if any factual or legal
determinations in this court’s opinion were binding on the Board
and whether White’s application could be denied under an
alternative theory of guilt (felony murder or the natural and
probable consequences doctrine) that had not been presented at
trial.
In a January 29, 2019 proposed decision upon
reconsideration a new hearing officer again denied White’s claim.
The hearing officer determined our findings relating to the
evidence at trial were binding—in particular, that there was
insufficient evidence to establish White aided and abetted the
murder and also that a jury could reasonably infer that White
was present at the scene of Ponce’s murder—but those findings
did not preclude the conclusion that White had failed to
demonstrate his actual innocence of Ponce’s murder. The hearing
officer also concluded, because White was charged with murder
as a nonspecific violation of Penal Code section 187,
subdivision (a), to be entitled to compensation he bore the burden
of demonstrating his innocence of that murder under any legal
theory that could support the charge, which included, prior to the
January 1, 2019 effective date of the Legislature’s reform of the
law regarding accomplice liability for murder, the natural and
11
probable consequences doctrine and felony murder. White’s
evidence failed to carry that burden not only with respect to
direct aiding and abetting but also as to felony murder committed
while Ponce was being robbed of his SUV or murder as the
natural and probable consequence of Ponce’s assault by White
and Honest.
Based on the record before her, the hearing officer stated
the evidence indicated Smith had devised a plan to commit some
type of criminal act with the assistance of Honest and White on
the night of October 6, 2008 in the vicinity of Santa Clarita (the
exact nature of the plan remained unknown). Ponce initially may
have been a willing participant but perhaps was the intended
victim all along. To execute the plan (and consistent with the cell
phone records), White drove first to Honest’s home in Los Angeles
and then to Smith’s home in Marina del Rey. Thereafter, the
three men traveled to Santa Clarita around 11:00 p.m. and met
with Ponce at midnight. All four men then drove north to a
remote location in Lancaster. That meeting ended with Ponce
beaten and shot to death and his SUV taken by Smith. This
court concluded it was a reasonable inference that White’s
presence at the scene and his “cryptic conversation” with his wife
about cleaning up after himself when he ate suggested his direct
involvement in the criminal activity rather than merely
observing the others. Immediately after the time of Ponce’s
death, Smith, Honest and White left the area where the crime
had occurred. “[T]hese inferences from the administrative
record,” the hearing officer wrote, “strongly suggest that White is
guilty of Ponce’s murder. . . . It matters not whether these
circumstances rise to the level of demonstrating White’s guilt[ ]
beyond a reasonable doubt or by a preponderance because the
12
burden remains upon White to demonstrate by a preponderance,
that he did not murder Ponce under any of these plausible
theories.”
As summarized by the hearing officer in the concluding
section of her proposed decision, “The inculpating evidence
includes White’s presence when Ponce was fatally shot five times
by Smith and brutally assaulted by Honest. It also includes
White’s repeated false denials that he was not there, which are
indicative of his consciousness of guilt. It further includes
White’s explanation about his jailhouse conversation with his
wife Perez, which revealed not only that White had previously
discussed Ponce’s murder with Perez, but also that their
discussion caused Perez to fear that White’s DNA may be
discovered. [¶] . . . [¶] All in all, White’s exculpatory evidence
does not outweigh the incriminating evidence. Specifically, it
fails to prove that White is more likely innocent, than guilty, of
Ponce’s murder. . . . [¶] White repeatedly insists that, because
the appellate court found no evidence to show what he was doing
the night of Ponce’s murder, [the Board] cannot infer that he
assaulted, robbed, or murdered Ponce. [Fn. omitted.] Not so. In
this proceeding, where White bears the burden of persuasion, the
absence of any finding as to what White was doing necessarily
opens the door to all possibilities. Absent affirmative proof that
none of the plausible scenarios implicating White in Ponce’s
murder occurred, White has not shown that he is more likely
innocent, than guilty, of Ponce’s murder. Thus, White has failed
to prove his innocence, even if the evidence is insufficient to prove
his guilt.”
13
On February 25, 2019 the Board adopted the hearing
officer’s proposed decision upon reconsideration as its decision in
the matter.
5. White’s Petition for Administrative Mandamus
White filed a verified petition for writ of administrative
mandate on May 28, 2019, seeking to set aside the Board’s
decision. White contended the Board denied him a fair hearing
by requiring him to disprove theories of murder liability not
presented at his trial (and which were eliminated or significantly
narrowed by Senate Bill No. 1437 (Stats. 2018, ch. 1015)) and its
decision, replete with misstatements and misrepresentations of
the record, was not supported by the evidence.
The superior court denied the petition. Although seeming
to agree with the Board and the Attorney General that
compensation could be denied if White failed to prove his
innocence of Ponce’s murder under the felony-murder rule, the
superior court ruled the issue was moot because White had not
shown his innocence under the direct aiding and abetting theory
on which the prosecution had relied at trial. The court explained
that the Board found, consistent with this court’s opinion, White
was present at the scene when Ponce was fatally shot by Smith.
“Based on this finding, it was up to White to demonstrate why he
was there, that he lacked any requisite intent, and/or that he
performed no acts to help Smith. . . . [¶] White utterly failed to
4
do so.”
4
The Board’s analysis of what may have happened based on
the circumstantial evidence in the record, the superior court
wrote, “while interesting and impressive,” was not necessary to
its decision, although it did “explain the Board’s reasoning and
supports its conclusion that White failed to prove his innocence.”
14
The superior court specifically addressed six of the Board’s
findings that White argued were not supported by substantial
evidence, noting at the outset that whether they were “is
irrelevant because White failed to meet his burden.” First, White
was present at the murder scene, which implicated him in
Ponce’s murder. Substantial evidence supported the finding
White was at the scene (a reasonable inference according to our
appellate decision). Approving that finding did not depend on
whether the Board also had sufficient evidence to conclude White
was guilty of murder.
Second, White participated in an assault or robbery of
Ponce. The superior court agreed with White there was not
substantial evidence he assaulted Ponce. But, the court pointed
out, the Board did not make that finding, concluding only that it
was plausible that he had joined in the attack on Ponce. In any
event, White’s failure to present evidence of what he was doing
when Ponce was murdered was fatal to his claim.
Third, White met with Smith, Honest and Ponce in
Santa Clarita prior to Ponce’s killing.
Fourth, White stopped between 2:38 a.m. and 2:49 a.m.
near Lake Balboa and the Sepulveda Basin Wildlife Reserve,
possibly to clean up and/or to dispose of the murder weapon. The
court again agreed with White there was not substantial evidence
to support these findings, which were part of the Board’s
speculation as to what actually happened, but these gaps in the
narrative did not impact the validity of the Board’s conclusion
White had failed to carry his burden of proof.
Fifth, based on the conversation between White and his
wife, it is reasonable to assume, as the court of appeal did, White
knew of Ponce’s murder because of his interactions with Smith
15
and Honest. The superior court agreed with White that the
Board misstated this court’s discussion of the import of the
telephone call, but characterized the error as immaterial. The
Board was correct, the court stated, that the call showed White’s
preexisting knowledge of “the murder,” not that he had learned
for the first time in his interviews with the detectives that
someone had been murdered.
Sixth, Smith’s declaration was not credible. The Board
adequately explained why it found Smith not credible, the court
ruled, beginning with his denial of having murdered Ponce when
it was undisputed that he had. In addition, Smith had significant
reasons to curry favor with White, who could be a favorable
witness for Smith if he were to be retried for Ponce’s murder.
Moreover, Smith’s version of events changed over time, and his
declaration that he did not meet with either White or Honest on
the night of the murder was directly contradicted by Honest’s
testimony.
In a short conclusion the superior court reiterated that
White had not carried his burden: “Contrary to his story, he was
at the murder scene at the time of the murder. He fails to show
what he did or did not do and why he lacked the requisite intent.
The Board’s analysis of what may have or probably happened is
not necessary to its decision that White is not entitled to
compensation.”
The superior court entered its judgment denying all relief
requested in White’s petition on February 14, 2020. White filed a
timely notice of appeal.
16
DISCUSSION
1. Standard of Review
Code of Civil Procedure section 1094.5, the administrative
mandamus statute, provides for judicial review of administrative
orders or decisions. (Topanga Assn. for a Scenic Community v.
County of Los Angeles (1974) 11 Cal.3d 506, 514.) The question
presented by a petition for writ of administrative mandate is
whether the agency or tribunal that issued the decision being
challenged “proceeded without, or in excess of, jurisdiction;
whether there was a fair trial; and whether there was any
prejudicial abuse of discretion.” (Code Civ. Proc., § 1094.5,
subd. (b).) “Abuse of discretion is established if the respondent
has not proceeded in the manner required by law, the order or
decision is not supported by the findings, or the findings are not
supported by the evidence.” (Ibid.)
On appeal from the judgment on a petition for writ of
administrative mandate in a case not involving fundamental
vested rights, we review the agency’s findings, not the superior
court’s decision, for substantial evidence. (Doe v. University of
Southern California (2018) 28 Cal.App.5th 26, 34; Benetatos v. City
of Los Angeles (2015) 235 Cal.App.4th 1270, 1281; see Code Civ.
Proc., § 1094.5, subd. (c) [“abuse of discretion is established if the
court determines that the findings are not supported by
substantial evidence in the light of the whole record”].) White’s
compensation claim did not involve a fundamental vested right.
(See Madrigal v. California Victim Comp. & Government Claims
Bd. (2016) 6 Cal.App.5th 1108, 1113 [“Madrigal did not have a
fundamental vested right to compensation from the Board”];
Tennison v. California Victim Comp. & Government Claims Bd.
(2007) 152 Cal.App.4th 1164, 1182 (Tennison) [“Tennison’s
17
application for monetary compensation pursuant to [Penal Code]
section 4900 is neither fundamental nor vested”].) The petitioner
in the administrative mandamus proceeding “has the burden of
proving that the agency’s decision was invalid and should be set
aside, because it is presumed that the agency regularly performed
its official duty.” (Desmond v. County of Contra Costa (1993)
21 Cal.App.4th 330, 335.)
2. Governing Law: 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; accord, Larsen v. California Victim Comp. Bd. (2021)
64 Cal.App.5th 112, 123 (Larsen), review granted August 25,
2021, S269406.) 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.”
(Etheridge, at p. 806.)
Section 4900 provides any person convicted of a felony and
incarcerated as a consequence who is “innocent of the crime with
which he or she was charged” because that crime “was either not
committed at all or, if committed, was not committed by him or
her” may present a claim to the Board “for the pecuniary injury
sustained by him or her through the erroneous conviction and
5
imprisonment or incarceration.” (See also § 4904 [“[i]f the
5
By statute the Board’s recommendation for compensation
for erroneous conviction is to be a sum equal to $140 per day of
incarceration. (§ 4904.) “Board recommendations for
compensation are just that, recommendations. Legislators can—
and do—vote against bills making appropriations for the
18
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, and that the claimant has sustained
injury through his or her erroneous conviction and imprisonment,
the California Victim Compensation Board shall report the facts
of the case and its conclusions to the next Legislature, with a
recommendation that the Legislature make an appropriation for
the purpose of indemnifying the claimant for the injury”];
Tennison, supra, 152 Cal.App.4th at p. 1182 [“a claim for
‘pecuniary injury sustained . . . through . . . erroneous conviction
and imprisonment’ may be presented pursuant to section 4900 if
the claimant can show he or she is ‘innocent of the crime with
which he or she was charged’ because it was ‘not committed by
him or her’”].)
Section 4903, subdivision (a), provides for a hearing before
the Board with the burden of proof on the claimant except in
specified circumstances not applicable in White’s case: “Except
as provided in Sections 851.865 and 1485.55, the board shall fix a
time and place for the hearing of the claim. At the hearing the
claimant shall introduce evidence in support of the claim, and the
Attorney General may introduce evidence in opposition thereto.
The claimant shall prove the facts set forth in the statement
constituting the claim, 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, and the injury
sustained by them through their erroneous conviction and
incarceration.” (See Cal. Code Regs., tit. 2, § 644, subd. (c)
payment of such claims.” (Larsen, supra, 64 Cal.App.5th at
p. 124, fn. 6, review granted.)
19
[claimant has burden of proof on all issues necessary to establish
eligibility; standard of proof is a preponderance of the evidence].)
3. The Evidence Before the Board Did Not Compel a
Finding of White’s Innocence in the Murder of Ponce
In this court White argues, as he did in the superior court,
that the Board abused its discretion in denying his claim for
compensation by requiring him to demonstrate he was innocent
of murder under the felony-murder rule and the natural and
probable consequences doctrine and by making findings not
supported by substantial evidence to reinforce its determination
he had failed to demonstrate his innocence of Ponce’s murder (the
same six findings addressed by the superior court). A fair
reading of the administrative record, he insists, supports the
conclusion he was in the Lancaster area on the night of Ponce’s
murder only to assist Honest in moving a load of stolen cargo
and, when Honest informed him the job had fallen through, he
left the area without ever seeing Ponce or Smith.
We need not address White’s first contention. Because, as
we discuss, the superior court properly denied White’s petition
based on the Board’s determination he had failed to prove his
innocence as a direct aider and abettor of Ponce’s murder, any
error in also requiring him to establish his innocence under other
theories of accomplice liability was necessarily harmless. (See
Thornbrough v. Western Placer Unified School Dist. (2013)
223 Cal.App.4th 169, 200 [“‘A writ of administrative mandamus
will not be issued unless the court is persuaded that an abuse of
discretion was prejudicial. [Citation.] In other words, the
reviewing court will deny the writ, despite abuse of discretion, if
the agency’s error did not prejudicially affect the petitioner’s
substantial rights’”]; see also Quintanar v. County of Riverside
20
(2014) 230 Cal.App.4th 1226, 1228, 1236 [reversing judgment
granting writ of administrative mandate where the hearing
officer’s use of the wrong standard of review was an abuse of
discretion but was not prejudicial because use of the correct
standard “would not have changed the outcome”]; Leal v.
Gourley (2002) 100 Cal.App.4th 963, 968 [a party filing a petition
for writ of administrative mandate must show not only error in
the agency proceedings but also prejudice resulting from that
error—a “miscarriage of justice” as specified in article VI,
section 13 of the California Constitution].) White does not argue
to the contrary in either his opening or reply brief.
White’s second contention rests on a fundamental
misunderstanding of his burden of proof before the Board and the
standard of review governing his petition for writ of
administrative mandate. Compensation requires an affirmative
showing of factual innocence, not the absence of evidence of
culpability. (Tennison, supra, 152 Cal.App.4th at p. 1182;
see Diola v. State Board of Control (1982) 135 Cal.App.3d 580,
588, fn. 7 [“[T]he board’s section 4900 determination is a civil
determination of culpability. To prevail claimant must carry the
burden of proof of innocence by a preponderance of the evidence”];
Ebberts v. State Board of Control (1978) 84 Cal.App.3d 329, 335
[“[w]e interpret the phrase ‘not committed at all’ in
[sections] 4900 and 4903 to mean the claimant can show the
board that he was ‘innocent’ in the sense that he did not do the
acts which characterize the crime”]; see also People v. Etheridge,
supra, 241 Cal.App.4th at pp. 809-810 [as used in section
1485.55, a finding of “factual innocence” in a habeas corpus
proceeding, which is binding on the Board, is intended to have
the same meaning as the language used in sections 4900, 4903
21
and 4904 and requires the petitioner to “demonstrate by a
preponderance of the evidence that he or she was ‘innocent’ in the
sense that he or she did not perform the acts ‘that characterize
the crime’ or are elements of the crime, and was therefore
6
‘wrongfully convicted and unlawfully imprisoned’”].)
6
Section 1485.55, subdivision (a), provides, “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 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.”
Senate Bill No. 446 (2021-2022 Reg. Sess.) amends
section 1485.55, subdivision (a), effective January 1, 2022, to
provide it applies in both contested and uncontested proceedings
and to add the language “under any standard for factual
innocence applicable in those proceedings” (which includes
habeas proceedings) immediately after the statutory reference to
“if the court has found that the person is factually innocent,” thus
clarifying the applicable circumstance in which the court has
made the finding of factual innocence. (Stats. 2021, ch. 490, § 2.)
That amendment appears to resolve the conflict between
Souliotes v. California Victim Compensation Board (2021)
61 Cal.App.5th 73, review granted June 9, 2021, S267930 (which
held the federal court’s “gateway” finding of actual innocence
pursuant to Schlup v. Delo (1995) 513 U.S. 298 underlying the
grant of habeas relief did not satisfy the factually innocent
standard of section 1485.55, subdivision (a)) and Larsen, supra,
64 Cal.App.5th 112, review granted (which held the Schlup
gateway finding, when coupled with the grant of habeas relief,
satisfied section 1485.55, subdivision (a), and was binding on the
Board).
22
White admitted he and Honest were engaged in a criminal
enterprise the night of Ponce’s murder involving the
transportation of stolen goods—the type of illegal activity in
which Ponce also participated. Smith confirmed he and Ponce
discussed transporting stolen goods that evening. Cell phone
records show White was in contact with Honest before and after
the time of Ponce’s murder, Honest was in communication with
Smith, and Smith with Ponce. Notwithstanding Smith’s denials
and two juries’ inability to unanimously agree Smith was guilty
of the murder beyond a reasonable doubt, there was ample
evidence, as White asserts, that Smith, who had possession of
Ponce’s stolen SUV, was Ponce’s actual killer.
As we held in our opinion reversing White’s conviction, a
jury (or the Board) could reasonably infer from this evidence that
White was present at the scene of Ponce’s murder. We also held,
as White emphasizes, that this foundational inference, even when
considered with the prosecution’s other evidence, was insufficient
to support the further inference (that is, it did not constitute
substantial evidence) that White aided and abetted Ponce’s
murder. But that further conclusion of ours, binding on the
Board, still leaves White with the burden of showing he did not
directly aid or abet Smith’s murder of Ponce: A finding that a
The new legislation also modifies sections 4900 through
4904 with respect to Board procedures in cases in which a writ of
habeas corpus was granted without a finding of factual innocence
and charges were subsequently dismissed or the person acquitted
on retrial, placing the burden on the Attorney General to prove
the claimant is not entitled to compensation. Senate Bill
No. 446’s amendments do not affect someone like White whose
conviction was reversed on appeal for insufficient evidence.
23
defendant could not be found guilty beyond a reasonable doubt is
not a factual finding that he or she did not commit the crime in
question, as required by section 4900. Similarly, the absence of
physical evidence connecting White to the crime scene or to
Ponce’s stolen SUV does not prove White was not at the crime
scene. (Cf. In re Sagin (2019) 39 Cal.App.5th 570, 581 [the
absence of DNA evidence connecting petitioner to the crime scene
does not prove he was not present; “[i]t proves only that Sagin’s
DNA was not on the items tested”].)
As for White’s testimony he was not at the crime scene and
did not participate in the murder, Honest’s testimony regarding
the events of the evening, and Smith’s sworn declaration that he
and White did not meet the night of Ponce’s murder and, to
Smith’s knowledge, White was not involved in the crime—
arguably new evidence supporting White’s claim of innocence—
the Board disbelieved those three witnesses. It is not our role to
reweigh credibility determinations. (See Do v. Regents of
University of California (2013) 216 Cal.App.4th 1474, 1492;
Kolender v. San Diego County Civil Service Com. (2005)
132 Cal.App.4th 1150, 1155; see also In re Marriage of Falcone &
Fyke (2012) 203 Cal.App.4th 964, 979 [the trier of fact “may reject
any evidence as unworthy of credence, even uncontradicted
testimony”]; accord, Hicks v. Reis (1943) 21 Cal.2d 654, 659
[“[t]he trier of the facts is the exclusive judge of the credibility of
the witnesses”].) Even so, the Board had ample reason to
discredit their claims. None was a disinterested witness: White
and Honest had claims for compensation pending before the
Board, and Smith remained at risk for prosecution for Ponce’s
murder. Each gave conflicting versions of the evening’s events at
various times, and provided stories that were inconsistent with
24
the records of their cell phone calls and later admissions. White,
in particular, during his initial police interrogation falsely denied
ever being in Lancaster, doing any work with Honest or even
knowing Smith.
As the superior court explained (and the Attorney General
argues on appeal), it is immaterial that aspects of the Board’s
narrative as to White’s likely role in the events of the evening
and, in particular, what he may have done while present at the
crime scene, require conjecture not supported by the
administrative record. That we do not know what occurred,
however, is not determinative given section 4903’s allocation to
the claimant of the burden of proving he or she did not commit
the crime charged. The absence of reliable evidence of his actual
innocence—not the existence of evidence of his guilt—foreclosed
White’s claim. (Cf. Larsen, supra, 64 Cal.App.5th at p. 127,
review granted [a credible “gateway” claim of actual innocence in
a federal habeas proceeding requires “‘new reliable evidence—
whether it be exculpatory scientific evidence, trustworthy
eyewitness accounts, or critical physical evidence—that was not
presented at trial’”].)
Indeed, because it was White’s burden to prove his
innocence by a preponderance of the evidence and the Board
found he failed to carry that burden, the proper formulation of
the standard of review is whether “‘the evidence compels a
finding in favor of the appellant as a matter of law. [Citations.]
Specifically, the question becomes whether the appellant’s
evidence was (1) “uncontradicted and unimpeached” and (2) “of
such a character and weight as to leave no room for a judicial
determination that it was insufficient to support a finding.”’”
(Juen v. Alain Pinel Realtors, Inc. (2019) 32 Cal.App.5th 972,
25
978-979; see In re R.V. (2015) 61 Cal.4th 181, 201 [where party
fails to carry its burden on an issue, “the inquiry on appeal is
whether the weight and character of the evidence . . . was such
that the [finder of fact] could not reasonably reject it”].) The
evidence in the administrative record falls far short of meeting
that extremely demanding standard.
DISPOSITION
The judgment of the superior court is affirmed. The parties
are to bear their own costs on appeal.
PERLUSS, P. J.
We concur:
SEGAL, J.
FEUER, J.
26