The opinion
Filed 12/29/23
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION TWO
JOSHUA ZAMORA B323360
GONZALES,
(Los Angeles County
Plaintiff and Appellant, Super. Ct. No.
20STCP04185)
v.
CALIFORNIA VICTIM
COMPENSATION BOARD,
Defendant and
Respondent;
PEOPLE OF THE STATE OF
CALIFORNIA,
Real Party in Interest.
APPEAL from a judgment of the Superior Court of Los
Angeles County, Mary H. Strobel, Judge. Affirmed.
The Law Offices of Jarrett Adams, Jarrett Adams, Lillian
C. Gaither and Megan D. Baca for Plaintiff and Appellant.
Rob Bonta, Attorney General, Jodi L. Cleesattle, Senior
Assistant Attorney General, Donna M. Dean, Supervising Deputy
Attorney General, and Andrew Huang, Deputy Attorney General,
for Defendant and Respondent.
Rob Bonta, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Michael P. Farrell, Senior Assistant
Attorney General, Julie A. Hokans, Supervising Deputy Attorney
General, and Jessica C. Leal, Deputy Attorney General, for Real
Party in Interest.
******
In California, inmates who are exonerated of their crimes
may apply to an administrative board for compensation for the
time they were erroneously imprisoned. (Pen. Code, § 4900 et
seq.)1 Here, an inmate convicted as the shooter in a gang-related
drive-by shooting applied for such compensation after the United
States Court of Appeals for the Ninth Circuit (the Ninth Circuit)
granted the inmate’s habeas corpus petition and overturned his
convictions on the basis of insufficiency of the evidence presented
at trial. Under the pertinent statutes in effect in 2020, an
inmate’s entitlement to compensation in this situation turned on
his ability to prove, by a preponderance of the evidence, his
“factual innocence.” (Former § 1485.55, subd. (b), Stats. 2019, ch.
473 (Sen. Bill No. 269), § 1, eff. Jan. 1, 2020; former § 4903, subd.
(a), Stats. 2019, ch. 473 (Sen. Bill No. 269), § 3, eff. Jan. 1, 2020;
1 All further statutory references are to the Penal Code
unless otherwise indicated.
2
Cal. Code Regs., tit. 2, § 644, subd. (d).)2 In determining whether
the inmate has carried this burden, the “factual findings and
credibility determinations establishing the court’s basis for
granting a writ of habeas corpus” are “binding” in the
compensation proceeding before the board. (§§ 4903, subd. (b),
1485.5, subds. (c) & (d).) This appeal presents two questions.
First, does the conclusion of a habeas court granting relief that
the evidence at trial was insufficient to support an inmate’s
conviction beyond a reasonable doubt automatically establish
that inmate’s factual innocence by a preponderance of the
evidence? Second, do the habeas court’s summary of the trial
record as well as commentary on the relative strength or
weakness of the evidence in that record—in the course of
granting relief to the inmate—constitute “factual findings” that
are “binding” in the subsequent administrative proceeding to
award that inmate compensation? We hold that the answer to
each question is “no.” We further conclude that, even if there
were “factual findings” in this case, the board treated them as
binding. As a result, we agree with the trial court that the
board’s denial of compensation to the exonerated inmate in this
case does not warrant the issuance of a writ of administrative
mandamus and accordingly affirm.
2 Unless otherwise noted, all further references to the
statutes governing an inmate’s entitlement to compensation for
erroneous conviction and imprisonment are to the statutes in
effect at the time the administrative proceedings in this case
were conducted.
3
FACTS AND PROCEDURAL BACKGROUND
I. The Crime
On a Saturday night in October 2008, three men standing
on a street corner in a residential neighborhood down the block
from a party were shot. The shooter fired from the backseat of a
“black” or “dark-colored,” newer model Cadillac with rims and
three people riding inside. The shooting was gang-related: The
men were “talking shit” to passersby, and the shooter in the
Cadillac made the archetypical gang challenge—demanding to
know, “Where you fools from?”—before opening fire. All three
shooting victims survived their wounds.
No direct evidence tied Joshua Zamora Gonzales (Gonzales)
to the shooting. No witness, including none of the victims,
positively identified Gonzales as the shooter. One victim testified
that Gonzales was not the shooter, but subsequently clarified
that he did not see who shot him. A search of Gonzales’s home
did not turn up any firearm or firearm paraphernalia. No one
came forward to say Gonzales was involved. And Gonzales, in a
post-arrest interview, denied being the shooter.
Thus, all evidence of Gonzales’s involvement in the
shooting was circumstantial. He was present at the party. He
wore a baseball cap sporting the Pittsburgh Pirates’ “P” logo
signifying the Playboyz street gang, bragged to other partygoers
that he was a member of the Playboyz gang who went by the
moniker “Knuckles,” and had also previously told police he was a
member of that gang. The victims wore “L.A. gear” worn by one
of the Playboyz’s rival gangs. Gonzales admitted to driving by
the victims while in the backseat of a newer model Cadillac with
rims and containing three people, although he claimed the
Cadillac was “red” “like a fire truck” or “light red.” Moments
4
before the shooting, the victims “started talking shit” to Gonzales
and Gonzales responded, “what’s up.” Gonzales had two particles
of gunshot residue on his right hand, although that residue—
because the test was not conducted until 12 hours after the
shooting and because Gonzales had washed his hands in the
interim—was equally consistent with Gonzales touching a
surface with gunshot residue as with Gonzales firing a gun. In
his post-arrest interview, Gonzales also changed his story about
being present at the location of the shooting and interacting with
the shooting victims and repeatedly refused to answer questions
for fear of being known as a “snitch.”
II. Gonzales’s Prosecution and Conviction
The People charged Gonzales (in San Bernardino County)
with three counts of attempted premeditated murder (§§ 187,
subd. (a), 664), and shooting from a motor vehicle (§ 12034). The
People further alleged that Gonzales personally and intentionally
discharged a firearm causing great bodily injury (§ 12022.53,
subds. (b)-(d)), personally and intentionally discharged a firearm
from a motor vehicle (§ 12022.55), and committed the charged
crimes for the benefit of, at the direction of, or in association with
a criminal street gang (§ 186.22, subd. (b)(1)(C)).
In December 2009, a jury convicted Gonzales of all charged
crimes and found true the firearm and gang allegations.
In January 2010, the trial court sentenced Gonzales to
prison for 86 years and eight months.
III. Review of Gonzales’s Convictions
A. Direct appeal
On direct appeal of his conviction, Gonzales challenged the
sufficiency of the evidence underlying his convictions. The
California Court of Appeal, Fourth Appellate District, held in an
5
unpublished opinion that circumstantial evidence supported the
jury’s finding that Gonzales was the shooter—namely, (1) a
partygoer’s testimony that Gonzales was “dressed like a Playboyz
gang member and associating with other gang members”; (2)
Gonzales’s “admissions to the police that he attended the party,
dressed as [the partygoer] described him, and that he was in a
car, passing by a group of men on the street at the time of the
shooting”; and (3) Gonzales’s “positive gunshot residue test.”
(People v. Gonzales (June 3, 2011, E050175) [nonpub. opn.].)
The California Supreme Court denied Gonzales’s petition
for review.
B. Federal habeas corpus review3
1. District Court proceedings
Gonzales filed a petition for a writ of habeas corpus in the
United States District Court for the Central District of
California. Among other claims, he argued that his convictions
were not supported by substantial evidence. In a July 2013
order, the court rejected Gonzales’s claim, “find[ing] no defect in
the state [appellate] court’s analysis and determination”
regarding the sufficiency of the evidence. (Gonzales v. Gipson
(July 19, 2013, ED CV 12-862-BRO (PLA).)
2. Ninth Circuit proceedings
Gonzales appealed the denial of his habeas petition to the
Ninth Circuit.
3 Gonzales also filed a petition for writ of habeas corpus in
California state court on Eighth Amendment grounds, but that
petition was denied and that basis for relief is not at issue in this
appeal.
6
In August 2016, a three-judge panel initially affirmed the
denial in a 2-1 decision, with one judge dissenting. (Gonzales v.
Gipson (9th Cir. 2016) 659 Fed.Appx. 400.)
Gonzales petitioned for rehearing, and the three-judge
panel granted the petition and issued a new 2-1 decision in April
2017. (Gonzales v. Gipson (9th Cir. 2017) 687 Fed.Appx. 548.) In
this decision (which was later modified), the two-judge majority
ruled that “the evidence [was] constitutionally insufficient to
support Gonzales’s convictions.” The majority then offered six
reasons for this conclusion, each of which summarized and/or
made observations about the trial record:
● “First, no eyewitness testified that Gonzales was the
shooter or could identify any of the occupants of the vehicle from
which the shots were fired.”
● “Second, testimony concerning Gonzales’s baseball
cap and gang affiliation does not distinguish him from other
people present on the night of the shooting. . . . No witness
testified that the shooter wore a baseball cap that matched the
one Gonzales wore that night. The evidence did not establish
that a person known as ‘Knuckles’ was connected with the
shooting, nor that the victims were shot to benefit the Playboyz
gang specifically.”
● “Third, witnesses’ descriptions of the car from which
the shots were fired did not match descriptions of the car in
which Gonzales claimed he was a passenger” because Gonzales
“consistently stated” he was in a “light red Cadillac,” while
witnesses described a “black or dark colored” Cadillac. Also,
Gonzales “repeatedly denied ever shooting a gun.”
● “Fourth, although Gonzales stated during his police
station interview that he was the rear passenger in a car that
7
drove by some men on the street who were ‘talking shit’ and that
he later heard gunshots, he did not clearly admit that he
exchanged words with or motioned to anyone from the backseat
of his friend’s light red Cadillac.”
● “Fifth, the two particles of gunshot residue on
Gonzales’s right hand do not connect him to any gun fired on the
night of the shooting” because, due to the delay in time and hand-
washing, “it was just as likely the particles came from contacting
a surface contaminated with gunshot residue as from firing a
firearm, handling a firearm, or being in close proximity to a
discharged firearm.”
● “Sixth, despite a thorough search, police officers
found no weapons, bullets, gun magazines, gun cleaning devices,
or other firearm paraphernalia at Gonzales’s home.”
Because Gonzales’s “convictions rest on” what the two-
judge majority characterized as “a speculative and weak chain of
inferences that he was the shooter and that he personally
discharged a firearm,” the majority reiterated its conclusion that
the evidence at trial was “constitutionally insufficient” because it
“does not permit any rational trier of fact to conclude that
Gonzales was guilty beyond a reasonable doubt.”
IV. Administrative Proceeding Seeking Compensation
A. Filing of petition for compensation
Following his release from custody on July 25, 2017,
Gonzales in August 2017 filed a claim with the California Victim
Compensation Board (the Board) seeking $450,240 in
compensation for the 3,216 days he was incarcerated under the
now-invalid convictions.
The Board stayed the proceedings while Gonzales litigated
a petition for a finding of his factual innocence in the San
8
Bernardino County Superior Court. After an evidentiary hearing
at which Gonzales testified, the court denied his petition, finding
that the sum total of evidence—including that Gonzales “was at
the location [of the shooting], matched the description, was
wearing a hat consistent with gang involvement, was untruthful
[during his post-arrest interview],” and had “gunshot residue on
his hand”—indicated that Gonzales was, “in fact, factually
culpable and guilty.”4
B. Hearing
At the behest of the Board, a hearing officer conducted an
evidentiary hearing on Gonzales’s petition for compensation in
April 2019.
The People introduced an enhanced audio recording of
Gonzales’s post-arrest interview, which made it possible to hear
and understand a portion of Gonzales’s statement that was
previously “inaudible” in the version that was part of the trial
record; in that portion, Gonzales admitted that he had asked the
men on the street corner, “Oh, where are you fools from, dawg?”
Gonzales introduced an affidavit from “Dave Herrada,” who
declared that he drove his “light red colored Cadillac” the night of
the party and that no one from the car fired a firearm. Gonzales
did not call Herrada to the stand, so he was not subject to cross-
examination.
Gonzales also testified. Gonzales reaffirmed that he was at
the party, that the men on the corner approached him and his
friends “aggressively” as they drove by in a “light red Cadillac,”
and that he and his friends ignored those men and drove off.
Gonzales denied asking the men, “[W]here are you fools from?”
4 The court also added its view that Gonzales “should still be
in prison for this crime.”
9
until he was confronted with the enhanced recording, at which
point he admitted it. Gonzales denied being a member of the
Playboyz gang, but acknowledged that he had been photographed
throwing Playboyz “gang signs,” that he had registered as a
Playboyz gang member with the police, that he proclaimed
himself to be “Knuckles from Playboyz” on a social media profile,
and that he had told the police in his post-arrest interview that
he bragged to other partygoers he was “Knuckles” with the
Playboyz gang.
C. Ruling
Following post-hearing briefing, the Board in September
2020 adopted the hearing officer’s 31-page ruling denying
Gonzales’s claim for compensation. Specifically, the Board
concluded that Gonzales “failed to satisfy his burden of proving
he is more likely innocent, than guilty, of his vacated convictions”
and “failed to demonstrate his innocence by a preponderance of
evidence.”
The Board acknowledged—as Gonzales and the People
urged—that it was bound by “any factual finding[s]” of the Ninth
Circuit in granting habeas relief and by the San Bernardino
County Superior Court in denying a finding of factual innocence,
but found that those two sets of findings were “not necessarily
inconsistent” because the Ninth Circuit’s ruling assessed whether
the evidence at trial was sufficient to prove guilt beyond a
reasonable doubt, while the Superior Court assessed whether the
trial evidence and additional evidence proved that Gonzales was
innocent by a preponderance of the evidence. The Board went
further by treating the Ninth Circuit’s “characterizations of the
trial court record” as “factual findings,” and listed several of the
characterizations set forth in the Ninth Circuit’s decision.
10
The Board then enumerated three reasons for its
conclusion that Gonzales had not met his burden of establishing
his factual innocence. First, the Board set forth the evidence
from the trial that circumstantially inculpated Gonzales,
including (1) “his presence at the crime scene”; (2) the “striking
number of shared circumstances between Gonzales and the
shooter,” such as both leaving the party around the same time in
a newer model Cadillac with rims and with three people in it,
both being seated in the back seat of the Cadillac, both wearing
baseball caps, both passing the three men on the street corner at
around the same time, and both asking the men where they were
from; (3) the presence of two particles of gunshot residue on
Gonzales’s hand, “suggest[ing] the possibility that he was the
shooter”; and (4) his status as “an admitted and documented”
member of a street gang in what was a “gang-motivated”
shooting. Second, the Board found Gonzales’s testimony before
the hearing officer to be “not credible” given that he “falsely
described” his criminal history, and given the sheer number of
“patently inconsistent statements” he made about the shooting—
which included both “admitt[ing] and den[ying]” (1) “being a
member of the Playboyz gang,” (2) “being present when shots
were fired,” and (3) “asking the victims where they were from.”
Third, the Board found Herrada’s declaration “untrustworthy”
because (1) his name did not exactly match the name given by
Gonzales as someone who was with him on the night of the
shooting; (2) the declaration omits the name of the third person
in the Cadillac; and (3) the declaration contradicted some of
Gonzales’s own statements, which also were internally
inconsistent, regarding who owned and who drove the Cadillac on
the night of the shooting.
11
V. Administrative Mandamus Proceedings
In December 2020, Gonzales filed a petition for a writ of
administrative mandamus in the Los Angeles County Superior
Court seeking to overturn the Board’s denial of his claim for
compensation.5 After the Board answered the petition, Gonzales,
the Board, and the People (as the real party in interest) briefed
whether Gonzales was entitled to relief. The court convened a
hearing in July 2022, and issued a 16-page written ruling a week
later.
The court ruled that the Board’s denial of Gonzales’s
compensation claim did not constitute a prejudicial abuse of
discretion because it was “supported by substantial evidence.”
The court found that the Board had “give[n] ‘binding effect’” to
both the Ninth Circuit’s findings and the San Bernardino County
Superior Court’s findings, and was able to do so because those
two courts applied “different . . . standards.” The court next
found that the Board’s conclusion that Gonzales had not proven
his factual innocence by a preponderance of the evidence was
reasonable and supported by substantial evidence.
VI. Appeal
Following the entry of judgment, Gonzales filed this timely
appeal.
5 Gonzales also styled his petition as one for traditional
mandamus, but that type of writ is unavailable where, as we
conclude in Section I of the Discussion below, an administrative
agency holds an evidentiary hearing and is vested with discretion
to determine the facts (and hence does not have a ministerial
duty to act in a certain way). (Bunnett v. Regents of University of
California (1995) 35 Cal.App.4th 843, 848.)
12
DISCUSSION
Gonzales argues that the trial court erred in denying his
petition for a writ of administrative mandamus seeking to compel
the Board to grant his claim for compensation for erroneous
conviction and imprisonment.6
I. Pertinent Law
A. Administrative mandamus
A person aggrieved by the ruling of an administrative
agency may file a petition for a writ of administrative mandamus
to invalidate that ruling. (Code Civ. Proc., § 1094.5, subd. (a).)
As pertinent here, a writ will issue if the administrative agency
has committed a “prejudicial abuse of discretion,” which exists
when the ruling is “not supported by the [agency’s] findings” or
those “findings are not supported by the evidence.” (Id., subd.
(b).) The degree of judicial scrutiny turns on the extent to which
the agency’s ruling involves or substantially affects a
“fundamental, vested right.” (Bixby v. Pierno (1971) 4 Cal.3d 130,
139, 144; Interstate Brands v. Unemployment Ins. Appeals Bd.
(1980) 26 Cal.3d 770, 778.) Where such rights are at stake, the
trial court’s task is to independently evaluate whether the
agency’s findings are supported by the record, and our task, in
reviewing the grant or denial of such a writ, is to examine
whether the trial court’s ruling is supported by substantial
evidence. (Berlinghieri v. Department of Motor Vehicles (1983) 33
6 In his briefs on appeal, Gonzales purports to also challenge
the San Bernadino County Superior Court’s denial of his petition
for a finding of factual innocence, but Gonzales forfeited any
challenge to that ruling by failing to timely appeal it. (In re
Baycol Cases I & II (2011) 51 Cal.4th 751, 761, fn. 8 [“if an order
is appealable, appeal must be taken or the right to appellate
review is forfeited”].)
13
Cal.3d 392, 395; JKH Enterprises, Inc. v. Department of
Industrial Relations (2006) 142 Cal.App.4th 1046, 1057-1058.)
But where no such rights are at stake, the trial court’s task is to
more deferentially evaluate whether the agency’s findings are
supported by substantial evidence, and our task, in reviewing the
grant or denial of such a writ, is to step into the trial court’s
shoes and independently examine for ourselves whether the
agency’s findings are supported by substantial evidence. (JKH
Enterprises, at pp. 1057-1058.) An exonerated inmate has no
fundamental, vested right to compensation (Tennison v.
California Victim Comp. & Government Claims Bd. (2007) 152
Cal.App.4th 1164, 1181-1182 (Tennison); Madrigal v. California
Victim Comp. & Government Claims Bd. (2016) 6 Cal.App.5th
1108, 1113 (Madrigal)), so we employ the more deferential review
(Holmes v. California Victim Comp. & Government Claims Bd.
(2015) 239 Cal.App.4th 1400, 1406 (Holmes)). We independently
review any subsidiary legal questions, including the meaning of
statutes. (John v. Superior Court (2016) 63 Cal.4th 91, 95-96
[meaning of statutes]; City of San Diego v. Board of Trustees of
California State University (2015) 61 Cal.4th 945, 956 [legal
questions reviewed de novo].)
B. Compensation for erroneously convicted and
imprisoned persons
“California has long had a system for compensating
exonerated inmates for the time they spent unlawfully
imprisoned” and thus “‘away from society, employment, and their
loved ones.’” (People v. Etheridge (2015) 241 Cal.App.4th 800,
806; Larsen v. California Victim Comp. Bd. (2021) 64 Cal.App.5th
112, 123 (Larsen); Holmes, supra, 239 Cal.App.4th at p. 1405.)
That system is defined by various statutes (§§ 4900 et seq.,
14
1485.5, 1485.55) (the compensation statutes) as well as
regulations promulgated under those statutes (§ 4906; Cal. Code
Regs., tit. 2, § 640 et seq.). Although those statutes have been
recently amended, our Legislature has not expressly declared
them to be retroactive to previously filed claims (§ 3; Evangelatos
v. Superior Court (1988) 44 Cal.3d 1188, 1208-1209), so we
describe the administrative system in place while Gonzales’s
claim was pending before the Board—that is, between August
2017 and September 2020.
Under that system, an inmate who has been “imprisoned in
state prison” for “any part” of a felony sentence and who is
“innocent of the crime” because, among other things, the crime
“was not committed by him,” may “present a claim” to the Board
for compensation due to the “erroneous conviction and
imprisonment.”7 (§ 4900.)
If the inmate has already obtained a finding of “actual
innocence” that establishes his “factual innocence by a
preponderance of the evidence”—either as part of state or federal
habeas relief or from a separately filed petition seeking a finding
of actual innocence (under sections 851.8 or 851.86)—then the
Board is automatically obligated to recommend that the
Legislature compensate the inmate without the need for any
hearing. (§§ 4902, 1485.55, subds. (b), (c) & (e), 851.865, subd.
7 The statute of limitations for such claims changed on
January 1, 2020, when our Legislature increased the limitations
period from two years to ten years. (Compare former § 4901,
Stats. 2016, ch. 31 (Sen. Bill No. 836), § 251, eff. June 27, 2016,
with § 4901, Stats. 2019, ch. 473 (Sen. Bill No. 269), § 2, eff. Jan
1, 2020).) Although the administrative proceedings in this case
straddle this legislative change, this is of no consequence because
Gonzales filed his claim within the two-year window.
15
(a); Larsen, supra, 64 Cal.App.5th at pp. 123-124, 128-129
[finding by federal habeas court that inmate was “actually
innocent” in order to overcome a procedural bar is equivalent to a
finding of factual innocence by a preponderance of the evidence].)
Making a prior judicial finding that the inmate is factually
innocent preclusive makes sense, as doing so “streamline[s] the
compensation process” and “ensure[s] consistency between the
Board’s compensation determinations” and the “earlier court
proceedings” that have already decided the “identical” question
that is presented to the Board in the compensation proceedings.
(Madrigal, supra, 6 Cal.App.5th at p. 1118; Tennison, supra, 152
Cal.App.4th at p. 1175.)
In all other instances, however, the Board must convene an
evidentiary hearing before a hearing officer. (Cal. Code Regs., tit.
2, § 644, subd. (a).) At that hearing, the inmate bears the burden
of establishing, by a preponderance of the evidence, that they are
“factually innocent” of the crime(s) for which they were
erroneously imprisoned.8 (§ 1485.55, subd. (b); § 4903, subd. (a);
Cal. Code Regs., tit. 2, §§ 644, subd. (d)(1), 642, subd. (a)(3);
Holmes, supra, 239 Cal.App.4th at pp. 1403, 1405; Diola v. State
Board of Control (1982) 135 Cal.App.3d 580, 588, fn. 7.) The
Board (through the hearing officer) may consider not only the
prior record from the inmate’s trial, but also any new evidence
8 In a legislative amendment effective on January 1, 2022,
the People now bear the burden of proving an inmate’s guilt by
clear and convincing evidence if the inmate is exonerated through
the grant of a writ of habeas corpus in state or federal court.
(Former § 4900, subd. (b), Stats. 2021, ch. 490 (Sen. Bill No. 446),
§ 3, eff. Jan. 1, 2022); former § 4902, subd. (d), Stats. 2021, ch.
490 (Sen. Bill No. 446), § 4, eff. Jan. 1, 2022; Cal. Code Regs., tit.
2, § 644, subd. (e).)
16
“relevant” to the question of the inmate’s factual innocence. (Cal.
Code Regs., tit. 2, § 641; § 4903, subd. (a).) But certain “factual
findings and credibility determinations” are “binding” on the
Board—namely, and as pertinent here, “the factual findings and
credibility determinations establishing the court’s basis for
granting” (1) “a writ of habeas corpus,” or (2) “an application for a
certificate of factual innocence as described in Section 1485.5.” (§
4903, subd. (b), italics added; accord, § 1485.5, subd. (c) [“In a
contested or uncontested proceeding [seeking a declaration of
factual innocence], the express factual findings made by the
court, including credibility determinations, in considering a
petition for habeas corpus . . . or an application for a certificate of
factual innocence, shall be binding on the . . . Board”].) The
denial of an application for a certificate of factual innocence, by
contrast, is not binding on the Board. (§ 1485.55, subd. (d) [no
“presumption” “exist[s]” following the “failure to” “obtain a
favorable ruling”].) If the inmate carries their burden,9 the Board
must recommend that the Legislature compensate the inmate. (§
4904.)
The statutorily prescribed rate of compensation is $140 per
day of incarceration served, although the Legislature retains
discretion not to award such compensation. (§ 4904.)
9 In addition to establishing innocence by a preponderance of
the evidence, the inmate also must show “the pecuniary injury”
they sustained as a result of the “erroneous conviction and
imprisonment.” (§§ 4903, subd. (a), 4900, 4904.) That second
element is not at issue here, where the People stipulated to
Gonzales’s pecuniary injury if he first proved his factual
innocence.
17
II. Analysis
In light of these pertinent legal principles, the overarching
question we confront is whether substantial evidence supports
the Board’s ruling that Gonzales failed to sustain his burden of
proving his factual innocence of the attempted murder and
firearm charges by a preponderance of the evidence. Gonzales
asserts we need not examine the substantiality of the evidence
because he is entitled to administrative mandamus relief for
three preliminary reasons. Specifically, he argues that (1) the
Ninth Circuit’s grant of habeas relief is synonymous with a
finding of factual innocence, and automatically entitles him to
compensation; (2) the Board erred by not treating the Ninth
Circuit’s “factual findings” as “binding”; and (3) the Board
committed other procedural errors. Only if these preliminary
arguments fail must we assess the substantiality of the evidence
supporting the Board’s ruling.
A. Does a grant of habeas relief based on
insufficiency of the evidence compel a finding of the
inmate’s factual innocence by a preponderance of the
evidence?
The answer is “no,” and we reach this conclusion for two
reasons.
First, a court’s invalidation of a conviction due to
insufficiency of the evidence is not equivalent to a finding of
factual innocence. A finding that the evidence was insufficient to
support a conviction means only that there was not enough
evidence presented at trial for a reasonable jury to find the
inmate guilty beyond a reasonable doubt. (United States v.
Powell (1984) 469 U.S. 57, 67; People v. Covarrubias (2016) 1
Cal.5th 838, 891.) Such a finding is different from the finding of
18
factual innocence that entitles an inmate to compensation in
three significant ways.
For starters, the standard of proof is not the same. Rather
than a habeas court’s task of assessing whether the evidence is
sufficient to support a finding of guilt beyond a reasonable doubt,
the Board’s task is to examine whether the evidence is sufficient
to support a finding of innocence by a preponderance of the
evidence. The former requires that the evidence imbue the
factfinder with an “abiding conviction” in the truth of the finding
(CALCRIM No. 220); the latter requires merely that the evidence
makes the finding more likely than not (e.g., Masellis v. Law
Office of Leslie F. Jensen (2020) 50 Cal.App.5th 1077, 1093). This
is why a person acquitted of murder may still be held civilly
liable for wrongful death—evidence that is not enough to
establish guilt by the higher standard can still establish liability
by the lower standard.
Next, the burden of proof is not the same because it is
assigned to a different party. Rather than a habeas court’s task
of asking whether the People proved the inmate’s guilt, the
Board’s task is to examine whether the inmate has proven his
factual innocence. This means that in cases where the evidence is
in equipoise, that “tie” must be resolved against the inmate (as
the party assigned the burden) and against relief—which further
expands the universe of instances in which evidence insufficient
to prove guilt beyond a reasonable doubt may nevertheless not
entitle an inmate to a finding of factual innocence. This is
precisely what our Supreme Court, the United States Supreme
Court, and every other court to consider the issue have
consistently and uniformly concluded—namely, that a finding of
legal insufficiency due to the “‘prosecution’s failure of proof’” at
19
trial is not necessarily equivalent to a finding of factual innocence
by a preponderance of the evidence. (People v. Adair (2003) 29
Cal.4th 895, 907; Bousley v. United States (1998) 523 U.S. 614,
623 [distinguishing “actual innocence” requiring proof that “‘it is
more likely than not that no reasonable juror would have
convicted [an inmate]’” from “mere legal insufficiency” of the
evidence at trial]; Larsen, supra, 64 Cal.App.5th at p. 131, fn. 11
[“a jury’s acquittal of a defendant after considering evidence
admitted during a criminal trial is not a determination that the
defendant is innocent, only that he or she is ‘not guilty’”].)
And significantly, the records in the two tribunals are not
the same: A habeas court reviewing the sufficiency of the
evidence is limited to the trial record, while the Board is charged
with considering the trial record and any further “relevant”
evidence the parties elect to present. (Cal. Code Regs., tit. 2, §
641, subd. (c).) What is more, this additional evidence includes
some evidence that may have been excluded at trial. (Id., subd.
(d) [“Evidence . . . may be admitted even though there is a
common law or statutory rule which might make its admission
improper over objection in any other proceeding”].) This leeway
makes perfect sense, as the Board’s task is to get to the bottom of
whether the inmate is indeed innocent of the crime. Thus, to
illustrate, an inmate who persuades a habeas court that the
evidence in the trial record was insufficient to convict him of
distributing narcotics would not be entitled to a finding of factual
innocence before the Board if a telephone call containing the
inmate’s confession and recorded without permission in violation
of section 632 was excluded at trial but admitted before the
Board.
20
Second, our Legislature’s recent amendment of the
compensation statutes confirms that a court’s grant of relief on
habeas corpus is not the equivalent of an inmate proving his
factual innocence by a preponderance of the evidence. In 2021,
our Legislature enacted Senate Bill No. 446 (2021-2022 Reg.
Sess.), which for the first time erected a presumption that the
dismissal of convictions following the grant of a habeas petition
automatically entitles an inmate to compensation unless the
People, at a Board hearing, prove the inmate’s guilt by clear and
convincing evidence. (§ 4900, subd. (b), Stats. 2021, ch. 490 (Sen.
Bill No. 446), § 3, eff. Jan. 1, 2022; § 4902, subd. (d), Stats. 2021,
ch. 490 (Sen. Bill No. 446), § 4, eff. Jan. 1, 2022.) If, as Gonzales
asserts, any grant of habeas relief already automatically entitles
an inmate to compensation, Senate Bill No. 446’s amendments
would be entirely superfluous. Because we do not presume that
our Legislature engages in idle acts (Elsner v. Uveges (2004) 34
Cal.4th 915, 935 [amendment of statute is presumed to change its
meaning and effect]; Stockton Teachers Assn. CTA/NEA v.
Stockton Unified School Dist. (2012) 204 Cal.App.4th 446, 461),
our Legislature’s own actions confirm that a grant of habeas
relief is not equivalent to a finding of actual innocence.10
Gonzales resists this conclusion with one further argument.
Specifically, he makes the two-step argument that the Ninth
Circuit’s finding of insufficient evidence compels a finding of
factual innocence because (1) a finding of legal insufficiency
compels a finding of factual innocence under section 851.8 in
People v. McCann (2006) 141 Cal.App.4th 347, 355-358
10 This is also why we reject Gonzales’s argument, raised for
the first time in his reply brief, that Senate Bill No. 446 merely
clarified existing law.
21
(McCann); and (2) a finding of factual innocence under section
851.8 compels a finding of factual innocence under the
compensation statutes. Although the second step of Gonzales’s
argument is correct (§§ 4902, subd. (a), 1485.55, subds. (b), (c) &
(e), 851.865, subd. (a); Tennison, supra, 152 Cal.App.4th at p.
1175 [section 851.8 proceedings and proceedings for
compensation “concern the identical issue: whether the evidence
proves the defendant did not, in fact, commit a particular
crime”]), the first step of his argument is incorrect: McCann does
not establish a broad rule that a finding of legal insufficiency
equates to a finding of factual innocence. Instead, McCann
stands for a far narrower corollary that legal insufficiency
equates to a finding of factual innocence when the insufficiency
ruling rests on the finding that the inmate “could not possibly
have been guilty” of the crime(s) at issue (in McCann, due to the
doctor-inmate having a valid license and due to the expiration of
the statute of limitations for a lesser included offense). (McCann,
at p. 358, italics added; People v. Gerold (2009) 174 Cal.App.4th
781, 793 [reading McCann as standing solely for this narrower
proposition].) Because nothing indicates that Gonzales “could not
possibly have been guilty” of the crimes in this case, this case
falls outside the boundaries of McCann’s corollary.
B. Did the Board disregard the statutory mandate
to treat the Ninth Circuit’s “factual findings” as
“binding”?
To answer this question, we must ask two subsidiary
questions: (1) What is a “factual finding” for purposes of the
compensation statutes, and (2) did the Board disregard any such
“factual findings”?
22
1. What is a “factual finding” within the meaning
of section 4903, subdivision (b)?
Section 4903, subdivision (b), requires the Board to treat as
“binding” “the factual findings and credibility determinations
establishing the court’s basis for granting a writ of habeas
corpus.” (Italics added.) The compensation statutes do not define
“factual findings”; the closest analogue is the definition for
“express factual findings” within the habeas statutes (and,
specifically, in section 1485.5), which defines them as “findings
established as the basis for the court’s ruling or order.” (§ 1485.5,
subd. (d).) But does this refer to the factual basis for the court’s
ruling, the legal basis for that ruling, or both?
It clearly encompasses the factual basis. Thus, “factual
findings and credibility determinations” by a habeas court
certainly—and traditionally—include (1) the court’s ultimate
findings of fact (such as that the evidence was insufficient to
establish guilt beyond a reasonable doubt, or that trial counsel
was constitutionally ineffective); and (2) the court’s subsidiary
findings of fact and credibility determinations, made after the
court has entertained new evidence that the court has observed
firsthand during the habeas proceedings, which is commonplace
as many defendants seek habeas relief on the basis of
constitutional grounds that require additional factfinding beyond
the trial record (such as constitutional claims involving wrongful
withholding of discovery, juror misconduct, or the ineffective
assistance of counsel).
But do “factual findings and credibility determinations”
also reach the legal basis for the habeas court’s ruling? More to
the point, do “factual findings” include the habeas court’s
summary of, observations about, and characterizations of the
23
trial record when the habeas court is not finding facts after
entertaining new evidence but is instead making a legal
assessment, after reviewing the static record from the trial
proceedings, about whether that record contains sufficient
evidence to support a conviction? In other words, if a habeas
court summarizes the trial evidence or otherwise comments that
some or all of the evidence is “weak” as part of its rationale for
concluding that the evidence was insufficient, is that summary or
commentary itself a “factual finding”?
We conclude the answer is “no” for three interrelated
reasons.
First, the fact that a habeas court summarizes or comments
on the static trial record is not enough to make that summary or
commentary a “factual finding” of that court. Courts make
comments all the time that are not “factual findings”: A court’s
finding that a juvenile defendant suffers from “‘irreparable
corruption’” warranting a lifetime sentence is not a “factual
finding” (People v. Blackwell (2016) 3 Cal.App.5th 166, 192); a
court’s “observation[s]” or “remark[s]” about whether an item was
an instrumentality of a crime is not a “factual finding” (and is
instead a “legal determination[]”) (People v. Nottoli (2011) 199
Cal.App.4th 531, 557, fn. 12); and a court’s commentary about the
“subject of selective enforcement” in the course of ruling on a
motion to suppress is not a “factual finding” (People v. Superior
Court (Brown) (1980) 111 Cal.App.3d 948, 952).
Second, “factual findings” are typically findings that can be
reviewed for substantial evidence (e.g., City of San Marcos v.
Loma San Marcos, LLC (2015) 234 Cal.App.4th 1045, 1053) and
“credibility determinations” are determinations that are
unreviewable unless the testimony at issue is “‘“physically
24
impossible or inherently improbable”’” (People v. Prunty (2015) 62
Cal.4th 59, 89 (conc. & dis. opn. of Cantil-Sakauye, C.J.)). Such
deference is accorded to these findings and determinations
because the courts later reviewing them were not in the
proverbial room to hear and observe the evidence firsthand. But
a habeas court’s summary of the trial record or its commentary
about the relative weakness of evidence based on that record is
not something that the court observed firsthand, and such a
summary or commentary is not a finding that can be reviewed in
any meaningful way for substantial evidence or subjected to the
standards for assessing credibility determinations. This
mismatch supports the notion that such a summary of or
commentary on the trial record is not itself a “factual finding.”
Third and lastly, treating a habeas court’s summary or
commentary about the trial record as “factual findings” or
“credibility determinations” would make them “binding” on the
Board, yet the Board is explicitly tasked with considering new
and additional evidence. If commentary about evidence in the
trial record being “weak” proof on a particular issue were
binding, then the introduction of new evidence on that issue in
the Board proceedings would be pointless, thereby rendering the
evidentiary provisions in the compensation statutes governing
the Board’s proceedings superfluous. Our task, however, is to
give effect to those provisions—not to nerf them. (People v.
Villatoro (2012) 54 Cal.4th 1152, 1173 (conc. & dis. opn. of
Corrigan, J.); see also Spanish Speaking Citizens’ Foundation,
Inc. v. Low (2000) 85 Cal.App.4th 1179, 1214 [rules governing
interpretation of statutes also apply to regulations].)
Gonzales urges us to treat every comment a habeas court
makes as binding because that is the only way to ensure
25
consistency between the rulings of the court and the Board. For
support, he relies on Madrigal, supra, 6 Cal.App.5th 1108. To be
sure, Madrigal held that a habeas court’s “characteriz[ations of]
the relative strength of the defense and prosecution evidence” at
trial constituted “factual findings” that were “binding” on the
Board. (Id. at pp. 1118-1119.) Madrigal cited two reasons for its
holding—namely, that (1) nothing in section 4903 expressly says
that “factual findings” do not reach so far, and (2) giving the term
an expansive ruling more broadly ensures consistency between
the habeas court’s ruling and the Board’s ruling. (Ibid.) We are
unpersuaded by the first reason because Madrigal did not
examine any of the considerations about the general concept of
“factual findings” we have set forth above; from our perspective,
nothing in section 4903 expressly shows an intent to adopt a
definition of “factual finding” that so vastly deviates from the
general concept. We are unpersuaded by the second reason as
well because section 4903 did not purport to adopt a consistency-
at-all-costs rule; had it wanted to, our Legislature could have
declared “all findings” or “all observations” or “all commentary”
to be binding. Instead, it limited its rule—and the consistency
demanded by that rule—to ultimate findings of fact and to
subsidiary “factual findings and credibility determinations.” We
decline to rewrite the statute to reach a broader universe of
findings (Jarman v. HCR ManorCare, Inc. (2020) 10 Cal.5th 375,
392), and accordingly and respectfully part ways with Madrigal.
26
2. Did the Board give “binding” effect to any
“factual findings” or “credibility determinations” of the Ninth
Circuit?
(i) Analysis
We conclude that the Board treated as “binding” the Ninth
Circuit’s “factual findings” and “credibility determinations” as we
have defined them above. That is because the Board treated as
binding the Ninth Circuit’s finding that there was legally
insufficient evidence to convict Gonzales of attempted
premeditated murder and shooting a firearm from a vehicle and
because the Ninth Circuit’s further summary of and commentary
on the trial record do not constitute “factual findings.” Gonzales
resists this latter conclusion, urging that the Ninth Circuit’s
summary and commentary should be accorded the status of
“factual findings” because the Ninth Circuit’s detailed, “piece-by-
piece” summary and commentary was a “rarity” that went “above
and beyond” the typical analysis. But the scarcity or depth of a
habeas court’s summary and commentary on the trial record does
not somehow transmute such summary and commentary into
binding “factual findings.”
But even if we were to apply Madrigal’s more expansive
definition of “factual findings,” we still conclude that the Board
treated the Ninth Circuit’s summary of and commentary on the
trial record as “binding.” The Ninth Circuit’s summary and
commentary on the trial record can be grouped into three
categories:
● Ninth Circuit’s summary of evidence not presented at
trial. The Ninth Circuit commented that no witness identified
Gonzales or any occupant of the Cadillac from which the shots
were fired (as its “[f]irst” reason), that no witness testified that
27
the shooter wore a baseball cap that matched the Pirates cap
Gonzales wore that night (as part of its “[s]econd” reason), that
no witness testified that anyone with Gonzales’s moniker
“Knuckles” was “connected with the shooting” (as another part of
its “[s]econd” reason), that Gonzales denied being the shooter (as
part of its “[t]hird” reason), and that police never found any
firearms or firearm paraphernalia at Gonzales’s house (as its
“[s]ixth” reason). This commentary summarizes the absence of
any direct evidence of Gonzales’s involvement with the crimes.
The Board at no point indicated that any direct evidence tied
Gonzales to the shooting; instead, the Board relied solely on the
circumstantial evidence that refuted Gonzales’s claim of factual
innocence. Accordingly, the Board treated this commentary of
the Ninth Circuit as binding.
● Ninth Circuit’s commentary that certain pieces of
circumstantial evidence, when examined individually, did not tie
Gonzales to the crime(s). The Ninth Circuit also commented that
Gonzales’s “gang affiliation” with the Playboyz and donning a
baseball cap with the Playboyz’s self-appropriated logo did not by
itself “distinguish [Gonzales] from other people present on the
night of the shooting” (as part of its “[s]econd” reason), that the
witnesses’ description of the color of the Cadillac from which
shots were fired did not by itself mark Gonzales as the shooter
because that description did not match Gonzales’s reporting of
the color of the Cadillac in which he was a passenger (as part of
its “[t]hird” reason), and that the presence of two particles of
gunshot residue on Gonzales’s right hand did not by itself
establish that Gonzales used or was near a firearm that night
because that small amount of residue was “just as likely” the
result of touching a surface contaminated with gunshot residue
28
(as its “[f]ifth reason”). This commentary set forth the Ninth
Circuit’s view that each of these items of circumstantial evidence
were not, by themselves, sufficient to tie Gonzales to the crimes.
The Board at no point indicated to the contrary; instead, the
Board accepted that commentary but went on to reason that
Gonzales’s gang affiliation and wearing of gang attire, his
admitted presence in the backseat of a newer model Cadillac with
rims at the very same time and location of the shooting, and the
presence of gunshot residue that was equally likely to be caused
by his firing a gun as by other causes refuted Gonzales’s claim of
factual innocence when that evidence was considered collectively.
● Ninth Circuit’s summary of evidence that was
superseded by additional evidence presented to the Board. The
Ninth Circuit also commented that Gonzales “did not clearly
admit” during his post-arrest interview that he exchanged words
with the men on the street corner prior to the shooting (as its
“[f]ourth reason”). The Board acknowledged that the Ninth
Circuit’s commentary was correct on the trial record considered
by the Ninth Circuit, and accepted that commentary as binding.
But, consistent with the evidentiary procedures used in
compensation proceedings, the People introduced to the Board an
enhanced audio file of Gonzales’s recorded post-arrest interview,
which (contrary to Gonzales’s representation at oral argument in
this case) was not in the trial record before the Ninth Circuit, in
which Gonzales did clearly admit that he asked those men, “Oh,
where are you fools from, dawg?”—which is what witnesses heard
the shooter ask those men before opening fire. And when
confronted with this new evidence, Gonzales admitted during his
testimony before the Board that the enhanced audio file
accurately recorded what he told the police. Because, as noted
29
above, the compensation hearing procedure contemplates the
introduction of new evidence before the Board, the Board did not
err in giving effect to this uncontroverted new evidence over the
Ninth Circuit’s finding, which was based, by definition, on a
different and more limited record.
(ii) Gonzales’s argument
Gonzales nevertheless maintains that the Board gave the
Ninth Circuit’s commentary “lip service.” More specifically,
Gonzales argues that the Ninth Circuit made factual findings
that the gunshot residue on his right hand, that he was wearing
a baseball cap, that he was a gang member, and that he was
present at the party were “not evidence of his guilt” and that the
Ninth Circuit made a factual finding “that no other evidence
connected [him] to the shooting.” These findings, Gonzales
continues, obligated the trial court—and obligates us—to review
the Board’s ruling not for substantial evidence but rather
“through the lens of the [Ninth Circuit] that reversed [his]
conviction.”
We reject Gonzales’s argument because its central premise
is invalid. Contrary to what Gonzales repeatedly says in his
briefs, the Ninth Circuit did not hold that the individual pieces of
circumstantial evidence it addressed were “not evidence of his
guilt.” Rather, it held that each piece did not by itself tie
Gonzales to the crimes. In other words, the Ninth Circuit “found”
that these individual pieces of circumstantial evidence were not,
on their own, dispositive; it never “found” that they were
irrelevant. Nor could it. Gang affiliation by itself is not enough
to convict, but it is certainly relevant because it is evidence of
motive. (People v. Duong (2020) 10 Cal.5th 36, 64; People v.
Holmes (2022) 12 Cal.5th 719, 772.) Along the same lines, mere
30
presence at the scene of a crime is not enough to convict, but it is
certainly relevant as evidence of opportunity. (See People v.
Campbell (1994) 25 Cal.App.4th 402, 409 [aiding and abetting].)
The Board could and did logically treat as binding the Ninth
Circuit’s commentary about each individual piece of evidence
while at the same time concluding that, collectively, they refuted
Gonzales’s claim of factual innocence because innocence—like
guilt—is a function of the collective impact of the totality of the
evidence, not the impact of each individual piece considered in
isolation. (See People v. Diaz (1992) 3 Cal.4th 495, 537 [item of
evidence, though susceptible to a possible innocent explanation,
was “link in the circumstantial chain of evidence” that,
“considered in its entirety,” “pointed unerringly to” defendant’s
guilt].)
C. Did the Board commit other procedural errors?
Gonzales argues that the Board erred by making two
further procedural errors.
First, Gonzales urges that the Board held him to a higher
burden of proof than preponderance of the evidence because, at
one point in its 31-page ruling, the Board stated that “ample
circumstantial evidence in the administrative record nevertheless
suggests that Gonzales might be guilty.” (Italics added.) This
argument is frivolous. Even if we assume that the Board’s
comment that Gonzales “might be guilty” is a different standard
than whether he was “more likely than not” factually innocent,
the Board elsewhere in its ruling repeatedly (that is, no fewer
than five other times) cited this proper standard. In these
instances, we may—and do—comfortably conclude that the Board
applied the proper standard of proof. (People v. Mayfield (1993) 5
Cal.4th 142, 196 [where “[t]he record . . . as a whole” indicates
31
that the “court” “applied the proper concept,” “isolated”
“misstate[ments of] the applicable standard” are to be
disregarded].)
Second, Gonzales asserts that the Board improperly gave
binding effect to the San Bernardino County Superior Court’s
finding that he was not factually innocent, even though section
4903, subdivision (b), only gives binding effect to the “grant[]” of a
petition for factual innocence and section 1485.55, subdivision
(d), prohibits giving any effect to the denial of such a petition.
The Board did state that it was treating the San Bernardino
County Superior Court’s finding as “binding.” This is not
surprising, as both parties—including Gonzales—urged the
Board to do so. Even if we overlook that this error was
apparently invited by Gonzales, the Board’s actions ended up
speaking louder than its words: Although the Board stated it was
treating the San Bernardino County Superior Court’s denial of
the factual innocence petition as binding, it did not actually do so.
Instead, it examined the original trial record, the evidence
presented to the San Bernardino County Superior Court, and the
evidence presented to the hearing officer and independently
examined whether that evidence satisfied Gonzales’s burden of
showing his factual innocence by a preponderance of the
evidence.
D. Does substantial evidence support the Board’s
ruling that Gonzales failed to establish his factual
innocence by a preponderance of the evidence?
Because we have concluded that none of Gonzales’s
preliminary objections to the Board’s analysis have merit, we
turn to the ultimate question presented in this appeal: Does
substantial evidence in the administrative record support the
32
Board’s ruling that Gonzales failed to prove his factual innocence
by a preponderance of the evidence?
We independently agree with the trial court that the
answer is “yes.”
Deferring to the Board’s findings based on the evidence and
its credibility determinations, substantial evidence supports the
Board’s conclusion that Gonzales did not carry his burden of
proving his factual innocence by a preponderance of the evidence.
To be sure, there was no direct evidence tying him to the
shooting. But the sum total of circumstantial evidence is
sufficient to support a finding that he was not likely factually
innocent. The evidence showed that Gonzales was at the location
where the shooting occurred when it occurred; that he was the
backseat passenger in a newer model Cadillac with rims like the
one from which witnesses saw shots fired; that he had particles of
gunshot residue on his hand that indicated he came in contact
with a discharged firearm;11 that he was at a minimum affiliated
11 Gonzales is incorrect in his repeated characterization of the
trial record as establishing that the particles of gunshot residue
“more than likely” came from him touching a surface
contaminated with gunshot residue rather than from him
discharging a firearm. The technician who analyzed the gunshot
residue kit testified at the 2009 jury trial that Gonzales either
“fired a firearm, handled a firearm, ha[d] been in close proximity
of [a] discharged firearm, [or] contacted a surface that contain[ed]
gunshot residue,” but the technician could not “tell” “which of
those four options [was] in play” in this case. The Ninth Circuit’s
summary of the trial evidence—that any one of those options was
“just as likely” the cause as the others—is consistent with that
testimony. Thus, it was Gonzales’s burden to put on new
evidence before the Board substantiating his theory—contrary to
33
or aligned with the Playboyz street gang and wearing their gang-
themed attire, and that victims were wearing clothing affiliated
with a different street gang; and that Gonzales asked the victims
gang-related questions (“Oh, where are you fools from, dawg?”)
after they “talk[ed] shit” to him, as witnesses had heard the
shooter ask. Although Gonzales told police in his post-arrest
interview that the Cadillac he was in was “red” “like a fire truck”
or “light red” (rather than “black” or some other “dark” color as
reported by witnesses), although Gonzales repeated that
statement during his testimony before the San Bernardino
County Superior Court and the Board, and although Gonzales’s
friend Herrada submitted a declaration indicating the same, it is
not unreasonable for a red car to appear “dark” when driving by
during a nighttime exchange. Plus, the Board found Gonzales’s
testimony and Herrada’s declaration to be not credible—a finding
to which we must defer and a finding that is also amply
supported by the sheer number of times Gonzales changed his
story. Gonzales’s ever-changing statements are also reasonably
viewed as circumstantial evidence of consciousness of guilt, which
adds further weight to the Board’s determination that Gonzales
did not establish his factual innocence by a preponderance of the
evidence.
Gonzales objects that the Board should not be able to make
its own credibility determinations (and, relatedly, that the Board
must defer to the Ninth Circuit’s “de facto” finding that he was
credible), but Gonzales is wrong. The Board considered new
evidence, and is within its rights to evaluate whether that
evidence is credible. And the Ninth Circuit made no credibility
the trial record—that the particles “more than likely” came from
an innocent source.
34
finding about Gonzales: The Ninth Circuit could not find
Gonzales’s trial testimony credible because Gonzales did not
testify at his trial, and the Ninth Circuit did not find his post-
arrest statements credible (and instead commented on the
inconsistency between his statements when accepted at face
value and what other witnesses said about the color of the
Cadillac). Gonzales additionally faults the Board’s finding that
he was “not credible” because it relied on inconsistencies made
during his post-arrest interview because, according to Gonzales,
such interviews are inherently coercive and his interview
specifically was coercive given he was 17 years old at the time,
but Gonzales ignores that he repeated many of his
inconsistencies during his subsequent two stints on the witness
stand (when he voluntarily testified at ages 26 and 27 years old
and with the assistance of counsel) and ignores that we are not in
a position to independently reweigh his credibility. Gonzales
additionally asserts that his lack of credibility is not enough to
conclude that he was not factually innocent. Gonzales is
absolutely right: It is inappropriate to take a “divide-and-
conquer” approach that looks only at each piece of evidence in
isolation. (United States v. Arvizu (2002) 534 U.S. 266, 274;
People v. Barnes (1986) 42 Cal.3d 284, 305 [looking to the
“totality” of the evidence].) But the Board did not take that
approach; instead, it examined the totality of the circumstantial
evidence as well as its determinations about Gonzales’s and
Herrada’s credibility, and found that—collectively—this evidence
did not establish that Gonzales was more likely than not
factually innocent.
35
DISPOSITION
The judgment is affirmed. The parties are to bear their
own costs on appeal.
CERTIFIED FOR PUBLICATION.
______________________, J.
HOFFSTADT
We concur:
_________________________, P. J.
LUI
_________________________, J.
ASHMANN-GERST
36