Judge James C. Chalfant, Case 22STCP02382 2023-03-21 Tentative Ruling

Petitioner Christopher Garner (“Garner”) seeks a writ of traditional mandate compelling Respondent Victim Compensation Board (“Board”) to compensate him for a wrongful conviction of felony murder.

The court has read and considered the moving papers, oppositions by Board and Real Party-in-Interest State of California (“State”), and reply,[1] and renders the following tentative decision.

Petitioner Garner filed this lawsuit on June 24, 2022. The operative pleading is the First Amended Petition (“FAP”) filed on October 27, 2022, alleging a cause of action for traditional mandamus. The verified FAP alleges in pertinent part as follows.

In January 2006, Garner lived with Rebecca Tilley (“Tilley”), Vincent Solomon (“Solomon”), and their children. At some point, Albert Adams (“Adams”) told Garner that he was losing his job and would need to either sell drugs or rob someone to make money. Garner assumed this was a joke and brushed it off. On January 14, 2006, Adams spent the night in Garner’s room.

The next day, January 15, 2006, Solomon asked Garner to accompany him to take Adams to buy marijuana. Garner agreed to do so in case he needed to drive because Solomon has a mental handicap.

At first, Garner thought Adams wanted to buy marijuana for personal use. As Adams spoke, Garner began to believe Adams wanted to start his own sales operation. Garner did not approve but did not think he could back out.

Solomon had Garner take over the driving and drive to the apartment complex of Blake Crawford (“Crawford”). Garner thought that he and Solomon were just dropping Adams off, who would either buy marijuana from Crawford or beat him up to get it. Garner knew that Adams sometimes carried a firearm but did not know if Adams had it with him on that day.

Adams entered the apartment while Solomon and Garner waited in the car. As Adams and Crawford negotiated a deal, Adams shot Crawford and fled with a container of marijuana, which he transferred to his jacket before he returned to the car. At the car, he said that something had happened and wanted to leave. As a result, Garner was “thrown into the mix” as the getaway driver without even knowing that Adams had his gun. Adams admitted what happened after they drove away from the neighborhood.

Crawford died from his gunshot wound the next day. The police tracked Garner and Solomon to their apartment, surveilled it, and arrested Garner. Police later also arrested Adams and Solomon.

On August 11, 2006, the Los Angeles District Attorney’s Office (“DA”) charged Garner with first degree felony murder, home invasion robbery, and first-degree burglary with an occupant present. The DA alleged that Garner took part in robbing Crawford, during which Adams was armed with a firearm, shot Crawford, and killed him. Garner pled not guilty to all three charges. The DA then amended the allegations to add that Garner carried out the crime with planning and sophistication while on probation from a 2005 forgery conviction.

After a trial, the jury found Garner guilty of all three counts. On March 20, 2007, Garner was sentenced to 26 years to life, with 25 to life for the first-degree felony murder.

In 2018, Garner filed his third habeas corpus petition asserting that the jury should not have associated Adams’ premeditative state with Garner under the natural and probable consequences doctrine. The DA capitulated and the trial court reduced the murder conviction to second degree.

On January 1, 2019, Senate Bill (“SB”) 1437 took effect. SB 1437 prohibits a participant in certain types of first-degree murder felonies from being liable for murder unless the participant either was the killer or aided and abetted the killer with the intent to kill. On January 2, 2019, Garner filed a habeas corpus petition based on SB 1437.

By August 23, 2019, the DA did not object and the court dismissed Garner’s murder conviction. Although Garner’s conviction on the other two charges was still in place, his 13 years of imprisonment exceeded the maximum criminal sentence on those two charges and the court ordered his release. Garner was released from prison on August 29, 2019. Based on the revised charges, Garner overserved the maximum sentence by 2,799 days.

On January 25, 2022, Garner filed a claim with the Board as an erroneously convicted person. On January 27, 2022, the Board issued a 30-day notice to dismiss for lack of jurisdiction. On February 20, 2022, Garner filed a response.

On March 22, 2022, the Board dismissed part of the claim and referred the other part to the Attorney General for further response. On March 24, 2022, Garner asked the Board to withdraw any claim that he was innocent of murder as it was defined in 2007. On May 10, 2022, the Board issued a final decision denying his claim.

Garner seeks a writ of traditional mandate directing the Board to compensate him for his erroneous felony murder conviction, and an order declaring a Board regulation to be invalid. Garner also seeks attorney’s fees and costs.

On June 24, 2022, Garner served the Board and the State with the Petition and accompanying exhibits by email.

On August 16, 2022, the Board signed a notice of acknowledgement of receipt for the Petition.

On September 14, 2022, the Board filed an Answer. On September 26, 2022, the State filed an Answer, noting that its name on the pleadings should be “State of California” and not “People of the State of California.”

On October 27, 2022, Garner filed the FAP and served the Board and State by email.

A party may seek to set aside an agency decision by petitioning for either a writ of administrative mandamus (Code of Civil Procedure (“CCP”) §1094.5) or of traditional mandamus (CCP §1085).¿ A petition for traditional mandamus is appropriate in all actions “to compel the performance of an act which the law specially enjoins as a duty resulting from an office, trust, or station....”¿ CCP §1085.¿¿¿

The FAP alleges a claim for traditional mandamus pursuant to CCP section 1085. The State argues that the Board did not have a ministerial duty to compensate Garner because a “ministerial act…is one that a public officer is required to perform in a prescribed manner in obedience to the mandate of legal authority and without regard to his own judgment or opinion concerning the propriety or impropriety of the act to be performed….” People ex. Rel. Fund American Companies v. California Ins. Co., (1974) 43 Cal.App.3d 423, 431. State Opp. at 6.

The State adds that, even if Garner presented a cognizable claim for compensation, the Board would not have a ministerial duty to compensate him for his allegedly erroneous conviction. When a claim for compensation is presented to the Board under Penal Code section 4900(a), the claimant bears the burden of presenting evidence in support of his claim and the Attorney General is afforded the opportunity to introduce evidence in opposition thereto. Penal Code §4903(a). The Board then has the discretion to grant or deny the claim based on its determination of whether the claimant has met his burden. See, e.g., Tennison v. California Victim Compensation and Government Claims Board, (2007) 152 Cal.App.4th 1164, 1191 (Board did not abuse its discretion in denying a claim for compensation under Penal Code Section 4900). Similarly, when a claim is presented under Penal Code section 4900(b), the Attorney General would have the opportunity to respond to demonstrate by clear and convincing evidence that the claimant committed the acts constituting the offense (Penal Code §4903(b)) and the Board would exercise its discretion in deciding whether the evidence is sufficient to prevent petitioner from receiving compensation. State Opp. at 6-7.

This is true, but the State’s argument merely indicates that Garner has no claim for traditional mandamus based on ministerial duty. Where there is no ministerial duty, judicial review for traditional mandamus is governed by an abuse of discretion standard and limited to an examination whether the agency’s actions were arbitrary, capricious, or entirely lacking in evidentiary support, or whether it did not follow the procedure and give the notices required by law. Pomona Police Officers’ Assn. v. City of Pomona, (1997) 58 Cal.App.4^th 578, 583-84.

Neither version of traditional mandamus is the proper vehicle for Garner’s compensation claim and request to invalidate a regulation. Rather, CCP section 1094.5 structures the procedure for judicial review of adjudicatory decisions rendered by administrative agencies. Topanga Ass’n for a Scenic Community v. County of Los Angeles, (1974) 11 Cal.3d 506, 514-15. Administrative mandamus may issue with respect to a final administrative order or decision as a result of a proceeding in which an evidentiary hearing is required by law and discretion is vested in the agency. CCP §1094.5(a). It does not matter that Garner did not actually receive an evidentiary hearing because the Board decided that it lacked jurisdiction. What matters is that an evidentiary hearing was required by law and would have been held if the Board had not rejected Garner’s application by determining that it lacked jurisdiction. See Civil Service Comm’n v. Velez, (1993) 14 Cal.App.4^th 115, 118-19 (county civil service commission’s refusal to grant hearing for untimely request falls within the scope of CCP section 1094.5). This case lies in administrative mandamus.

In any event, whether administrative mandamus or traditional mandamus applies has little practical effect because Garner presents issues of statutory interpretation which are questions of law reviewed by the court de novo. City of Alhambra v. County of Los Angeles, (2012) 55 Cal.4^th 707, 718. The only practical impact of the court’s conclusion that the matter lies in administrative mandamus is that Garner’s effort to provide a declaration is extra-record evidence which cannot be considered. See CCP §1094.5(e).

If, arguendo, there were any disputed facts, a claim under Penal Code section 4900 does not involve a fundamental vested right and the substantial evidence standard of review applies. Madrigal v. California Victim Compensation and Government Claims Board, (2016) 6 Cal.App.5^th 1108, 1113. “Substantial evidence” is relevant evidence that a reasonable mind might accept as adequate to support a conclusion (California Youth Authority v. State Personnel Board, (“California Youth Authority”) (2002) 104 Cal.App.4th 575, 585) or evidence of ponderable legal significance, which is reasonable in nature, credible and of solid value. Mohilef v. Janovici, (1996) 51 Cal.App.4th 267, 305, n. 28. The petitioner has the burden of demonstrating that the agency’s findings are not supported by substantial evidence in light of the whole record. Young v. Gannon, (2002) 97 Cal.App.4th 209, 225.

An agency is presumed to have regularly performed its official duties (Evid. Code §664), and the petitioner therefore has the burden of proof. Steele v. Los Angeles County Civil Service Commission, (1958) 166 Cal.App.2d 129, 137. “[T]he burden of proof falls upon the party attacking the administrative decision to demonstrate wherein the proceedings were unfair, in excess of jurisdiction or showed prejudicial abuse of discretion.” Afford v. Pierno, (1972) 27 Cal.App.3d 682, 691.

“Any person who, having been convicted of any crime against the state amounting to a felony and imprisoned in the state prison or incarcerated in county jail pursuant to subdivision (h) of Section 1170 for that conviction, is granted a pardon by the Governor for the reason that the crime with which they were charged was either not committed at all or, if committed, was not committed by the person, or who, being innocent of the crime with which they were charged for either of those reasons, shall have served the term or any part thereof for which they were imprisoned in state prison or incarcerated in county jail, may, under the conditions provided under this chapter, present a claim against the state to the California Victim Compensation Board for the injury sustained by the person through the erroneous conviction and imprisonment or incarceration.” §4900(a) (emphasis added).

In significant part, this provision means that any person who, having been convicted of a felony and incarcerated in prison for that conviction, is innocent either because no crime was committed or because he did not commit the crime, and has served all or part of his prison term, may present a claim to the Board for the injury he sustained through the erroneous conviction and imprisonment.

If a state or federal court has granted a writ of habeas corpus or a state court has granted a motion to vacate pursuant to section 1473.6 of 1473.7(a)(2), or the person was acquitted on retrial, the Board shall approve payment upon application without a hearing unless the Attorney General establishes that the claimant is not entitled to compensation by clear and convincing evidence. §§ 4900(b), 4902(d).

A verified statement of facts constituting the claim under section 4000 must be presented to the Board within two years after a judgment of acquittal, pardon, or release from custody. §4901(a).

For any claim to which circumstances of section 851.865[3] or 1485.55[4] do not apply to require automatic compensation, the Attorney General shall respond to the claim within 60 days or request an extension of time, upon a showing of good cause. §4902(a). When the Board receives the response, it shall fix a time and place for the hearing and shall mail notice thereof to the claimant and to the Attorney General at least 15 days prior to the time fixed for the hearing. §4902(b). The Board shall use reasonable diligence in setting the date for hearing. Id.

At the hearing, the claimant shall introduce evidence in support of the claim and the Attorney General may introduce evidence in opposition. §4903(a). The claimant shall prove the facts set forth in the statement constituting the claim including (1) the fact that the crime with which he was charged either was not committed at all or was not committed by him and (2) the injury sustained by him through his erroneous conviction and imprisonment. Ibid.

“A conviction reversed and dismissed is no longer valid, thus the Attorney General may not rely on the fact that the state still maintains that the claimant is guilty of the crime for which they were wrongfully convicted, that the state defended the conviction against the claimant through court litigation, or that there was a conviction to establish that the claimant is not entitled to compensation….” §4903(d).

Where the claimant meets his burden of proof, the Board shall calculate the amount of compensation, which shall be a sum of $140 per day of incarceration, which is not subject to state income tax. §4904.

The Board is authorized to make all needful rules and regulations consistent with the law for the purpose of carrying into effect its duties under section 4900 et seq. §4906. It may adopt regulations that govern any matter over which it has jurisdiction, including delegation of any Board power to its staff by majority vote. Government Code (“Govt. Code”) §§ 13909(b), 13920.

As 2 CCR section 642 (“section 642”) existed at the time of Garner’s application,[5] claims that are untimely or are otherwise not in compliance with sections 4900 and 4901 will be rejected by a hearing officer without hearing or consideration by the Board. §642(a). A claim that fails to state facts upon which relief may be granted is not in compliance with sections 4900 and 4901. §642(a)(1).

Prior to rejecting a claim for failure to comply with sections 4900 and 4901, the claimant shall be notified of the reason for rejection and given 30 days to present evidence to overcome the rejection. 2 C.C.R. §642(b). If the claimant's response provides sufficient evidence to prove that the claim was timely submitted and is otherwise compliant, the claim is deemed filed as of the date the additional evidence was received. 2 C.C.R. §642(c). If the claimant's response does not provide sufficient evidence, the claim is rejected without a hearing and will not be considered by the Board. 2 C.C.R. §642(d).

Crawford was murdered On January 15, 2006. On August 11, 2006, Garner and four other defendants were charged with murder in the course of robbery and burglary, home invasion robbery, and first-degree burglary with a person present. AR 1414, 1416-17. Each charge included the allegation that Adams shot Crawford. AR 1417.

On March 6, 2007, the jury found Garner guilty of first-degree murder, first-degree home invasion robbery, and first-degree burglary. AR 2237-39. Garner was sentenced to 26 years to life on the murder conviction, seven years for the home invasion robbery, and five years for the burglary. AR 2246-47.

On April 7, 2008, the appellate court affirmed Garner’s conviction. AR 2312. The court found sufficient evidence to convict Garner under an aider and abettor theory and as a member of a conspiracy. AR 2313. The court found that Garner knew of the plan to rob Crawford with force and with Adam’s gun, either before they left his apartment or on the drive there. AR 2314. The evidence also showed that Garner encouraged, facilitated, and aided in the commission of the offenses by approving the plan, accompanying Adams to the scene of the offenses, waiting for Adams to complete the plan, and driving away after the offenses to avoid detection or arrest. AR 2314. The felony murder rule, which did not require that the death be a natural and probable consequence, also supported the murder conviction. AR 2314-15. A petition for supreme court review was denied.

Garner filed a series of habeas corpus petitions through 2019. AR 2353, 2385, 2451.

In 2014, the California Supreme Court in People v. Chiu (“Chiu”) (2014) 59 Cal. 4th 155, 166, held that a defendant cannot be convicted of first-degree murder based solely on aiding and abetting a target crime that would foreseeably result in a murder under the natural and probable consequences doctrine, limiting such a conviction to second-degree murder.

On February 23, 2018, in response to Garner’s habeas petition, the DA conceded that he was entitled to have his conviction for first-degree murder set aside and replaced with second-degree murder. AR 2337. On June 6, 2018, the court reduced Garner’s sentence to between 16 years and life. AR 2344, 2348.

On September 30, 2018, the governor signed SB 1437, codified in section 1170.95.[7] AR 2377. SB 1437 prohibits a participant in a first-degree murder from being liable for murder unless the person was the actual killer, aided and abetted the killer with intent to kill, or was a major participant in the underlying felony and acted with reckless indifference to human life. AR 2377.

Section 1170.95(a) allows a person convicted of felony murder under a natural and probable consequences theory to petition to have the conviction vacated if (1) the complaint allowed the prosecution to proceed under a theory of felony murder or murder under the natural and probable consequences doctrine, (2) the petitioner was convicted of first- or second-degree murder, and (3) the petitioner could not be convicted after SB 1437’s changes to sections 188 and 189. AR 2380.

The legislative history for SB 1437 explains that existing felony murder law had been applied even when a death was accidental, unintentional, or unforeseen but occurred during the course of certain crimes. AR 2375. This led to disproportionately long sentences for people who sometimes had only peripheral involvement with a crime that resulted in death. AR 2375. The California Supreme Court called such application “barbaric,” and other states had already narrowed the scope of their felony murder statutes. AR 2375.

On August 23, 2019, after the DA withdrew its objection, the court ordered that Garner’s murder conviction be set aside. AR 2420. The court preserved the seven-year sentence for the home invasion robbery and the five-year sentence for the burglary. AR 2421-22. Because Garner’s custody credits exceeded this smaller sentence, the court ordered his release. AR 1398. He was released on August 29, 2019. AR 1398.

On January 25, 2022, Garner emailed the Board an application for compensation under sections 4900(a) and (b) based on his incarceration for felony murder. See AR 1054. The application asserted that he had been imprisoned for over 13 year and the court’s 2019 decision reduced his sentence to six years. See AR 1054. Garner sought compensation for the extra 2,799 days, or $391,860. See AR 1054-55. He explained that as a ride-along who was unaware of Adams’s intent and had no murderous intent, he is not a murderer under current law. See AR 1054-55.

On January 27, 2022, the Board informed Garner that it lacked jurisdiction to consider his application without additional information. AR 1054-56. Section 4900 only entitles a person to compensation if he or she were convicted of a felony and imprisoned in state prison when the conviction either was never committed, or the person did not commit it. AR 1055. The Board only has jurisdiction if the applicant alleges that he is factually innocent of a felony conviction for which he was sentenced to state prison. AR 1055.

Garner had not alleged that he was factually innocent of murder under the law in effect at the time of the crime. Rather, he alleges that he is innocent under current law. AR 1055. The fact that a conviction was vacated under section 1170.95 does not make the conviction erroneous. AR 1055. To provide jurisdiction, Garner must allege that he was actually innocent of murder as it was defined in 2007 when Crawford died. AR 1055. At the time, the law permitted culpability for murder based on felony murder or aiding and abetting a target offense like robbery that naturally and probably resulted in the victim’s death. AR 1055.

Assuming the Board has jurisdiction, section 4900(b) limits the triggering events that qualify an applicant for compensation. AR 1056. A state or federal court must have granted a writ of habeas corpus or a motion to vacate under section 1473.6 or 1473.7(a)(2). AR 1056. Vacation of a conviction under section 1170.95 is not one of the enumerated triggering events. AR 1056. The Board gave Garner 30 days to cure the jurisdictional deficiencies. AR 1056.

Garner replied on February 20, 2022. AR 1062. He argued that his conviction did not have to be in error under the Penal Code at the time of the conviction and the Board erroneously inserted that requirement. AR 1062. He alleges that he is factually innocent and entitled to relief under both sections 4900(a) and (b). AR 1062. No other body has jurisdiction, the claim is timely and in the right forum, and he submitted a lengthy record in support of his application. AR 1063. The Board’s denial of jurisdiction on the basis that Garner did not meet the requisite elements was “too cute by half”. AR 1063.

Garner noted that section 4903(d) prohibits the Attorney General from relying on a conviction to establish that a claimant is ineligible for compensation after the court dismisses the conviction. AR 1065-66. This also undermines the assertion that the relevant law is that which was in effect at the time of the offense. AR 1065.

Garner asserted that his application’s non-compliance with section 4900(b)’s triggering events was not fatal to his petition. AR 1067. Section 4900(a) allows for compensation under any set of circumstances that result in the factual and legal reality that the claimant is factually innocent. AR 1067. His petition under section 1170.95 is the equivalent of a habeas corpus petition in all but substance. AR 1070. Both involve an incarcerated defendant seeking his release from custody on any of an unlimited number of legal grounds available. AR 1070. Since it arises from a habeas corpus petition, his claim qualifies for relief under section 4900(b). AR 1070.

On March 22, 2022, the Board rejected Garner’s arguments. AR 1242-43. Section 4900(a) asks whether the applicant was innocent of the crime with which they were charged. AR 1243-1244. The plain meaning of a “charged crime” refers to the specific act the defendant allegedly committed and how it violates the criminal law at the time that the act occurred. AR 1244. An applicant must demonstrate that they did not commit the particular crime with which they were charged, as it was defined when the offense occurred. AR 1244-45. The statute refers to “injury” through “erroneous conviction”, and a conviction cannot be erroneous if it was valid at the time but invalidated by later changes to the law. AR 1245.

As a result, the Board maintained that it lacks jurisdiction to consider vacated convictions under section 1170.95 merely because the claimant's underlying acts no longer satisfy the current definition for felony-murder or accomplice liability. AR 1245. Garner’s interpretation would entitle every defendant with a vacated conviction under section 1170.95 to compensation. AR 1246. The superior court rejected this position when it denied Garner’s motion for a finding of factual innocence under section 1485.55. AR 1246. It would also contradict the legislative history of SB 1437, which recognized extensive cost savings by releasing inmates but did not mention a potential cost increase from section 4900. AR 1246.

The Board concluded that it has jurisdiction only for the claim that Garner is innocent of murder as defined at the time of Crawford’s death. AR 1250. Section 4900(b) does not apply to this claim because Garner’s case was dismissed under section 1170.95 and not section 1473.6 or 1473.7(a)(2). AR 1250. Consequently, the Board asked the Attorney General to provide a response to the application pursuant to section 4900(a) by May 23, 2022. AR 1250.

On March 24, 2022, Garner requested that the Board withdraw his claim to the extent that it alleged he was innocent under the 2007 definition of murder, which included felony murder. AR 1265. While he may have been innocent at the time, a jury decided he was not under then-existing law. AR 1265. He requested that the Board issue a final decision on the rest of his application to provide finality for purposes of a petition for writ of mandate. AR 1265-66.

On March 25, 2022, Garner supplemented his application with a challenge to section 642. AR 1271. The regulation’s primary aim is timeliness, and a timely claim should not require a plenary legal procedure. AR 1271. The Board has applied a housekeeping regulation as a substantive bludgeon to eliminate eliminates serious, procedurally-compliant claims when it believes that the substantive elements of section 4900 are not met. AR 1271.

While the Board possesses authority to adopt regulations that govern any matter in its jurisdiction, it may not exceed the scope of the statutes under which they were adopted. AR 1271-1272. Any claimant who complies with section 4901 is entitled to a response from the Attorney General. AR 1272. There is no demurrer or summary disposition procedure within the statutory scheme. AR 1272. Section 642 gives the Board the unilateral right to dispute that the application has met section 4900 requirements and to summarily reject the application before the Attorney General ever sees it. AR 1272.

The Board and Garner have different interpretations of section 4900 as to whether Garner can raise a claim based on a definition of murder not in effect at the time of the crime. AR 1272-1273. This issue is not suitable for summary disposition and yet the Board has used section 642’s regulatory barrier to deny the application. AR 1273. The regulation is an unauthorized change to legislation. AR 1273.

On March 29, 2022, the Board informed Garner that it had received his request for withdrawal and consideration and would issue a response after careful consideration. AR 2855. Until then, the Board stayed its request for a response from the Attorney General. AR 2855.

On May 10, 2022, the Board’s hearing officer Laura Simpton (“Hearing Officer”) issued the Board’s final decision rejecting Garner’s application for failure to state a claim as he had narrowly defined it after withdrawing any claim that he was innocent under the 2007 definition of murder, in particular felony murder. AR 1276-88.

The Hearing Officer stated that Garner’s claim that he is innocent of his murder conviction based on the current definition of the crime fails to raise an issue cognizable by the Board. AR 127. The plain meaning of section 4900(a) requires an allegation that the applicant was erroneously convicted under the law in effect when the crime occurred. AR 1278. The claim must be verified and accompanied by a statement of facts and timely submitted within ten years from release from custody. §4901. Any claim not in compliance with section 4900 and 4901 will be rejected and not heard by the Board. §642(a).

The plain meaning of a “charged crime” refers to the specific act the defendant allegedly committed and how it violates the criminal law at the time that the act occurred. AR 1279. A charged crime refers to an act by the defendant that violates the law when it occurred; a future amendment to the criminal law cannot form the basis for an already charged crime. AR 1279. An applicant must demonstrate that he did not commit the crime with which he was charged as it was defined when the offense occurred. AR 1279.

The fact that section 4900 refers to “injury” through “erroneous conviction” confirms this plain interpretation because a person cannot be erroneously convicted if the conviction was valid at the time and invalidated by a later change to the law. AR 1279. Similarly, no conceivable “injury” results from imprisonment pursuant to a validly imposed conviction for a crime that the applicant committed under then-existing law. AR 1279.

Based on this clear statutory language, a cognizable claim under section 4900(a) requires an allegation that the claimant was erroneously convicted of a charged offense under the law in effect when the criminal act was committed. AR 1279. The Board lacks jurisdiction to consider a claim based on a vacated conviction pursuant to section 1170.95’s changes to felony murder and accomplice liability. AR 1279-80.

This conclusion is not altered by section 4900(b), which does not alter the elements required by section 4900(a). Rather, it creates a new procedure for adjudicating certain cognizable claims in which the challenged conviction was vacated under enumerated circumstances without subsequent conviction. AR 1280. In that circumstance, the burden shifts to the Attorney General to prove the claimant’s guilt by clear and convincing evidence. AR 1280. This provision does not apply to a claim based solely upon the claimant’s vacated conviction under section 1170.95.

Garner cited Diola v. State Board of Control, (“Diola”) (1982) 135 Cal.App.3d 580, 587-88, where a claimant’s manslaughter conviction was vacated because she killed in self-defense, demonstrating that she had not committed the crime with which she was charged. AR 1280. Garner does not assert that he never committed the crime at all, but that he did not commit the crime under its current definition. AR 1280. Garner’s position more closely resembles an insanity defense, which Diola confirmed does not support a claim under section 4900 because it does not demonstrate innocence in the sense the word is used in section 4900. Id. at 587. AR 1280.

The California Supreme Court recently explained in People v. Gentile, (2020) 10 Cal. 5th 830, 859, that section 1170.95’s relief is the exclusive avenue for retroactive relief and does not apply to non-final judgments on appeal. AR 1280. To obtain that relief, the defendant must petition pursuant to section 1170.95 and obtain a hearing resulting in vacating of the murder conviction. AR 1281. A determination in the defendant’s favor under this procedure does not mean that the conviction was erroneously imposed, it only means that the defendant’s acts do not satisfy the current definition of murder. AR 1281.

Garner’s interpretation would entitle every defendant whose murder conviction was vacated under section 1170.95 to compensation because they were never a murderer. AR 1281. The superior court rejected this reasoning in denying Garner’s motion for a finding of factual innocence under section 1485.55. AR 1281. Garner’s position is also inconsistent with the legislative history of SB 1437, which recognized that there would be extensive cost savings in releasing inmates without mentioning a potential cost increase from section 4900. AR 1281. Given the specificity of the costs referred to in the legislative history, Garner’s argument that these expenses simply fell outside the purview of the bill was unpersuasive. AR 1281.

Further, there was draft language in SB 269 would have exempted murder convictions vacated under section 1170.95 from a proposal to require automatic approval of Board applications under section 4900 if the underlying conviction was vacated in a habeas corpus proceeding. AR 1281. Admittedly, this proposal failed to pass and is of little value in determining legislative intent. AR 1281. However, Garner asserts that the omission of a similar exemption in SB 446 -- which added section 4900(b) -- reflects an intent to include murder convictions vacated under section 1170.95. AR 1281. Because section 4900(b) creates a new procedure for limited cognizable claims separate from the process in section 4900(a), it includes only the enumerated claims. AR 1282. A murder conviction vacated under section 1170.95 is not among them. AR 1282.

Alternatively, Garner argued that the reference to a grant of habeas corpus in section 4900(b) includes a vacated murder conviction under section 1170.95. AR 1282. He contends that a vacated conviction under section 117095 is a classic example of a habeas petition, and it would exalt form over substance to conclude otherwise. AR 1282. The Hearing Officer concluded that Garner’s interpretation of habeas corpus in section 4900 is not supportable. AR 1282. If the definition of habeas corpus were so broad, there would have been no need to list the other enumerated actions listed in section 4900(b). AR 1282. Garner’s argument also fails to recognize that section 1170.95 is the exclusive recourse for persons seeking to vacate their felony murder conviction under the narrowed definition of that offense. AR 1283.

The Board has consistently rejected claims under section 4900 that are solely based on section 1170.95 without any allegation that the claimant was factually innocent under the law at the time the charged crime occurred. AR 1283.[8] This interpretation of section 4900’s application is entitled to deference. AR 1283.

Garner also cited section 4903(d), which provides that the Attorney General may not rely on the fact that the state still maintains the claimant is guilty if a conviction is reversed and dismissed. AR 1283. This provision only limits the evidence the Attorney General can use to meet its burden of proof for claims under section 4900(b). AR 1284. It has no application when the claimant has the burden of proof to show factual innocence under section 4900(a). AR 1284.

Without any allegation of factual innocence under the law in effect at the time of the offense, the Board lacked jurisdiction over Garner’s application. AR 1284. Hence, his claim was rejected without consideration by the Board in accordance with section 642. AR 1284.

Section 642(a) provides that claims that are either untimely or fail to state facts constituting a claim under sections 4900 and 4901 will not be heard by the Board. AR 1284. Prior to rejection of a claim for either reason, the Board shall give notice of the reason for rejection and 30 days’ opportunity to cure. §642(b). AR 1284. The Board will grant a hearing if the claimant provides sufficient evidence to prove the petition is timely and complaint. §642(c). AR 1284. If the claimant’s response does not provide sufficient evidence to prove that it was timely filed and is otherwise compliant with the requirements of sections 4900 and 4901, the claim will be rejected by the Board and not considered. §642(d). AR 1284-85.

The Board adopted this regulation in 2010 after the standard notice and 45-day public comment period, followed by independent review and approval from the Office of Administrative Law (“OAL”). AR 1285. Section 4906 gives the Board the authority to adopt such regulations for the purpose of carrying out its duties. AR 1285. Govt. Code section 13920 also allows the Board to adopt regulations that govern any matter over which it has jurisdiction. AR 1285. Govt. Code section 13909 permits delegation of any Board power to its staff by majority vote. AR 1285. Accordingly, section 642 is a proper exercise of its rulemaking discretion to enable a hearing officer to reject any claim that the Board lacks authority to approve. AR 1285.

Garner asserted that the Board did not have the authority to reject his application for lack of jurisdiction, as opposed to a failure of pleading and proof which must be decided after a response from the Attorney General. AR 1285. He contended that section 642 is the procedural equivalent of a sua sponte motion to dismiss. AR 1285.

The Hearing Officer responded that a state agency’s adjudicative jurisdiction is derived from its legislative authorization. AR 1285. The agency has the power to define its own jurisdiction in the first instance and to determine whether the preliminary facts exist that give rise to jurisdiction. AR 1285. If an action exceeds agency jurisdiction, it is null and void. AR 1285. Because sections 4900 and 4901 set forth the required elements for a claim, the Board’s determination that it lacks jurisdiction is a shorthand expression that the claim either fails to allege sufficient facts under section 4900 or is untimely under section 4901. AR 1285. Under either scenario, the Board lacks authority to grant relief. AR 1285.

Section 642 expressly states that the Board will reject a claim if it is untimely under section 4901 or does not satisfy each element under section 4900. AR 1286. This process conserves resources by avoiding their expenditure when the underlying claim for compensation fails as a matter of law. AR 1286. The Board has used this procedure for over half of the claims it receives each year, and without it the Board would double the resources expended on section 4900 claims. AR 1286.

Because a rejection under section 642 is final, it is subject for judicial review via petition for writ of mandate. AR 1286. Except for the expenditure of fewer resources, the result is no different than after the Attorney General’s letter and a hearing. AR 1286. Consequently, the procedure does not give the Board a bludgeon or the exclusive advantage as Garner alleges. AR 1286-87.

The procedure also comports with the statutory scheme in the Penal Code in that the Attorney General must submit a written response if the petition meets the requirements of sections 4900 and 4901. AR 1287. Section 4903 contemplates a hearing on factual circumstances to determine the claimant’s innocence or guilt and not whether any legal issue forecloses the claim as a matter of law. AR 1287. Section 4904 requires the Board to recommend to the Legislature compensation for any granted claim but does not require any action by the Board for a denied claim. AR 1287. Finally, although not expressly challenged by Garner, section 642’s procedure complies with due process. AR 1287-88.

On behalf of the Board and pursuant to section 642, the Hearing Officer rejected Garner’s claim -- as narrowly defined by his request for withdrawal -- as not cognizable under section 4900. AR 1288.

Petitioner Garner seeks mandamus compelling the Hearing Officer[9] to set aside her decision denying him compensation, award him compensation, and invalidate section 662. Garner’s claim concerns issues of statutory interpretation, which are questions of law.

In construing a statute, a court must ascertain the intent of the legislature so as to effectuate the purpose of the law. Brown v. Kelly Broadcasting Co., (1989) 48 Cal.3d 711, 724; Orange County Employees Assn. v. County of Orange, (“Orange County”) (1991) 234 Cal.App.3d 833, 841. The court first looks to the language of the statute, attempting to give effect to the usual, ordinary import of the language and seeking to avoid making any language mere surplusage. Brown v. Kelly Broadcasting Co., (1989) 48 Cal 3d 711, 724. Significance, if possible, is attributed to every word, phrase, sentence, and part of an act in pursuance of the legislative purpose. Orange County, supra, 234 Cal.App.3d at 841. “’The statute's words generally provide the most reliable indicator of legislative intent; if they are clear and unambiguous, ‘[t]here is no need for judicial construction and a court may not indulge in it. [Citation.]’” MCI Communications Services, Inc. v. California Dept. of Tax & Fee Administration, (“MCI”) (2018) 28 Cal. App. 5th 635, 643.

Where ambiguity still remains, the court should consider “reason, practicality, and common sense.” Id. at 1084. This requires consideration of the statute’s purpose, the evils to be remedied, public policy, and contemporaneous administrative construction. MCI, supra, 28 Cal.App.5^th at 643. The enactment must be given a reasonable and commonsense interpretation consistent with the apparent purpose and intent of the lawmakers, practical rather than technical in nature, and which, when applied, will result in wise policy rather than mischief or absurdity. Lungren v. Deukmejian, (1988) 45 Cal. 3d 727, 735.

To receive compensation, a claimant under section 4900(a) bears the burden of proving that the crime that he was charged with either did not occur or was not committed by him. §§ 4900(a), 4903(a), 4094. He is required to prove his innocence “by a preponderance of the evidence.” Diola, supra, 135 Cal.App.3d at 588, n. 7; see also McCoy v. Bd. of Retirement, (1986) 183 Cal.App.3d 1044, 1051, n. 5. This is a “heavy burden.” Tennison v. Victim Compensation and Government Claims Board, (2007) 152 Cal.App.4th 1164, 1191.

In significant part, section 4900(a) provides that any person who, having been convicted of a felony and incarcerated in prison for that conviction, is innocent either because no crime was committed or because he did not commit the crime, may present a claim to the Board for the injury he sustained through the erroneous conviction and imprisonment.

Garner argues that the purpose of the ‘factual innocence’ law under section 4900 et seq., is to offer a remedy for individuals who prove their innocence and secure their freedom after they have been erroneously convicted. That remedy is designed to compensate a person for “each day he or she spent illegally behind bars away from society, employment, and their loved ones.” Holmes v. Victim Compensation Board, (2015) 239 Cal.App.4th 1400, 1405. Pet. Op. Br. at 14-15.

Garner contends that section 4900 permits persons erroneously convicted of crimes to claim compensation – meaning, persons who are factually innocent, no matter how regular the proceedings were – as part of correcting historical overreach by law enforcement. Garner was convicted of murder in 2007 based on the felony murder rule, only for California to realize in 2018 that the paradigm of felony murder does not warrant a person being declared a murderer. Consequently, Garner’ conviction for murder was invalidated in 2019. Pet. Op. Br. at 16.

This means that Garner was not a murderer in 2019 and also was not a murderer in 2007, even though the state erroneously labeled him as one under then-existing law. Self-evidently, if a society realizes that a certain act is not a crime, it means that the convicted defendant is not a criminal now and never was one. Garner’s 2007 conviction is erroneous, it was erroneous when it was entered in 2007, and it will always be erroneous. Pet. Op. Br. at 16.

Garner contends that the Hearing Officer wrongly interpreted section 4900(a) to have a plain meaning -- that factual innocence of the “crime charged” means the crime charged as it was defined when it was charged. A plain reading of the language in question favors the opposite conclusion. The reference to the “crime with which they were charged’ is a reference to the criminal offense in question -- murder, robbery, burglary, etc., without regard to its definition when the criminal case was brought. Pet. Op. Br. at 21.

Thus, exoneration from a crime absolves the defendant of guilt for that criminal offense for all time under section 4903(d). There is no way to read the phrase “the crime with which they were charged” as the crime as it was defined when it was charged. Section 4900(a) would have to read “the crime with which they were charged as then-defined was either not committed at all….” The Hearing Officer’s interpretation effectively is that Garner is still guilty of the crime of “2007 felony murder”, which flies in the face of 4903(d). Pet. Op. Br. at 21; Reply at 5.

Garner adds that a conviction can be simultaneously lawful and erroneous. Wrongful convictions based on mistaken identity are routinely obtained in a lawful manner, only to find later that the identification was wrong, the conviction was in error. Whether it was the law that was wrong or the witness that was wrong should not matter. Nor should it matter that the proceedings themselves were conducted lawfully because the dispositive inquiry under section 4900(a) is whether the defendant is factually innocent, not whether he was convicted through a lawful process. Pet. Op. Br. at 16, n. 92.

The Hearing Officer was correct in her plain meaning analysis. As she stated, the plain meaning of section 4900(a)’s reference a “charged crime” refers to the specific act the defendant allegedly committed and how it violates the criminal law at the time that the act occurred. AR 1279. A “charged crime” refers to an act by the defendant that violates the law when it occurred; a future amendment to the criminal law cannot form the basis for an already charged crime. AR 1279. An applicant must demonstrate that he did not commit the crime with which he was charged as it was defined when the offense occurred. AR 1279. See Board Opp. at 6.

The fact that section 4900(a) refers to “injury” through “erroneous conviction” confirms this plain interpretation because a defendant cannot be erroneously convicted if the conviction was valid at the time but invalidated by a later change to the law. AR 1279. Similarly, no conceivable “injury” results from imprisonment pursuant to a validly imposed conviction for a crime that the applicant actually committed under then-existing law. AR 1279. See Board Opp. at 6.

Garner replies that this point overlooks that legitimate innocence claims are based on convictions that were legal when entered. For example, a defendant may be exonerated where the DNA science had not evolved to exclude him as the perpetrator or the key witness may not recant until years after the conviction. Both represent an indisputably valid construct for an innocence claim in which the defendant did not commit the crime under section 4900(a). Reply at 6.

This argument is a non-sequitur. The Board and State do not dispute that section 4900 permits compensation for a claimant’s whose innocence is only discovered years after the conviction. Indeed, that is the very purpose of section 4900. But factual innocence of the crime charged differs from a change in the law which means that the claimant would not be convicted under current law. Such a claimant was not erroneously convicted and suffered no legally cognizable injury from his lawful incarceration.

As the State correctly notes, the Legislature has the power both to enact and repeal penal laws. See People v. Powell, (2018) 5 Cal.5th 921, 943 (quoting People v. Farley, (2009) 46 Cal.4th 1053, 1119). When the Legislature acts to reduce punishments or to eliminate them entirely, subsequent acts go unpunished and convicted wrongdoers may be released. See, e.g., People v. Collins, (1978) 21 Cal.3d 208, 212-14; In re Estrada, (1965) 63 Cal.2d 740, 742, 744-46. That is the nature of the Legislature’s power. While the Legislature has this power, that does not mean that a convicted defendant deserves payment for imprisonment for a conviction that was valid before a change in the law. State Opp. at 7-8.

Based on this clear statutory language, a cognizable claim under section 4900(a) requires an allegation that the claimant was erroneously convicted of a charged offense under the law in effect when the criminal act was committed. AR 1279. The statutory language of section 4900 plainly requires the claimant to allege that he was erroneously convicted of the crime as it was defined at the time of charging and conviction. Garner was correctly convicted of felony murder and remained guilty of that crime until the felony murder law was changed.

Garner’s suggestion that this interpretation requires adding the words “as then defined” to section 4900’s language to the phrase “the crime with which they were charged” is not well taken. Section 4900(a) refers to a person “having been convicted of any crime”, “being innocent of the crime with which they were charged”, who “shall have served the [prison] term or any part thereof”, and his “erroneous conviction” and “injury sustained”. All of these phrases refer to the past events: the claimant’s criminal charge, conviction, incarceration, and injury. None of them concern the present state of the law and there is no requirement to add language of the crime “as then defined”. In fact, Garner’s position would require the addition of language that the “crime with which they were charged as defined then or now”, as well as additional clarifying language concerning erroneous conviction and injury.

As stated, Garner contends that section 4900 is part of correcting historical overreach by law enforcement. Pet. Op. Br. at 16. He adds that section 4900(a)’s purpose is to compensate people who are innocent and yet served time in custody, regardless of what procedural or other factual circumstances resulted in that outcome. The fallacy in the Hearing Officer’s position is that it seeks to require legal error in the criminal process, while the concept of section 4900’s compensation is to compensate innocent persons for the error of being convicted and incarcerated by the criminal justice system, however that outcome occurred. Reply at 6.

This argument refutes itself. Section 4900(a)’s purpose is to compensate those who were innocent and yet incarcerated. Innocence does not mean procedural error, for that would only require a retrial. Innocence means factually innocent because the defendant did not commit a crime. A defendant who committed the crime is not innocent and incarcerated for the error of being wrongly convicted no matter what happens to later definitions of the crime for which he is convicted. Moreover, there is nothing in SB 1437 that corrects an historical overreach by law enforcement. It merely corrects what the Legislature perceived to be a legislative overreach.[10][11]

The plain meaning of section 4900 requires the claimant to have been innocent of the charge for which he was convicted at the time of conviction.

Section 4903(d) states in relevant part: “A conviction reversed and dismissed is no longer valid, thus the Attorney General may not rely on the fact that the state still maintains that the claimant is guilty of the crime for which they were wrongfully convicted.”

Garner concludes that an exoneration from a crime absolves the defendant of guilt for that criminal offense for all time per section 4903(d), including when the offense was defined differently. The Hearing Officer effectively wants to argue that Garner is still guilty of the crime of “2007 felony murder”, which flies in the face of 4903(d). Pet. Op. Br. at 21; Reply at 5.

As the Board contends, section 4903(d) merely bars the Attorney General from relying on certain types of evidence to meet its burden of proof for claims adjudicated under section 4900(b). It does not expand or alter the required elements of a cognizable section 4900 claim. Therefore, section 4903d) does not require the Board to proceed with Garner’s claim when he makes no allegation of innocence under the law existing at the time of his crime. Board Opp. at 6.

Garner replies that, while section 4903 is admittedly addressed to the conduct of the hearing, if the Board is not permitted to insist that the defendant is still guilty at a section 4903 hearing, it is impossible to see how it can maintain that he is still guilty for purposes of moving to dismiss in a sua sponte motion to dismiss the claim before the hearing. Reply at 7.

The short answer is that the Board is not contending that Garner is still guilty of felony murder. It is undisputed that he was guilty of felony murder at the time he was convicted, which is all that is necessary. As the Hearing Officer found, section 4903 has no application when the claimant has the burden of proof to show factual innocence under section 4900(a). AR 1284.

To the extent there is any ambiguity in the proper interpretation of section 4900(a) – and the court does not find there is -- the Hearing Officer’s (and the Board’s) interpretation is entitled to deference.

Where an administrative agency is performing an interpretative function for a statute, the deference is situational. The courts will take ultimate responsibility for construction of the statute, according appropriate weight and respect to the agency’s interpretation. Yamaha Corp. of America v. State Bd. of Equalization, (“Yamaha”) (1998) 19 Cal.4th 1, 10-11. Where an agency interprets a statute within its administrative jurisdiction, it may possess special familiarity with satellite legal and regulatory issues, which is the source of the presumptive value of the agency's views. Id. at 11. Deference to an agency's interpretation of a statute is not unlimited, even in substantive areas of an agency’s expertise, because determining a statute's "meaning and effect is a matter 'lying within the constitutional domain of the courts.'" Center for Biological Diversity v. Department of Fish & Wildlife, (2015) 62 Cal.4th 204, 236. When an agency does not have a longstanding interpretation of a statute or has not adopted a formal regulation interpreting the statute, courts need not defer to, and may simply disregard, the opinion offered by the agency. Interinsurance Exchange of Automobile Club v. Superior Court, (2007) 148 Cal.App.4th 1218, 1235-36.

Furthermore, the weight given to an agency’s interpretation is dependent on the presence or absence of factors supporting the merit of the interpretation. Yamaha, supra, 19 Cal.4^th at 7-8, 12. Some deference is warranted where there are "indications of careful consideration by senior agency officials" or "the agency 'has consistently maintained the interpretation in question.’” Id. at 13. For purposes of determining the deference that should be afforded, a court should consider factors indicating that the agency has a comparative advantage over the courts—such as if the subject matter of the statute is especially technical or complex—and factors indicating that the agency’s interpretation in question is probably correct—such as when the interpretation has gone through formal notice-and-comment rulemaking, when there are indications of careful consideration by senior agency officials, or when the agency has maintained a consistent interpretation over time. See Harlick v. Blue Shield of California, 686 F.3d 699, 717 (9th Cir. 2012); see also Hoechst Celanese Corp. v. Franchise Tax Bd., (“Hoechst”) (2001) 25 Cal.4th 508, 524 (an administrative construction of a statute is only entitled to as much deference as is warranted by “the thoroughness evident in its consideration, the validity of its reasoning, its consistency with earlier and later pronouncements, and all those factors which give it power to persuade, if lacking power to control”).

The Board points out that it has consistently rejected section 4900 claims that were based solely upon a conviction vacated under section 1170.95. For example, in 2020 and 2021, the Board rejected the claims of Anthony Graham (Claim No. 21-ECO-01), James Duran (Claim No. 21-ECO-07), and Larry Johnson (Claim No. 20-ECO-10) for the same reasons that it rejected Garner’s claim. AR 1289–02. Board Opp. at 9.

The court notes additionally that, while the subject matter of section 4900 is not especially technical or complex, the Board’s interpretation has now gone through formal notice-and-comment rulemaking in section 642 and the Hearing Officer’s decision is quite well reasoned. As a result, the Board’s interpretation is entitled to serious and significant deference. See Hoechst, supra, 25 Cal.4th at 524.

Because section 4900 has a plain meaning, the court need not, and should not, resort to legislative history. For purposes of completeness only, the court will address the parties’ legislative history arguments.

Garner relies on observations in a 2013 Senate Committee on Public Safety report for SB 618 which amended the statutory scheme to make it easier to recover such compensation:

“California law offers a remedy for the men and women that prove their innocence and thereby secure their freedom by providing compensation in the amount of $100 for each day he or she spent illegally behind bars away from society, employment, and their loved ones. California’s compensation statute became law with a single dissenting vote in 2000, and while well intended, has been grossly underutilized due to a number of barriers that deny access to the very population the funds were designed to assist.”

“Under our current system, an innocent person must go through the intensely arduous task of proving their innocence in a full court hearing by completely dismantling the state’s case. And then, he or she must start again from scratch in a completely new and separate administrative process – a process in which the innocence that he or she has previously proven is ignored or discounted and the rules of evidence of a trial court do not apply. It’s like winning a marathon, only to find that the prize for winning is to run an ultra-marathon, at the end of which you are likely to get nothing.”

“Although many of the exonerated possess unfathomable courage, determination, and heart, they often lack the resources and skills to muster their way unassisted through the labyrinth of requirements necessary to see their compensation claim through. SB 618 addresses this problem by creating a fair and efficient review process that reduces a number of obstacles that continue to prevent eligible exonerees from gaining access to meaningful compensation for their unlawful imprisonment.” Senate Committee on Public Safety, Senate Bill 618, 2013-2014 Sess. (April 23, 2013) Compensation for Exonerated Inmates and Former Inmates,[12] Pet. Op. Br. at 15.

Garner argues that the Hearing Officer did not address this legislative history of SB 618. The Hearing Officer solely addressed legislation in SB 269 (§1485.55), SB 1437 (§1170.95), and SB 446 (modifying §4900(b) but not §4900(a)). AR 2863-66. Pet. Op. Br. at 15-16.

It is not clear what Garner’s point is. If it is that the Legislature’s various bills, including SB 1437, sought to ease the ability of innocent, yet incarcerated, defendants to receive compensation, but that fact is not disputed and is reflected in section 4900.

For its part, the Board argues that the legislative history of SB 1437 demonstrates that the Legislature was mindful of the costs and savings associated with narrowing liability for murder. While the Legislature anticipated certain short-term expenditures associated with resentencing -- such as the costs to hold resentencing hearings, transport inmates to hearings, and handle the increase in appeals -- it anticipated a far greater savings from reduced prison sentences. Sen. Rules Com., Off. Of Sen. Floor Analyses, Sen. Bill 1437 (2017–2018 Reg. Sess.) as amended Aug. 20, 2018, pp. 7–8. The Legislature did not mention the additional millions of dollars that would be required to compensate defendants whose convictions were vacated due to the change in the law. Ibid. Given the specificity of the costs and savings identified in the legislative analysis of SB 1437, and the lack of any reference to compensation, it appears the Legislature did not intend a conviction vacated under SB 1437 to entitle the defendant to section 4900 compensation. Board Opp. at 9.

The Board fails to provide this legislative history and ask for its judicial notice or a citation to it in the administrative record. Therefore, it is not in evidence. Additionally, legislative history discussing cost is not particularly persuasive evidence of intent.

The Board argues that its interpretation of section 4900 is consistent with the three cases that have examined its language. The first two cases considered the statute’s meaning of the term “innocent” to mean that the claimant can show that he or she did not commit acts that constitute the elements of the charged crime. Ebberts v. State Board of Control, (“Ebberts”) (1978) 84 Cal.App.3d 329, 335; Diola, supra, 135 Cal.App.3d at 588. Board Opp. at 7.

Ebberts determined that not-guilty-by-reason-of-insanity does not amount to a finding of innocence. 84 Cal.App.3d at 332–33. A plea of insanity is a peal of confession and avoidance. Id. at 333. As such, it is an admission that the defendant committed the acts constituting the elements of the charged offense. Id. The claimant therefore is not innocent within the meaning of section 4900. Id. at 335–36. Board Opp. at 7.

Garner notes that Ebberts committed a series of burglaries but was eventually exonerated on the basis that he was not guilty by reason of insanity. Id. at 332. This did not make him innocent; it made him not guilty. Ebberts reasoned that the status of not guilty does not mean that the criminal acts did not occur for purposes of the section 4900 innocence analysis. “We interpret the phrase ‘not committed at all’ in 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.” Id. at 335. Garner is not an insane but actual killer like Ebberts. Garner also distinguishes Ebberts on the basis that, at the time it was decided, reversal of a conviction was not as important to the analysis as it is today. Compare id. at 333 (reversal is not sufficient evidence of innocence) to §4903(d) (Attorney General may not rely on the fact that the defendant was once convicted of the crime). Pet. Op. Br. at 21-22.

While the court does not agree that a “reversal of a conviction” is more important now than when Ebberts was decided, it does agree that Ebberts is distinguishable as a case in which the defendant committed the charged offense and was not innocent; he was not guilty only based on an affirmative defense of insanity, which the Legislature did not intend to be included in the meaning of “innocent” under section 4900. Id. at 335.

Before the Board, Garner relied on Diola, supra, 135 Cal.App.3d at 587-88, in which a claimant’s involuntary manslaughter conviction was vacated where she claimed that she had killed in self-defense, the appellate court reversed for improper disparagement of her character, and the district attorney dismissed on remand. Id. at 583. Diola made a claim under section 4900, contending that she acted in self-defense and did not commit the crime with which he was charged. Ibid. The court did not construe Ebberts to mean that merely doing the criminal act precludes compensation under section 4900; that case only precluded compensation because the offense was admitted by the insanity plea. Id. at 587. In contrast, self-defense does not excuse the crime of murder or manslaughter because both are defined as an unlawful killing. Id. A person who kills in self-defense does not act unlawfully and such a person may be eligible for section 4900 compensation. Id. at 587-88. The court remanded for the Board to redecide the case using the proper interpretation of section 4900. Id. at 588.

The Hearing Officer found Diola inapplicable because Garner did not assert that he never committed the crime at all, only that he did not commit the crime under its current definition. AR 1280.

Garner argues that Diola was innocent of the charged crime because self-defense is a justified killing and is not unlawful. Because she did not commit one of the elements of the charged crimes of murder and manslaughter, she could establish her innocence for purposes of section 4900. Garner argues that both Diola and he have been adjudicated to be innocent of the crime in question. Since Garner is and was innocent of murder, he must be compensated just as Diola was. Pet. Op. Br. at 22.

Aside from the fact that Diola was never found to have acted in self-defense or to be entitled to compensation, the Board correctly argues that, unlike Diola, Garner cannot show that that he did not commit the acts constituting the elements of the charged offense. Garner’s claim of innocence is based only on the fact that he did not commit the crime as it is currently defined. He does not claim he is innocent of murder under the law existing at the time of his conviction and in fact concedes that there is evidence to establish his guilt under then-existing law. AR 1265.

The court finds that Diola is distinguishable because Diola may have acted in self-defense and may not have committed an unlawful act. In contrast, Garner committed an act that was unlawful when committed.

The Board argues that People v. Etheridge, (“Etheridge”) (2015) 241 Cal.App.4th 800, 805, construed section 1485.55, which permits a defendant granted habeas corpus to move for a finding of actual innocence based on the same operative language as section 4900. Section 1485.55 and section 4900 are part of the same statutory scheme providing compensation for erroneous conviction and both hinge on a claimant’s innocence -- i.e., the claimant did not commit the charged crime. Because courts “must construe identical words in different parts of the same act or in different statutes relating to the same subject matter as having the same meaning”, the Etheridge court’s analysis has considerable value to this case. See Balasubramanian v. San Diego Community College Dist., (2000) 80 Cal.App.4th 977, 988 (). Board Opp. at 7-8.

Etheridge was wrongfully convicted of robbery and resentenced to petty theft with a prior. Etheridge, supra, 241 Cal.App.4th at 803–04. He stole a package of steak from a market, was chased by store security, and struck one of the guards to escape. He was convicted of robbery and petty theft. Id. at 803. He obtained habeas relief because the robbery conviction was inaccurate. He did not use force to steal the steak; he only used force to escape, which is an assault but not robbery. Id. at 804.

Section 1485.55 permits certain exonorees to streamline section 4900 compensation by petitioning for a finding of factual innocence. Id. at 805. Etheridge contended that he was entitled to streamlined compensation because he was factually innocent of robbery. Ibid. He sought a finding of innocence under section 1485.55, which was denied by the trial court. Id. at 804.

The Etheridge court affirmed, relying on the Legislature’s purpose in providing compensation for erroneous conviction. Id. at 810. As the court observed, the Legislature sought to compensate “exonorees,” defined as “unlawfully imprisoned or restrained” persons, for their time spent illegally behind bars. Id. at 807. Although Etheridge was legally and factually innocent of robbery, he was not unlawfully imprisoned. Id. at 811. Under the three-strikes law existing at the time of Etheridge’s conviction, a conviction for petty theft with a prior likely would have resulted in a sentence longer than the term he actually served. Id. at 810–11. Because the court could not conclude he was unlawfully imprisoned, he was not entitled to a finding of innocence or streamlined section 4900 compensation. Id. at 811.

According to Garner, the Etheridge court, like previous courts, struggled with increasingly strict rules that facilitate recognition of actual innocence against their “gut instincts” that a defendant like Etheridge does not deserve compensation. Etheridge was fully engaged in a crime and defeated one of the convictions only through a technicality. The Etheridge court’s solution was to advance a new standard for innocence: a defendant is innocent if he does not perform acts that “characterize the crime” or are elements of the crime, and therefore was wrongly convict and unlawfully imprisoned. Id. at 810. Garner argues that the court cited no authority for this proposition and it construed the language in section 4900(a) beyond what it expressly provides. Reply at 9-10.

Garner concludes that it does not matter whether the court adopts Etheridge or sticks with the standard reflected by the statute. Under the statute, Garner is clearly innocent, because he did not commit the murder. But even under the Etheridge interpretation of section 4900, Garner did not commit the acts which characterize the crime of murder. Reply at 10.

As the Board argues (Board Opp. at 8), Etheridge explains that the determination whether a claimant was unlawfully imprisoned is made by looking at the law in effect at the time of conviction. Garner was properly convicted in 2007 under the then-existing definition of murder and was lawfully imprisoned until 2019 when his conviction was vacated by the mechanism provided in SB 1437. Because Garner was not erroneously convicted in 2007, nor was he unlawfully imprisoned between 2007 and 2019, Etheridge supports the interpretation of section 4900 that he is not entitled to compensation. Board Opp. at 8.

Garner’s attempted distinction of Etheridge proves its worth. He argues that Etheridge was fully engaged in a crime and defeated one of the convictions only through a technicality, but the same is true for him. Under California law, he was guilty of felony murder in 2007 and is not guilty of felony murder today because of a “technicality” of a change in the law.

The State relies on two out-of-state decisions to show that claims for compensation by exonerated defendants are based on the lawfulness of the crime at the time of conviction. State Opp. at 8.

In Dawson v. State (1973) 28 Ill. Ct. Cl. 255, the claimant was convicted of possession of marijuana in 1966 and sentenced to prison. Id. After the state statute defining his offense was held unconstitutional, he obtained a release on habeas corpus. Ibid. He then brought a claim for compensation, arguing that because the law was “unconstitutional, he was never guilty of a crime and therefore should automatically be entitled to compensation for unlawful imprisonment. Id. at 256. The state court of claims granted the state’s motion to dismiss his claim. Id. at 261.

The court stated that it has always taken the position that a claimant, to recover for false imprisonment, must prove that the time he served in prison was unjust and that he was innocent of the crime for which he was imprisoned. Id. (citation omitted). The court explained that claimant’s position, “followed to its logical conclusion, would allow every individual who had been convicted of a crime under a statute later ruled unconstitutional by the Supreme Court to sustain an action for recovery of damages from the State for illegal incarceration.” Id. at 257. The estates of persons executed under a repealed death penalty law could claim compensation, as could those convicted under obscenity laws, abortion laws, pornographic laws, and a multitude of other criminal statutes that have changed. Ibid. This would result in a flood of claims brought about by any change in punishment either by action of the Legislature or by the Courts, a change in personnel in the Courts, or a change in the mores of society. Id. “The victims under this theory would not be the alleged criminals but society and the individual taxpayers who would have to assume this new and additional burden.” Id. at 258.

Similarly, in the unpublished case[13] of Lambert v. State Claims Bd., (“Lambert”) (1979) 90 Wis. 2d 857, the plaintiff had been convicted of the offense of “causing the death of [a] mother by an act done with intent to destroy the life of an unborn child” and sentenced to prison. He was released after the statute defining his crime was held unconstitutional in light of Roe v. Wade (1973) 410 U.S. 113. The Wisconsin claims board denied his claim for compensation, and the trial court agreed. On appeal, the petitioner argued that he was entitled to compensation inasmuch as “he was innocent of the crime because there was no crime.” The court rejected his claim, explaining that “[t]he existence of the statute under which he was convicted was an operative fact. Although an unconstitutional law is void, it had an actual existence and certain consequences. Id. at 2. “There was a ‘crime’ on the books when [the plaintiff] was convicted” and he had failed to prove his innocence in the current litigation. Lambert, supra, 90 Wis. 2d at 857. State Opp. at 9.

Although distinguishable as based on other state statutes, the reasoning of these cases is that a claimant is not entitled to compensation when the statute defining his crime and under which he was incarcerated is void as unconstitutional. In the words of Lambert, “the existence of the statute under which he was convicted was an operative fact.” It follows a fortiori that a claimant cannot be entitled to compensation as an erroneously convicted offender merely because, years later, the Legislature has chosen to narrow a crime’s definition and to thin the available theories of liability. State Opp. at 9.

The plain meaning of section 4900 requires the claimant to have been innocent of the charge for which he was convicted at the time of conviction. This is the interpretation by the Board to which the court must give considerable deference. It also is supported by the reasoning of case law in California and out-of-state.

Garner challenges the lawfulness of section 642 pursuant to which the Board rejected his claim based on lack of jurisdiction.

Section 642(a) provides that claims that are either untimely or fail to state facts constituting a claim under sections 4900 and 4901 will not be heard by the Board. Prior to rejection of a claim for either reason, the Board shall give notice of the reason for rejection and 30 days’ opportunity to cure. §642(b). The Board will grant a hearing if the claimant then provides sufficient evidence to prove the petition is timely and complaint. §642(c). If the claimant’s response does not provide sufficient evidence to prove that it was timely filed and is otherwise compliant with the requirements of sections 4900 and 4901, the claim will be rejected by the Board and not considered. §642(d).[14]

The Hearing Officer noted Garner’s argument that the Board did not have the authority to reject his application for lack of jurisdiction as opposed to a failure of pleading and proof which must be decided after a response from the Attorney General, and that section 642 is the procedural equivalent of a sua sponte motion to dismiss. AR 1285.

The Hearing Officer found that the Board adopted section 642 in 2010 after the standard notice and 45-day public comment period, followed by independent review and approval from the OAL. AR 1285. Section 4906 gives the Board the authority to adopt such regulations for the purpose of carrying out its duties. AR 1285. Govt. Code section 13920 also allows the Board to adopt regulations that govern any matter over which it has jurisdiction. AR 1285. Govt. Code section 13909 permits delegation of any Board power to its staff by majority vote. AR 1285. Accordingly, section 642 is a proper exercise of its rulemaking discretion to enable a hearing officer to reject any claim that the Board lacks authority to approve. AR 1285.

The Hearing Officer stated that a state agency’s adjudicative jurisdiction is derived from its legislative authorization. AR 1285. The agency has the power to define its own jurisdiction in the first instance and to determine whether the preliminary facts exist that give rise to jurisdiction. AR 1285. If an action exceeds agency jurisdiction, it is null and void. AR 1285. Because sections 4900 and 4901 set forth the required elements for a claim, the Board’s determination that it lacks jurisdiction is a shorthand expression that the claim either fails to allege sufficient facts under section 4900 or is untimely under section 4901. AR 1285. Under either scenario, the Board lacks authority to grant relief. AR 1285. Section 642’s process also conserves resources by avoiding their expenditure when the underlying claim for compensation fails as a matter of law. AR 1286. Without it, the Board would expend double the resources it expends on section 4900 claims. AR 1286.

Garner admits that the Board has authority to adopt regulations governing any matter over which it has jurisdiction. See Govt. Code §13920. But an administrative regulation may not contravene the terms, or exceed the scope, of the statutes under which they have been adopted. California Teachers v. Commission, (1992) 7 Cal.App.4th 1469, 1475 (citations omitted). It also may not create a remedy for the agency that the legislature has withheld. Dyna-Med v. Fair Employment, (1987) 43 Cal.3d 1379, 1389. Administrative regulations that alter, enlarge, or impair the scope of the authorizing statute are void and courts have the obligation to strike them down. Id. at 1389.

The statutory scheme provides the expected legal procedure for prosecution of compensation claims. §4901(a) (relating to requirements for claim); §§ 1485.5, 4903(b) (court findings binding on Board); § 1485.55(a), (c), (e) (automatic procedure in cases where factual innocence finding made by state or federal court); 1485.55(b) (procedure permitting party to seek factual innocence finding by court); 4902(b), 4903 (procedure for hearing in non-automatic-compensation cases). It also provides the standards by which such claims are adjudicated. §§ 4900, 4904 (setting forth standard to plead and prove innocence claim at hearing and setting forth current daily compensation figure). There is no demurrer or other motion to dismiss disposition procedure within the statutory scheme and a claimant who complies with the form and presentation requirements of section 4901 is entitled to a response from the Attorney General and a hearing. Pet. Op. Br. at 18-19.

Garner argues that, despite SB 618’s amendments to the compensation scheme in 2013, in 2010 the Board “quietly adopted” section 642 along with adding or amending four other regulations. In section 4901, the claim “can be bounced” if it not signed or if it is presented beyond the expansive ten-year statute. This is a non-controversial housekeeping. However, section 642 goes well beyond housekeeping by seizing on section 4900’s language of innocence -- “the crime with which they were charged was either not committed at all or, if committed, was not committed by the person” -- to say that the Board “can also bounce” an application as lacking jurisdiction if it does not assert that Garner was factually innocent as of then-existing law in 2007. In other words, the Board contends that it has no jurisdiction over a conviction that was obtained, but is now invalid, on a felony murder theory. This is a plainly illegal use of the term jurisdiction in a statutory scheme that has no jurisdictional limitations. Section 4900, as amended in 2013, is designed to compensate prisoners who were wrongly convicted, and to eliminate various procedural barriers that have historically rendered the compensation scheme ineffectual. Pet. Op. Br. at 17.

Garner argues that the Board uses section 642 as a substantive tool to aggressively eliminate procedurally compliant claims, believing that it can quarrel with a claimant whether the substantive elements of section 4900 are met and adopt its own view of this debate by summarily dismissing the claim on the legal basis that there is no jurisdiction for it. Section 642 impairs the statutory scheme by creating a substantive early disposition procedure. This creates an exclusive advantage for the that the statutory scheme does not recognize. Pet. Op. Br. at 18-19.

Even where a claim is invalid, the Board is not without jurisdiction. An invalid claim only means that the Attorney General might possess a valid defense at an administrative trial. Either way, there is no procedure authorized by statute that countenances the idea of the Board’s sua sponte motion to dismiss procedure by contending that a claim lacks jurisdiction when the Board disagrees with its merits. The intent of the recent amendments to the compensation statutes is designed to eliminate barriers, not countenance the Board’s attempts to create more of them. Pet. Op. Br. at 19-20.

Knowing that its defense of a lack of jurisdiction was unmeritorious, the Board resorted to cheating by changing the language and meaning of a passage it cited from an obscure administrative treatise (2 Cal. Jur. 3d Administrative Law, (February 2022 Update) §467 (Power to Determine Jurisdiction). Based on this treatise, the Board stated that it has the right to define its jurisdiction (AR 1389-91, 2858, 2867) and thereby effectively define away its exposure to compensation claims. However, the treatise stands for the accurate proposition that the Board, as an administrative body, gets to adjudicate questions of its jurisdiction. The Board has no power to define its jurisdiction, which is defined by statute. This “cheating” is all the more cause to recognize that the Board knows that its aggressive jurisdictional campaign is fundamentally a sham. Pet. Op. Br. at 20.

Accordingly, the Board overstepped its legal authority when it passed section 642 to permit a sua sponte motion to dismiss on a jurisdictional basis and should be invalidated. The regulation permits a practice “of bouncing claims” as lacking jurisdiction by treating litigants as if they are still guilty, even though this is prohibited by section 4903(d). Pet. Op. Br. at 20.

An administrative agency has only that rulemaking power that is invested in it by statute. Carmel Valley Fire Protection District v. State of California, (2001) 25 Cal.4^th 287, 299. The limitations on an agency’s regulatory authority apply equally to its authority to adopt a policy which would not be permitted as a formal regulation. Agnew v. State Board of Equalization, (1999) 21 Cal.4^th 310, 321.

An administrative agency is not limited to the exact provisions of a statute in adopting its regulations to enforce its mandate. Ford Dealers Assn. v. Department of Motor Vehicles, (“Ford”) (1982) 32 Cal.3d 347, 362. In the absence of specific statutory provisions, an agency is authorized to “fill up the details” of a statutory scheme. Id. A legislature may, after declaring a policy and fixing a primary standard, confer upon executive or administrative officers the “power to fill up the details” of the standard by prescribing administrative rules and regulations, or to delegate a power to decide that some set of facts meets the test on which the law is dependent. Kugler v. Yocum, (1968) 69 Cal.2d 371, 376.

The judicial function in reviewing the agency is limited to determining whether a regulation is (1) within the scope of the authority conferred and (2) whether it is reasonably necessary to effectuate the purpose of the statute. Ford, supra, 32 Cal.3d at 355. In making the determination of “reasonably necessary,” the courts will defer to the agency’s expertise and not superimpose its own policy judgment on the agency in the absence of an arbitrary and capricious decision. Id. See also Yamaha, supra, 19 Cal.4th at 10-11.

As the Board notes (Board Opp. at 10), it did not “quietly adopt” section 642. It implemented this regulation in 2010 and amended it in 2022 after undergoing the standard notice and 45-day public comment period required for all rulemaking, followed by independent review and approval from the OAL. See AR 1285.

The Board’s authority to adopt regulations is set forth in section 4906, which expressly authorizes it “to make all needful rules and regulations consistent with the law for the purpose of carrying into effect this chapter.” The Board is further authorized to adopt regulations “governing any matter over which it has jurisdiction” and to delegate “any statutory power” of the Board to staff upon a majority vote. Govt. Code §§ 13909(b), 13920.

Is section 642 within the scope of the authority conferred? The Board is directed by section 4900(a) to hear the claim of a person who, having been convicted of a felony and incarcerated in prison for that conviction, is innocent either because no crime was committed or because he did not commit the crime, and has served all or part of his prison term, for the injury he sustained through the erroneous conviction and imprisonment. This claim for compensation must be granted without a hearing in certain circumstances unless the Attorney General shows by clear and convincing evidence that the claimant is not entitled to compensation. §4900(b). The claim must be presented to the Board within two years after a judgment of acquittal, pardon, or release from custody. §4901(a).

For any claim to which circumstances of section 851.865 or 1485.55 do not apply to require automatic compensation, the Attorney General shall respond to the claim within 60 days or request an extension of time, upon a showing of good cause. §4902(a). When the Board receives the response, it shall fix a time and place for the hearing and shall mail notice thereof to the claimant and to the Attorney General at least 15 days prior to the time fixed for the hearing. §4902(b). The Board shall use reasonable diligence in setting the date for hearing. Id. At the hearing, the parties introduce evidence, and the claimant shall prove the facts set forth in the statement constituting the claim. §4903(a).

The Attorney General may not rely on a conviction that was reversed and dismissed to show that the claimant is not entitled to compensation. §4903(d). Where the claimant meets his burden of proof, the Board shall calculate the amount of compensation, which shall be a sum of $140 per day of incarceration, which is not subject to state income tax. §4904.

Section 642 allows the Board to address its authority to hear a claim without need for a response from the Attorney General and a hearing. Garner is correct that it is a device permitting the Board sua sponte to weed out claims that “fails to state facts upon which relief may be granted” under sections 4900 and 4901. There is nothing in the statutory scheme, however, that prevents the Board from using this procedure, and it is entirely consistent with the statutory scheme. The Board is authorized by section 4906 “to make all needful rules and regulations consistent with the law for the purpose of carrying into effect this chapter.” As such, the Board has the “power to fill up the details” of the hearing procedure by prescribing administrative rules and regulations, including section 642’s procedure to eliminate claims not within the scope of section 4900. See Kugler v. Yocum, supra, 69 Cal.2d at 376.

That the Board called this determination an issue of “jurisdiction” is of no moment. The Board’s scope of authority under its promulgating statute can reasonably be referred to as its “subject matter jurisdiction” even if that description is not entirely accurate. As the Hearing Officer explained, the Board’s determination that it lacks jurisdiction is a shorthand expression that the claim either fails to allege sufficient facts under section 4900 or is untimely under section 4901. AR 1285. Under either scenario, the Board lacks authority to grant relief. AR 1285.[15]

Is section 642 reasonably necessary to effectuate the purpose of the statute? For purposes of the reasonably necessary evaluation, the court must defer to the Board’s expertise and not superimpose its own policy judgment on the Board in the absence of an arbitrary and capricious decision. Ford, supra, 32 Cal.3d at 355. The Hearing Officer concluded that section 642 is reasonably necessary. Section 642 expressly states that the Board will reject a claim if it is untimely under section 4901 or does not satisfy each element under section 4900. AR 1286. This process conserves resources by avoiding their expenditure when the underlying claim for compensation fails as a matter of law. AR 1286. The Board has used this procedure for over half of the claims it receives each year and without it would have to expend double the resources it currently expends on section 4900 claims. AR 1286; Board Opp. at 10.

Garner’s argument that section 642 makes it harder for a claimant to obtain compensation, which is inconsistent with recent amendments designed to eliminate barriers to compensation, does not undermine this conclusion. By definition, section 642 disposes of claims that otherwise would be denied at a hearing. It is in the interest of all concerned to dispose of unauthorized claims without going through an adversarial process.

In sum, section 642 is (1) within the scope of the authority conferred by the statutory scheme and (2) is reasonably necessary to effectuate the purpose of the statute.

The FAP is denied. The Board’s counsel is ordered to prepare a proposed judgment, serve it on the other counsel for approval as to form, wait ten days after service for any objections, meet and confer if there are objections, and then submit the proposed judgment along with a declaration stating the existence/non-existence of any unresolved objections. An OSC re: judgment is set for April 27, 2023 at 9:30 a.m.

[1] Petitioner Garner’s counsel had considerable trouble preparing the joint appendix and did not include the administrative record pages cited in the oppositions. He also failed to include in the trial notebook a bates-stamped version of the Board’s decision and a copy of the State’s opposition. Garner’s counsel is directed to follow LASC Rule 3.231 in future mandamus cases.

[2] All further statutory references are to the Penal Code unless otherwise stated.

[3] Section 851.865 concerns a declaration of factual innocence issued by the court.

[4] Section 1485.55 concerns a court determination of factual innocence in either a habeas corpus writ or a vacation of judgment for newly discovered evidence under 1473.6.

[5] As amended effective January 1, 2023, section 642 expressly states that a claim solely based upon a vacated conviction due to a change in the legal definition of the crime, for example section 1170.95, is not in compliance. §642(a)(3).

[6] Although Garner presents a detailed version of his background and the murder of Crawford, these facts are not relevant to this case. See Pet. Op. Br. at 10-14.

[7] Section 1170.95 has been recodified in section 1172.6. As the parties do, the court will continue to refer to section 1170.95.

[8] In a three-year period from 2018 to 2020, the Board received 80 applications and denied 51 for lack of jurisdiction. AR 2716. In 2020 and 2021, Larry Johnson, Anthony Graham, Jr., and James Duran submitted applications for compensation to the Board. AR 1252, 1256, 1261. The Board responded to each that it was insufficient for a claimant to rely on a sentence reduction pursuant to section 1170.95. AR 1253, 1257, 1261. Each claimant needed to prove that the underlying offenses, as defined by law at the time of the offense, either never occurred or were committed by someone else. AR 1253, 1257.

[9] The court will refer to the decision as made by the Hearing Officer to distinguish it from the Board’s arguments in its opposition brief.

[10] Garner argues that the Board’s other defenses are without merit, citing AR 1375-76 (minimizing Garner’s innocence by arguing he is only innocent due to “recent statutory amendments,” even though elimination of felony murder rule represents a profound change to California law); AR 1376-77 (pleading that State should not be liable to pay statutory damages to when its proceedings did not contain traditional error but error is not the purpose of the legislation, factual innocence is). Pet. Op. Br. at 22, n. 118. The cited pages are not in the Joint Appendix and the court need not address these arguments.

[11] Although he relied on section 4900(b) before the Board, Garner does not rely on it now. As the Hearing Officer noted, section 4900(b) is a burden shifting provision that does not alter the elements required by section 4900(a). It creates a new procedure for adjudicating certain cognizable claims in which the challenged conviction was vacated under enumerated circumstances without subsequent conviction. AR 1280. In that circumstance, the burden shifts to the Attorney General to prove the claimant’s guilt by clear and convincing evidence. AR 1280. The Hearing Officer noted that section 4900(b) does not include vacatur of a conviction pursuant to section 1170.95 among the enumerated events— relief pursuant to habeas, section 1473.6, and section 1473.7(a)(2)—that can trigger an application for compensation under that subdivision. AR 1282.

[12] Garner does not request judicial notice of, or cite to the administrative record for, this legislative history. The citation appears to be a comment by one of the authors of SB 618, although only the middle paragraph is verbatim. Comments by bill authors are not considered to be significant legislative history. Kaufman & Broad, supra, 133 Cal.App.4^th at 37-38. Nonetheless, there is nothing controversial in the quoted language.

[13] California courts may consider unpublished opinions of courts of other states for their persuasive value. See University of Southern California v. Superior Court (2018) 30 Cal.App.5th 429, 446, n. 12.

[14] Section 642 was amended in 2022 to expressly state that claimants such as Garner have no viable compensation claim:

“A claim solely based upon a vacated conviction due to a change in the legal definition of the crime, for example Penal Code section 1170.95, is not in compliance with Penal Code sections 4900 and 4901. To be compliant, the claim must allege that the claimant is innocent of the crime with which they were were erroneously convicted because the charged crime was either not committed at all or not committed by the claimant under the law in effect at the time the charged crime allegedly occurred.” §642(a)(3).

[15] Nor is the Board’s (and the Hearing Officer’s) reference to its authority to “define” its jurisdiction based on a treatise citation of significance. While the court agrees that the statement is inaccurate -- the correct statement is that the Board has the right to adjudicate questions of its authority under the statutory scheme --- this error is an insignificant lack of precision in language.