Filed 12/28/22 Souliotes v. Cal. Victim Compensation Bd. CA2/4
Opinion following transfer from Supreme Court
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FOUR
GEORGE SOULIOTES, B295163
Plaintiff and Appellant, (Los Angeles County
Super. Ct. No. BS170608)
v.
OPINION FOLLOWING
CALIFORNIA VICTIM TRANSFER FROM
COMPENSATION BOARD, SUPREME COURT
Defendant and Respondent.
APPEAL from a judgment of the Superior Court of Los Angeles County,
Mary H. Strobel, Judge. Reversed.
McLane, Bednarski & Litt, Marilyn E. Bednarski, David S. McLane
and Caitlin S. Weisberg for Plaintiff and Appellant.
Rob Bonta, Attorney General, Thomas S. Patterson, Assistant Attorney
General, Mark R. Beckington, Supervising Deputy Attorney General, and
Todd Grabarsky, Deputy Attorney General, for Defendant and Respondent.
INTRODUCTION
After a grant of review, this matter was transferred back to us by the
California Supreme Court with directions to vacate our prior published
decision (Souliotes v. California Victim Comp. Bd., formerly published at
(2021) 61 Cal.App.5th 73 (Souliotes I)) and to reconsider our decision in light
of Senate Bill No. 446 (Stats. 2021, ch. 490, § 1 (SB 446)) and Senate Bill No.
632 (Stats. 2022, ch. 133, § 1(a) (SB 632)). We now vacate our opinion. Upon
reconsidering the cause with the aid of supplemental briefing from the
parties, we conclude that the trial court erred in denying Souliotes automatic
compensation under Penal Code section 1485.55, subdivision (a) (hereafter
1485.55(a)).1
BACKGROUND
After he was convicted of arson-murder and sentenced to life without
the possibility of parole, Souliotes filed an untimely federal habeas corpus
petition in federal district court based on new evidence. In order to pass
through a procedural “gateway” so that his untimely habeas corpus petition
could be heard on the merits, Souliotes was required to demonstrate that, “in
light of the new evidence, no juror, acting reasonably, would have voted to
find him [or her] guilty beyond a reasonable doubt.” (Schlup v. Delo (1995)
513 U.S. 298, 329 (Schlup).) The district court found that Souliotes met the
procedural standard (hereafter, “Schlup finding”). Therefore, the court
turned to the merits of his habeas claims and found that there was a
reasonable probability that absent the ineffective assistance of counsel, the
1 All further statutory references are to the Penal Code, unless otherwise
stated.
2
outcome of Souliotes’s trial would have been different. The court then
granted the habeas corpus petition and ordered that Souliotes be released
unless the state notified the court that it intended to retry him.
The district attorney’s office notified the federal court that it intended
to retry Souliotes. However, a short time later, the parties reached a plea
agreement. Under that agreement, Souliotes entered a West/Alford2 plea of
no contest to three counts of involuntary manslaughter, received a total
sentence of six years, with credit for time served (over 16 years), and was
immediately released from custody.
Souliotes subsequently filed a claim under section 4900, which permits
a person erroneously convicted of a felony to claim monetary compensation
before the California Victim Compensation Board (Board). The Board denied
the claim due to insufficient evidence to satisfy Souliotes’s burden of proving
factual innocence by a preponderance of the evidence.
Souliotes then filed a petition for writ of administrative mandamus
(Code Civ. Proc., § 1094.5) and writ of mandate (Code Civ. Proc., § 1085) in
the superior court challenging the Board’s decision. As relevant here, the
court held that the federal court’s Schlup finding did not constitute a
“factually innocent” finding under section 1485.55(a), and therefore the Board
did not have a ministerial duty to grant his request for automatic
compensation without a Board hearing (Code Civ. Proc., § 1085). The court
also found that the Board was bound by the factual findings and credibility
2 People v. West (1970) 3 Cal.3d 595; North Carolina v. Alford (1970) 400
U.S. 25. In this type of plea, a defendant “[does] not admit the facts
underlying the charged offense, but plead[s] guilty to take advantage of a
favorable recommendation from the prosecution because he [or she]
recognize[s] he [or she] might be convicted if the case were [re]tried.” (People
v. Sample (2011) 200 Cal.App.4th 1253, 1263–1264.)
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determinations relied upon by the federal court to grant the writ of habeas
corpus, but not those relied upon by the federal court solely for the Schlup
finding. However, the court found that the Board failed to support its
decision with sufficient findings supported by the evidence. Accordingly, the
court partially granted the petition and remanded the matter back to the
Board for reconsideration of the claim.
Souliotes appealed. On February 19, 2021, in Souliotes I, this court
affirmed the judgment and held that the Schlup finding fell short of the
statutorily mandated “factually innocent” finding required by section
1485.55(a). Therefore, the federal court’s Schlup finding did not require the
Board to recommend, without a hearing, that a section 4900 claim be paid.
We further held the Board was bound by the factual findings and credibility
determinations relied upon by the federal court to grant Souliotes’s habeas
corpus petition, but not those relied upon by the court solely for the Schlup
finding. On April 1, 2021, Souliotes petitioned the California Supreme Court
for review, which was granted on June 9, 2021.
While the petition for review was pending, our colleagues in Division
Five in Larsen v. California Victim Comp. Bd. (2021) 64 Cal.App.5th 112
(Larsen) held that a federal court’s Schlup finding was sufficient to satisfy
the “factually innocent” criterion in section 1485.55(a). (Id. pp. 130–131,
133.) On July 16, 2021, the Board petitioned the California Supreme Court
for review. On August 25, 2021, the Supreme Court granted the petition, but
deferred further action pending consideration and disposition of Souliotes I.
On September 23, 2021, the Board reconsidered its initial denial of
Souliotes’s claim and adopted an amended decision recommending that his
claim for $841,820 in compensation be granted in full. The Board found that
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Souliotes had shown by a preponderance that he is not only innocent of the
crimes of arson and murder, but also the crime of involuntary manslaughter.
On October 4, 2021, the governor signed into law SB 446 (Eff. Jan. 1,
2022), which amended, as relevant here, section 1485.5, subdivisions (c) and
(d), and section 1485.55(a). Former section 1485.5 subdivision (c) provided in
pertinent part: “In a contested or uncontested proceeding, the express factual
findings made by the court, including credibility determinations, in
considering a petition for habeas corpus . . . shall be binding on the Attorney
General, the factfinder, and the California Victim Compensation Board.”
(Italics added.) In SB 446, the Legislature replaced the phrase, “in
considering,” with the phrase “during proceedings on.” In addition, former
section 1485.5, subdivision (d) defined “express factual findings” as “findings
established as the basis for the court’s ruling or order.” This provision was
also amended to refer to all of “the court’s rulings or orders.” (Italics added.)
Former section 1485.55(a) provided in pertinent part: “[I]f the court
has granted a writ of habeas corpus . . . and . . . has found that the person is
factually innocent, that finding shall be binding on the California Victim
Compensation Board for a claim presented to the board, and upon application
by the person, the board shall, without a hearing, recommend to the
Legislature that an appropriation be made and the claim paid.” In SB 446,
the Legislature inserted additional language regarding a finding of factual
innocence, stating that it may be found “under any standard for factual
innocence applicable in those proceedings.”3
3 The amended language to sections 1485.5 and 1485.55 does not appear
in the version of the legislation that was first introduced on February 16,
2021. (Sen. Bill No. 446 (2021-2022 Reg. Sess.) as introduced Feb. 16, 2021.)
Rather, the amended language appears for the first time in the Senate
amendments to SB 446 on March 16, 2021, about a month after Souliotes I
5
On July 19, 2022, the governor signed SB 632 , which appropriated
funds to the Board to pay approved claims under section 4900 for specified
individuals, including $841,820 for Souliotes. This appropriations bill went
into effect immediately.
On September 21, 2022, the Supreme Court transferred Souliotes I
back to this court with directions to vacate our decision and reconsider the
cause in light of SB 446 and SB 632. Upon transfer, Souliotes I was “not
citeable.” (See Cal. Rules of Court, rule 8.1115(e)(3), corresponding comment,
par. 3.) That same day, the Supreme Court dismissed the grant of review in
Larsen, leaving that decision published and in full force (Cal. Rules of Court,
rules 8.528(b)(3), 8.1105(e)(2)). Remittitur issued on October 5, 2022.
DISCUSSION
A. Senate Bill No. 446
California law provides that if a person has been imprisoned or
incarcerated for a crime, and that crime “was either not committed at all or, if
committed, was not committed by the person,” he or she may present a claim
for compensation against the state to the Board for injury he or she sustained
by reason of the erroneous “imprisonment or incarceration.” (§ 4900.) As
relevant here, section 1485.55(a) describes a circumstance under which a
court finding in postconviction litigation is binding on the Board and requires
an automatic recommendation for compensation to the Legislature.
Prior to the passage of SB 446, former section 1485.55(a) provided that
the Board “shall, without a hearing, recommend to the Legislature that an
was filed. (Sen. Amend. to Sen. Bill No. 446 (2021-2022 Reg. Sess.) March.
16, 2021.)
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appropriation be made and the claim paid” when “the court has granted a
writ of habeas corpus . . . and . . . has found that the person is factually
innocent.”
Under federal law, a petitioner for writ of habeas corpus seeking to
overcome a procedural bar (such as the statute of limitations) to federal
habeas review of the merits of his or her constitutional claims must pass
through an “actual innocence” gateway first applied in Schlup, supra, 513
U.S. 298. To pass through that gateway, as previously stated, the petitioner
must persuade the district court that, “in light of the new evidence, no juror,
acting reasonably, would have voted to find him [or her] guilty beyond a
reasonable doubt.” (Id. at p. 329.) If the petitioner is successful, only then
may the district court consider the merits of the constitutional claims raised
in the habeas corpus petition. (Herrera v. Collins (1993) 506 U.S. 390, 404–
405; McQuiggin v. Perkins (2013) 569 U.S. 383, 386.)
In Souliotes I, we held that a federal court’s Schlup finding was
insufficient for a person to be found “factually innocent” under former section
1485.55(a) and therefore Souliotes was not entitled to automatic
compensation without a hearing. However, our colleagues in Division Five in
Larsen subsequently reached the opposite conclusion in that a Schlup finding
was sufficient for a “factually innocent” finding under former section
1485.55(a). (Larsen, supra, 64 Cal.App.5th at pp. 130–131.) Having
dismissed its prior grant of review in Larsen, the Supreme Court left the
decision published and in full force.
Larsen considered: “(1) what does Schlup . . . require a federal court to
find to avoid an otherwise applicable procedural bar to a habeas corpus
petition and (2) does that finding satisfy what the Legislature meant by
‘factually innocent’ in [now former] section 1485.55(a)?” (Larsen, supra, 64
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Cal.App.5th at p. 125.) On the first question, Larsen concluded that a Schlup
finding is, in both name and substance, a finding by a preponderance of the
evidence that the habeas petitioner did not do the crime and is therefore
“factually innocent.” (Id. at pp. 125–128, 130–131.)
On the second question, the Larsen panel agreed with Souliotes I that
the 2016 amendments to former section 1485.55(a) were intended to “lower
the threshold at which a court finding would obviate the need for a Board
hearing” below the standard set forth in the earlier version of section
1485.55(a). (Larsen, supra, 64 Cal.App.5th at p. 132.) After discussing the
legislative history at length, including concurrent amendments to section
1473, subdivision (b), Larsen concluded that “[t]reating habeas corpus relief
after a Schlup finding as insufficient to satisfy the factual innocence criterion
in section 1485.55(a)” would be inconsistent with the Legislature’s intent and
would make no practical sense. (Larsen, supra, 64 Cal.App.5th at p. 133.)
Finally, Larsen criticized our reasoning in Souliotes I for our failure:
(1) to recognize that a Schlup finding, according to Supreme Court
jurisprudence, is “a fact-based finding that must clear a high threshold”
based on “new reliable evidence” that the petitioner, factually, did not commit
the crime; and (2) to give effect to the Legislature’s acknowledged intent by
interpreting the language of section 1485.55(a) consistent with that intent.
(Larsen, supra, 64 Cal.App.5th at pp. 131, 135.)
Upon reconsideration and with the benefit of supplemental briefing
from the parties, we conclude (as did Larsen) that the Legislature intended
that a Schlup finding constituted a court finding of factual innocence under
former section 1485.55(a). Therefore, we agree with Souliotes that the
amendments of SB 446 simply clarify the applicable circumstances in which
the court has made a factually innocent finding, rather than making a
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complete and non-retroactive change in the law as argued by the Board. (See
Carter v. California Dept. of Veterans Affairs (2006) 38 Cal.4th 914, 923
[“[m]aterial changes in language . . . may simply indicate an effort to clarify
the statute’s true meaning”]; Scott v. City of San Diego (2019) 38 Cal.App.5th
228, 242; see Western Security Bank v. Superior Court (1997) 15 Cal.4th 232,
243 [“[w]e assume the Legislature amends a statute for a purpose, but that
purpose need not necessarily be to change the law”].) As noted, SB 446
amended section 1485.55(a) to add the language “under any standard for
factual innocence applicable in those proceedings” (which includes habeas
proceedings) immediately after the statutory reference to “if the court has
found that the person is factually innocent.” (Stats. 2021, ch. 490, § 2.) The
Legislature did not replace the term “factually innocent,” but merely
explained away any ambiguity that might result. In fact, the Legislature
added this language a month after we issued our opinion in Souliotes I, thus
suggesting an intent to clarify the legislative purpose of its ambiguous
language, not (as contended by the Board) an intent to issue a nonretroactive
new rule of law.4 Hence, SB 446 simply clarified its intent, an intent
consistent with the analysis in Larsen with which we now agree.
4 The Board also contends the amended section 1485.55(a) requires
“habeas relief without reconviction upon remand.” However, SB 446 did not
amend the circumstances under which a court grants habeas relief, rather it
added additional language for a “factually innocent” finding. Moreover, the
Board acknowledges that no such element appeared in former section
1485.55(a), which merely required that a court had granted a writ of habeas
corpus and had found that the petitioner was “factually innocent.”
Furthermore, “a successful habeas corpus petition necessarily contemplates
and virtually always permits a retrial.” (In re Cruz (2003) 104 Cal.App.4th
1339, 1347.) Thus, the conviction is set aside but the prosecution is not
ended. (Id. at p. 1346.) There is no authority preventing retrial when the
writ of habeas corpus issued for any reason except in very unusual
circumstances. (See e.g., In re Pfeiffer (1968) 264 Cal.App.2d 470, 476–477
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We therefore conclude that the trial court should have granted
Souliotes’s mandamus petition. The federal court’s Schlup finding amounted
to a finding of factual innocence that the Legislature intended to be binding,
and to preclude holding a Board hearing, warranting automatic
compensation under section 1485.55(a).5
B. Senate Bill No. 632
As previously noted, SB 632 appropriated funds for payment of
approved claims under section 4900, including Souliotes’s claim for $841,820.
This appropriation was in response to the Board reconsidering Souliotes’s
claim and recommending compensation in September 2021. SB 632 was
approved in July 2022 and took immediate effect. The parties agree that this
legislative enactment does not affect the outcome of this case on appeal.
[remand to juvenile court was impossible because defendant reached the age
of 27 by the time the proceeding concluded, and dismissal was the only
possible remedy].) As contemplated by the Legislature, prosecutorial
discretion to retry a defendant does not impact the operation of section
1485.55(a). (See Madrigal v. California Victim Comp. & Government Claims
Bd. (2016) 6 Cal.App.5th 1108, 1118 [Legislature acknowledged that binding
habeas findings could result in payment of statutory compensation to a
claimant who is subsequently reconvicted].)
5 Relying on the language of former section 1485.5, we previously held in
Souliotes I that only those factual findings and credibility determinations
relied upon by the federal court to grant a habeas corpus petition are binding
on the Board. The parties agree that SB 446 amends section 1485.5 to
require that the Board be bound also by factual findings and credibility
determinations made by the federal court in determining that a habeas
petitioner could pass through the Schlup gateway. However, we agree with
Souliotes that our previous ruling on the meaning of former section 1485.5 in
light of SB 446 is now moot as the Board has approved Souliotes’s claim on
the merits, and there will be no further hearing before the Board.
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However, Souliotes asserts he is entitled to prejudgment interest and
other relief, including attorney fees and costs. These issues were not raised
in the trial court, most likely because Souliotes did not prevail there.
Whether Souliotes is entitled to any additional relief beyond the funds
appropriated under SB 632 is an issue best decided in the first instance in
the trial court. (See Draeger v. Reed (1999) 69 Cal.App.4th 1511, 1525.)
Accordingly, we express no opinion on the subject. Souliotes may raise the
issue in the trial court on remand.
DISPOSITION
The judgment is reversed, and the matter is remanded for further
proceedings concerning Souliotes’s entitlement, if any, to prejudgment
interest and other relief, including attorney fees and costs. Souliotes shall
recover his costs on appeal.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
WILLHITE, Acting P. J.
We concur:
COLLINS, J.
CURREY, J.
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