In re K.H. CA2/7

Filed 2/16/24 In re K.H. CA2/7
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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 SEVEN

In re K.H., a Person Coming Under B321890
the Juvenile Court Law.
(Los Angeles County
Super. Ct. No. YJ40829)

THE PEOPLE,

Plaintiff and Respondent,

v.

KENJI AHMAD HOWARD,

Defendant and Appellant.

APPEAL from an order of the Superior Court of
Los Angeles County, J. Christopher Smith, Judge. Affirmed.
Carol Watson and Timothy Midgley for Defendant and
Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Senior
Assistant Attorney General, Wyatt E. Bloomfield, Supervising
Deputy Attorney General, and Seth P. McCutcheon, Deputy
Attorney General, for Defendant and Respondent.
________________________

INTRODUCTION

In 1995, at the age of 16, Kenji Ahmad Howard was
implicated in a drive-by shooting that killed Arkett Mejia and
paralyzed Travon Johnson. Howard sat in the back seat on the
passenger side of the vehicle from which the shots were fired.
After he was arrested in possession of the murder weapon,
Howard confessed to shooting the victims by leaning forward and
firing through the open front window on the passenger side.
Howard was convicted of murder, attempted murder, shooting at
an occupied motor vehicle, and being a minor in possession of a
concealed firearm after trial in 1997 and received a sentence of
35 years to life.
In 2021, after serving 26 years, Howard’s murder
conviction was vacated pursuant to a habeas corpus petition
granted by the Los Angeles County Superior Court in light of
newly discovered exculpatory evidence: a sworn confession to the
shooting from Edward Powell, the driver of the vehicle. Although
the People refiled charges against Howard, they later dismissed
all charges.
That same year, Howard filed the present petition in
juvenile court for a finding of factual innocence under Welfare

2
and Institutions Code section 781.5.1 His petition sought sealing
and destruction of his arrest record in the case, and he alleged, in
light of Powell’s confession and other corroborating evidence,
there was no “reasonable cause” to believe or strongly suspect he
was guilty of the charges.
After an evidentiary hearing, the juvenile court denied
Howard’s petition, citing the circumstances of Howard’s arrest,
testimony from shooting survivors incriminating Howard,
evidence from a Perkins operation that cast some doubt on
Powell’s confession, and gunshot residue evidence from the
vehicle.2
Howard appeals, arguing the juvenile court applied the
wrong legal standard in denying his petition by purportedly
focusing on the circumstances of his arrest. He asserts he met
his burden to demonstrate factual innocence. Our courts have
recognized this is an “‘incredibly high’” burden requiring “‘no
doubt whatsoever’” in the petitioner’s innocence. (People v.
Esmaili (2013) 213 Cal.App.4th 1449, 1459 (Esmaili).) Relief is
available only to “‘petitioners who can show that the state should
never have subjected them to the compulsion of the criminal
law—because no objective factors justified official action.’”
(People v. Adair (2003) 29 Cal.4th 895, 905 (Adair); accord,

1 Undesignated statutory references are to the Welfare and
Institutions Code.
2 Illinois v. Perkins (1990) 496 U.S. 292 authorized
undercover law enforcement questioning of incarcerated
individuals without Miranda warnings. Miranda v. Arizona
(1966) 384 U.S. 436 established a defendant’s right against self-
incrimination and right to the presence of an attorney during
custodial interrogation.

3
People v. Chagoyan (2003) 107 Cal.App.4th 810, 816.) We
conclude the juvenile court applied the correct standard and
further conclude, based on our independent review of the record,
that Howard has not satisfied his burden. Accordingly, we
affirm.

FACTUAL AND PROCEDURAL BACKGROUND3

A. Howard’s 1997 Conviction
1. The Information
In 1996 Howard was charged as an adult with one count of
murder (Pen. Code, § 187, subd. (a)); three counts of attempted
murder (id., §§ 187, 664, subd. (a)); one count of shooting at an
occupied motor vehicle (id., § 246); and one count of being a minor
in possession of a concealed firearm (id., § 12101, subd. (a)(1)).
After a jury trial, Howard was convicted of possessing a concealed
firearm as a minor, but the jury was hung on the remaining
counts. Howard was retried in 1997 and convicted of all
remaining charges.

2. The Evidence at Howard’s Second Trial
At the retrial, the People’s evidence showed Howard and
four friends—Edward Powell, LaKeyna Martin, and two others—
visited Dockweiler Beach on March 17, 1995, in a burgundy

3 We relate the facts from the superior court’s order granting
Howard’s habeas petition and from this court’s previous opinion
in Howard’s direct appeal. (See People v. Howard (Aug. 26, 2003)
B118552 [non-pub. opn.].) We previously granted Howard’s
request for judicial notice of the superior court’s order granting
habeas relief.

4
Oldsmobile Cutlass sedan (Cutlass). Powell, also known as
“Wolf,” and Howard were associated with the “Blood” Limehood
Piru street gang. Howard was 16 years old at the time; Powell
was 24 or 26 years old. At the beach, Powell had a gun and took
shots at airplanes passing by. Mejia, Gail Lewis, Landon
Martinez, and Johnson were also visiting the beach on that day.
As this group walked back to their car and passed the burgundy
Cutlass, Martinez heard a voice from inside the Cutlass saying
“give me the strap”—asking for a gun. Mejia’s group returned to
their car and headed toward the freeway, with Martinez driving.
As Martinez drove onto the freeway, the burgundy Cutlass
pulled alongside. Powell was driving the Cutlass, with Martin in
the front passenger seat and Howard in the back right passenger
seat. Powell and Martin flashed gang signs at the other car
through the windows of the Cutlass. Martinez, Mejia, Lewis, and
Johnson did not respond. Suddenly, someone in the Cutlass fired
approximately 10 gunshots into Martinez’s car. Mejia was killed.
Johnson’s wounds rendered him comatose and paralyzed him
from the neck down.
After the shooting, Powell handed Howard the gun.
Howard was arrested the day after the shooting, after police saw
him leaving the gun “behind a plastic trash bag.” Howard stated
he had just bought the gun from a drug addict. Howard was
released because law enforcement did not yet know the gun was
the murder weapon in the drive-by shooting.
Powell was arrested on March 27, 1995. Law enforcement
impounded Powell’s vehicle, the burgundy Cutlass, and noted the
rear windows in the car did not roll down.

5
 a. Howard’s interrogation and confession
At trial, the People introduced evidence Howard confessed
to the shooting during an interrogation.
Howard was first brought in for questioning 10 days after
the shooting and waived his Miranda rights. He told
investigators he was sleeping in the back of the Cutlass when he
was awakened by gunshots. Howard stated he saw Powell firing
the shots through the open front passenger window.
In May 1995 Howard was questioned a second time by
Los Angeles County Sheriff’s Deputy Linda Quinonez. He again
waived his Miranda rights and agreed to take a polygraph test.
During the polygraph, Howard maintained Powell was the
shooter. After the test, Quinonez told Howard he had failed the
polygraph exam and pressed Howard to tell the truth. She
suggested that Howard’s story did not add up with other witness
accounts and speculated Powell made Howard shoot the gun
because Powell was driving and because, as a minor, Howard
would face a “lighter” consequence. Howard continued to assert
Powell was the shooter.
After more than three hours of questioning, Howard
confessed he was the shooter. He said that as Powell pulled
alongside Martinez’s car, Powell “start[ed] flashing gang signs,
and that he also start[ed] flashing gang signs.” Howard said
Powell threatened to hurt him if he did not shoot, so Howard
fired the gun through the front passenger window but did not
intend to hurt anyone. Howard said, “he rested his wrist on the
top of the open window in the door, he pointed the gun
downward, and he fired several shots.”
Howard repeated his confession to other law enforcement
investigators after the polygraph interrogation.

6
 b. Forensic firearm analysis
The People introduced firearm analysis evidence through
their expert witness, Los Angeles County Sheriff’s Department
firearms examiner Richard Catalani. Catalani examined Powell’s
burgundy Cutlass and Martinez’s car for gunshot residue and
bullet trajectory. Catalani testified he found gunshot residue “on
the inside of Powell’s passenger door,” which was consistent with
the gun being fired inside the car. Catalani found no gunshot
residue on the outside of the passenger door, which would have
indicated the gun being fired outside the car.

c. Testimony from Lewis and Martinez
Two surviving victims from the shooting—Lewis and
Martinez—also testified at trial.
Lewis testified that as the Cutlass pulled alongside them
before the shooting, she saw a driver wearing a beanie and a
passenger with pigtails. At the time of the shooting, Howard
wore his hair in pigtails. But Lewis could not recall whether the
passenger with pigtails sat in the front or back seat. Lewis did
not see who did the shooting.
Martinez testified he saw a person with pigtails in the back
seat on the passenger’s side of the Cutlass. Like Lewis, Martinez
did not “see a person actually shooting the gun,” but two or three
seconds before the gunshots began, Martinez saw the driver with
both hands on the wheel. While Martinez did not see the gun,
Martinez saw muzzle flash coming from the “lower left corner” of
the passenger’s side window. Martinez could not identify the
person who fired the shots and did not recognize Howard as
someone from the shooting.

7
 3. Howard’s Conviction and Sentence
The jury convicted Howard of one count of first-degree
murder, three counts of attempted murder, and one count of
shooting at an occupied vehicle. The jury also found true
allegations that, as to all counts, Howard discharged a firearm at
an occupied motor vehicle, and as to the attempted murder of
Johnson, that Howard inflicted great bodily injury.
Howard was sentenced to 25 years to life on the murder
count, plus 10 years for the firearm enhancement. He received a
life sentence on the attempted murder counts, with an additional
seven years for the special allegation of great bodily injury.

B. Powell’s 2006 and 2007 Confessions
After Howard’s confession, Powell was also tried and
convicted in 1995 of murder and attempted murder as an aider
and abettor of the shooting.
In 2006 Powell was interviewed in prison by Eric Lessard,
a licensed private investigator retained by Howard’s mother and
his attorney. Powell admitted to Lessard that he committed the
shooting and Howard was innocent. Powell described that
Howard was asleep in the back seat when Powell and Martin, the
front seat passenger, decided to intimidate the people in
Martinez’s car. Powell then told Martin “to bend down low, and
she did so. I removed the gun from my waistband, pointed it with
my right hand out the passenger window, and fired” at
Martinez’s car. Powell stated Howard “was asleep in my back
seat when I did the shooting . . . where there are no windows that
can go up or down. I am 100% positive that he did not and could
not have shot a gun from where he was sitting . . . Kenji
[Howard] was not involved in any way in the shooting, nor was

8
he involved in the gang sign throwing that preceeded [sic] the
shooting.”
Powell explained when they returned home, not knowing
that anyone had been shot, he handed the gun to Howard and
told him to keep it in his apartment. Howard was arrested with
the gun while bringing it back to Powell.
Powell stated he was “surprised” to hear about Howard’s
confession to police, “because I was the only shooter and Kenji
was not included in any way.” For “years after,” he was angry at
Howard for confessing because “[h]is confession made it easier for
me to be convicted. My only thought was that his talking got me
in trouble.” Powell expressed a change of heart saying, “more
than 10 years have gone by, my feelings have changed . . . Kenji
does not deserve to be in prison for this. I am responsible for this
whole situation. Kenji is only responsible for confessing to
something he did not do.”
Powell and Lessard drafted a handwritten confession.
Powell approved each sentence as it was written, then signed the
completed declaration.
Also in 2006 Powell began speaking with a childhood
friend, Badia Hill, during his incarceration. Hill, Powell, and
Howard grew up in the same neighborhood and knew each other.
Powell separately told Hill that he was the shooter, Howard was
innocent, and he gave Howard the gun after they returned home
from the shooting.
Finally, in June 2007, Powell independently typed and
signed a copy of the declaration he drafted with Lessard.

9
C. Howard’s 2019 Habeas Petition
In 2019, through counsel, Howard filed a new petition for
writ of habeas corpus with this court.4 Howard alleged actual
innocence, coerced confession, unconstitutional waiver of his
Miranda rights, unconstitutional interrogation, and ineffective
assistance of counsel. Upon direction from the California
Supreme Court,5 the superior court held an evidentiary hearing
on Howard’s petition.
At the hearing, Howard introduced Powell’s written
confessions, testimony from private investigator Lessard
explaining the circumstances of Powell’s confession, and
testimony from Hill recounting that Powell told her Howard was
innocent. Howard also presented new testimony from Catalani,
the firearm expert at Howard’s original trial.

4 Prior to his 2019 habeas petition, Howard unsuccessfully
appealed his conviction and sentence. Howard also filed a federal
habeas petition in 2004 alleging his confession was coerced, but
this petition was denied. After Powell confessed to the shooting
in 2006, Howard filed four habeas petitions in propria persona in
state court in July 2007, September and October 2011, and
September 2018, alleging newly discovered evidence and actual
innocence, among other claims. These petitions were denied.
5 This court initially denied Howard’s petition. Howard then
successfully petitioned for review with the California Supreme
Court. The Supreme Court directed this court to vacate the
denial of Howard’s petition and issue an order to show cause why
the petition should not be granted based on “newly discovered
evidence casting fundamental doubt on the prosecution’s case.”

10
 1. Catalani’s Revised Firearm Analysis
At the evidentiary hearing, Catalani testified he had not
reviewed Howard’s confession before testifying at his trial. Now
knowing about Howard’s confession, Catalani asserted the
gunshot residue and the bullet trajectory were inconsistent with
the manner in which Howard confessed to shooting from the car,
that is from the back seat, through the front passenger window,
with his wrist resting on the window frame.
Catalani reexamined the reports he prepared for Howard’s
criminal trial in light of Howard’s confession. Catalani described
testing the actual murder weapon to determine its pattern of
ejecting gunshot residue. Noting the gunshot residue was
present on the inside of the passenger door, Catalani explained if
Howard had fired the gun by resting his wrist on the open
window and holding the gun outside the car, it would be
impossible for residue to accumulate on the inside of the door,
even accounting for any wind blowing through the open window.
Catalani opined the residue pattern he observed was consistent
with the driver of the car shooting the gun. Catalani also
acknowledged that, if either the driver or the rear right
passenger fired the gun, the gunshot residue would be consistent
with that series of events.
Catalani also observed bullet holes in Martinez’s car
indicating the bullets traveled through the car from “front to
back,” meaning the bullets entered from the front of the car and
exited toward the back of the car. Because Howard was seated in
the back seat and would have had to fire the gun through the
front passenger window, Catalani stated the bullet trajectory he
observed would be “unlikely” if Howard had fired the gun in the
manner confessed. Catalani believed it was “awkward, if not

11
impossible” for Howard to have fired the shots from the back
seat, given the physical firearm evidence.

2. The People’s New Firearm Analysis
The People called Robert Keil, a new firearm expert also
from the Los Angeles County Sheriff’s Department. Keil did not
agree with Catalani’s “front to back” bullet trajectory assessment
without further evidence. Keil also disagreed with Catalani’s
methodology for testing the vehicle for gunshot residue. Based on
the design of the Cutlass, a coupe-style vehicle, Keil believed “it
would not be difficult for a rear passenger to reposition
themselves in the seat to either place their hand or wrist on the
window opening or to extend an arm out the window.”
Ultimately, however, Keil agreed the gunshot residue actually
found in the car could be consistent with the driver, the rear
passenger, or both having fired the gun.

3. Hill’s Testimony
Hill testified to knowing both Powell and Howard for
30 years, having grown up in the same neighborhood. Hill visited
Howard in prison and communicated by phone with both Powell
and Howard during their incarceration. Hill testified Powell told
her Howard was innocent, but that she had not thoroughly
discussed the shooting with Powell. Hill said Howard told her he
was asleep in the back seat and that he took the gun from Powell.

4. The Habeas Court’s Ruling
After the evidentiary hearing, on July 16, 2021 the superior
court granted Howard’s habeas petition, vacated his convictions,
and recalled his sentence. The superior court concluded Howard

12
had presented newly discovered evidence—Powell’s confession—
that would have likely changed the outcome of his trial. (See
Pen. Code, § 1473, subd. (b)(1)(C)(i).) The court noted Powell’s
confession was “corroborated by the physical evidence” of the
gunshot residue and by all other evidence at trial, except
Howard’s own confession. The court further concluded
“[Howard’s] confession and the physical evidence do not align”
because “in order for Petitioner’s confession to be true, Petitioner
would have had to lean towards Martin in the front passenger
seat, rotate his seat clockwise to a 45 degree angle while jammed
in by two other rear passengers, then cock his wrist awkwardly,
place his arm outstretched with his wrist at a right angle resting
on the window, and fire a 9 millimeter pistol out the window.”

D. The 2021 Information Against Howard
On August 27, 2021 the People filed a new information,
charging Howard with the same six counts as before.

E. Powell’s Statements in the 2021 Perkins Operation
As part of the investigation into the newly filed charges,
homicide detectives with the Los Angeles County Sheriff’s
Department conducted a Perkins operation to speak with Powell
in prison. On October 21, 2021 the detectives arranged to have
Powell and a “cooperative agent” transported from state prison in
a van and placed in a cell in Los Angeles County jail. Both the
van and the cell were wired to record their conversation.
During the operation, Powell discussed the shooting of
Mejia and Johnson with the undercover Perkins agent. Powell
referenced his written confession to the shooting and said, “‘My
confession is true.’” He directly admitted to “popping” the victims

13
of the shooting. He admitted, “‘I’m already convicted, and I’m
guilty of it.’” But Powell stated he would not formally testify to
committing the shootings unless he received immunity from
prosecution, because he was concerned about being prosecuted for
the murder of Johnson, who died from his injuries in 2013.
At some point in the operation, homicide detectives pulled
Powell from the cell and offered him “the opportunity to make a
statement regarding the case.” The detectives told Powell they
were investigating new state and possibly federal charges against
Howard, and they wanted to speak with Powell about his sworn
confession. They further informed Powell the district attorney
was considering filing a new murder charge against Powell for
the intervening death of Johnson. With respect to Powell’s
confession, the detectives stated: “there’s some allegations that
there’s some money promises and stuff like that—financial stuff.”
Powell declined to speak with the detectives without an attorney.
After the detectives alleged Powell was compensated to
confess, Powell returned to the cell and remarked to the Perkins
agent, “They know some information about some bread being
exchanged homie.” Powell continued, “[S]omebody said
something to them, man, ‘cause they wouldn’t know that.
Somebody’d have to tell—maybe Kenji?” “They know some
information though. I don’t know where they got that. Somebody
spilled the beans. Spilled the beans on me. I know that little
homie didn’t tell them that. That wouldn’t be in his best
interest.”

14
F. Dismissal of Refiled Charges Against Howard
On December 2, 2021 the Los Angeles County District
Attorney’s Office dismissed all charges against Howard without
prejudice.

G. The Factual Innocence Proceedings
1. Howard’s 2021 Factual Innocence Petition
On December 9, 2021 Howard, through counsel, filed a
petition for a finding of factual innocence under section 781.5,
requesting sealing and destruction of his arrest records. Howard
attached exhibits, including Powell’s handwritten and typed
confessions, a new report analyzing Howard’s confession from
false-confession expert Dr. Richard Leo, a new declaration and
letter from Martin, Hill’s declaration, trial testimony and a
declaration from firearm analyst Catalani, interrogatories from
investigator Lessard, and original trial testimony from witnesses
Lavenski Harrell and Tameka Brown.

a. Martin’s declaration and letter
Howard submitted a 2018 declaration from Martin, the
front-seat passenger in the Cutlass on the day of the shooting.
Martin confirmed she rode next to Powell as they drove after
Martinez’s car. She stated: “When we got alongside that car the
people looked straight ahead and ignored us. [¶] Powell yelled at
me, ‘Get down!’ I did so immediately. Powell started shooting
toward the open passenger window. This happened so suddenly
that I couldn’t understand what he was going to do.” Martin
declared: “Kenji Howard did not fire the gun. Edward Powell is
the only person who fired the gun. Kenji was not involved in the

15
shooting in any way and none of us had any way to predict that it
would happen.”
Also attached was an undated letter from Martin to
Howard expressing, “I[’]m sorry for not having the courage” to
come forward sooner. Martin explained when she heard from
Howard’s private investigator, “I knew then that this
knowledge[,] this past[,] is what weighs heavy on my heart.
Kenji[,] Wolf is a manipulator and he manipulated you of your
freedom and me of not being able to do what’s right by stating
true facts but I[’]m not 17 anymore and my heart needs a cleanse
and you deserve to be free.”

b. Dr. Leo’s report on false confessions
Howard also presented a 32-page report from Dr. Leo
(solicited by Howard’s counsel), explaining social science research
on false and coerced confessions and analyzing the circumstances
of Howard’s interrogation and confession. Dr. Leo, a professor of
law and psychology at the University of San Francisco, explained
his qualifications as a researcher, author, and analyst focused on
police interrogation and coerced confessions. Dr. Leo reported
reviewing the transcript of Howard’s interrogation and confession
in the polygraph examination, along with numerous other case
materials.
Dr. Leo’s report drew five conclusions: (1) “The custodial
interrogation of Kenji Howard was guilt presumptive, accusatory
and theory-driven,” designed to “intentionally incriminate Kenji
Howard by coercively, deceptively and unlawfully breaking down
his denials of guilt and eliciting a statement of guilt from him
that was consistent with the deputy’s pre-existing and
prematurely formed assumptions;” (2) interrogator Quinonez

16
“used interrogation techniques that are known to increase the
risk of overbearing a suspect’s will and eliciting false and
unreliable statements . . . when misapplied to the innocent;”
(3) Quinonez’s techniques were “highly likely to cause a suspect
to perceive that he or she has no choice but to comply with the
interrogator’s demands and/or requests;” (4) Howard was at
“substantially heightened risk” of “agreeing to a false and
unreliable confession statement because of his personality traits
and psychological make-up . . . especially his youth and
psychosocial immaturity at the time;” and (5) the defense’s false-
confession expert at Howard’s trial was “neither a recognized nor
published expert” and “failed to cover almost every important
issue” relevant to Howard’s case.

c. Brown’s testimony from Howard’s first trial
Finally, Howard presented trial testimony from Brown, a
member of Howard and Powell’s beachgoing group who left
Dockweiler Beach at the same time in a different car. Brown
testified at Howard’s first trial, but not the second where he was
convicted. Brown stated she was in a car traveling right behind
Powell’s car, when she saw Powell “having words with another
car. He was shouting gang names.” Brown was able to see
Powell firing shots out of the car, and the front-seat passenger
was “bending forward at the waist so he could shoot over her.”
The next day, Brown testified, Powell “came up and he was just
like nobody mention my name or if we do he was going to kick our
butts. He wouldn’t kick our butts, but he was using other words.”

17
 2. The People’s Opposition
The People opposed Howard’s petition. The People argued
the habeas court’s factual findings were not binding in a factual
innocence context and requested the court hold an evidentiary
hearing to resolve the petition.

3. The Evidentiary Hearing
The juvenile court held an evidentiary hearing on Howard’s
petition on April 25 and 26, 2022. At the hearing, the People
moved to exclude Powell’s declarations and Dr. Leo’s false
confession report as not “reliable” within the meaning of
section 781.5, subdivision (b). The court deferred its ruling on
the reliability of Powell’s declarations but admitted Dr. Leo’s
report “only as it relates to the science” of false confessions, “not
as it relates to the ultimate issue in this case.”
The People also presented witness testimony at the
hearing. The People called Robert Keil, the firearm analyst who
testified at Howard’s habeas hearing, to reiterate his opinion the
gunshot residue evidence supported a backseat shooter. The
People then called Sergeant Detective Daniel Egore, one of two
homicide detectives who ran the Perkins operation.

a. Detective Egore’s testimony
Detective Egore described the planning of the Perkins
operation and his personal interactions with Powell during the
operation. Through Detective Egore’s testimony, the People
introduced audio recordings of Powell’s statements during the
Perkins operation.
Detective Egore confirmed that during the operation, he
and his partner attempted to talk with Powell about the case, but

18
Powell would not speak with them. During this interaction,
Detective Egore testified that, “Prior to putting [Powell] back in
the cell we just basically stalemated him by saying we heard
about a money exchange and put that out there.” When asked on
cross-examination about the source of the allegations that Powell
was paid to confess, Detective Egore testified “[m]y partner and I”
“made that allegation.”

4. The Juvenile Court Denies Howard’s Factual
Innocence Petition
On May 24, 2022 the juvenile court ruled on Howard’s
petition.
As an initial matter, the court determined Powell’s
declarations confessing to the shooting were reliable because they
were corroborated by other evidence in the case. The court
agreed with Dr. Leo’s analysis of the coercive tactics used to
interrogate Howard and found that Howard’s confession was
involuntary, so it did not undermine the reliability of Powell’s
subsequent confessions. The court also considered Powell’s
statements during the Perkins operation and found they
corroborated his declarations. Because Powell’s confessions were
corroborated by other evidence, the juvenile court determined the
declarations were admissible under section 781.5.
Although it found Powell’s “statements made in both
declarations are sufficiently reliable and they indicate petitioner
was not the shooter in this incident,” the court observed that
“whether those statements are truthful ha[s] yet to be resolved.”
The court continued, “Moreover, I considered the issue of possible
payment [for] his declarations but I’m not sure how that should
be interpreted. Was he paid to write false declarations; was there

19
a promise to be paid for coming forward and telling the truth, or
was there a payment contemplated for some other reason?” The
court concluded that the issue of possible payment “goes to the
weight and not the admissibility” of Powell’s declarations.
Turning to Howard’s burden to show factual innocence, the
juvenile court explained the standard for granting the petition:
“Has the petitioner established that no reasonable cause exists to
believe that the petitioner had committed the charged offense?
Put another way, would a person of ordinary care and prudence
have been led to believe and conscientiously entertain an honest
and strong suspicion that petitioner committed the violations?
To establish a finding of factual innocence one must show as a
prima facie matter not necessarily just that the arrestee had a
viable substantive defense to the crime charged, but more
fundamentally that there was no reasonable cause to arrest him
in the first place.”
Reviewing the evidence, the court observed “petitioner was
arrested in possession of the murder weapon” and “told multiple
lies” about his possession of the gun and involvement in the
shooting. The court also considered the gunshot residue
evidence, including expert testimony from Catalani and Keil.
But the court concluded this evidence was “much to do about
nothing at this point,” because Powell admitted in the Perkins
operation that he had committed as many as “four or more other
prior shootings from the car,” so “there’s no telling if the [gunshot
residue] found in that vehicle is related to the incident in
question or some other prior shooting.” Finally, the court
analyzed the trial testimony from shooting survivors Lewis and
Martinez, noting neither “could identify the shooter” but
Martinez “observed the driver with both hands on the wheel of

20
the car,” “an individual in the rear passenger seat with pigtails,”
and “sparks or muzzle flashes coming from that rear passenger
window area.” In light of these factors, the court concluded, “the
petitioner has a viable substantive defense to these charges, and
I fully understand why the district attorney’s office has declined
further prosecution at this time. However, I do not believe that
the petitioner has met their burden.”6
Howard timely appealed.

DISCUSSION

Howard argues the juvenile court wrongly denied his
section 781.5 petition by focusing solely on whether, at the time
of Howard’s arrest, there was reasonable cause to arrest him for
the crime. Even if we were persuaded the juvenile court applied
an incorrect standard (and it did not), on appeal our independent
review of the record leads us to affirm because Howard has not
satisfied his burden to show “‘that no reasonable cause exists to
believe’” he “committed the offense[s] charged.” (Adair, supra,
29 Cal.4th at p. 905.)

A. Governing Law and Standard of Review
When a minor is arrested and the accusations are
dismissed, section 781.5, subdivision (d), authorizes the minor to
petition the juvenile court7 for sealing and destruction of the case

6 Despite denying Howard’s petition, the court sealed
Howard’s record under section 786, subdivision (e).
7 Howard was arrested as a minor and, after a hearing, his
case was transferred from juvenile court to criminal court, where

21
record based on his “factual innocence.”8 “A finding of factual
innocence and an order for the sealing and destruction of records
pursuant to [section 781.5, subdivision (b)] shall not be made
unless the court finds that no reasonable cause exists to believe
that the minor committed the offense for which the arrest was
made or the citation was issued. In any court hearing to
determine the factual innocence of a minor, the initial burden of
proof shall rest with the minor to show that no reasonable cause
exists to believe that the minor committed the offense for which
the arrest was made or the citation was issued.” (§ 781.5,
subd. (b).) At the hearing, the minor and the district attorney
may present all “material, relevant, and reliable” evidence.
(Ibid.) If the minor meets his initial burden to show no
reasonable cause to believe he committed the offense, the burden
shifts to the district attorney to show that reasonable cause does
exist. (Ibid.)

he was charged and tried as an adult. The parties agree that, as
a former minor, Howard properly filed his factual innocence
petition in juvenile court under section 781.5, subdivision (d).
8 Section 781.5, which applies to juvenile delinquency
records, is a counterpart to Penal Code section 851.8, which
governs the sealing and destruction of non-juvenile criminal
records in the circumstance of factual innocence. The statutes
share the same procedure and standard for assessing factual
innocence and both place the burden of proof on the petitioner.
(Compare § 781.5 with Pen. Code, § 851.8.) The parties agree
these statutes are interpreted in tandem.

22
 “‘Reasonable cause’” exists where a “‘person of ordinary
care and prudence’” would “‘believe or conscientiously entertain
any honest and strong suspicion that the person arrested is guilty
of the crimes charged.’” (Adair, supra, 29 Cal.4th at p. 906;
accord, People v. Laiwala (2006) 143 Cal.App.4th 1065, 1069
(Laiwala) [“‘“‘“Reasonable cause”’” is a well-established legal
standard, “‘defined as that state of facts as would lead a man of
ordinary care and prudence to believe and conscientiously
entertain an honest and strong suspicion that the person is guilty
of a crime.’”’”].) Thus, for relief under section 781.5, the
petitioner must establish “facts exist which would lead no person
of ordinary care and prudence to believe” in his guilt. (Adair, at
p. 904; see id. at p. 906 [“‘reasonable cause’” is an “objective
question measured by an external standard”].) In other words,
the record before the juvenile court must “exonerate” the
petitioner, “not merely raise a substantial question as to guilt.”
(Id. at p. 909.) As noted above, relief is available only to
“‘petitioners who can show that the state should never have
subjected them to the compulsion of the criminal law—because no
objective factors justified official action.’” (Id. at p. 905; accord,
People v. Bleich (2009) 178 Cal.App.4th 292, 299 (Bleich);
People v. Chagoyan, supra, 107 Cal.App.4th at p. 816.)
Reviewing the denial of a petition for a determination of
factual innocence, we “defer to the trial court’s factual findings to
the extent they are supported by substantial evidence, but
independently review the record to determine whether the
defendant sustained his burden of showing that no reasonable
cause exists to believe he or she committed the charged offense.”
(Esmaili, supra, 213 Cal.App.4th at pp. 1457-1458; accord,
Bleich, supra, 178 Cal.App.4th at p. 300.) We independently

23
review the record because “‘reasonable cause’” “impose[s] an
objective legal standard on both trial and appellate courts, and
do[es] not accommodate any exercise of discretion.” (Adair,
supra, 29 Cal.4th at p. 908.)

B. The Juvenile Court Applied the Correct Standard for
Factual Innocence
Howard challenges the juvenile court’s articulation of the
“reasonable cause” standard as contrary to the language,
purpose, and history of section 781.5. At the hearing, the court
stated as follows: “To establish a finding of factual innocence one
must show as a prima facie matter, not necessarily just that the
arrestee had a viable substantive defense to the crime charged,
but more fundamentally that there was no reasonable cause to
arrest him in the first place.” Howard asserts he was improperly
denied relief because the juvenile court determined there was
probable cause to arrest Howard and disregarded post-arrest
evidence of Howard’s innocence.
The juvenile court did not misstate or misapply the
applicable standard. Assessing whether “reasonable cause” to
believe or suspect the petitioner is guilty of the charged crimes,
the court must consider all facts and evidence pertaining to the
petitioner’s guilt or innocence. This includes the circumstances
justifying the petitioner’s arrest (see People v. Matthews (1992)
7 Cal.App.4th 1052, 1056 (Matthews) [considering “reasonable
cause to arrest [petitioner] in the first place”]; accord, People v.
Hollie (2023) 97 Cal.App.5th 513, 551; People v. Mazumder (2019)
34 Cal.App.5th 732, 738-739) and any post-arrest or post-
conviction evidence. (See People v. Medlin (2009)
178 Cal.App.4th 1092, 1101-1102 (Medlin) [“The [factual

24
innocence] hearing is not limited to the evidence presented at
trial. [Citation.] The court may consider any evidence relied upon
to arrest and charge . . . . The court may consider facts disclosed
after arrest.”]; Tennison v. California Victim Comp. &
Government Claims Bd. (2007) 152 Cal.App.4th 1164, 1175;
Adair, supra, 29 Cal.4th at p. 905, fn. 4.)
The juvenile court considered all the relevant pre- and post-
arrest evidence, including the circumstances of Howard’s arrest,
the expert testimony on the gunshot residue evidence, the trial
testimony of the surviving victims, Powell’s later confessions,
Powell’s statements in the Perkins operation, Martin’s
statements before and after trial, and the circumstances of
Howard’s confession. In sum, the juvenile court applied the
correct standard to Howard’s petition by considering all relevant
evidence.

C. Howard Did Not Meet His Burden To Show “No Reasonable
Cause” Existed For Believing He Committed the Offenses for
Which He Was Convicted
Under section 781.5, the court “‘cannot grant relief if any
reasonable cause’ warrants a belief in the defendant’s guilt.”
(Esmaili, supra, 213 Cal.App.4th at p. 1460.) The court must
consider all “‘reasonable interpretation[s] of the evidence’” in the
case, not just one interpretation of the evidence. (See Adair,
supra, 29 Cal.4th at p. 909; accord, Esmaili, at p. 1460 [despite
dismissal of charges for insufficient evidence, considering
whether “another person of ordinary care and prudence could
view the evidence differently and have some suspicion of the
defendant’s guilt”].)

25
 This burden is “‘incredibly high’” and requires “‘no doubt
whatsoever’” in the petitioner’s innocence. (Esmaili, supra,
213 Cal.App.4th at p. 1459.) For instance, a petitioner may carry
this burden by demonstrating “the absence of any evidence” as to
an element of the crime or the legal impossibility of committing
the crime. (See Laiwala, supra, 143 Cal.App.4th at p. 1071
[petitioner arrested for grand theft of a trade secret established
factual innocence because there was “no evidence at the criminal
trial that the [source code taken] qualified as a trade secret”];
People v. McCann (2006) 141 Cal.App.4th 347, 356-358
[petitioner arrested for practicing medicine without a license
showed factual innocence because, as a validly licensed physician,
he “could not possibly have committed the offense”]; accord,
Matthews, supra, 7 Cal.App.4th at pp. 1056-1057 [some “legal
defenses may be so related to the defendant’s own conduct that
the existence of the defense negates a requisite element of the
offense or otherwise eliminates culpability, thereby revealing no
reasonable cause to believe the arrestee committed an offense
and establishing factual innocence”].)
Howard asserts the record exonerates him because of
Powell’s repeated admissions of sole responsibility for the
shooting to Lessard, Hill, and the Perkins agent. Howard adds
that Brown and Martin personally witnessed Powell commit the
shooting, and there was evidence Powell intimidated them into
not coming forward sooner. Addressing Martinez’s testimony,
Howard recounts that Martinez testified inconsistently across
Powell and Howard’s trial proceedings, but Martinez “has never
been able to identify the person who fired the shots.” And as to
his own confession, Howard refers to the juvenile court’s finding

26
that the confession was coerced and submits his coerced
confession is inadmissible.
On this record, Howard has raised “a substantial question”
as to whether he is guilty of the charged crimes. (See Adair,
supra, 29 Cal.4th at p. 909.) The juvenile court remarked that
“after reviewing everything I believe that there’s sufficient reason
not to file on this or pursue a prosecution on this case.” But
whatever the juvenile court’s or even this court’s “own
interpretation of the evidence” (see id. at p. 905), we cannot
conclude Howard met his burden to show no reasonable cause
exists to believe he committed the offense and that “‘the state
should never have subjected [him] to the compulsion of the
criminal law.’” (See ibid.)
It is undisputed Howard was present in the Cutlass during
the shooting on the passenger side of the car from where the
shots were fired. It is also undisputed Howard possessed the
murder weapon on the night of the shooting and was arrested
with the gun the morning after. (Cf. Bleich, supra,
178 Cal.App.4th at p. 303 [finding reasonable cause petitioner
made terrorist threats via phone, even though her cell phone
records did not reflect the calls, where the petitioner may have
hidden a second cell phone].) Howard gave shifting explanations
to police for possessing the gun. (See Adair, supra, 29 Cal.4th at
p. 909 [finding reasonable cause to believe petitioner was guilty
where “‘defendant constantly changed her explanation of what
had taken place’”]; accord, Bleich, supra, 178 Cal.App.4th at
p. 303.) As Howard and Powell were associated with the
Limehood Piru gang, and the throwing of gang signs
accompanied the shooting, this evidence reasonably shows
Howard’s motivation to participate in the shooting. [Adair, at

27
p. 909 [reasonable cause for murder where a “‘reasonable view of
the evidence’” suggested petitioner’s “‘motivation to kill her
husband’”].)
By all accounts, the gunshot residue evidence left open the
possibility Howard shot the gun from the back seat of the
Cutlass. (Cf. Adair, supra, 29 Cal.4th at pp. 899-900, 909
[reasonable cause to believe in petitioner’s guilt where her
injuries could have resulted from alleged home invasion or “‘a
condition that could have arisen without any injury’”]; accord,
Bleich, supra, 178 Cal.App.4th at pp. 298, 302 [reasonable cause
of petitioner’s guilt where the audio recording of terrorist threats
was “‘hard to understand,’” resulting in mixed opinions of
whether it was the petitioner’s voice].)
Further, Martinez’s trial testimony provided circumstantial
evidence that Howard was the shooter. Martinez noted Powell’s
hands on the wheel a few seconds before the shooting started,
then observed muzzle flash coming from the “lower left corner” of
the passenger window, near where Howard was seated in the
back seat on the passenger side. The testimony of a single
witness is sufficient to preclude a finding of factual innocence,
even where the witness displays credibility issues. (See Esmaili,
supra, 213 Cal.App.4th at pp. 1455-1456, 1461 [affirming denial
of factual innocence petition where only alleged victim testified to
the petitioner’s continuous sexual abuse, albeit with
“inconsistencies”].) And even “‘circumstantial’” evidence can
establish reasonable cause to believe in a petitioner’s guilt. (See
Adair, supra, 29 Cal.4th at p. 909; Bleich, supra, 178 Cal.App.4th
at p. 298.)

28
 Finally, at the time Powell signed his confessions, Powell
was serving a life sentence for aiding and abetting the murder
and attempted murders. A reasonable person could conclude
Powell had nothing to lose by accepting responsibility for the
shooting because he did not face any additional criminal penalty.
And, based on Powell’s statements to the Perkins agent about
“bread being exchanged,” a “person of ordinary care and
prudence” could “honest[ly] and strong[ly]” suspect Powell had
some financial motivation for confessing to the shooting. (See
Adair, supra, 29 Cal.4th at p. 904.)
Because Howard has not met his burden of demonstrating
that no reasonable cause exists, we affirm the denial of Howard’s
section 781.5 petition.9

9 We note Howard may pursue a remedy under Penal Code
section 1485.55, subdivision (d), as a petitioner who has been
“granted a writ of habeas corpus” pursuant to “subdivision (b) of
[Penal Code] Section 1473” and “the charges were subsequently
dismissed.” Under that section, “the petitioner may move the
court for a finding that they are entitled to approval of a claim for
compensation” and “[t]he court shall grant the motion unless the
district attorney objects in writing within 15 days from when the
person files the motion and can establish by clear and convincing
evidence that the person committed the acts constituting the
offense and is therefore not entitled to compensation.” (Pen.
Code, § 1485.55, subd. (d)(1); see Gonzales v. California Victim
Compensation Board (2023) 98 Cal.App.5th 427, 442, fn. 8 [“In a
legislative amendment effective on January 1, 2022, the People
now bear the burden of proving an inmate’s guilt by clear and
convincing evidence if the inmate is exonerated through the grant
of a writ of habeas corpus in state or federal court.”].)

29
 DISPOSITION

The juvenile court’s denial of Howard’s petition under
section 781.5 is affirmed.

MARTINEZ, J.

We concur:

SEGAL, Acting P. J.

FEUER, J.

30