Filed 8/31/15 (reposted to provide correct version of opinion)

                                   CERTIFIED FOR PUBLICATION


                   COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                               DIVISION ONE

                                        STATE OF CALIFORNIA



JESICA SANDRA HOLMES,                                            D066716

        Plaintiff and Appellant,

        v.                                                       (Super. Ct. No. 37-2014-00020427-
                                                                 CU-WM-CTL)
CALIFORNIA VICTIM COMPENSATION
AND GOVERNMENT CLAIMS BOARD,

        Defendant and Respondent.


        APPEAL from a judgment of the Superior Court of San Diego County,

Timothy B. Taylor, Judge. Affirmed.

        Robert C. Schlein & Associates, Robert C. Schlein and Sarah C. Jones for Plaintiff

and Appellant.

        Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney

General, Michael P. Farrell, Assistant Attorney General, Kenneth N. Sokoler and Larenda

R. Delaini for Defendant and Respondent.



        California allows a person erroneously convicted of a crime to file a claim for

indemnity with the California Victim Compensation and Government Claims Board (the
Board) for pecuniary injury sustained through the erroneous conviction and imprisonment

or incarceration. (Pen. Code, §§ 4900 et seq., undesignated statutory references are to

this code.) In this case, we address whether the claimant met his burden of showing, by a

preponderance of the evidence, that he sustained pecuniary injury as a result of his

wrongful conviction. The Board found the claimant had not sustained pecuniary injury.

The trial court subsequently denied claimant's petition for a writ of mandate, finding

claimant had not satisfied his burden of proof. We affirm.

                   FACTUAL AND PROCEDURAL BACKGROUND

       In 1992, in the state of Rhode Island, Charles Herbert Holmes III was convicted of

second degree child molestation. (Holmes passed away during the pendency of this

appeal and his daughter, Jesica Sandra Holmes, was substituted as the petitioner. All

references to Holmes in this opinion are to Mr. Holmes, the original claimant.) Based on

the Rhode Island conviction, Holmes began registering as a sex offender in California. In

2005, Holmes pled guilty for failing to register as a sex offender. He spent about six

years, 11 months in custody for the conviction. In 2013, he filed with the Board an

erroneously convicted person claim under section 4900.

       Holmes alleged he was entitled to compensation for the time he served in prison

for failing to register as a sex offender because he was not actually required to register as

a sex offender in California. The Attorney General submitted a letter in response to the

claim, noting that Holmes may not have been required to register as a sex offender based

on his Rhode Island conviction. The Attorney General indicated she would oppose the



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claim on the ground Holmes failed to demonstrate he had suffered pecuniary injury as a

result of his incarceration.

       A hearing officer issued a proposed decision finding Holmes had proven by a

preponderance of the evidence that the crime for which he pleaded guilty was not

committed and that Holmes had suffered pecuniary injury as a result of the conviction. A

three person panel of the Board reviewed Holmes's claim. At the hearing, no one

contested the fact Holmes was not required to register as a sex offender; accordingly, the

arguments focused on the pecuniary injury requirement. Following the hearing, the

Board, in a 2-1 vote, rejected the hearing officer's proposed decision, finding that Holmes

failed to establish he had suffered pecuniary injury.

       Holmes filed a petition for writ of mandate seeking to set aside the Board's denial

of his claim. The trial court issued a tentative ruling denying Holmes's petition for writ of

mandate, finding the Board did not abuse its discretion in rejecting the claim on the

ground Holmes had failed to prove that he suffered pecuniary injury. After hearing oral

argument, the trial court confirmed its tentative ruling and later entered judgment denying

the claim. Holmes timely appealed.

                                       DISCUSSION

          I. Claim for Erroneous Conviction and Imprisonment or Incarceration

       The purpose behind section 4900 is to offer a remedy for individuals who prove

their innocence and secured their freedom after they have been erroneously convicted by

compensating them for "each day he or she spent illegally behind bars away from society,

employment, and their loved ones." (Sen. Com. on Public Safety, Analysis of Sen. Bill

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No. 618 (2013-2014 Reg. Sess.) as amended April 15, 2013.) Section 4900 provides that

anyone who was convicted of a felony and served time in prison may present a claim for

compensation "for the pecuniary injury sustained by him or her through the erroneous

conviction and imprisonment." If the evidence shows the claimant (1) did not commit the

charged crime and (2) sustained a pecuniary injury through the erroneous conviction and

imprisonment, the Board "shall report the facts of the case and its conclusions to the next

Legislature, with a recommendation that an appropriation be made by the Legislature for

the purpose of indemnifying the claimant for the pecuniary injury." (§ 4904.) The

amount of the appropriation recommended shall be $100 per day of incarceration served

subsequent to the claimant's conviction. (Ibid.)

       The Board has adopted rules and regulations for the presentation and processing of

claims for compensation filed by persons allegedly erroneously convicted of crimes.

(Ebberts v. State Board of Control (1978) 84 Cal.App.3d 329, 333; citing Cal. Admin.

Code, tit. 2, §§ 640-647.5.) The regulations provide that claimants may establish

pecuniary injury by: (1) showing gainful employment prior to being incarcerated;

(2) showing they could have been gainfully employed if not for being incarcerated; or

(3) presenting other evidence showing that, as a result of being incarcerated, they suffered

a monetary loss. (Cal. Code Regs., tit. 2, § 640, subd. (c).) The claimant has the burden

of proving, by a preponderance of the evidence, all issues necessary to establish

eligibility. (Id. at § 644, subd. (c)(1).) " 'Preponderance of the evidence' is usually

defined in terms of 'probability of truth,' for example as evidence that, ' "when weighed



                                              4
with that opposed to it, has more convincing force and the greater probability of truth." ' "

(Leslie G. v. Perry & Associates (1996) 43 Cal.App.4th 472, 482-483.)

       "All relevant evidence shall be admitted if it is the sort of evidence on which

reasonable persons are accustomed to rely in the conduct of serious affairs." (Cal. Code

Regs., tit. 2, § 641, subd. (c).) Such evidence "may be admitted even though there is a

common law or statutory rule which might make its admission improper over objection in

any other proceeding." (Id. at § 641, subd. (d).) "The hearing officer may use relevant

experience, technical competence and specialized knowledge to evaluate the evidence."

(Id. at § 645, subd. (e).) The hearing officer is required to prepare a proposed decision,

based on the evidence presented at the hearing and matter subject to judicial notice,

containing a statement of the factual and legal bases for the proposed decision. (Id. at

§ 645, subds. (b) & (d).) "If the factual basis for the proposed decision includes a

determination based substantially on the credibility of a witness, the proposed decision

shall identify specific evidence that supports the credibility determination, which may

include but is not limited to demeanor, manner or attitude." (Id. at § 645, subd. (c).)

                                   II. Standard of Review

       The Board's ruling on a claim for compensation is subject to writ review under

Code of Civil Procedure section 1094.5. (See Tennison v. California Victim Comp. &

Government Claims Bd. (2007) 152 Cal.App.4th 1164, 1180 (Tennison).) The trial court

reviews the denial of a claim for compensation under section 4900 by examining the

entire administrative record to determine whether the Board's findings were supported by

substantial evidence, resolving all conflicts in the evidence and drawing all inferences in

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support of the findings. (Tennison, at pp. 1180, 1182.) " '[Our] function is identical to

that of the trial court. [We] review[] the administrative record to determine whether the

[Board's] findings were supported by substantial evidence, resolving all conflicts in the

evidence and drawing all inferences in support of them. [Citations.]' [Citation.]" (Id. at

p. 1182.) Substantial evidence " 'must be " 'of ponderable legal significance,' " which is

reasonable in nature, credible and of solid value.' " (Id. at p. 1180.) "Inferences may

constitute substantial evidence as long as they are the product of logic and reason rather

than speculation or conjecture." (Oregel v. American Isuzu Motors, Inc. (2001) 90

Cal.App.4th 1094, 1101.)

                                        III. Analysis

       It was undisputed that Holmes had been wrongfully convicted for failing to

register as a sex offender. The Board's notice of decision denied Holmes's claim on the

ground he failed to establish pecuniary injury as a result of his wrongful conviction. The

Board found that Holmes was unemployed, recently out of prison and homeless at the

time of his arrest. It also noted that Holmes worked for a short time after his

incarceration as a cook in Rhode Island but was laid off and "is currently unemployed but

collects cans for recycling to make income." Based on Holmes's "extensive criminal

history and unemployment status at the time of his arrest," the Board concluded he had

not demonstrated pecuniary loss as a result of his incarceration.

       Holmes asserts the Board's finding is not supported by the record. Should we

conclude the Board's findings are supported by substantial evidence, Holmes alternatively

contends these findings do not support the Board's legal conclusions. As we shall

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explain, substantial evidence supported the Board's determination that Holmes did not

suffer pecuniary injury.

       Pecuniary injury may be shown by gainful employment prior to being incarcerated

and evidence that the claimant could have been gainfully employed if not for being

incarcerated. (Cal. Code Regs., tit. 2, § 640, subd. (c).) "Gainful employment" is defined

by Black's Law Dict. (10th ed. 2014) p. 641, col. 2 as "[w]ork that a person can pursue

and perform for money." The Random House Unabridged Dict. (2d ed. 1993) p. 782

defines "gainful" as "profitable; lucrative."

       To establish he suffered pecuniary injury as a result of being incarcerated, Holmes

stated in his sworn claim form that prior to his incarceration in 2005, he worked full time

as a cook at Christie's Restaurant in Newport, Rhode Island being paid about $8-9 an

hour. During his incarceration, Holmes argued that he "cleaned dishes and cooked

consistently" for four years with an unblemished work record. We have not located any

evidence in the record to support this argument; however, the trial court found there was

no dispute that Holmes worked while in custody. For purposes of analysis, we accept

Holmes's statement that he worked for four years while incarcerated.

       Substantial evidence supported the Board's implied conclusion that Holmes was

not gainfully employed at the time of his arrest and would not have been gainfully

employed if not for being incarcerated. Holmes has an extensive criminal history,

starting with an arrest in Rhode Island for possessing marijuana when he was 18 years

old. Over the next nine years, Holmes suffered four additional arrests in Rhode Island

until his 1992 conviction for second degree child molestation. From 1995 to 2001,

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Holmes suffered convictions and was periodically incarcerated in Florida for crimes

including burglary, drug possession and larceny. Holmes presented no evidence showing

any gainful employment during this time period.

       Holmes's criminal history picks up in 2003 in California when he suffered a

conviction for first degree burglary and was sentenced to four years in prison. At that

time, Holmes admitted he " 'did this stuff' " to support his methamphetamine addiction.

He was paroled in March 2005, absconded, was returned to custody and again paroled in

September 2005. In November 2005, he pleaded guilty to failing to register as a sex

offender (the erroneous conviction). A probation report dated December 2005 indicated

that at the time of his arrest in May 2005, Holmes was living on the street and collecting

cans. He admitted to being under the influence of methamphetamine at the time of his

arrest. Holmes told the probation officer that his last job was in Rhode Island as a line

cook in 2002 and that he started using methamphetamine in 2003 and used it " 'whenever

he [could] get it,' " usually daily.

       The Board impliedly rejected Holmes's sworn statement that prior to his

incarceration in 2005, he worked full time as a cook in Rhode Island, citing Holmes's

extensive criminal history and unemployment status at the time of his arrest. The Board

was entitled to evaluate the credibility of Holmes's sworn statement in light of the

contrary statement he made to a probation officer that he had not worked as a cook since

2002. (Tennison, supra, 152 Cal.App.4th at p. 1189 [Board properly treated evidence

with skepticism and accorded it little weight]; Cal. Code Regs., tit. 2, § 645, subd. (c).)

Additionally, Holmes's criminal history showed that in 2003, he suffered a California

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conviction and was incarcerated until being paroled in March 2005. These records

severely undercut Holmes's conclusory and unsupported statement that, prior to his 2005

erroneous conviction in California, he had gainful employment as a cook in Rhode Island.

The lack of any documented employment history, Holmes's criminal history, and the fact

Holmes was homeless and a methamphetamine addict when arrested, amply support the

Board's implied conclusion that Holmes would not have been gainfully employed if not

for his erroneous conviction. Put simply, the Board was entitled to make a credibility

determination based on the conflicting evidence before it.

       Holmes complains that the Board made its decision not based on the evidence, but

based on the Board's personal disgust of his background and character. During the

hearing, one of the Board members stated, "[I]f we find that [Holmes] has not been

working and he has not suffered a loss, then I have a way out." Holmes suggests the

Board completely disregarded the facts so it would not have to grant him compensation.

We agree that the general character of a claimant is not relevant in evaluating whether the

claimant suffered pecuniary injury. However, the background of the claimant, including

the claimant's criminal history, is relevant as such evidence provides insight into whether

the claimant had been, or could have been, gainfully employed. As here, such

information may also show the claimant's evidence regarding gainful employment prior to

an erroneous conviction is not credible.

       Claimants may also show pecuniary injury with "other evidence showing that, as a

result of being incarcerated, [they] suffered a monetary loss." (Cal. Code Regs., tit. 2,

§ 640, subd. (c).) Other evidence presented by Holmes included a statement in his claim

                                             9
form that at the time he filed the claim form, he was working as a full-time cook at

Patriot's Diner in Woonsocket, Rhode Island. He also presented a letter and receipts

showing that since February 2014, he worked for Community Wide Clean-Up as a laborer

earning $9 an hour for a minimum of six to eight hours daily. Holmes presented receipts

showing he collects a variety of metals and then recycles them through Recon Recycling.

Holmes also earned money working contracted projects such as moving and disposing of

furniture, construction, gardening, and trash removal. He presented a table summarizing

the work he performed for Community Wide Clean-Up starting in February 2014.

       Evidence of employment after an erroneous incarceration may show a claimant is

capable of obtaining gainful employment and may be relevant to whether a claimant was,

or could have been, gainfully employed at the time of an erroneous conviction. However,

based on the totality of the evidence presented here, the Board could reasonably conclude

the evidence of postincarceration employment carried little weight. Notably, while

Holmes stated he worked as a cook in Rhode Island for some unknown time period after

his release, he provided no documents to support this assertion. In fact, although Holmes

was released in November 2012, he provided no documents showing any employment

until February 2014.

       Additionally, postincarceration employment does not show a claimant "suffered a

monetary loss" as a result of the erroneous conviction. (Cal. Code Regs., tit. 2, § 640,

subd. (c).) We construe the phrase "suffered a monetary loss" as something different than

whether the claimant was, or could have been, gainfully employed at the time of the

erroneous conviction. For example, a claimant may suffer a monetary loss by losing the

                                            10
equity in the claimant's home when the home is foreclosed upon as the result of the

claimant's erroneous conviction. Here, Holmes presented no evidence suggesting he

"suffered a monetary loss" as a result of his erroneous conviction.

       In summary, substantial evidence supported the Board's conclusion that Holmes

failed to demonstrate that he suffered pecuniary loss as a result of his erroneous

incarceration. Since we conclude the Board's findings were supported by substantial

evidence, Holmes alternatively argues the Board's findings did not support its legal

conclusions. He contends the Board's ultimate determination to deny his claim was not

founded in the law, but on its dislike of him as revealed by some of the Board's comments

during the hearing and the erroneous finding in its decision that he "collects cans for

recycling to make income."

       Whether the Board's findings support the legal conclusions upon which it arrived

at its ultimate determination presents a question of law. (JKH Enterprises, Inc. v.

Department of Industrial Relations (2006) 142 Cal.App.4th 1046, 1058-1059.) "If the

administrative record reveals the theory upon which the agency has arrived at its ultimate

decision, the decision should be upheld so long as the agency found those facts that as a

matter of law are essential to sustain the decision." (Id. at p. 1059.)

       Here, the administrative record reveals the Board denied Holmes's claim because

he failed to demonstrate any pecuniary loss as a result of his erroneous incarceration.

While the transcript of the hearing contains comments from one of the Board members

indicating he disliked the idea of compensating "a career criminal," this same Board

member noted that if Holmes "has not been working and . . . has not suffered a loss, then I

                                              11
have a way out." While these comments may have been tactless, they do not show the

Board ignored the law and abused its judicial discretion. Rather, they show the Board

correctly understood that if the claimant failed to show pecuniary injury, then it could

properly deny the claim.

       Finally, Holmes correctly notes the decision contains a misstatement of fact that he

is currently unemployed but "collects cans for recycling to make income." The evidence

Holmes presented shows that starting in February 2014, he not only collected cans, but

also other recyclable metals and performed other odd jobs for income. Nonetheless, as

indicated above, this evidence of postincarceration employment carries little weight. On

this record, this misstatement is of no consequence.

                                      DISPOSITION

       The judgment is affirmed. Respondent is awarded its costs on appeal.



                                                                       MCINTYRE, J.

WE CONCUR:

HALLER, Acting P. J.

MCDONALD, J.




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