Filed 3/19/14 Shull v. Cal. Victims Compensation etc. Board CA6
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                      SIXTH APPELLATE DISTRICT


GEORGE SHULL,                                                        H038270
                                                                    (Santa Clara County
         Plaintiff and Appellant,                                    Super. Ct. No. CV193301)

             v.

CALIFORNIA VICTIM
COMPENSATION AND GOVERNMENT
CLAIMS BOARD,

         Defendant and Respondent.



         George Shull appeals an order of the superior court denying his petition for writ of
mandate. Appellant asserts the Victim Compensation and Government Claims Board
(Board) improperly denied his request for $92,100 as compensation for a period of time
he was incarcerated in late 1980’s and early 1990’s.
                                  STATEMENT OF THE FACTS AND CASE
         As the result of two separate incidents of assault in 1988, appellant pleaded guilty
in the one case to felony assault causing great bodily injury (Pen. Code §§ 245,
subd. (a)(1), 12022.7),1 and annoying or molesting a minor (§ 647.6). In the second case,
appellant pleaded guilty to felony assault (§ 245, subd. (a)(1)), and sexual battery with
the use of a billy club (§§ 243.4, 12022, subd. (b)). Appellant served a prison term of

         1
             All further statutory references are to the Penal Code.
five years for each victim, run concurrently. Appellant was released from prison on June
16, 1992.
       In 2009, appellant filed a petition for habeas corpus in Santa Clara County
Superior Court regarding his conviction of the felony assault and the sexual battery in the
second case. The grounds for his petition were that the victim in the second case
admitted in an interview in 2007 that she was no longer as certain of her identification of
appellant as her assailant as she was in 1988. In addition, appellant had evidence from a
polygraph examination during which he answered four questions about the second case
without deception detected.
       At the time appellant filed the habeas petition, he was not in custody. As a result,
he and the district attorney stipulated that the superior court had jurisdiction to consider
the petition.
       On December 10, 2009, the court granted the habeas petition, and ordered the
convictions on the second case vacated.
       Based on the court’s grant of his habeas petition, appellant sought monetary
compensation from the Board. On June 7, 2010, appellant filed a claim with the Board
pursuant to section 4900 seeking $92,100 as compensation for time he was incarcerated
in 1989 for the felony assault and sexual battery convictions. On September 16, 2010,
the Board denied the claim as untimely filed.
       On February 2, 2011, appellant brought a petition for writ of mandate in the Santa
Clara County Superior Court directing the Board to set aside its decision. The court
denied the petition on March 6, 2012, and appellant filed a timely notice of appeal.
                                        DISCUSSION
       Appellant asserts the trial court erred in denying his petition for writ of mandate
requesting that the Board reverse its decision. Respondent argues the trial court correctly



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denied appellant’s petition, because his request to the Board for compensation under
section 4900 was not timely.
       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 he or she meets the
requirements of section 4903 and was either (1) pardoned by the Governor because “the
crime with which he or she was charged was either not committed at all or, if committed,
was not committed by him or her” or (2) “innocent of the crime with which he or she was
charged for either of the foregoing reasons.”
       Section 4901 states, “A claim under Section 4900 . . . is required to be presented
by the claimant to the California Victim Compensation and Government Claims Board
within a period of two years after judgment of acquittal or after pardon granted, or after
release from custody, and no claim not so presented shall be considered by the California
Victim and Government Claims Board.”
       There is no question appellant never received a pardon nor was his 2011 claim on
the Board made within two years of being released from imprisonment. The issue is
whether the trial court’s grant of appellant’s writ of habeas corpus vacating his
convictions is tantamount to a judgment of acquittal or discharge, making his 2011 claim
timely under section 4901.
       The granting of appellant’s petition for writ of habeas corpus was not an acquittal
for purposes of a claim under section 4900. “[A] habeas corpus proceeding is not a trial
of guilt or innocence and the findings of the habeas corpus court do not constitute an
acquittal. The scope of a writ of habeas corpus is broad, but in this case, as in most cases,
it is designed to correct an erroneous conviction. It achieves that purpose by invalidating
the conviction and restoring the defendant to the position she or he would be in if there



                                                3
had been no trial and conviction. [Citations.] [¶] Thus, the conviction is set aside but the
prosecution is not ended.” (In re Cruz (2003) 104 Cal.App.4th 1339, 1346.)
       Here, the trial court granted appellant’s habeas petition because it lacked
confidence in the integrity of the convictions, given the victim’s questioning of her
previous identification. The court did not acquit appellant, much less determine that he
was “innocent.”
       Moreover, the granting of the habeas petition also did not constitute a “discharge”
under section 4901. Section 1487, which addresses when discharge of an individual
illegally detained is an appropriate habeas remedy states, “If it appears on the return of
the writ that the prisoner is in custody by virtue of process from any court of this state, or
judge or officer thereof, such prisoner may be discharged in any of the following
cases . . . .” The section goes on to list the circumstances under which a habeas petition
should be granted.
       Importantly, section 1487 refers to a “prisoner” who is “in custody” as being
entitled to a discharge under certain circumstances. Appellant was not a prisoner in
custody when he brought his petition for habeas corpus in 2010; therefore, there was no
illegal confinement at the time from which he could be discharged.
       Appellant’s claim for compensation on the Board in 2011 was not timely under
section 4901 because he was not pardoned, nor had he received a judgment of acquittal or
a discharge from the grant of his habeas petition. In addition, appellant did not make his
claim within two years of his release from imprisonment. (See § 4901.) The trial court
was correct in denying appellant’s writ of mandate.




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                                 DISPOSITION
     The order is affirmed.




                                 ______________________________________
                                            RUSHING, P.J.




WE CONCUR:




____________________________________
           PREMO, J.




____________________________________
           MÁRQUEZ, J.




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