Filed 1/5/17 (unmodified opn. attached)
                        CERTIFIED FOR PUBLICATION

    IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                         SECOND APPELLATE DISTRICT

                                    DIVISION EIGHT

RAFAEL MADRIGAL,                                     B265105

        Plaintiff and Appellant,                     (Los Angeles County
                                                     Super. Ct. No. BS148486)
        v.
                                                     ORDER MODIFYING
VICTIM COMPENSATION &                                OPINION AND DISSENT
GOVERNMENT CLAIMS BOARD,
                                                     [No change in the Judgment]
        Defendant and Respondent.


       GOOD CAUSE appearing, the opinion filed December 20, 2016, in
the above entitled matter is hereby modified as follows:

        1. On page 10, line 22, add the following after the citation to Kurtin
v. Elieff (2013) 215 Cal.App.4th 455: “Moreover, subdivisions (a) and (c)
of section 1485.5 must be read as complementing each other in cases where
a habeas petition or other specified motion was uncontested. Under
subdivision (a), the stipulated or contested factual findings are binding.
Subdivision (c) simply clarifies which findings are binding: the express
factual findings made by the court, including credibility determinations.”


       2. On page 10, line 26, replace the period at the end of “binding
effect” with a comma and add the following: “but recognize the apparent
conflict between section 1485.55, subdivision (a), which, in contested
proceedings, calls for the binding effect of findings concerning actual
innocence, and section 4903, subdivision (b), which seems to call for the
binding effect of findings made in all habeas proceedings.”

       3. On page 10, line 28, delete “issue” as the last word of the
sentence that begins “As part of . . .” and add instead “interpretive
inconsistency.”

FURTHER GOOD CAUSE appearing, the dissent filed December 20,
2016, in the above entitled matter is hereby modified as follows:

       1. On page 8, line 10, add a footnote to the last word of the sentence
ending in “uncontested proceedings.” The footnote shall read: “In its brief,
respondent states, ‘the question of whether Penal Code section 1485.5,
subdivision (c), makes findings from contested habeas corpus proceedings
binding on the board is moot, because such findings would be binding
under Penal Code section 4903, subdivision (b) . . .’ To the extent this is an
acknowledgement, as the majority suggests, that section 4903(b) makes
binding certain factual findings resulting from contested habeas
proceedings, I disagree with respondent for the reasons stated in this
dissent.”

      2. On page 11, remove the footnote beginning with “In reaching this
conclusion . . .”

       The modifications effect no change in the judgment.



____________________________________________________________
RUBIN, J.             FLIER, J.         BIGELOW, P. J.




                                      2
Filed 12/20/16 (unmodified version)
                  CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                   SECOND APPELLATE DISTRICT

                              DIVISION EIGHT


RAFAEL MADRIGAL,                               B265105

       Plaintiff and Appellant,                (Los Angeles County
                                               Super. Ct. No. BS148486)
       v.

VICTIM COMPENSATION AND
GOVERNMENT CLAIMS BOARD,

       Defendant and Respondent.



     APPEAL from a judgment of the Superior Court of Los
Angeles County. James C. Chalfant, Judge. Reversed and
remanded with directions.

     Justin Brooks, Alexander Simpson and Raquel Cohen for
Appellant.

      Kamala D. Harris, Attorney General, Gerald A. Engler,
Chief Assistant Attorney General, Michael P. Farrell, Assistant
Attorney General, Larenda R. Delaini and Kenneth N. Sokoler,
Deputy Attorneys General, for Plaintiff and Respondent.

                        __________________________
      Rafael Madrigal appeals from the judgment upholding the
decision of the state’s Victim Compensation and Government
Claims Board (Board) to deny Madrigal compensation for
wrongful imprisonment after the Board found that Madrigal had
not proven he was factually innocent of attempted murder. We
hold that the Board erred when it refused to be bound by the
findings in a federal district court’s order granting Madrigal’s
habeas corpus petition due to ineffective assistance of counsel.
Because it was reasonably probable that consideration of those
findings would have caused the Board to award compensation, we
reverse and remand for a new hearing before the Board.
            FACTS AND PROCEDURAL HISTORY
      Rafael Madrigal was convicted in 2003 of attempted
murder after eyewitnesses identified him as the passenger in a
car who, after approaching rival gang members, fired a gunshot
that struck and wounded Ricardo Aguilera. As is usual with such
cases, there were conflicts, inconsistencies, and weaknesses in
the witnesses’ testimony.
      Madrigal contended he had been at work when the incident
occurred. Steve Finley, who was the floor supervisor where
Madrigal worked, testified that Madrigal had been at work that
day until 3:30 p.m., while the shooting took place about 45
minutes away between 3:00 p.m. and 4:00 p.m. However, Finley
admitted that the laminating machine Madrigal operated shut
down at 1:50 p.m. that day, that Madrigal could have left up to
an hour early without his knowledge, and that instead of
Madrigal punching out his time card at 3:30 p.m. on the day of
the shooting, Finley recorded that time the next day after talking
to Madrigal’s brother Victor, who also worked at the plant.1
      In September 2009, a judge of the United States District
Court accepted the findings of a magistrate judge and granted
Madrigal’s petition for writ of habeas corpus on the ground that


1     This portion of our statement of facts is derived from the
decision affirming Madrigal’s conviction. (People v. Madrigal
(Oct. 17, 2005, B170431) [nonpub. opn.].)



                                 2
he received ineffective assistance of counsel at his 2003 trial. The
deficiencies fell into four categories.
       First, defense counsel’s failure to introduce a secretly
recorded jailhouse conversation of Madrigal’s co-defendant
Olivares, who drove the car involved in the shooting. In that
conversation, Olivares tells his girlfriend that he cautioned
Madrigal about having his brother, Victor, ask around about who
the real shooter might have been, and suggests that Madrigal
knew nothing about who committed the shooting.
       Second, defense counsel’s failure to call Madrigal as a
witness after telling the jury during opening statement that
Madrigal would testify. Madrigal would have told the jury about
his alibi defense and his belief that someone named Mendoza had
been the shooter.
       Third, defense counsel’s failure to investigate and present
alibi testimony from Robert Howard, who was Madrigal’s
ultimate supervisor, and who claimed that Madrigal had been at
work until 3:00 p.m. on the day of the shooting because only
Madrigal could operate a certain machine and Howard would
have known if the machine had been shut down early.
       Fourth, defense counsel’s failure to call Madrigal’s brother,
Victor, as a witness, because Victor would have testified that he
was at work with Madrigal when the shooting occurred, and
otherwise would have corroborated Madrigal’s alibi.
       The magistrate found that Madrigal had been prejudiced by
counsel’s omissions because, had the missing evidence and
omitted witnesses been presented, a different result was
reasonably probable. In the context of these ultimate findings,
the magistrate made several characterizations about the
evidence. The Olivares jailhouse audiotape was “highly reliable
and exculpatory evidence in support of [an alibi] defense.” The
tapes were “compelling evidence to bolster” Madrigal’s claim that
Mendoza had been the shooter. The prosecution’s case was weak.
Supervisor Howard’s testimony would have provided “a complete
alibi and undermined the eyewitness” identifications. Howard’s
testimony was “certain and unequivocal” and he would have




                                 3
“made a very strong witness” because “his testimony was clear,
straightforward, and credible,” and would have provided strong
support for Madrigal’s alibi defense. Victor’s testimony would
have been corroborative of, and was consistent with, that of floor
supervisor Finley. The eyewitness testimony about the shooting
was questionable.
      One month later, the magistrate issued an order granting
Madrigal release on bail pending the prosecutor’s decision
whether to retry Madrigal. Among the factors the magistrate
considered was the possibility of irreparable harm to Madrigal
should bail be denied. In finding that such harm was likely, the
magistrate noted that there was “compelling evidence in this case
that [Madrigal] is actually innocent of the crime for which he was
convicted. Based upon the alibi evidence that was presented at
the evidentiary hearing, it would have been impossible for
[Madrigal] to be at the scene of the crime at the time it was
committed. The secretly recorded jailhouse tape of the
conversation between [codefendant] Olivares [and his girlfriend]
demonstrates that [Madrigal] was not involved in and did not
know who committed the offense for which he was charged and
convicted. The eyewitness identifications were conflicting and
unreliable. Finally, there is evidence of a favorable polygraph
examination in 2006, conducted by a 23-year veteran of the
F.B.I.”
      In July 2011, the superior court dismissed the still-pending
criminal case against Madrigal after the prosecution announced
it was not ready to retry him. In September 2011, Madrigal filed
a complaint with the Board seeking compensation for the time he
was jailed because he was innocent of the charges. (Pen. Code,
§ 4900, et seq.)
      Following a contested evidentiary hearing, a hearing officer
issued a proposed decision in November 2013 denying Madrigal’s
claim after finding that Madrigal had not proven his innocence by
a preponderance of the evidence. Before the Board could act on
the proposed decision, new legislation took effect in January 2014
that made binding certain factual findings from habeas corpus




                                4
and other rulings that went to the issue of a claimant’s actual
innocence.2 The hearing officer then issued a new proposed
decision, ostensibly in light of the changes to the law, concluding
that: (1) the habeas corpus findings were not the type that
became binding under the new provisions; and (2) Madrigal still
failed to prove his actual innocence. The Board adopted those
findings by a 2-1 decision in March 2014 and denied Madrigal’s
claim.
       Madrigal then brought an administrative mandate action
against the Board. The trial court found that the Board’s
decision was legally and factually correct and entered judgment
for the Board.3
                    STANDARD OF REVIEW
       The parties agree that, because Madrigal did not have a
fundamental vested right to compensation from the Board, we
review the Board’s decision to determine whether it is supported
by substantial evidence. (Tennison v. California Victim
Compensation and Government Claims Board (2007)
152 Cal.App.4th 1164, 1182.) However, to the extent we construe
statutory provisions, an issue of law is presented that we review
by applying the rules of statutory interpretation. (Harbor
Regional Center v. Office of Administrative Hearings (2012)
210 Cal.App.4th 293, 304.)
       The fundamental rule of statutory construction is to
ascertain the Legislature’s intent in order to give effect to the
purpose of the law. (Pasadena Metro Blue Line Construction
Authority v. Pacific Madrigal Telephone Co. (2006)
140 Cal.App.4th 658, 663-664 (Pasadena Metro Blue Line).) We
first examine the words of the statute and try to give effect to the
usual, ordinary import of the language while not rendering any
language surplusage. The words must be construed in context

2     We will discuss the relevant statutes in detail, post.

3     We discuss the trial court’s findings in more detail in
section 2. of our Discussion.



                                 5
and in light of the statute’s obvious nature and purpose. The
terms of the statute must be given a reasonable and
commonsense interpretation that is consistent with the
Legislature’s apparent purpose and intention. (Id. at p. 664.)
Our interpretation should be practical, not technical, and should
also result in wise policy, not mischief or absurdity. (Ibid.) We
do not interpret statutes in isolation. Instead, we read every
statute with reference to the entire scheme of law of which it is a
part in order to harmonize the whole. (20th Century Ins. Co. v.
Superior Court (2001) 90 Cal.App.4th 1247, 1275.)
       If the statutory language is clear, we should not change it
to accomplish a purpose that does not appear on the face of the
statute or from its legislative history. (Pasadena Metro Blue
Line, supra, 140 Cal.App.4th at p. 664.) If there is more than one
reasonable interpretation of a statute, then it is ambiguous.
(Joannou v. City of Rancho Palos Verdes (2013) 219 Cal.App.4th
746, 752 (Joannou).) If so, we turn to secondary rules of
construction, including maxims of construction, the legislative
history, and the wider historical circumstances of a statute’s
enactment. (Ibid.)
                           DISCUSSION
1.     The Law Applicable to Compensation Claims for the
       Wrongly Convicted
       Effective January 1, 2014, statutes governing compensation
for wrongly convicted persons were either enacted or amended to
provide that under some circumstances, findings made as part of
habeas corpus and other proceedings had binding effect on the
Board when considering compensation claims. We set forth those
statutes in relevant part.
       First, section 1485.5 was added to the Penal Code.4 (Stats.
2013, c. 800 (S.B. 618), § 2.) It bore the subject heading,
“Stipulation to or no contest of allegations underlying grounds for
granting writ of habeas corpus or motion to vacate judgment;
facts binding on Attorney General, factfinder, and California


4     All further section references are to the Penal Code.



                                 6
Victim Compensation Board; notice of stipulation of facts; express
factual findings, including credibility determinations, to be
binding.”
      The statute itself provides: “(a) If the district attorney or
Attorney General stipulates to or does not contest the factual
allegations underlying one or more of the grounds for granting a
writ of habeas corpus or a motion to vacate a judgment, the facts
underlying the basis for the court’s ruling or order shall be
binding on the Attorney General, the fact finder, and the
California Victim Compensation Board. . . .
      “(c) The express factual findings made by the court,
including credibility determinations, in considering a petition for
habeas corpus, a motion to vacate judgment pursuant to Section
1473.6,5 or an application for a certificate of factual innocence,
shall be binding on the Attorney General, the factfinder, and the
California Victim Compensation Board.”6

5     Section 1473.6 allows someone who is no longer
incarcerated, and therefore not entitled to habeas relief, to bring
a motion to vacate the criminal judgment that led to his earlier
imprisonment on the ground of newly discovered evidence of
government fraud that points unerringly to innocence, or of
government perjury or fabrication of evidence that was
substantially probative on the issue of guilt.

6      Subdivision (b) provides that the district attorney shall
notify the Attorney General before stipulating to facts that will
be the basis of granting a writ of habeas corpus or a motion to
vacate a judgment. Subdivision (d) provides that “express factual
findings” are “findings established as the basis for the court’s
ruling or order.”
       Soon after its passage, section 1485.5 was amended by
adding subdivision (e), which states: “For the purposes of this
section ‘court’ is defined as a state or federal court.” (Stats. 2014,
c. 28, eff. June 20, 2014.) The legislative history of this
amendment states that it clarified “those provisions” governing



                                  7
       Section 1485.55 was enacted at the same time. (Stats.
2013, c. 800 (S.B. 618), § 3.) Its subject heading states,
“Contested proceedings; granting writ of habeas corpus, judgment
vacated, and finding that new evidence points to innocence;
finding binding on California Victim Compensation Board;
payment of claim; petition for finding of innocence by
preponderance of evidence; presumptions.” It provides:
       “(a) In a contested proceeding, if the court grants a writ of
habeas corpus concerning a person who is unlawfully imprisoned
or restrained, or when, pursuant to Section 1473.6, the court
vacates a judgment on the basis of new evidence concerning a
person who is no longer unlawfully imprisoned or restrained, and
if the court finds that new evidence on the petition points
unerringly to innocence, 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 pursuant to Section
4904.” New evidence is “evidence that was not available or
known at the time of trial that completely undermines the
prosecution case and points unerringly to innocence.” (§ 1485.55,
subd. (g).)



the binding effect of factual findings in wrongful imprisonment
compensation claims. (Sen. Rules Com., Off. of Sen. Floor
Analyses, analysis of Sen. Bill No. 854 (2013-2014 Reg. Sess.) as
amended June 12, 2014, p. 4, par. 20.)
       Because this amendment was intended to clarify the law as
it originally existed, its application to this case does not violate
the general prohibition against the retroactive application of new
legislation. (Western Security Bank v. Superior Court (1997)
15 Cal.4th 232, 243.) As a result, when sections 1485.5 and
1485.55 were first enacted, they included applicable federal court
habeas rulings, and our analysis will treat these provisions
accordingly.



                                 8
        Under subdivision (f), the Board must recommend payment
 of a compensation award without a hearing if a federal court
 grants a habeas corpus petition after finding a defendant
 innocent by no less than a preponderance of the evidence.”
 (§ 1485.55, subd. (f).)
        However, in cases where a writ of habeas corpus or a
 motion to vacate a judgment was granted on grounds other than
 new evidence that points unerringly to innocence, the defendant
 may move the Board for a finding of innocence by a
 preponderance of the evidence. (§ 1485.55, subds. (b), (c).)
        The procedures for claim filing and hearing are found in
 sections 4900 through 4904. Relevant here is an amendment to
 section 4903 that was enacted as a companion measure to
 sections 1485.5 and 1485.55 and that was designed to take into
 account the new provisions concerning the binding effect of
 certain court rulings.
        Subdivision (a) of section 4903 states that the parties may
 introduce evidence to support their positions at a claim hearing,
 with the claimant required to prove his or her innocence.
 Subdivision (b) was added to that section. (Stats. 2013, c. 800
 (S.B. 618, § 7.) It provides: “(b) In a hearing before the board,
 the factual findings and credibility determinations establishing
 the court’s basis for granting a writ of habeas corpus, a motion for
 new trial pursuant to Section 1473.6, or an application for a
 certificate of factual innocence as described in Section 1485.5
 shall be binding on the Attorney General, the factfinder, and the
 board.”
2.      The Habeas Factual Findings Were Binding on the Board
        The trial court found that the habeas petition findings were
 not binding under sections 1485.5 or 1485.55/4903 because the
 former applied to only uncontested habeas proceedings while the
 latter was inapplicable because the findings were made solely in
 the context of determining whether Madrigal had been prejudiced
 by his lawyer’s ineffective representation.
        Madrigal contends the Board (and by extension the trial
 court) erred by not treating as binding under either section




                                  9
1485.5 subdivision (c) or section 4903, subdivision (b) the findings
made by the federal district court in granting him both habeas
corpus relief and bail.
       Respondent contends, as the trial court found, that the
obligation to treat habeas petition findings as binding applies
only when the habeas petition was uncontested under section
1485.5. Respondent acknowledges that section 4903, subdivision
(b) makes binding certain factual findings from contested habeas
proceedings, rendering Madrigal’s section 1485.5 contention
moot. However, respondent contends that the type of findings
made by the district court in granting Madrigal’s habeas petition
are not binding under section 4903 because they did not form the
factual basis of that court’s order, which determined only that
Madrigal had been prejudiced by his trial lawyer’s ineffective
representation.7
       We agree with respondent that the section headings define
the parameters of sections 1485.5 and 1485.55, and that they
therefore apply, respectively, to uncontested (§ 1485.5) and
contested (§ 1485.55) proceedings. (Kurtin v. Elieff (2013)
215 Cal.App.4th 455, 484 [section headings may be considered
when interpreting a statute, and are entitled to considerable
weight].) We conclude that section 4903, subdivision (b) applies
to the findings from contested habeas (and other post-conviction
relief proceedings) that did not result in findings of actual
innocence. We disagree with respondent that the district court’s
findings in this case have no binding effect.
       As part of our analysis of these statutes, we turn to the
legislative history to resolve this issue. The Legislative Counsel’s
Digest is the official summary of the legal effect of a bill and is
relied upon by the Legislature throughout the legislative process.
(Joannou, supra, 219 Cal.App.4th at p. 759.) Although it is not
binding, the Digest is entitled to great weight. (Ibid.)


7      We understand respondent’s “factual basis” argument as a
different way of saying the district court’s findings were not
binding because they did not unerringly point to innocence.



                                 10
       The Digest for the statutes we are called on to interpret
states that the bill makes binding, without the need for a
hearing, findings that point unerringly to innocence. (Legis.
Counsel’s Dig., Sen. Bill No. 618, (2012-2013 Reg. Sess.) Feb. 22,
2013, p. 1.) The Digest next states that when a writ of habeas
corpus is granted for a prisoner who is unlawfully detained, the
Board, “in making its determination as to any claim submitted by
that person, would be required to incorporate and be consistent
with the factual findings, including credibility determinations, of
the court granting the writ or reversing the conviction, and . . .
those factual findings, including credibility determinations, [are]
binding upon the [B]oard.” (Ibid.)
       Notably, the Digest does not limit the latter statement to
uncontested habeas proceedings. Instead, it draws a distinction
between two types of findings: Those stating that the evidence
points unerringly to innocence are binding and require no Board
hearing, while other types of findings from earlier habeas or
other proceedings are binding when there is a compensation
hearing in order to provide consistency between both sets of
proceedings. The Digest does not indicate that this latter group
of findings is dispositive of the availability of a compensation
award.
       Another bill analysis notes that the California District
Attorneys Association was opposed to the bill because “a person
could have a conviction reversed for legal error – not insufficiency
of the evidence – and face retrial of the charges that were
reversed. The person could still file a claim for compensation and
rely on factual findings in his or her favor from the habeas
proceeding, despite the pending or completed retrial. CDAA
objects to the possibility that a person could obtain a grant of
compensation and still be convicted in the second trial.” (Sen.
Com. on Pub. Safety, Analysis of Sen. Bill No. 618 (2012-2013
Reg. Sess.) as amended April 15, 2013, p. P.) The analysis stated
in reply that “[w]hile this scenario is theoretically possible, it
appears to be extremely unlikely. All material factual findings
from the habeas proceeding would be binding on the board, not




                                 11
just those favorable to the claimant. Further, the Attorney
General would have full access to the prosecution’s evidence
countering any claim of innocence and would present that
evidence to the board.” (Ibid.)
       The situation described in that scenario is much like ours.
Madrigal’s conviction was reversed for legal error not directly
related to the sufficiency of the evidence, and he temporarily
faced the prospect of a retrial. As the legislative history shows,
although such a scenario was deemed rare, it was accounted for
by the Legislature and rejected as a concern because both
negative and favorable findings would be binding and because
respondent would have access to all of the prosecution’s trial
evidence.
       In short, the legislative history shows that the Legislature
wanted to streamline the compensation process and ensure
consistency between the Board’s compensation determinations
and earlier court proceedings related to the validity of a
prisoner’s conviction. To accomplish this, the Legislature
provided for three scenarios: (1) at uncontested habeas and other
such proceedings, the factual findings underlying the court’s
findings are binding (§ 1485.5, subd. (a)); (2) the findings from
contested proceedings are binding and compensation is awarded
without a hearing if the findings are based on new evidence that
points unerringly to innocence (§ 1485.55, subd. (a)); and (3) in all
other scenarios that result in a hearing before the Board,
previous trial court findings and credibility determinations that
do not point unerringly to actual innocence are binding, with the
Board bound by those findings when evaluating the evidence as
part of its determination whether to award compensation. (§
4903, subd. (b).)
       As we have already observed, respondent contends that the
type of findings made by the district court when granting
Madrigal’s habeas petition are not binding under section 4903
because the court did not find that Madrigal’s alibi evidence was
true or that Madrigal was actually innocent. Instead, the trial
court was merely characterizing the relative strength of the




                                 12
defense and prosecution evidence when evaluating whether
Madrigal had been prejudiced by his trial lawyer’s ineffective
representation. We disagree that the section 4903 findings are so
limited. Nothing in section 4903 or its legislative history shows
that subdivision (b) does not apply to findings of the type made by
the district court here. Instead, as the legislative history
indicates, the Legislature was motivated in part by the desire to
ensure consistency between the Board’s determinations and the
factual findings made in post-conviction relief proceedings,
including those not based on actual innocence.
       Moreover, section 4903 expressly applies to both factual
findings and credibility determinations, and the district court
found witness Howard’s testimony was credible. That finding is
binding on the Board. Whether other findings are binding on the
Board and the precise effect of those findings in light of other
evidence is a matter best left for the Board as it applies the
standard we have set out today.
       Madrigal contends that the district court’s findings were
tantamount to finding him actually innocent, mandating an
award of compensation by the Board. We disagree. On this
point, we side with respondent that the nature of those findings
fell short of that standard. Madrigal’s writ of habeas corpus was
granted on the ground of ineffective assistance of counsel.
Although the district court made findings concerning the
weakness of the prosecution’s case and the strength of Madrigal’s
alibi evidence, it did so in the context of determining whether
Madrigal had been prejudiced by his trial lawyer’s omissions.
       This ruling required a finding that a different result was
reasonably probable absent counsel’s errors. (In re Welch (2015)
61 Cal.4th 489, 517.) Therefore, what the district court found
when granting Madrigal’s habeas petition was that a different
result was reasonably probable if there had been effective
assistance of counsel. The court did not find that new evidence
pointed unerringly to his innocence. Nevertheless, the Board was
not free to ignore the district court’s findings even if they did not
establish actual innocence.




                                 13
       We cannot say that had the Board given binding effect to
the district court’s findings concerning the prosecution and
defense evidence that it would have reached the same result,
especially in light of the Board’s split decision. We therefore
leave it to the Board to make that determination for itself.
       We also reject Madrigal’s assertion that the findings made
when he was granted bail are also binding. Under section 4903,
subdivision (b), the only findings that qualify for binding effect
are those made when a defendant obtains post-conviction relief
by way of a petition for habeas corpus, a motion to vacate the
judgment under section 1473.6, or a certificate of factual of
innocence.
                           DISPOSITION
       The judgment is reversed and the matter is remanded to
the superior court to enter a new judgment for Madrigal that:
(1) reverses the Board’s order denying his compensation claim;
and (2) directs the Board to hold a new compensation hearing
that gives binding effect to the district court’s habeas corpus
findings in a manner consistent with this decision. Appellant
shall recover his appellate costs.



                                           RUBIN, J.
I CONCUR:




            FLIER, J.




                                14
Madrigal v. Victim Compensation & Government Claims
Board
B265105

Bigelow, P. J., Dissenting

       I respectfully dissent. The majority misinterprets the
application of the pertinent statutes, resulting in a decision that
will bind the California Victim Compensation and Government
Claims Board (the Board) in many of its future hearings in a
misguided manner. Contrary to the majority’s view, Penal Code1
sections 1485.5, 1485.55, and 4903 do not conflict with one
another. Instead, they set out a consistent statutory framework
which directs that the Board is bound by credibility
determinations and findings forming the basis for orders made by
a state or federal court in habeas corpus proceedings only where
the district attorney or the Attorney General does not contest the
predicate factual allegations. When properly construed in this
manner, it is apparent the trial court was correct in finding the
Board was not bound by the contested factual findings made by
the federal district court when it granted Madrigal’s habeas
petition on the ground of ineffective assistance of counsel.
Further, substantial evidence supports the Board’s finding that
Madrigal failed to demonstrate his innocence. Therefore, I would
affirm the trial court’s ruling.




1     All further statutory references are to the Penal Code.
I.     The Statutory Framework
       California has long had a system for compensating individuals who
have been erroneously convicted and incarcerated. (People v. Etheridge
(2015) 241 Cal.App.4th 800, 806.) Sections 4900 through 4905 set forth
the procedure by which an exonerated convict may present a claim to the
Board for “‘the pecuniary injury sustained by him or her through the
erroneous conviction and imprisonment . . . .’” (Id. at p. 807.) In 2013, the
Legislature enacted a bill to amend the procedures governing section 4900
claims. (See Stats. 2013, ch. 800.) In addition to amending portions of
sections 4901-4904, the Legislature added sections 851.865, 1485.5 and
1485.55 to the Penal Code. (See Stats. 2013, ch. 800.) As noted, the
relevant provisions are found in sections 1485.5, 1485.55 and 4903.
       Sections 1485.5 and 1485.55 can be found in Title 12,
Chapter 1 of the Penal Code, which deals with writs of habeas
corpus.
       Section 1485.5 governs uncontested facts and court findings
stemming from them in writs of habeas corpus, motions to vacate
judgments, and certificates of factual innocence. It provides, in
pertinent part:
       “(a) If the district attorney or Attorney General stipulates
       to or does not contest the factual allegations underlying one
       or more of the grounds for granting a writ of habeas corpus
       or a motion to vacate judgment, the facts underlying the
       basis for the court’s ruling or order shall be binding on the
       Attorney General, the factfinder, and the California Victim
       Compensation and Government Claims Board.
       [¶] . . . [¶]
      (c) The express factual findings made by the court,
      including credibility determinations, in considering a
      petition for habeas corpus, a motion to vacate judgment
      pursuant to Section 1473.6, or an application for a
      certificate of factual innocence, shall be binding on the



                                     2
     Attorney General, the factfinder, and the California Victim
     Compensation and Government Claims Board.
     (d) For the purposes of this section, ‘express factual
     findings’ are findings established as the basis for the court’s
     ruling or order.
     (e) For purposes of this section, ‘court’ is defined as a state
     or federal court.” (§ 1485.5.)

       Thus, section 1485.5(a)2 directs specific tribunals how to
consider stipulations and facts not contested by the district
attorney or the Attorney General that are made in state and
federal habeas proceedings. It further indicates that when the
district attorney or the Attorney General stipulates to or does not
contest facts in a habeas corpus proceeding, in all future
hearings, the Attorney General, any other factfinder, and the
Board are bound by the facts underlying the basis for the court’s
rulings, including its credibility determinations. (§ 1485.5(c).)
Finally, it defines the term “express factual findings” and
clarifies that “court” includes state and federal courts.
(§ 1485.5(d)-(e).)3
       Section 1485.55, on the other hand, directs specific
tribunals how to consider findings in habeas corpus proceedings
and motions to vacate judgment where the facts were contested.
It states:



2     For ease of reference, a short-cite form omitting
“subdivision” or “subd.” for each citation to sections 1485.5,
1485.55 and 4903 will be used.

3    Sections 1485.5 and 1485.55 were amended in 2014 to add
subdivision (e) to section 1485.5.




                                  3
“(a) In a contested proceeding, if the court grants a writ of
habeas corpus concerning a person who is unlawfully
imprisoned or restrained, or when, pursuant to Section
1473.6, the court vacates a judgment on the basis of new
evidence concerning a person who is no longer unlawfully
imprisoned or restrained, and if the court finds that new
evidence on the petition points unerringly to innocence, that
finding shall be binding on the California Victim
Compensation and Government Claims 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 pursuant to Section 4904.
(b) If the court grants a writ of habeas corpus concerning a
person who is unlawfully imprisoned or restrained on any
ground other than new evidence that points unerringly to
innocence or actual innocence, the petitioner may move for a
finding of innocence by a preponderance of the evidence that
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.
(c) If the court vacates a judgment pursuant to Section
1473.6, on any ground other than new evidence that points
unerringly to innocence or actual innocence, the petitioner
may move for a finding of innocence by a preponderance of
the evidence that 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.
(d) If the court makes a finding that the petitioner has
proven his or her innocence by a preponderance of the
evidence pursuant to subdivision (b) or (c), the board shall,
without a hearing, recommend to the Legislature than an
appropriation be made and the claim paid pursuant to
Section 4904.




                           4
     (e) No presumption shall exist in any other proceeding for
     failure to make a motion or obtain a favorable ruling
     pursuant to subdivision (b) or (c).
     (f) If a federal court, after granting a writ of habeas corpus,
     pursuant to a nonstatutory motion or request, finds a
     petitioner innocent by no less than a preponderance of the
     evidence that 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, the board shall, without a hearing,
     recommend to the Legislature that an appropriation be
     made and the claim paid pursuant to Section 4904.”
     (§ 1485.55.)

      Here, the statute indicates that in contested writ
proceedings (and vacations of judgment under section 1473.6),
where there are no stipulations or uncontested facts, and a state
or federal court finds the petitioner innocent based on new
evidence, that finding is binding on the Board, which must
compensate the petitioner without a hearing. (§ 1485.55(a).)
Further, the statute provides that if the writ (or vacation of
judgment) is granted on any other ground, the petitioner can still
seek a finding that he or she is innocent by a preponderance of
the evidence. (§ 1485.55(b)-(c).) If the petitioner is found
innocent during that subsequent hearing, he or she must likewise
be compensated by the Board without a hearing. (§ 1485.55(d).)
Finally, section 1485.55(e) indicates that in contested
proceedings, no presumption is to be made in favor of innocence
or guilt, by any subsequent tribunal, if the petitioner fails to
make a motion or secure a finding of innocence.




                                 5
      I turn now to section 4903. That section is found in Title 6,
Chapter 5 of the Penal Code, which applies to indemnity for
persons erroneously convicted and pardoned. All of Chapter 5,
comprising sections 4900 through 4906, directs the Board how to
handle and report claims for compensation for the wrongly
convicted. As applicable here, section 4903 sets out the
procedures for a hearing on such a claim:
          “(a) At the hearing the claimant shall introduce
          evidence in support of the claim, and the Attorney
          General may introduce evidence in opposition thereto.
          The claimant shall prove the facts set forth in the
          statement constituting the claim, including the fact that
          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, and the pecuniary injury
          sustained by him or her through his or her erroneous
          conviction and imprisonment.
          (b) In a hearing before the board, the factual findings
          and credibility determinations establishing the court’s
          basis for granting a writ of habeas corpus, a motion for
          new trial pursuant to Section 1473.6, or an application
          for a certificate of factual innocence as described in
          Section 1485.5 shall be binding on the Attorney General,
          the factfinder, and the board.
          (c) The board shall deny payment of any claim if the
          board finds by a preponderance of the evidence that a
          claimant pled guilty with the specific intent to protect
          another from prosecution for the underlying conviction
          for which the claimant is seeking compensation.”
          (§ 4903, italics added.)

      So, section 4903(a) indicates who may present evidence and
what must be proved at a hearing before the Board. Additionally,
section 4903(b) provides that at the hearing, the factual findings




                                 6
and credibility determinations as described in section 1485.5,
applicable only to uncontested facts in habeas corpus
proceedings, are to be considered binding on the Board.

II.    The Board Was Not Bound By The Habeas Court’s
       Findings
       With this statutory predicate in mind, I focus now on its
application in the present case. Madrigal filed his claim with the
Board in September 2011, seeking compensation under section
4900. I agree with the majority that since Madrigal’s federal
habeas corpus petition was contested, his claim for compensation
before the Board was governed by section 4903(a), and it required
him to prove the requisite facts demonstrating his innocence.
However, I part company with the majority in concluding that
section 4903(b) binds the Board to the federal court’s findings and
credibility determinations in a contested hearing.
       The majority correctly acknowledges that section 1485.5
applies only to uncontested proceedings. It reaches that
conclusion by finding the subject headings to be dispositive.
(Kurtin v. Elieff (2013) 215 Cal.App.4th 455, 484 [subject
headings entitled to considerable weight].) I agree the subject
headings are persuasive and that the sections complement one
another in that section 1485.5 applies to uncontested proceedings
and section 1485.55 applies to contested proceedings. It is logical
for the Legislature to have drafted one provision, section 1485.5,
to apply solely to uncontested proceedings while another
provision, section 1485.55, to apply to contested ones. The
majority thus correctly repudiates Madrigal’s argument that
section 1485.5(c), which provides that express factual findings are
to be considered binding in uncontested proceedings, somehow




                                7
jumps into section 1485.55 and applies in a contested proceeding
as well. I agree that section 1485.5(c), indicating the Board is
bound by state and federal court credibility determinations,
must be read in light of section 1485.5(a), which refers only to the
uncontested allegations or stipulations made by the state.
       This is the extent to which I agree with the majority,
because it next accepts Madrigal’s argument that section 4903(b),
describing the factual findings and credibility determinations
which are to be binding on the Board, includes findings and
determinations from contested and uncontested proceedings.
There is a very obvious flaw in this analysis: it entirely overlooks
section 4903(b)’s explicit language providing that only the factual
findings and credibility determinations “as described in Section
1485.5” are binding on the Board. By its reference to the section
governing uncontested hearings, the statute explicitly provides
that the only factual findings and credibility determinations
binding on the Board are those applicable to uncontested
proceedings.
       It is apparent that the phrase “as described in Section
1485.5” modifies the entirety of “the factual findings and
credibility determinations” made in habeas, new trial, and
factual innocence proceedings, rather than just the last
proceeding listed—“an application for a certificate of factual
innocence.” To read section 4903(b) otherwise – as disjunctively
describing three “motions,” the resolution of which results in
binding factual findings and credibility determinations, and
identifying the last as “a certificate of factual innocence as
described in section 1485.5. . .” – does not withstand analysis.
First, while section 1485.5 includes applications for a certificate
of factual innocence in the list of motions to which it refers, it




                                 8
does not “describe” certificates of factual innocence. Instead,
sections 851.8 and 851.86 describe them. Sections 851.8 and
851.86 explain, in detail, a certificate of factual innocence, the
procedures for obtaining one, and the consequences to an accused
who receives one.
       Moreover, section 1485.5(d) defines the term “express
factual findings” and section 1485.5(e) defines the term “court.”
Neither of these terms is defined in section 4903(b) and their
definitions are indispensible for the proper interpretation of the
applicability of section 4903(b). Without a reference to section
1485.5 that applies to all three types of motions there is no
indication that “court” in 4903(b) means both state and federal
court’s or that “factual findings” in section 4903(b) means
findings established as the basis for the court’s ruling or order.
Accordingly, section 4903(b) can only be read to bind the Board to
factual findings and determinations of credibility stemming from
habeas, new trial and factual innocence proceedings where the
facts are uncontested by the Attorney General or the district
attorney: the proceedings as described in section 1485.5.
       Instead of considering this qualifying language in its
analysis, the majority finds section 4903(b) conflicts with section
1485.55(a), and turns to the legislative history to resolve what it
terms an “interpretive inconsistency.” I would not look to the
legislative history, because there is no conflict in the statutes.
As I have noted, the language of section 4903(b) specifically
states that the only facts that are binding in subsequent
proceedings are those from uncontested hearings. There is no
conflict between section 4903(b) and section 1485.55(a), which
indicates that, in a contested proceeding, the Board is only bound
by a federal or state court finding of innocence. The entire




                                 9
statutory framework at issue here repeatedly points to the fact
that the only binding credibility and factual findings are those
which are not contested by the Attorney General or the district
attorney. That is what is stated in section 1485.5, governing
uncontested hearings, and what is omitted in section 1485.55,
governing contested hearings. That is the limitation set forth in
section 4903(b). (McLaughlin v. State Bd. of Education (1999)
75 Cal.App.4th 196, 211 [“‘[We] read every statute “with
reference to the entire scheme of law of which it is part so that
the whole may be harmonized and retain effectiveness.”
[Citation.]’”].) I find no conflict among the relevant statutory
provisions. Instead, they are consistent and straightforward.
       Having reached this conclusion, it necessarily follows that
the Board is bound by a previous habeas court’s factual findings
and credibility determinations under section 4903(b) only when
those findings are predicated on uncontested proceedings. That
is not the case here, as the Board properly found.

III.  Substantial Evidence Supports The Board’s Finding
      Accordingly, I now address whether substantial evidence
supports the Board’s ruling that Madrigal failed to prove his
innocence under section 4903(a). (Tennison v. California Victim
Comp. & Government Claims Bd. (2007) 152 Cal.App.4th 1164,
1182.)
      In rejecting Madrigal’s claim, the hearing officer relied on
the eyewitness’ identification of Madrigal as well as the
weaknesses and inconsistencies in the alibi evidence offered by
Finley and Howard. Both the victim and eyewitnesses Moreno
and Huezo identified Madrigal as the shooter, and testified that
Madrigal asked where the victim was from before shooting.




                                10
The victim also identified Madrigal from a photo lineup nearly
three weeks after the shooting. The victim stopped cooperating
before trial because he did not want to be considered a snitch.
      A sheriff and a district attorney interviewed Production
Manager Howard, who was Madrigal’s supervisor, in July 2009.
After showing Howard Madrigal’s time card and other work-
related documents from the date of the shooting, Howard said
that Madrigal stopped using his laminating machine at 1:50 p.m.
to begin another job, but acknowledged that the work order
documenting that fact had been written by Madrigal. Howard
had no independent recollection of Madrigal being at work after
1:50 p.m. that day, and said floor supervisor Finley would have a
better recollection. The time card evidence was also questionable
because employees were not allowed to clock out for one another,
Madrigal rarely failed to clock out, and Finley wrote in the 3:30
clock out time by hand at the request of Madrigal’s brother
Victor.
      In a 2011 interview with prosecutors, codefendant Olivares
said that Madrigal was the shooter, that the recorded jailhouse
conversation concerned another shooting, and that Madrigal
claimed “his boss” had “covered” the timecard issue.
      This evidence is sufficient to support the Board’s
determination that Madrigal failed to prove his innocence.4


4      In reaching this conclusion, I note that the magistrate’s
statements at the bail release hearing do not qualify for binding
effect because the relevant statutes specify only three types of
hearings from which findings may bind the Board: motions to
vacate the judgment under section 1473.6, petitions for writs of
habeas corpus, or an application for a certificate of factual
innocence. (§§ 1485.5, 1485.55 and 4903.) A bail release hearing,



                               11
I would affirm the denial of Madrigal’s petition for writ of
mandate.



                                           BIGELOW, P.J.




even one occurring after a writ of habeas corpus has been
granted, is not a part of the habeas proceedings.



                                 12
