Citations
- 152 Cal. App. 4th 1164
Full opinion text
Opinion
PARRILLI, J.
In this case we hold that a finding of factual innocence under Penal Code section 851.8 does not have collateral estoppel effect in later proceedings before the California Victim Compensation and Government Claims Board (the Board) pursuant to Penal Code section 4900 et seq. under the circumstances presented here. Appellant, John J. Tennison, petitioned the superior court for a writ of mandate after the Board denied him compensation benefits. The superior court denied the requested relief, and we affirm that judgment.
FACTUAL OUTLINE & PROCEDURAL BACKGROUND
I State Court Proceedings
In December 1989, Tennison, then 17 years old, was arrested for the murder of Roderick Shannon (also known as “Cooley”) on August 19, 1989. Shannon was beaten by a group of young men, then shot to death with a 12-gauge shotgun in the parking lot of the Super Fair Market, located on the comer of Leland and Rutland Streets in San Francisco. After a car chase, which ended when Shannon crashed his vehicle, Shannon fled on foot, but his pursuers chased and cornered him at the Super Fair Market. The murder occurred against a backdrop of ongoing violent confrontations between youths from the San Francisco neighborhoods of Sunnydale and Hunters Point. Several days before Shannon’s murder, two Hunters Point youths were murdered in a driveby shooting. Shannon was from Sunnydale.
It was determined Tennison would be tried as an adult, and in an information filed in June 1990, he was charged with the first degree murder of Shannon, as well as conspiracy to commit assault with force likely to produce great bodily injury and murder. The information also alleged Tennison knew another principal was personally armed with a shotgun. The prosecution’s theory was that a number of young men, including Tennison, chased Shannon and caught him as he tried to climb a fence while fleeing. The young men pulled Shannon back into the Super Fair parking lot. Anton Goff (also known as “Sodapop”) retrieved a shotgun from a vehicle. Tennison held Shannon while Goff shot him. Tennison’s case was consolidated with Goff’s for trial.
At trial, the main evidence presented connecting Tennison to the killing was the identification testimony of two young girls, Masina Fauolo, who turned 12 years old the day after the shooting, and Pauline Maluina, who was 14 years old at the time of the shooting. The girls testified Masina had been driving around in a stolen car with Pauline as her passenger. They saw a car chase begin, and Masina realized the car being chased belonged to a good friend of hers. They followed the chase and saw a person get out of the car that crashed. Masina recognized him as her friend Shannon. Both girls ran after Shannon to the Super Fair parking lot, where they witnessed the shooting.
On October 3, 1990, the jury found Tennison guilty on the first degree murder charge and also found true the allegation he knew Goff was personally armed with a shotgun. Tennison’s motion for a new trial was heard in May 1991, and was based principally on newly discovered evidence obtained by defense counsel of the confession of Lovinsky Ricard (also known as “LaVinsta”). Ricard confessed to police in November 1990 that he was the person who shot Shannon, and Tennison was not present at the scene of the shooting. On June 20, 1991, the trial court denied the motion for a new trial because Ricard’s confession was untrustworthy and he was not shown to be unavailable. Thereafter, Tennison received a sentence of 25 years to life on the murder charge, with sentences stayed on the conspiracy charge and arming allegation. All Tennison’s state court appeals and petitions for writs of habeas corpus were rejected, and his state court remedies were finally exhausted after the California Supreme Court denied a second habeas corpus petition in May 2002.
II Federal Proceedings
In August 2002, Tennison filed an amended habeas corpus petition in federal district court. Tennison argued for habeas corpus relief on four grounds; (1) violation of due process based on his actual innocence and on the state’s failure to properly address evidence of his actual innocence; (2) Brady violations by the prosecution; (3) ineffective assistance of counsel; (4) cumulative error. In a 103-page order filed on August 26, 2003, the federal district court granted Tennison’s amended petition for habeas corpus. The court granted the petition based on violations of Brady and its progeny, and did not address Tennison’s actual innocence claim.
The federal court concluded that five pieces of evidence withheld by the prosecution qualified as Brady material. First, the prosecution did not inform defense counsel that Homicide Inspector Hendrix requested and received approval for $2,500 from the Secret Witness Program to encourage witnesses to come forward in the Shannon murder case, and the prosecution was unable to explain who received the money. Second, the prosecution failed to disclose that Pauline Maluina, one of the two identification witnesses, took an inconclusive polygraph examination in April 1990, in which she was asked whether she saw the shooting. Third, the prosecution suppressed a statement given to police by Chante Smith in January 1990. In that statement Smith told police Ricard shot Shannon, provided names of other individuals present at the shooting, and described several of the cars involved in the car chase. In a posttrial interview in July 1992 in the presence of defense counsel and prosecutors, Smith explained she told police in 1990 she had heard details of the murder from someone else, but did not admit to being an eyewitness because she did not want to go to court. Fourth, the prosecution failed to disclose a yideotaped interview with Luther Blue. Police interviewed Blue twice after his name came up during the investigation into the Shannon murder. The prosecution disclosed the second interview held on February 14, 1990, but not the videotaped interview of February 9, 1990. In questioning Blue in the earlier interview, the investigating officer alluded to information that contradicted the testimony of Masina and Pauline on which the prosecution relied at trial. Fifth, the prosecution failed to produce the videotape of Ricard’s November 1990 confession until the last day of testimony on the motion for a new trial, more than six months later. Regarding the cumulative effect of these five Brady violations, the federal court concluded: “Given the weakness of the prosecution’s case against Tennison, . . . there is a reasonable probability that any one of [them] . . . could have caused the result of Tennison’s . . . trial to have been different. It follows that had the prosecution timely turned over to [defense counsel] all the withheld evidence, there is a stronger reasonable probability of a different result.” The federal court vacated Tennison’s conviction and ordered the state to release him from custody or reinstitute criminal proceedings.
On August 28, 2003, counsel for Tennison filed a joint stipulation for his immediate release from custody. An order entered by the federal court the same day ordered the state to release Tennison on his own recognizance. On the next day, the San Francisco District Attorney’s Office announced it would not retry Tennison for Shannon’s murder.
Ill Section 851.8 Proceedings
On October 7, 2003, 13 years after the jury returned the guilty verdict against him, Tennison filed a notice of motion and motion pursuant to section 851.8 for an order declaring him factually innocent of Shannon’s murder. He also requested sealing and destruction of all records of his arrest relating to the offense, pursuant to section 851.8. On October 22, 2003, San Francisco District Attorney Hallinan filed a response to Tennison’s motion, which stated in its entirety: “The People concur that Petitioner is factually innocent pursuant to Penal Code section 851.8.”
On October 27, 2003, the San Francisco Superior Court entered an order prepared by Tennison’s counsel for a declaration of factual innocence. The order recited in part as follows: “On August 28, 2003, the California Attorney General voluntarily stipulated to Tennison’s immediate release on his own recognizance . . . .” After the federal court granted his habeas corpus petition, on September 2, 2003, “the California Attorney General’s office informed Tennison’s counsel that the State would not appeal the Federal Court’s granting of Tennison’s petition for a writ of habeas corpus . . . . [f] . . . [T]he vacatur of Tennison’s conviction by the Federal Court brings him within the ambit of . . . section 851.8(d), as ‘a person who has been arrested and [against whom] an accusatory pleading has been filed,’ but who has not been convicted; [