Filed 12/29/23

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION TWO

JOSHUA ZAMORA 

GONZALES,

Plaintiff and Appellant,

v.

CALIFORNIA VICTIM 

COMPENSATION BOARD,

Defendant and 

Respondent;

PEOPLE OF THE STATE OF 

CALIFORNIA,

 Real Party in Interest.

 B323360

 (Los Angeles County

 Super. Ct. No. 

 20STCP04185)

APPEAL from a judgment of the Superior Court of Los 

Angeles County, Mary H. Strobel, Judge. Affirmed. 

The Law Offices of Jarrett Adams, Jarrett Adams, Lillian 

C. Gaither and Megan D. Baca for Plaintiff and Appellant. 
2

Rob Bonta, Attorney General, Jodi L. Cleesattle, Senior 

Assistant Attorney General, Donna M. Dean, Supervising Deputy 

Attorney General, and Andrew Huang, Deputy Attorney General, 

for Defendant and Respondent. 

Rob Bonta, Attorney General, Lance E. Winters, Chief 

Assistant Attorney General, Michael P. Farrell, Senior Assistant 

Attorney General, Julie A. Hokans, Supervising Deputy Attorney 

General, and Jessica C. Leal, Deputy Attorney General, for Real 

Party in Interest. 

* * * * * *

In California, inmates who are exonerated of their crimes 

may apply to an administrative board for compensation for the 

time they were erroneously imprisoned. (Pen. Code, § 4900 et 

seq.)1 Here, an inmate convicted as the shooter in a gang-related 

drive-by shooting applied for such compensation after the United 

States Court of Appeals for the Ninth Circuit (the Ninth Circuit)

granted the inmate’s habeas corpus petition and overturned his 

convictions on the basis of insufficiency of the evidence presented 

at trial. Under the pertinent statutes in effect in 2020, an 

inmate’s entitlement to compensation in this situation turned on 

his ability to prove, by a preponderance of the evidence, his 

“factual innocence.” (Former § 1485.55, subd. (b), Stats. 2019, ch. 

473 (Sen. Bill No. 269), § 1, eff. Jan. 1, 2020; former § 4903, subd. 

(a), Stats. 2019, ch. 473 (Sen. Bill No. 269), § 3, eff. Jan. 1, 2020; 

1 All further statutory references are to the Penal Code 

unless otherwise indicated.
3

Cal. Code Regs., tit. 2, § 644, subd. (d).)2 In determining whether 

the inmate has carried this burden, the “factual findings and 

credibility determinations establishing the court’s basis for 

granting a writ of habeas corpus” are “binding” in the 

compensation proceeding before the board. (§§ 4903, subd. (b), 

1485.5, subds. (c) & (d).) This appeal presents two questions. 

First, does the conclusion of a habeas court granting relief that 

the evidence at trial was insufficient to support an inmate’s 

conviction beyond a reasonable doubt automatically establish 

that inmate’s factual innocence by a preponderance of the 

evidence? Second, do the habeas court’s summary of the trial 

record as well as commentary on the relative strength or 

weakness of the evidence in that record—in the course of 

granting relief to the inmate—constitute “factual findings” that 

are “binding” in the subsequent administrative proceeding to 

award that inmate compensation? We hold that the answer to 

each question is “no.” We further conclude that, even if there 

were “factual findings” in this case, the board treated them as 

binding. As a result, we agree with the trial court that the 

board’s denial of compensation to the exonerated inmate in this 

case does not warrant the issuance of a writ of administrative 

mandamus and accordingly affirm.

2 Unless otherwise noted, all further references to the 

statutes governing an inmate’s entitlement to compensation for 

erroneous conviction and imprisonment are to the statutes in 

effect at the time the administrative proceedings in this case 

were conducted. 
4

FACTS AND PROCEDURAL BACKGROUND

I. The Crime

On a Saturday night in October 2008, three men standing 

on a street corner in a residential neighborhood down the block 

from a party were shot. The shooter fired from the backseat of a 

“black” or “dark-colored,” newer model Cadillac with rims and 

three people riding inside. The shooting was gang-related: The 

men were “talking shit” to passersby, and the shooter in the 

Cadillac made the archetypical gang challenge—demanding to 

know, “Where you fools from?”—before opening fire. All three 

shooting victims survived their wounds.

No direct evidence tied Joshua Zamora Gonzales (Gonzales) 

to the shooting. No witness, including none of the victims, 

positively identified Gonzales as the shooter. One victim testified 

that Gonzales was not the shooter, but subsequently clarified 

that he did not see who shot him. A search of Gonzales’s home 

did not turn up any firearm or firearm paraphernalia. No one 

came forward to say Gonzales was involved. And Gonzales, in a 

post-arrest interview, denied being the shooter.

Thus, all evidence of Gonzales’s involvement in the 

shooting was circumstantial. He was present at the party. He 

wore a baseball cap sporting the Pittsburgh Pirates’ “P” logo 

signifying the Playboyz street gang, bragged to other partygoers 

that he was a member of the Playboyz gang who went by the 

moniker “Knuckles,” and had also previously told police he was a 

member of that gang. The victims wore “L.A. gear” worn by one 

of the Playboyz’s rival gangs. Gonzales admitted to driving by 

the victims while in the backseat of a newer model Cadillac with 

rims and containing three people, although he claimed the 

Cadillac was “red” “like a fire truck” or “light red.” Moments 
5

before the shooting, the victims “started talking shit” to Gonzales

and Gonzales responded, “what’s up.” Gonzales had two particles 

of gunshot residue on his right hand, although that residue—

because the test was not conducted until 12 hours after the 

shooting and because Gonzales had washed his hands in the 

interim—was equally consistent with Gonzales touching a 

surface with gunshot residue as with Gonzales firing a gun. In 

his post-arrest interview, Gonzales also changed his story about 

being present at the location of the shooting and interacting with 

the shooting victims and repeatedly refused to answer questions 

for fear of being known as a “snitch.”

II. Gonzales’s Prosecution and Conviction

The People charged Gonzales (in San Bernardino County) 

with three counts of attempted premeditated murder (§§ 187, 

subd. (a), 664), and shooting from a motor vehicle (§ 12034). The 

People further alleged that Gonzales personally and intentionally 

discharged a firearm causing great bodily injury (§ 12022.53, 

subds. (b)-(d)), personally and intentionally discharged a firearm 

from a motor vehicle (§ 12022.55), and committed the charged 

crimes for the benefit of, at the direction of, or in association with 

a criminal street gang (§ 186.22, subd. (b)(1)(C)).

In December 2009, a jury convicted Gonzales of all charged 

crimes and found true the firearm and gang allegations.

In January 2010, the trial court sentenced Gonzales to 

prison for 86 years and eight months.

III. Review of Gonzales’s Convictions

A. Direct appeal

On direct appeal of his conviction, Gonzales challenged the 

sufficiency of the evidence underlying his convictions. The 

California Court of Appeal, Fourth Appellate District, held in an 
6

unpublished opinion that circumstantial evidence supported the 

jury’s finding that Gonzales was the shooter—namely, (1) a 

partygoer’s testimony that Gonzales was “dressed like a Playboyz 

gang member and associating with other gang members”; (2) 

Gonzales’s “admissions to the police that he attended the party, 

dressed as [the partygoer] described him, and that he was in a 

car, passing by a group of men on the street at the time of the 

shooting”; and (3) Gonzales’s “positive gunshot residue test.” 

(People v. Gonzales (June 3, 2011, E050175) [nonpub. opn.].) 

The California Supreme Court denied Gonzales’s petition 

for review.

B. Federal habeas corpus review3

1. District Court proceedings

Gonzales filed a petition for a writ of habeas corpus in the 

United States District Court for the Central District of 

California. Among other claims, he argued that his convictions 

were not supported by substantial evidence. In a July 2013 

order, the court rejected Gonzales’s claim, “find[ing] no defect in 

the state [appellate] court’s analysis and determination” 

regarding the sufficiency of the evidence. (Gonzales v. Gipson 

(July 19, 2013, ED CV 12-862-BRO (PLA).) 

2. Ninth Circuit proceedings

Gonzales appealed the denial of his habeas petition to the 

Ninth Circuit. 

3 Gonzales also filed a petition for writ of habeas corpus in 

California state court on Eighth Amendment grounds, but that 

petition was denied and that basis for relief is not at issue in this 

appeal.
7

In August 2016, a three-judge panel initially affirmed the 

denial in a 2-1 decision, with one judge dissenting. (Gonzales v. 

Gipson (9th Cir. 2016) 659 Fed.Appx. 400.) 

Gonzales petitioned for rehearing, and the three-judge 

panel granted the petition and issued a new 2-1 decision in April 

2017. (Gonzales v. Gipson (9th Cir. 2017) 687 Fed.Appx. 548.) In 

this decision (which was later modified), the two-judge majority 

ruled that “the evidence [was] constitutionally insufficient to 

support Gonzales’s convictions.” The majority then offered six 

reasons for this conclusion, each of which summarized and/or 

made observations about the trial record:

● “First, no eyewitness testified that Gonzales was the 

shooter or could identify any of the occupants of the vehicle from 

which the shots were fired.”

● “Second, testimony concerning Gonzales’s baseball 

cap and gang affiliation does not distinguish him from other 

people present on the night of the shooting. . . . No witness 

testified that the shooter wore a baseball cap that matched the 

one Gonzales wore that night. The evidence did not establish 

that a person known as ‘Knuckles’ was connected with the 

shooting, nor that the victims were shot to benefit the Playboyz 

gang specifically.”

● “Third, witnesses’ descriptions of the car from which 

the shots were fired did not match descriptions of the car in 

which Gonzales claimed he was a passenger” because Gonzales 

“consistently stated” he was in a “light red Cadillac,” while 

witnesses described a “black or dark colored” Cadillac. Also, 

Gonzales “repeatedly denied ever shooting a gun.”

● “Fourth, although Gonzales stated during his police 

station interview that he was the rear passenger in a car that 
8

drove by some men on the street who were ‘talking shit’ and that 

he later heard gunshots, he did not clearly admit that he 

exchanged words with or motioned to anyone from the backseat 

of his friend’s light red Cadillac.”

● “Fifth, the two particles of gunshot residue on 

Gonzales’s right hand do not connect him to any gun fired on the 

night of the shooting” because, due to the delay in time and handwashing, “it was just as likely the particles came from contacting 

a surface contaminated with gunshot residue as from firing a 

firearm, handling a firearm, or being in close proximity to a 

discharged firearm.”

● “Sixth, despite a thorough search, police officers 

found no weapons, bullets, gun magazines, gun cleaning devices, 

or other firearm paraphernalia at Gonzales’s home.”

Because Gonzales’s “convictions rest on” what the twojudge majority characterized as “a speculative and weak chain of 

inferences that he was the shooter and that he personally 

discharged a firearm,” the majority reiterated its conclusion that 

the evidence at trial was “constitutionally insufficient” because it 

“does not permit any rational trier of fact to conclude that 

Gonzales was guilty beyond a reasonable doubt.”

IV. Administrative Proceeding Seeking Compensation

A. Filing of petition for compensation

Following his release from custody on July 25, 2017, 

Gonzales in August 2017 filed a claim with the California Victim 

Compensation Board (the Board) seeking $450,240 in 

compensation for the 3,216 days he was incarcerated under the 

now-invalid convictions.

The Board stayed the proceedings while Gonzales litigated 

a petition for a finding of his factual innocence in the San 
9

Bernardino County Superior Court. After an evidentiary hearing 

at which Gonzales testified, the court denied his petition, finding 

that the sum total of evidence—including that Gonzales “was at 

the location [of the shooting], matched the description, was 

wearing a hat consistent with gang involvement, was untruthful 

[during his post-arrest interview],” and had “gunshot residue on 

his hand”—indicated that Gonzales was, “in fact, factually 

culpable and guilty.”4

B. Hearing

At the behest of the Board, a hearing officer conducted an 

evidentiary hearing on Gonzales’s petition for compensation in 

April 2019. 

The People introduced an enhanced audio recording of 

Gonzales’s post-arrest interview, which made it possible to hear 

and understand a portion of Gonzales’s statement that was 

previously “inaudible” in the version that was part of the trial 

record; in that portion, Gonzales admitted that he had asked the 

men on the street corner, “Oh, where are you fools from, dawg?” 

Gonzales introduced an affidavit from “Dave Herrada,” who 

declared that he drove his “light red colored Cadillac” the night of 

the party and that no one from the car fired a firearm. Gonzales 

did not call Herrada to the stand, so he was not subject to crossexamination.

Gonzales also testified. Gonzales reaffirmed that he was at 

the party, that the men on the corner approached him and his 

friends “aggressively” as they drove by in a “light red Cadillac,” 

and that he and his friends ignored those men and drove off. 

Gonzales denied asking the men, “[W]here are you fools from?” 

4 The court also added its view that Gonzales “should still be 

in prison for this crime.”
10

until he was confronted with the enhanced recording, at which 

point he admitted it. Gonzales denied being a member of the 

Playboyz gang, but acknowledged that he had been photographed 

throwing Playboyz “gang signs,” that he had registered as a 

Playboyz gang member with the police, that he proclaimed 

himself to be “Knuckles from Playboyz” on a social media profile, 

and that he had told the police in his post-arrest interview that 

he bragged to other partygoers he was “Knuckles” with the 

Playboyz gang.

C. Ruling

Following post-hearing briefing, the Board in September 

2020 adopted the hearing officer’s 31-page ruling denying 

Gonzales’s claim for compensation. Specifically, the Board 

concluded that Gonzales “failed to satisfy his burden of proving 

he is more likely innocent, than guilty, of his vacated convictions” 

and “failed to demonstrate his innocence by a preponderance of 

evidence.”

The Board acknowledged—as Gonzales and the People 

urged—that it was bound by “any factual finding[s]” of the Ninth 

Circuit in granting habeas relief and by the San Bernardino

County Superior Court in denying a finding of factual innocence, 

but found that those two sets of findings were “not necessarily 

inconsistent” because the Ninth Circuit’s ruling assessed whether 

the evidence at trial was sufficient to prove guilt beyond a 

reasonable doubt, while the Superior Court assessed whether the 

trial evidence and additional evidence proved that Gonzales was 

innocent by a preponderance of the evidence. The Board went 

further by treating the Ninth Circuit’s “characterizations of the 

trial court record” as “factual findings,” and listed several of the 

characterizations set forth in the Ninth Circuit’s decision.
11

The Board then enumerated three reasons for its 

conclusion that Gonzales had not met his burden of establishing

his factual innocence. First, the Board set forth the evidence 

from the trial that circumstantially inculpated Gonzales, 

including (1) “his presence at the crime scene”; (2) the “striking 

number of shared circumstances between Gonzales and the 

shooter,” such as both leaving the party around the same time in 

a newer model Cadillac with rims and with three people in it, 

both being seated in the back seat of the Cadillac, both wearing 

baseball caps, both passing the three men on the street corner at 

around the same time, and both asking the men where they were 

from; (3) the presence of two particles of gunshot residue on 

Gonzales’s hand, “suggest[ing] the possibility that he was the 

shooter”; and (4) his status as “an admitted and documented” 

member of a street gang in what was a “gang-motivated” 

shooting. Second, the Board found Gonzales’s testimony before 

the hearing officer to be “not credible” given that he “falsely 

described” his criminal history, and given the sheer number of 

“patently inconsistent statements” he made about the shooting—

which included both “admitt[ing] and den[ying]” (1) “being a 

member of the Playboyz gang,” (2) “being present when shots 

were fired,” and (3) “asking the victims where they were from.” 

Third, the Board found Herrada’s declaration “untrustworthy” 

because (1) his name did not exactly match the name given by 

Gonzales as someone who was with him on the night of the 

shooting; (2) the declaration omits the name of the third person 

in the Cadillac; and (3) the declaration contradicted some of 

Gonzales’s own statements, which also were internally 

inconsistent, regarding who owned and who drove the Cadillac on 

the night of the shooting.
12

V. Administrative Mandamus Proceedings

In December 2020, Gonzales filed a petition for a writ of 

administrative mandamus in the Los Angeles County Superior 

Court seeking to overturn the Board’s denial of his claim for 

compensation.5 After the Board answered the petition, Gonzales, 

the Board, and the People (as the real party in interest) briefed 

whether Gonzales was entitled to relief. The court convened a 

hearing in July 2022, and issued a 16-page written ruling a week 

later.

The court ruled that the Board’s denial of Gonzales’s 

compensation claim did not constitute a prejudicial abuse of 

discretion because it was “supported by substantial evidence.” 

The court found that the Board had “give[n] ‘binding effect’” to 

both the Ninth Circuit’s findings and the San Bernardino County 

Superior Court’s findings, and was able to do so because those 

two courts applied “different . . . standards.” The court next 

found that the Board’s conclusion that Gonzales had not proven 

his factual innocence by a preponderance of the evidence was 

reasonable and supported by substantial evidence. 

VI. Appeal

Following the entry of judgment, Gonzales filed this timely 

appeal.

5 Gonzales also styled his petition as one for traditional 

mandamus, but that type of writ is unavailable where, as we 

conclude in Section I of the Discussion below, an administrative 

agency holds an evidentiary hearing and is vested with discretion

to determine the facts (and hence does not have a ministerial 

duty to act in a certain way). (Bunnett v. Regents of University of 

California (1995) 35 Cal.App.4th 843, 848.)
13

DISCUSSION

Gonzales argues that the trial court erred in denying his 

petition for a writ of administrative mandamus seeking to compel 

the Board to grant his claim for compensation for erroneous 

conviction and imprisonment.

6

I. Pertinent Law

A. Administrative mandamus

A person aggrieved by the ruling of an administrative 

agency may file a petition for a writ of administrative mandamus 

to invalidate that ruling. (Code Civ. Proc., § 1094.5, subd. (a).) 

As pertinent here, a writ will issue if the administrative agency 

has committed a “prejudicial abuse of discretion,” which exists 

when the ruling is “not supported by the [agency’s] findings” or 

those “findings are not supported by the evidence.” (Id., subd. 

(b).) The degree of judicial scrutiny turns on the extent to which 

the agency’s ruling involves or substantially affects a 

“fundamental, vested right.” (Bixby v. Pierno (1971) 4 Cal.3d 130, 

139, 144; Interstate Brands v. Unemployment Ins. Appeals Bd.

(1980) 26 Cal.3d 770, 778.) Where such rights are at stake, the 

trial court’s task is to independently evaluate whether the 

agency’s findings are supported by the record, and our task, in 

reviewing the grant or denial of such a writ, is to examine 

whether the trial court’s ruling is supported by substantial 

evidence. (Berlinghieri v. Department of Motor Vehicles (1983) 33 

6 In his briefs on appeal, Gonzales purports to also challenge 

the San Bernadino County Superior Court’s denial of his petition 

for a finding of factual innocence, but Gonzales forfeited any 

challenge to that ruling by failing to timely appeal it. (In re 

Baycol Cases I & II (2011) 51 Cal.4th 751, 761, fn. 8 [“if an order 

is appealable, appeal must be taken or the right to appellate 

review is forfeited”].) 
14

Cal.3d 392, 395; JKH Enterprises, Inc. v. Department of 

Industrial Relations (2006) 142 Cal.App.4th 1046, 1057-1058.) 

But where no such rights are at stake, the trial court’s task is to 

more deferentially evaluate whether the agency’s findings are 

supported by substantial evidence, and our task, in reviewing the 

grant or denial of such a writ, is to step into the trial court’s 

shoes and independently examine for ourselves whether the 

agency’s findings are supported by substantial evidence. (JKH 

Enterprises, at pp. 1057-1058.) An exonerated inmate has no 

fundamental, vested right to compensation (Tennison v. 

California Victim Comp. & Government Claims Bd. (2007) 152 

Cal.App.4th 1164, 1181-1182 (Tennison); Madrigal v. California 

Victim Comp. & Government Claims Bd. (2016) 6 Cal.App.5th 

1108, 1113 (Madrigal)), so we employ the more deferential review 

(Holmes v. California Victim Comp. & Government Claims Bd.

(2015) 239 Cal.App.4th 1400, 1406 (Holmes)). We independently 

review any subsidiary legal questions, including the meaning of 

statutes. (John v. Superior Court (2016) 63 Cal.4th 91, 95-96

[meaning of statutes]; City of San Diego v. Board of Trustees of 

California State University (2015) 61 Cal.4th 945, 956 [legal 

questions reviewed de novo].)

B. Compensation for erroneously convicted and 

imprisoned persons

“California has long had a system for compensating 

exonerated inmates for the time they spent unlawfully 

imprisoned” and thus “‘away from society, employment, and their 

loved ones.’” (People v. Etheridge (2015) 241 Cal.App.4th 800, 

806; Larsen v. California Victim Comp. Bd. (2021) 64 Cal.App.5th 

112, 123 (Larsen); Holmes, supra, 239 Cal.App.4th at p. 1405.) 

That system is defined by various statutes (§§ 4900 et seq., 
15

1485.5, 1485.55) (the compensation statutes) as well as 

regulations promulgated under those statutes (§ 4906; Cal. Code 

Regs., tit. 2, § 640 et seq.). Although those statutes have been 

recently amended, our Legislature has not expressly declared 

them to be retroactive to previously filed claims (§ 3; Evangelatos

v. Superior Court (1988) 44 Cal.3d 1188, 1208-1209), so we 

describe the administrative system in place while Gonzales’s 

claim was pending before the Board—that is, between August 

2017 and September 2020.

Under that system, an inmate who has been “imprisoned in 

state prison” for “any part” of a felony sentence and who is 

“innocent of the crime” because, among other things, the crime 

“was not committed by him,” may “present a claim” to the Board 

for compensation due to the “erroneous conviction and 

imprisonment.”7 (§ 4900.) 

If the inmate has already obtained a finding of “actual 

innocence” that establishes his “factual innocence by a 

preponderance of the evidence”—either as part of state or federal 

habeas relief or from a separately filed petition seeking a finding 

of actual innocence (under sections 851.8 or 851.86)—then the 

Board is automatically obligated to recommend that the 

Legislature compensate the inmate without the need for any 

hearing. (§§ 4902, 1485.55, subds. (b), (c) & (e), 851.865, subd. 

7 The statute of limitations for such claims changed on 

January 1, 2020, when our Legislature increased the limitations 

period from two years to ten years. (Compare former § 4901, 

Stats. 2016, ch. 31 (Sen. Bill No. 836), § 251, eff. June 27, 2016,

with § 4901, Stats. 2019, ch. 473 (Sen. Bill No. 269), § 2, eff. Jan 

1, 2020).) Although the administrative proceedings in this case 

straddle this legislative change, this is of no consequence because 

Gonzales filed his claim within the two-year window.
16

(a); Larsen, supra, 64 Cal.App.5th at pp. 123-124, 128-129 

[finding by federal habeas court that inmate was “actually 

innocent” in order to overcome a procedural bar is equivalent to a 

finding of factual innocence by a preponderance of the evidence].) 

Making a prior judicial finding that the inmate is factually 

innocent preclusive makes sense, as doing so “streamline[s] the 

compensation process” and “ensure[s] consistency between the 

Board’s compensation determinations” and the “earlier court 

proceedings” that have already decided the “identical” question 

that is presented to the Board in the compensation proceedings. 

(Madrigal, supra, 6 Cal.App.5th at p. 1118; Tennison, supra, 152 

Cal.App.4th at p. 1175.) 

In all other instances, however, the Board must convene an 

evidentiary hearing before a hearing officer. (Cal. Code Regs., tit. 

2, § 644, subd. (a).) At that hearing, the inmate bears the burden 

of establishing, by a preponderance of the evidence, that they are 

“factually innocent” of the crime(s) for which they were 

erroneously imprisoned.8 (§ 1485.55, subd. (b); § 4903, subd. (a); 

Cal. Code Regs., tit. 2, §§ 644, subd. (d)(1), 642, subd. (a)(3); 

Holmes, supra, 239 Cal.App.4th at pp. 1403, 1405; Diola v. State 

Board of Control (1982) 135 Cal.App.3d 580, 588, fn. 7.) The 

Board (through the hearing officer) may consider not only the 

prior record from the inmate’s trial, but also any new evidence 

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. 

(Former § 4900, subd. (b), Stats. 2021, ch. 490 (Sen. Bill No. 446), 

§ 3, eff. Jan. 1, 2022); former § 4902, subd. (d), Stats. 2021, ch. 

490 (Sen. Bill No. 446), § 4, eff. Jan. 1, 2022; Cal. Code Regs., tit. 

2, § 644, subd. (e).)
17

“relevant” to the question of the inmate’s factual innocence. (Cal. 

Code Regs., tit. 2, § 641; § 4903, subd. (a).) But certain “factual 

findings and credibility determinations” are “binding” on the 

Board—namely, and as pertinent here, “the factual findings and 

credibility determinations establishing the court’s basis for 

granting” (1) “a writ of habeas corpus,” or (2) “an application for a 

certificate of factual innocence as described in Section 1485.5.” (§ 

4903, subd. (b), italics added; accord, § 1485.5, subd. (c) [“In a 

contested or uncontested proceeding [seeking a declaration of 

factual innocence], the express factual findings made by the 

court, including credibility determinations, in considering a 

petition for habeas corpus . . . or an application for a certificate of 

factual innocence, shall be binding on the . . . Board”].) The 

denial of an application for a certificate of factual innocence, by 

contrast, is not binding on the Board. (§ 1485.55, subd. (d) [no 

“presumption” “exist[s]” following the “failure to” “obtain a 

favorable ruling”].) If the inmate carries their burden,9 the Board 

must recommend that the Legislature compensate the inmate. (§ 

4904.)

The statutorily prescribed rate of compensation is $140 per 

day of incarceration served, although the Legislature retains 

discretion not to award such compensation. (§ 4904.)

9 In addition to establishing innocence by a preponderance of 

the evidence, the inmate also must show “the pecuniary injury” 

they sustained as a result of the “erroneous conviction and 

imprisonment.” (§§ 4903, subd. (a), 4900, 4904.) That second 

element is not at issue here, where the People stipulated to 

Gonzales’s pecuniary injury if he first proved his factual 

innocence. 
18

II. Analysis

In light of these pertinent legal principles, the overarching 

question we confront is whether substantial evidence supports 

the Board’s ruling that Gonzales failed to sustain his burden of 

proving his factual innocence of the attempted murder and 

firearm charges by a preponderance of the evidence. Gonzales

asserts we need not examine the substantiality of the evidence 

because he is entitled to administrative mandamus relief for 

three preliminary reasons. Specifically, he argues that (1) the 

Ninth Circuit’s grant of habeas relief is synonymous with a 

finding of factual innocence, and automatically entitles him to 

compensation; (2) the Board erred by not treating the Ninth 

Circuit’s “factual findings” as “binding”; and (3) the Board 

committed other procedural errors. Only if these preliminary

arguments fail must we assess the substantiality of the evidence 

supporting the Board’s ruling.

A. Does a grant of habeas relief based on 

insufficiency of the evidence compel a finding of the 

inmate’s factual innocence by a preponderance of the 

evidence?

The answer is “no,” and we reach this conclusion for two 

reasons.

First, a court’s invalidation of a conviction due to 

insufficiency of the evidence is not equivalent to a finding of 

factual innocence. A finding that the evidence was insufficient to 

support a conviction means only that there was not enough 

evidence presented at trial for a reasonable jury to find the 

inmate guilty beyond a reasonable doubt. (United States v. 

Powell (1984) 469 U.S. 57, 67; People v. Covarrubias (2016) 1 

Cal.5th 838, 891.) Such a finding is different from the finding of 
19

factual innocence that entitles an inmate to compensation in 

three significant ways. 

For starters, the standard of proof is not the same. Rather 

than a habeas court’s task of assessing whether the evidence is 

sufficient to support a finding of guilt beyond a reasonable doubt, 

the Board’s task is to examine whether the evidence is sufficient 

to support a finding of innocence by a preponderance of the 

evidence. The former requires that the evidence imbue the 

factfinder with an “abiding conviction” in the truth of the finding 

(CALCRIM No. 220); the latter requires merely that the evidence 

makes the finding more likely than not (e.g., Masellis v. Law 

Office of Leslie F. Jensen (2020) 50 Cal.App.5th 1077, 1093). This 

is why a person acquitted of murder may still be held civilly 

liable for wrongful death—evidence that is not enough to 

establish guilt by the higher standard can still establish liability 

by the lower standard. 

Next, the burden of proof is not the same because it is 

assigned to a different party. Rather than a habeas court’s task 

of asking whether the People proved the inmate’s guilt, the 

Board’s task is to examine whether the inmate has proven his 

factual innocence. This means that in cases where the evidence is 

in equipoise, that “tie” must be resolved against the inmate (as 

the party assigned the burden) and against relief—which further 

expands the universe of instances in which evidence insufficient 

to prove guilt beyond a reasonable doubt may nevertheless not 

entitle an inmate to a finding of factual innocence. This is 

precisely what our Supreme Court, the United States Supreme 

Court, and every other court to consider the issue have 

consistently and uniformly concluded—namely, that a finding of 

legal insufficiency due to the “‘prosecution’s failure of proof’” at 
20

trial is not necessarily equivalent to a finding of factual innocence 

by a preponderance of the evidence. (People v. Adair (2003) 29 

Cal.4th 895, 907; Bousley v. United States (1998) 523 U.S. 614, 

623 [distinguishing “actual innocence” requiring proof that “‘it is 

more likely than not that no reasonable juror would have 

convicted [an inmate]’” from “mere legal insufficiency” of the 

evidence at trial]; Larsen, supra, 64 Cal.App.5th at p. 131, fn. 11 

[“a jury’s acquittal of a defendant after considering evidence 

admitted during a criminal trial is not a determination that the 

defendant is innocent, only that he or she is ‘not guilty’”].) 

And significantly, the records in the two tribunals are not 

the same: A habeas court reviewing the sufficiency of the 

evidence is limited to the trial record, while the Board is charged 

with considering the trial record and any further “relevant” 

evidence the parties elect to present. (Cal. Code Regs., tit. 2, § 

641, subd. (c).) What is more, this additional evidence includes 

some evidence that may have been excluded at trial. (Id., subd. 

(d) [“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”].) This leeway 

makes perfect sense, as the Board’s task is to get to the bottom of 

whether the inmate is indeed innocent of the crime. Thus, to 

illustrate, an inmate who persuades a habeas court that the 

evidence in the trial record was insufficient to convict him of 

distributing narcotics would not be entitled to a finding of factual 

innocence before the Board if a telephone call containing the 

inmate’s confession and recorded without permission in violation 

of section 632 was excluded at trial but admitted before the 

Board. 
21

Second, our Legislature’s recent amendment of the 

compensation statutes confirms that a court’s grant of relief on 

habeas corpus is not the equivalent of an inmate proving his 

factual innocence by a preponderance of the evidence. In 2021, 

our Legislature enacted Senate Bill No. 446 (2021-2022 Reg. 

Sess.), which for the first time erected a presumption that the 

dismissal of convictions following the grant of a habeas petition 

automatically entitles an inmate to compensation unless the 

People, at a Board hearing, prove the inmate’s guilt by clear and 

convincing evidence. (§ 4900, subd. (b), Stats. 2021, ch. 490 (Sen.

Bill No. 446), § 3, eff. Jan. 1, 2022; § 4902, subd. (d), Stats. 2021, 

ch. 490 (Sen. Bill No. 446), § 4, eff. Jan. 1, 2022.) If, as Gonzales 

asserts, any grant of habeas relief already automatically entitles 

an inmate to compensation, Senate Bill No. 446’s amendments 

would be entirely superfluous. Because we do not presume that 

our Legislature engages in idle acts (Elsner v. Uveges (2004) 34

Cal.4th 915, 935 [amendment of statute is presumed to change its 

meaning and effect]; Stockton Teachers Assn. CTA/NEA v. 

Stockton Unified School Dist. (2012) 204 Cal.App.4th 446, 461), 

our Legislature’s own actions confirm that a grant of habeas 

relief is not equivalent to a finding of actual innocence.10

Gonzales resists this conclusion with one further argument. 

Specifically, he makes the two-step argument that the Ninth 

Circuit’s finding of insufficient evidence compels a finding of 

factual innocence because (1) a finding of legal insufficiency 

compels a finding of factual innocence under section 851.8 in 

People v. McCann (2006) 141 Cal.App.4th 347, 355-358

10 This is also why we reject Gonzales’s argument, raised for 

the first time in his reply brief, that Senate Bill No. 446 merely 

clarified existing law. 
22

(McCann); and (2) a finding of factual innocence under section 

851.8 compels a finding of factual innocence under the 

compensation statutes. Although the second step of Gonzales’s 

argument is correct (§§ 4902, subd. (a), 1485.55, subds. (b), (c) & 

(e), 851.865, subd. (a); Tennison, supra, 152 Cal.App.4th at p. 

1175 [section 851.8 proceedings and proceedings for 

compensation “concern the identical issue: whether the evidence 

proves the defendant did not, in fact, commit a particular 

crime”]), the first step of his argument is incorrect: McCann does 

not establish a broad rule that a finding of legal insufficiency 

equates to a finding of factual innocence. Instead, McCann

stands for a far narrower corollary that legal insufficiency 

equates to a finding of factual innocence when the insufficiency 

ruling rests on the finding that the inmate “could not possibly 

have been guilty” of the crime(s) at issue (in McCann, due to the 

doctor-inmate having a valid license and due to the expiration of 

the statute of limitations for a lesser included offense). (McCann,

at p. 358, italics added; People v. Gerold (2009) 174 Cal.App.4th 

781, 793 [reading McCann as standing solely for this narrower 

proposition].) Because nothing indicates that Gonzales “could not 

possibly have been guilty” of the crimes in this case, this case 

falls outside the boundaries of McCann’s corollary.

B. Did the Board disregard the statutory mandate 

to treat the Ninth Circuit’s “factual findings” as 

“binding”?

To answer this question, we must ask two subsidiary 

questions: (1) What is a “factual finding” for purposes of the 

compensation statutes, and (2) did the Board disregard any such 

“factual findings”?
23

1. What is a “factual finding” within the meaning 

of section 4903, subdivision (b)?

Section 4903, subdivision (b), requires the Board to treat as 

“binding” “the factual findings and credibility determinations 

establishing the court’s basis for granting a writ of habeas 

corpus.” (Italics added.) The compensation statutes do not define 

“factual findings”; the closest analogue is the definition for 

“express factual findings” within the habeas statutes (and, 

specifically, in section 1485.5), which defines them as “findings 

established as the basis for the court’s ruling or order.” (§ 1485.5, 

subd. (d).) But does this refer to the factual basis for the court’s 

ruling, the legal basis for that ruling, or both?

It clearly encompasses the factual basis. Thus, “factual 

findings and credibility determinations” by a habeas court 

certainly—and traditionally—include (1) the court’s ultimate 

findings of fact (such as that the evidence was insufficient to 

establish guilt beyond a reasonable doubt, or that trial counsel 

was constitutionally ineffective); and (2) the court’s subsidiary 

findings of fact and credibility determinations, made after the 

court has entertained new evidence that the court has observed

firsthand during the habeas proceedings, which is commonplace 

as many defendants seek habeas relief on the basis of 

constitutional grounds that require additional factfinding beyond 

the trial record (such as constitutional claims involving wrongful 

withholding of discovery, juror misconduct, or the ineffective 

assistance of counsel). 

But do “factual findings and credibility determinations” 

also reach the legal basis for the habeas court’s ruling? More to 

the point, do “factual findings” include the habeas court’s 

summary of, observations about, and characterizations of the 
24

trial record when the habeas court is not finding facts after 

entertaining new evidence but is instead making a legal 

assessment, after reviewing the static record from the trial 

proceedings, about whether that record contains sufficient 

evidence to support a conviction? In other words, if a habeas 

court summarizes the trial evidence or otherwise comments that 

some or all of the evidence is “weak” as part of its rationale for 

concluding that the evidence was insufficient, is that summary or 

commentary itself a “factual finding”?

We conclude the answer is “no” for three interrelated 

reasons. 

First, the fact that a habeas court summarizes or comments 

on the static trial record is not enough to make that summary or 

commentary a “factual finding” of that court. Courts make 

comments all the time that are not “factual findings”: A court’s 

finding that a juvenile defendant suffers from “‘irreparable 

corruption’” warranting a lifetime sentence is not a “factual 

finding” (People v. Blackwell (2016) 3 Cal.App.5th 166, 192); a 

court’s “observation[s]” or “remark[s]” about whether an item was 

an instrumentality of a crime is not a “factual finding” (and is 

instead a “legal determination[]”) (People v. Nottoli (2011) 199 

Cal.App.4th 531, 557, fn. 12); and a court’s commentary about the 

“subject of selective enforcement” in the course of ruling on a 

motion to suppress is not a “factual finding” (People v. Superior 

Court (Brown) (1980) 111 Cal.App.3d 948, 952). 

Second, “factual findings” are typically findings that can be 

reviewed for substantial evidence (e.g., City of San Marcos v. 

Loma San Marcos, LLC (2015) 234 Cal.App.4th 1045, 1053) and 

“credibility determinations” are determinations that are 

unreviewable unless the testimony at issue is “‘“physically
25

impossible or inherently improbable”’” (People v. Prunty (2015) 62 

Cal.4th 59, 89 (conc. & dis. opn. of Cantil-Sakauye, C.J.)). Such 

deference is accorded to these findings and determinations

because the courts later reviewing them were not in the 

proverbial room to hear and observe the evidence firsthand. But 

a habeas court’s summary of the trial record or its commentary 

about the relative weakness of evidence based on that record is 

not something that the court observed firsthand, and such a 

summary or commentary is not a finding that can be reviewed in 

any meaningful way for substantial evidence or subjected to the 

standards for assessing credibility determinations. This 

mismatch supports the notion that such a summary of or 

commentary on the trial record is not itself a “factual finding.”

Third and lastly, treating a habeas court’s summary or 

commentary about the trial record as “factual findings” or 

“credibility determinations” would make them “binding” on the 

Board, yet the Board is explicitly tasked with considering new 

and additional evidence. If commentary about evidence in the 

trial record being “weak” proof on a particular issue were 

binding, then the introduction of new evidence on that issue in 

the Board proceedings would be pointless, thereby rendering the 

evidentiary provisions in the compensation statutes governing 

the Board’s proceedings superfluous. Our task, however, is to 

give effect to those provisions—not to nerf them. (People v. 

Villatoro (2012) 54 Cal.4th 1152, 1173 (conc. & dis. opn. of 

Corrigan, J.); see also Spanish Speaking Citizens’ Foundation, 

Inc. v. Low (2000) 85 Cal.App.4th 1179, 1214 [rules governing 

interpretation of statutes also apply to regulations].)

Gonzales urges us to treat every comment a habeas court 

makes as binding because that is the only way to ensure 
26

consistency between the rulings of the court and the Board. For 

support, he relies on Madrigal, supra, 6 Cal.App.5th 1108. To be 

sure, Madrigal held that a habeas court’s “characteriz[ations of] 

the relative strength of the defense and prosecution evidence” at 

trial constituted “factual findings” that were “binding” on the 

Board. (Id. at pp. 1118-1119.) Madrigal cited two reasons for its 

holding—namely, that (1) nothing in section 4903 expressly says 

that “factual findings” do not reach so far, and (2) giving the term 

an expansive ruling more broadly ensures consistency between 

the habeas court’s ruling and the Board’s ruling. (Ibid.) We are 

unpersuaded by the first reason because Madrigal did not 

examine any of the considerations about the general concept of 

“factual findings” we have set forth above; from our perspective, 

nothing in section 4903 expressly shows an intent to adopt a 

definition of “factual finding” that so vastly deviates from the 

general concept. We are unpersuaded by the second reason as 

well because section 4903 did not purport to adopt a consistencyat-all-costs rule; had it wanted to, our Legislature could have 

declared “all findings” or “all observations” or “all commentary” 

to be binding. Instead, it limited its rule—and the consistency 

demanded by that rule—to ultimate findings of fact and to 

subsidiary “factual findings and credibility determinations.” We 

decline to rewrite the statute to reach a broader universe of 

findings (Jarman v. HCR ManorCare, Inc. (2020) 10 Cal.5th 375, 

392), and accordingly and respectfully part ways with Madrigal. 
27

2. Did the Board give “binding” effect to any 

“factual findings” or “credibility determinations” of the Ninth 

Circuit?

(i) Analysis

We conclude that the Board treated as “binding” the Ninth 

Circuit’s “factual findings” and “credibility determinations” as we 

have defined them above. That is because the Board treated as 

binding the Ninth Circuit’s finding that there was legally 

insufficient evidence to convict Gonzales of attempted 

premeditated murder and shooting a firearm from a vehicle and 

because the Ninth Circuit’s further summary of and commentary 

on the trial record do not constitute “factual findings.” Gonzales 

resists this latter conclusion, urging that the Ninth Circuit’s 

summary and commentary should be accorded the status of 

“factual findings” because the Ninth Circuit’s detailed, “piece-bypiece” summary and commentary was a “rarity” that went “above 

and beyond” the typical analysis. But the scarcity or depth of a 

habeas court’s summary and commentary on the trial record does 

not somehow transmute such summary and commentary into 

binding “factual findings.”

But even if we were to apply Madrigal’s more expansive 

definition of “factual findings,” we still conclude that the Board 

treated the Ninth Circuit’s summary of and commentary on the 

trial record as “binding.” The Ninth Circuit’s summary and 

commentary on the trial record can be grouped into three 

categories:

● Ninth Circuit’s summary of evidence not presented at 

trial. The Ninth Circuit commented that no witness identified 

Gonzales or any occupant of the Cadillac from which the shots 

were fired (as its “[f]irst” reason), that no witness testified that 
28

the shooter wore a baseball cap that matched the Pirates cap 

Gonzales wore that night (as part of its “[s]econd” reason), that 

no witness testified that anyone with Gonzales’s moniker 

“Knuckles” was “connected with the shooting” (as another part of 

its “[s]econd” reason), that Gonzales denied being the shooter (as 

part of its “[t]hird” reason), and that police never found any 

firearms or firearm paraphernalia at Gonzales’s house (as its 

“[s]ixth” reason). This commentary summarizes the absence of 

any direct evidence of Gonzales’s involvement with the crimes. 

The Board at no point indicated that any direct evidence tied 

Gonzales to the shooting; instead, the Board relied solely on the 

circumstantial evidence that refuted Gonzales’s claim of factual 

innocence. Accordingly, the Board treated this commentary of 

the Ninth Circuit as binding.

● Ninth Circuit’s commentary that certain pieces of 

circumstantial evidence, when examined individually, did not tie 

Gonzales to the crime(s). The Ninth Circuit also commented that 

Gonzales’s “gang affiliation” with the Playboyz and donning a 

baseball cap with the Playboyz’s self-appropriated logo did not by 

itself “distinguish [Gonzales] from other people present on the 

night of the shooting” (as part of its “[s]econd” reason), that the 

witnesses’ description of the color of the Cadillac from which 

shots were fired did not by itself mark Gonzales as the shooter

because that description did not match Gonzales’s reporting of 

the color of the Cadillac in which he was a passenger (as part of 

its “[t]hird” reason), and that the presence of two particles of 

gunshot residue on Gonzales’s right hand did not by itself 

establish that Gonzales used or was near a firearm that night 

because that small amount of residue was “just as likely” the 

result of touching a surface contaminated with gunshot residue 
29

(as its “[f]ifth reason”). This commentary set forth the Ninth 

Circuit’s view that each of these items of circumstantial evidence 

were not, by themselves, sufficient to tie Gonzales to the crimes. 

The Board at no point indicated to the contrary; instead, the 

Board accepted that commentary but went on to reason that 

Gonzales’s gang affiliation and wearing of gang attire, his 

admitted presence in the backseat of a newer model Cadillac with 

rims at the very same time and location of the shooting, and the 

presence of gunshot residue that was equally likely to be caused 

by his firing a gun as by other causes refuted Gonzales’s claim of 

factual innocence when that evidence was considered collectively. 

● Ninth Circuit’s summary of evidence that was 

superseded by additional evidence presented to the Board. The 

Ninth Circuit also commented that Gonzales “did not clearly 

admit” during his post-arrest interview that he exchanged words 

with the men on the street corner prior to the shooting (as its 

“[f]ourth reason”). The Board acknowledged that the Ninth 

Circuit’s commentary was correct on the trial record considered 

by the Ninth Circuit, and accepted that commentary as binding. 

But, consistent with the evidentiary procedures used in 

compensation proceedings, the People introduced to the Board an 

enhanced audio file of Gonzales’s recorded post-arrest interview,

which (contrary to Gonzales’s representation at oral argument in 

this case) was not in the trial record before the Ninth Circuit, in 

which Gonzales did clearly admit that he asked those men, “Oh, 

where are you fools from, dawg?”—which is what witnesses heard 

the shooter ask those men before opening fire. And when 

confronted with this new evidence, Gonzales admitted during his 

testimony before the Board that the enhanced audio file 

accurately recorded what he told the police. Because, as noted 
30

above, the compensation hearing procedure contemplates the 

introduction of new evidence before the Board, the Board did not 

err in giving effect to this uncontroverted new evidence over the 

Ninth Circuit’s finding, which was based, by definition, on a 

different and more limited record. 

(ii) Gonzales’s argument

Gonzales nevertheless maintains that the Board gave the 

Ninth Circuit’s commentary “lip service.” More specifically, 

Gonzales argues that the Ninth Circuit made factual findings 

that the gunshot residue on his right hand, that he was wearing 

a baseball cap, that he was a gang member, and that he was 

present at the party were “not evidence of his guilt” and that the 

Ninth Circuit made a factual finding “that no other evidence 

connected [him] to the shooting.” These findings, Gonzales 

continues, obligated the trial court—and obligates us—to review 

the Board’s ruling not for substantial evidence but rather 

“through the lens of the [Ninth Circuit] that reversed [his] 

conviction.”

We reject Gonzales’s argument because its central premise 

is invalid. Contrary to what Gonzales repeatedly says in his 

briefs, the Ninth Circuit did not hold that the individual pieces of 

circumstantial evidence it addressed were “not evidence of his 

guilt.” Rather, it held that each piece did not by itself tie 

Gonzales to the crimes. In other words, the Ninth Circuit “found” 

that these individual pieces of circumstantial evidence were not, 

on their own, dispositive; it never “found” that they were 

irrelevant. Nor could it. Gang affiliation by itself is not enough 

to convict, but it is certainly relevant because it is evidence of 

motive. (People v. Duong (2020) 10 Cal.5th 36, 64; People v. 

Holmes (2022) 12 Cal.5th 719, 772.) Along the same lines, mere 
31

presence at the scene of a crime is not enough to convict, but it is 

certainly relevant as evidence of opportunity. (See People v. 

Campbell (1994) 25 Cal.App.4th 402, 409 [aiding and abetting].) 

The Board could and did logically treat as binding the Ninth 

Circuit’s commentary about each individual piece of evidence 

while at the same time concluding that, collectively, they refuted 

Gonzales’s claim of factual innocence because innocence—like 

guilt—is a function of the collective impact of the totality of the 

evidence, not the impact of each individual piece considered in 

isolation. (See People v. Diaz (1992) 3 Cal.4th 495, 537 [item of 

evidence, though susceptible to a possible innocent explanation, 

was “link in the circumstantial chain of evidence” that, 

“considered in its entirety,” “pointed unerringly to” defendant’s 

guilt].)

C. Did the Board commit other procedural errors? 

Gonzales argues that the Board erred by making two 

further procedural errors.

First, Gonzales urges that the Board held him to a higher 

burden of proof than preponderance of the evidence because, at 

one point in its 31-page ruling, the Board stated that “ample 

circumstantial evidence in the administrative record nevertheless

suggests that Gonzales might be guilty.” (Italics added.) This 

argument is frivolous. Even if we assume that the Board’s 

comment that Gonzales “might be guilty” is a different standard 

than whether he was “more likely than not” factually innocent,

the Board elsewhere in its ruling repeatedly (that is, no fewer 

than five other times) cited this proper standard. In these 

instances, we may—and do—comfortably conclude that the Board 

applied the proper standard of proof. (People v. Mayfield (1993) 5 

Cal.4th 142, 196 [where “[t]he record . . . as a whole” indicates 
32

that the “court” “applied the proper concept,” “isolated” 

“misstate[ments of] the applicable standard” are to be 

disregarded].)

Second, Gonzales asserts that the Board improperly gave 

binding effect to the San Bernardino County Superior Court’s 

finding that he was not factually innocent, even though section 

4903, subdivision (b), only gives binding effect to the “grant[]” of a 

petition for factual innocence and section 1485.55, subdivision 

(d), prohibits giving any effect to the denial of such a petition. 

The Board did state that it was treating the San Bernardino 

County Superior Court’s finding as “binding.” This is not 

surprising, as both parties—including Gonzales—urged the 

Board to do so. Even if we overlook that this error was 

apparently invited by Gonzales, the Board’s actions ended up 

speaking louder than its words: Although the Board stated it was 

treating the San Bernardino County Superior Court’s denial of 

the factual innocence petition as binding, it did not actually do so. 

Instead, it examined the original trial record, the evidence 

presented to the San Bernardino County Superior Court, and the 

evidence presented to the hearing officer and independently 

examined whether that evidence satisfied Gonzales’s burden of 

showing his factual innocence by a preponderance of the 

evidence.

D. Does substantial evidence support the Board’s 

ruling that Gonzales failed to establish his factual 

innocence by a preponderance of the evidence?

Because we have concluded that none of Gonzales’s 

preliminary objections to the Board’s analysis have merit, we 

turn to the ultimate question presented in this appeal: Does 

substantial evidence in the administrative record support the 
33

Board’s ruling that Gonzales failed to prove his factual innocence 

by a preponderance of the evidence?

We independently agree with the trial court that the 

answer is “yes.”

Deferring to the Board’s findings based on the evidence and 

its credibility determinations, substantial evidence supports the 

Board’s conclusion that Gonzales did not carry his burden of 

proving his factual innocence by a preponderance of the evidence. 

To be sure, there was no direct evidence tying him to the 

shooting. But the sum total of circumstantial evidence is 

sufficient to support a finding that he was not likely factually 

innocent. The evidence showed that Gonzales was at the location 

where the shooting occurred when it occurred; that he was the 

backseat passenger in a newer model Cadillac with rims like the 

one from which witnesses saw shots fired; that he had particles of 

gunshot residue on his hand that indicated he came in contact 

with a discharged firearm;11 that he was at a minimum affiliated 

11 Gonzales is incorrect in his repeated characterization of the 

trial record as establishing that the particles of gunshot residue 

“more than likely” came from him touching a surface 

contaminated with gunshot residue rather than from him 

discharging a firearm. The technician who analyzed the gunshot 

residue kit testified at the 2009 jury trial that Gonzales either 

“fired a firearm, handled a firearm, ha[d] been in close proximity 

of [a] discharged firearm, [or] contacted a surface that contain[ed] 

gunshot residue,” but the technician could not “tell” “which of 

those four options [was] in play” in this case. The Ninth Circuit’s 

summary of the trial evidence—that any one of those options was 

“just as likely” the cause as the others—is consistent with that 

testimony. Thus, it was Gonzales’s burden to put on new 

evidence before the Board substantiating his theory—contrary to 
34

or aligned with the Playboyz street gang and wearing their gangthemed attire, and that victims were wearing clothing affiliated 

with a different street gang; and that Gonzales asked the victims 

gang-related questions (“Oh, where are you fools from, dawg?”)

after they “talk[ed] shit” to him, as witnesses had heard the 

shooter ask. Although Gonzales told police in his post-arrest 

interview that the Cadillac he was in was “red” “like a fire truck” 

or “light red” (rather than “black” or some other “dark” color as 

reported by witnesses), although Gonzales repeated that 

statement during his testimony before the San Bernardino 

County Superior Court and the Board, and although Gonzales’s

friend Herrada submitted a declaration indicating the same, it is 

not unreasonable for a red car to appear “dark” when driving by 

during a nighttime exchange. Plus, the Board found Gonzales’s 

testimony and Herrada’s declaration to be not credible—a finding 

to which we must defer and a finding that is also amply

supported by the sheer number of times Gonzales changed his 

story. Gonzales’s ever-changing statements are also reasonably 

viewed as circumstantial evidence of consciousness of guilt, which 

adds further weight to the Board’s determination that Gonzales 

did not establish his factual innocence by a preponderance of the 

evidence.

Gonzales objects that the Board should not be able to make 

its own credibility determinations (and, relatedly, that the Board 

must defer to the Ninth Circuit’s “de facto” finding that he was 

credible), but Gonzales is wrong. The Board considered new

evidence, and is within its rights to evaluate whether that 

evidence is credible. And the Ninth Circuit made no credibility 

the trial record—that the particles “more than likely” came from 

an innocent source. 
35

finding about Gonzales: The Ninth Circuit could not find 

Gonzales’s trial testimony credible because Gonzales did not 

testify at his trial, and the Ninth Circuit did not find his postarrest statements credible (and instead commented on the 

inconsistency between his statements when accepted at face 

value and what other witnesses said about the color of the 

Cadillac). Gonzales additionally faults the Board’s finding that 

he was “not credible” because it relied on inconsistencies made 

during his post-arrest interview because, according to Gonzales,

such interviews are inherently coercive and his interview 

specifically was coercive given he was 17 years old at the time,

but Gonzales ignores that he repeated many of his 

inconsistencies during his subsequent two stints on the witness 

stand (when he voluntarily testified at ages 26 and 27 years old 

and with the assistance of counsel) and ignores that we are not in 

a position to independently reweigh his credibility. Gonzales 

additionally asserts that his lack of credibility is not enough to 

conclude that he was not factually innocent. Gonzales is 

absolutely right: It is inappropriate to take a “divide-andconquer” approach that looks only at each piece of evidence in 

isolation. (United States v. Arvizu (2002) 534 U.S. 266, 274; 

People v. Barnes (1986) 42 Cal.3d 284, 305 [looking to the 

“totality” of the evidence].) But the Board did not take that 

approach; instead, it examined the totality of the circumstantial 

evidence as well as its determinations about Gonzales’s and 

Herrada’s credibility, and found that—collectively—this evidence 

did not establish that Gonzales was more likely than not 

factually innocent. 
36

DISPOSITION

The judgment is affirmed. The parties are to bear their 

own costs on appeal.

CERTIFIED FOR PUBLICATION.

______________________, J.

HOFFSTADT

We concur:

_________________________, P. J.

LUI

_________________________, J.

ASHMANN-GERST