Larsen v. Cal. Victim Comp. Bd.
| Citation | 278 Cal.Rptr.3d 566,64 Cal.App.5th 112 |
| Decision Date | 11 May 2021 |
| Docket Number | B297857 |
| Court | California Court of Appeals |
| Parties | Daniel LARSEN, Plaintiff and Appellant, v. CALIFORNIA VICTIM COMPENSATION BOARD, Defendant and Respondent. |
Singleton Schreiber McKenzie & Scott, Benjamin I. Siminou, San Diego; Thorsnes Bartolotta McGuire, Brett J. Schreiber ; California Innocence Project, Katherine N. Bonaguidi for Plaintiff and Appellant.
Xavier Becerra and Rob Bonta, Attorneys General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Senior Assistant Attorney General, Michael A. Canzoneri, Supervising Deputy Attorney General, and Heather S. Gimle, Deputy Attorney General, for Defendant and Respondent.
After a federal district court granted a petition for writ of habeas corpus triggering plaintiff Daniel Larsen's (Larsen's) release from prison after 13 years of confinement, Larsen filed a claim with the California Victim Compensation Board (the Board)1 seeking compensation as a wrongfully convicted person. The Board denied Larsen's claim, concluding it was entitled to make its own determination of whether Larsen was factually innocent because the district court's finding that no reasonable juror would convict Larsen did not predetermine the question and obviate the need for a Board hearing. Larsen then sought mandamus relief in the trial court, and the court upheld the Board's determination. We consider whether the Board was entitled to hold a hearing on Larsen's compensation claim, which leads us to opine on what qualifies as a finding of "factual innocen[ce]" under the pertinent statutory provision.
As we shall explain in more detail, in 1999 a jury convicted Larsen of a felony violation of former Penal Code 2 section 12020, subdivision (a), which prohibited carrying a concealed dirk or dagger. Larsen admitted he sustained three prior felony convictions and the trial court sentenced him to 28 years to life in prison. Larsen's direct appeal and state court habeas petitions were unsuccessful, but in 2010, the United States District Court for the Central District of California made an actual innocence finding (the particulars of which we will describe) and granted his petition for writ of habeas corpus, which led to his release from custody.
The prosecution called three Los Angeles Police Department witnesses at Larsen's trial: officers Thomas Townsend and Michael Rex and detective Kenneth Crocker. Larsen's attorney put on no defense case.
Officer Townsend testified he and his partner, Officer Rex, responded to a report of shots fired at the Gold Apple bar around 1:00 a.m. on June 6, 1998. The reporting party claimed the shooter was a man with a long ponytail wearing a green flannel shirt.
When they arrived at the bar's parking lot, Officer Townsend immediately focused on "a person with a green flannel," who was later identified by the officer as Larsen. Officer Townsend and his partner were standing 20 to 30 feet from Larsen, and because Officer Townsend believed Larsen might be armed, he initially had "tunnel vision" and focused his gaze on Larsen's hands.
Officer Townsend testified he saw Larsen crouch and reach beneath his untucked shirt to remove an object from his waistband that he then tossed under a nearby vehicle. According to Officer Townsend, he saw where the object landed and found in that location a knife with a double-edged blade and a "finger guard." Officer Townsend also found a short copper bar wrapped in cloth tape nearby, but in the opposite direction from that where he saw Larsen throw the knife. Officer Townsend testified he did not see anyone throw the copper bar.
On cross examination, Officer Townsend acknowledged he was mistaken when he previously testified Officer Rex was driving the patrol car that night. Officer Townsend also conceded he did not mention in previous testimony that the knife was concealed. Although the knife was extremely sharp and Larsen did not have anything on him to sheath the knife when he was arrested, Officer Townsend did not recall any cuts to Larsen's body or clothing.
Similar to Officer Townsend, Officer Rex testified he focused on Larsen when arriving at the bar because Larsen resembled the description of the reported gunman. Officer Rex testified he saw Larsen reach under his green flannel shirt, pull a shiny metal object from his waistband, and toss the object beneath the vehicle next to him. While Larsen and others were being taken into custody, Officer Rex kept an eye on the object Larsen threw under the vehicle to "mak[e] sure nobody walked up and discarded" it. Officer Rex then saw Officer Townsend retrieve the item, which turned out to be a knife. Officer Rex did not see anyone throw the copper bar Officer Townsend found, and Officer Rex was certain the bar was not the object he saw Larsen throw because it was wrapped in tape and would not have reflected his patrol car's spotlights as the knife did.
Detective Crocker testified Larsen was originally booked into custody under a false name and that the knife was not examined for fingerprints.
During a hearing to determine whether certain prior convictions could be used to impeach Larsen if he decided to testify, Larsen's trial counsel made an offer of proof that Larsen would testify the copper bar was in his pocket and he discarded it when the police arrived.
On direct appeal of his conviction at trial, Larsen challenged certain evidentiary rulings, a jury instruction regarding consciousness of guilt, and his sentence. The Court of Appeal affirmed the judgment, and our Supreme Court denied review. Larsen's efforts to obtain habeas relief in state court were unsuccessful.
In 2008, Larsen filed a petition for writ of habeas corpus in federal district court contending his trial attorney was constitutionally ineffective for (among other things) failing to present testimony from two eyewitnesses who would have said he was not the one who threw the knife. The Attorney General moved to dismiss the petition because it was untimely under the Antiterrorism and Effective Death Penalty Act, which establishes a one-year statute of limitations running from "the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review." ( 28 U.S.C. § 2244(d)(1)(A).)
Procedural limitations on habeas corpus relief like this timely filing rule will not prevent a federal court from deciding the merits of a habeas corpus petition if the petitioner presents evidence (e.g., "exculpatory scientific evidence, trustworthy eyewitness accounts, or critical physical evidence") that establishes " ‘a constitutional violation has probably resulted in the conviction of one who is actually innocent.’ " ( Schlup v. Delo (1995) 513 U.S. 298, 324, 326-327, 115 S.Ct. 851, 130 L.Ed.2d 808 ( Schlup ).) The magistrate accordingly held an evidentiary hearing to determine whether Larsen's petition could be considered on the merits under Schlup . Larsen called three witnesses: James McNutt (Mr. McNutt), Elinore McNutt (Mrs. McNutt), and Brian McCracken (McCracken). Larsen also presented declarations from two other witnesses: William Hewitt (Hewitt) and Jorji Owen (Owen).
Mr. McNutt, a former police chief in North Carolina, testified he accompanied his wife to the Gold Apple bar to meet his step-son, Daniel, on the night of Larsen's arrest. Mr. McNutt parked his vehicle near Daniel and observed two men, Larsen and a man he heard Daniel call "Bunker" (Hewitt's moniker), arguing with Daniel. Mr. McNutt approached and "had words with" Hewitt from about two feet away. Hewitt wore a loose, short-sleeved shirt. After about two minutes, when Mr. McNutt heard someone yell the police had arrived, Mr. McNutt saw Hewitt throw something—an object he characterized as "probably" a knife—under a vehicle parked next to Daniel. The item was 10-12 inches long and made a "light metallic sound" when it hit the ground. When asked whether the item could have been a "copper weight," Mr. McNutt testified a copper weight would have made a different sound. Larsen, according to Mr. McNutt, "just went ahead, turned around, [and] walked normal" when the police arrived.3
Mrs. McNutt testified that as she and Mr. McNutt walked from their truck to the bar, she saw Larsen and a man she knew as Bunker approaching Daniel's car. She did not know Larsen, but she knew Hewitt's moniker because he had "come to the house" a week or two earlier. Hewitt was wearing a baggy Hawaiian shirt. Mrs. McNutt saw Larsen and Hewitt "hurrying" in a manner that "didn't look right" and she told Mr. McNutt something was "going on." Mrs. McNutt waited near her truck as Mr. McNutt approached Daniel's car. When someone yelled that the police had arrived, Mrs. McNutt saw Hewitt throw something under a car. She was not certain it was a knife, but it made a "metal, clank, skidding ... noise." Larsen, on the other hand, "just stood there, kind of, dumbfounded" and turned and walked away. Mrs. McNutt testified she did not see anything in Larsen's hands.
McCracken testified he was seated inside the bar before the incident in the parking lot. He knew Larsen and did not see Larsen with a knife that evening. But a different man, who McCracken did not know, approached him at the bar and they "had some words." The man flashed a knife and threatened McCracken. McCracken testified he had a "really clear" recollection of the knife and it looked "pretty similar" to a photo of a knife found in Larsen's trial attorney's file.
Hewitt's 2001 declaration, which was part of the evidence presented to the federal magistrate judge, admitted the knife found by the police was his. Owen's declaration (she was Hewitt's...
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