Shull v. Cal. Victims Compensation etc. Board CA6

Filed 3/19/14 Shull v. Cal. Victims Compensation etc. Board CA6 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

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

v.

CALIFORNIA VICTIM COMPENSATION AND GOVERNMENT CLAIMS BOARD,

Defendant and Respondent.

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

1 All further statutory references are to the Penal Code.

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