Metropolitan News-Enterprise


Monday, July 2, 2007


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C.A. Denies Restitution to Man Claiming Wrongful Conviction

Stipulated Declaration Inmate Was ‘Factually Innocent’ Not Binding on State Board, Panel Says




A stipulated trial court order declaring a defendant factually innocent of the crime for which he was imprisoned prior to his conviction being set aside is not binding on the state board that hears claims for compensation for wrongful imprisonment by the state, the First District Court of Appeal has ruled.

The court Thursday rejected John J. Tennison’s contention that the finding of innocence under Penal Code Sec. 851.8 required the California Victims Compensation and Government Claims Board to honor his claim for $445,300 under Penal Code Sec. 4900.

The statute authorizes compensation of $100 for each day of confinement to state prison where the inmate is pardoned “for the reason that the crime with which he was charged was either not committed at all...or was not committed by him,” or where the inmate is “innocent of the crime with which he was charged for either of the foregoing reasons.”

Tennison and Anton “Sodapop” Goff were convicted of the August 1989 murder of Roderick Shannon, 18. Prosecutors said Goff, aided by Tennison, shot and killed the victim in retaliation for an earlier drive-by shooting that was part of an ongoing battle between gangs from the Sunnydale section of San Francisco, where Shannon lived, and the Hunters’ Point area.

Prosecution’s Case

The prosecution charged that the defendants and others chased Shannon and caught him as he tried to climb a fence, then pulled him back into a parking lot where Tennison held him while Goff killed him with a blast from a shotgun.

Two girls, ages 12 and 14, identified Tennison at trial. They said they had followed the chase because one of them was a friend of Shannon. Both were convicted of first degree murder, and the jury also made a special finding that Tennison knew that Goff was armed.

Tennison later moved for a new trial on the ground that another man, Lovinsky Ricard, had confessed to being the shooter and had said that Tennison was not present. The motion was denied on the ground that the confession was unreliable and that Ricard— who recanted his statement after the motion for new trial was denied—could have been called as a witness at trial.

Conviction Overturned

In 2003, however, U.S. District Judge Claudia Wilken of the Northern District of California overturned the conviction on the ground that prosecutors had suppressed Brady material, including evidence that police had received money to distribute to witnesses, and prosecutors could not explain who got the money; that one of the identification witnesses had taken an inconclusive polygraph test; that a woman named Chante Smith had given a videotaped interview saying that Ricard was the shooter and identifying others she claimed were present; and that Ricard had confessed months before the prosecution turned the videotape of his statement over to the defense.

Prosecutors later dropped the case rather than retry it. When Tennison moved for a declaration of factual innocence, the district attorney responded: “The People concur that Petitioner is factually innocent pursuant to Penal Code section 851.8.”

The court granted the order, and Tennison then filed his claim for compensation. After the attorney general opposed it, the matter was referred to an administrative law judge.

The ALJ ruled that the finding of factual innocence was not binding on the board, and that Tennison failed to prove by a preponderance of the evidence that he was innocent of the crime and “that he did not, by any act or omission on his part, either intentionally or negligently, contribute to the bringing about of his arrest or conviction.”

The board adopted the ALJ’s proposed decision, finding that the eyewitness testimony presented by the prosecution was “the most detailed” and “most credible” evidence, while the defense case at trial was weak and the post-conviction evidence presented at the administrative hearing came from individuals with an “inherent bias” in favor of Tennison.

San Francisco Superior Court Judge James Warren, since retired, denied Tennison’s petition for writ of mandate, and the Court of Appeal agreed.

Justice Joanne C. Parrilli, writing for Div. Three, said there were fundamental reasons why “offensive collateral estoppel” should not be applied in favor of Tennison’s claim.

She emphasized the fact that the declaration of factual innocence was based on a stipulation, rather than on adversarial litigation. While the district attorney, whose office was embarrassed by Wilken’s ruling, may have had “many practical reasons” for agreeing to the order,  “it would disserve the integrity of the court system to give preclusive effect” to it, the justice opined.

As a general rule, Parrilli explained, California courts do not give collateral estoppel effect to stipulated judgments unless the parties intended such effect. In this case, she reasoned, the district attorney’s intent was to put an end to the criminal case, not to bar the attorney general, who represents the state in Sec. 4900 proceedings, from opposing an application for monetary compensation.

Besides, the justice wrote, had the issue been properly litigated, the Sec. 851.8 order would have been denied.

“The statute simply does not apply to persons who have been convicted of a crime, unless the conviction has been reversed due to insufficiency of the evidence—which is the functional equivalent of an acquittal at trial,” Parrilli wrote. “...Tennison was convicted and his conviction upheld on appeal.  The federal habeas court granted relief based on a legal impropriety, not insufficiency of the evidence.”

The justice went on to agree that the claimant under Sec. 4900 bears a “heavy burden” of showing actual innocence, and said the board’s decision to reject the claim was supported by substantial evidence.

She agreed with the ALJ that the prosecution witnesses provided the most reliable account of what happened, and rejected the contention that Ricard’s confession was reliable.

She noted that Ricard was interviewed by the police when his name came up in the original investigation, and had denied being present. When he was re-interviewed years later, the judge noted, he said he was the shooter, but could not provide any information that would have allowed police to verify where he got the shotgun or the shells, and would not identify any of the other persons present, even those whom he said were not involved in the shooting.

Then when he was interviewed a third time, in 2003, he again denied being the shooter and said his first statement was accurate and that he lied the second time because he wanted to help Tennison.

Parrilli also discounted the impact of Tennison’s alibi witness at the Sec. 4900 hearing, Rhonda Flanagan. The witness is the mother of Tennison’s best friend and Tennison, who was 17 at the time, was living with her at the time of the shooting.

The justice noted that Flanagan, who said Tennison was at home the night of the shooting, did not testify at the trial, nor did any of the persons who were at her house that evening. She cited the testimony of Tennison’s trial lawyer, Jeff Adachi—now the San Francisco public defender—who said he made a tactical decision not to present an alibi because it would have placed Tennison within two miles of the shooting location.

While that may have been a wise choice at the time, Parrilli said, it supports the board’s finding that Tennison’s own actions may have contributed to his arrest and conviction.

The justice also agreed with the ALJ and the board that it was “simply not credible” for Tennison to claim that he did not know until after he was convicted that Chante Smith had claimed to have seen Ricard shoot the victim. She cited the board’s conclusion that “[i]t defies logic and reason that two individuals would spend the better part of a year in jail awaiting trial and never have received any indication from friends or relatives of what the ‘word on the street’ was about the shooting.” 

She also cited Smith’s testimony at the hearing on Tennison’s motion for new trial, in which she claimed that she “would have had to come” to trial if she had been called as a defense witness, and that Goff, Tennison’s co-defendant, had told her about reports that Ricard was claiming to have been the shooter. She said she did not come forward, and in fact denied to Goff having any knowledge of Ricard’s involvement, out of fear of retaliation.

That testimony proves that Tennison and Goff “for their own unstated reasons, elected not to disclose Smith’s identify to their respective attorneys” and thus contributed to their own convictions, Parrilli wrote.

The case is California Victim Compensation and Government Claims Board, 07 S.O.S. 4233.


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