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Name: People v. Esmaili
Case #: A134700
Court: CA Court of Appeal
District 1 DCA
Division: 5
Opinion Date: 02/27/2013

A finding of no probable cause at the preliminary hearing does not equate with a finding of factual innocence under Penal Code section 851.8. Appellant was charged with continuous sexual abuse of a child under the age of fourteen years (Pen. Code, § 288.5). Following the testimony of the minor at the preliminary hearing, the court ruled that the evidence was insufficient to bind appellant over for trial, noting that it was troubled by the minor’s credibility. Appellant petitioned the court for a finding of factual innocence under section 851.8, subdivision (c), arguing that because the court found no probable cause to bind him over at the preliminary hearing, there was no reasonable cause within the meaning of section 851.8 to believe he committed the charged offense. The trial court denied the petition. Affirmed. At the preliminary hearing, the prosecution bears the burden to show there is probable cause to believe the defendant committed the charged offense. This does not equate with factual innocence under section 851.8. Under section 851.8, a defendant bears the burden of showing that the state should never have subjected him to compulsion of criminal law because no objective factors justified official action. The record must exonerate, not merely raise a substantial question of guilt. Here, appellant did not meet his burden. Nor did the magistrate’s order dismissing the action following the preliminary hearing constitute collateral estoppel for purposes of the finding of factual innocence for the following reasons: factual innocence was not litigated at the preliminary hearing; collateral estoppel is inapplicable to dismissal orders following the preliminary hearing; and collateral estoppel does not apply where the two proceedings have different burdens of proof.