A finding of actual innocence (Pen. Code, § 1485.55, subd. (b)) requires the defendant to show that he or she did not perform the acts that characterize the crime or are elements of the crime, and was therefore wrongfully convicted and unlawfully imprisoned. In 1996, Etheridge took a steak from a grocery store. As he was pursued by security guards he discarded the steak, and then struggled with the guards. He was convicted of robbery and prior serious felonies were found true. He received a life Three Strikes sentence. In 2012 Etheridge filed a writ petition challenging the sufficiency of the evidence of robbery, as well as the robbery instructions. The Court of Appeal granted the petition and reduced the robbery conviction to petty theft with a prior. On remand for resentencing, a two strike term was imposed pursuant to Proposition 36. Etheridge then moved for a finding of actual innocence under section 1485.55, which was denied. He appealed. Held: Affirmed. Section 1485.55 allows a person wrongfully convicted to move for a finding of actual innocence by a preponderance of the evidence “that the crime with which he or she was charged was either not committed at all” or committed by someone else. The Legislature had previously used the same language in related statutes regarding compensation for exonerated inmates, and it has been interpreted to mean that the person “did not do the acts which characterize the crime.” (See Ebberts v. State Board of Control (1978) 84 Cal.App.3d 329.) The court here concluded that the Legislature intended the language in section 1485.55 to be construed in the same manner. The court also concluded it was more consistent with legislative intent to construe this language “as pertaining to the specific charge,” rather than the underlying criminal activity, “with the significantly limiting requirement that the claimant have been unlawfully imprisoned.”

Etheridge is not entitled to a finding of innocence. Etheridge was wrongfully convicted of robbery but did commit petty theft with a prior. When Etheridge was convicted, the Three Strikes law still authorized a life sentence for the modified offense, which was a non-serious felony, although the prior serious felony enhancements (Pen. Code, § 667, subd. (a)) would not have applied. When Proposition 36 passed, Etheridge could have petitioned for resentencing, but his request could have been denied if the trial court found resentencing would pose an unreasonable risk to public safety. Thus, if he had been convicted of the correct offense, he could still have been imprisoned for 25 years to life under the Three Strikes law. He was incarcerated for 18 years, which is less than the mandatory 25-year term. Because he was not unlawfully imprisoned, he was not entitled to a finding of innocence (Pen. Code, § 1485.55, subd. (b).) He may nonetheless initiate a claim under section 4900, et seq., which provides the procedure for wrongful conviction claims.