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Name: People v. Hollie (2023) 97 Cal.App.5th 513
Case #: B321325
Court: CA Court of Appeal
District 2 DCA
Division: 7
Opinion Date: 11/06/2023
Subsequent History: Opn. modified and ordered published 11/28/2023

Defendant whose murder conviction was vacated under Penal Code section 1172.6 because he could not be convicted of murder under current law was not entitled to a finding of factual innocence under Penal Code section 851.8. In 2004, defendant was convicted inter alia of first degree murder and robbery arising from the shooting death of victim Treder. In 2020, the superior court granted defendant’s section 1172.6 petition, finding he had been a major participant in the robbery of Treder but not the actual shooter, and impliedly finding he did not act with reckless indifference to human life during the robbery. The court vacated the murder conviction and resentenced defendant on his remaining convictions. In 2021, defendant petitioned pursuant to section 851.8 for a finding of factual innocence, which was denied. On appeal, defendant argued the order vacating his murder conviction under section 1172.6 necessarily entitled him to a finding of factual innocence. Held: Affirmed. A finding of factual innocence and order for sealing and destruction of records shall not be made unless the trial court finds no reasonable cause exists to believe the arrestee committed the offense. When it granted his 1172.6 petition, the court found the evidence was insufficient to convict defendant of murder under current law. However, a finding of insufficient evidence, like a failure of the prosecution to convict, is not enough for a finding of factual innocence. For factual innocence, defendants must show that the state should never have subjected them to the compulsion of the criminal law because no objective factors justified official action. The record must exonerate, not merely raise a substantial question as to guilt. Granting defendant’s section 1172.6 petition did not exonerate defendant of Treder’s murder. Further, a partial sealing of an arrest record is not permitted under section 851.8. It is reasonable to assume defendant was arrested for both the murder and robbery of Treder. Defendant still stands convicted of the robbery. Accordingly, even if he were otherwise properly found factually innocent of murder, “the surgical excision” of a portion of defendant’s arrest record would not be authorized.