What is the burden of establishing factual innocence in a criminal case?

In determining at a court hearing whether factual innocence exists, the arrestee bears the preliminary burden of establishing that "no reasonable cause exists to believe that [he] committed the offense." (Pen.Code, 851.8, subd. (b).) The arrestee thus must establish that facts exist which would lead no person of ordinary care and prudence to believe or conscientiously entertain any honest and strong suspicion that the person arrested is guilty of the crimes charged. (People v. Scott M., supra, 167 Cal.App.3d at p. 699, 213 Cal.Rptr. 456.)

Establishing factual innocence, within the meaning of Penal Code section 851.8, entails establishing as a prima facie matter not necessarily just that the arrestee had a viable substantive defense to the crime charged, but more fundamentally that there was no reasonable cause to arrest him in the first place. For example, a legal defense which is unrelated to the conduct of the arrestee and his innocence, such as entrapment, may be available "not because the defendant is innocent but because it is a lesser evil that some criminals should escape than that the government should play an ignoble part. [Citation.]" (People v. Pogre (1986) 188 Cal.App.3d Supp. 1, 7, 234 Cal.Rptr. 590.) On the other hand, other legal defenses may be so related to the defendant's own conduct that the existence of the defense negates a [7 Cal.App.4th 1057] requisite element of the offense or otherwise eliminates culpability, thereby revealing no reasonable cause to believe the arrestee committed an offense and establishing factual innocence, within the meaning of Penal Code section 851.8. Accordingly, we do not accept the People's simplistic position, that proof of a defense to the crime charged cannot establish factual innocence. Rather, it depends upon the nature of the defense whether a defense to the crime charged establishes factual innocence, for the purposes of Penal Code section 851.8.