Petition for factual innocence filed 12 years after arrest was untimely and not supported by good cause
THE PEOPLE, Plaintiff and Respondent, v. MATTHEW TIMOTHY O’DAY, Defendant and Appellant. (Cal. Ct. App., Nov. 18, 2022, No.A162303) 2022 WL 17073545, at *1
Summary: O’Day with murder and assault with a deadly weapon but the charges were dismissed at the conclusion of a preliminary hearing. More than 12 years later, O’Day petitioned for a finding of factual innocence. (Pen. Code, § 851.8.) The trial court denied the petition both because it was untimely without good cause and O’Day failed to satisfy his stringent burden of establishing his factual innocence. The Court of Appeal affirm concluding that the trial court did not abuse its discretion in determining the petition was untimely and unsupported by a showing of good cause.
Facts: in 2020, O’Day petitioned for a finding of factual innocence more than 12 years after charges weee dismissed. He acknowledged the petition was filed after the expiration of the two-year deadline in section 851.8. But he argued there was good cause for the delay because he was unaware, until 2018, he could seek relief. O’Day explained in a supporting declaration that upon his release from custody, his privately retained attorney said the prosecution could refile the charges as “there was no statute of limitations for the crime of murder.” He advised O’Day to stay in California and notify him if he planned to leave the state. O’Day and counsel also discussed what could be done about his arrest record; counsel said O’Day’s employers could not “discriminate” against him because of the arrest, but counsel did not mention a petition for factual innocence. Had O’Day known of that remedy, he would have asked counsel to file a petition “immediately.”
Adverse consequences of the arrest
In 2014 and 2015 — O’Day had two experiences alerting him to the adverse consequences of his arrest. While working for a sheet metal fabricator, O’Day attempted to deliver ductwork to an air force base. When he tried to enter the base, he was “interrogated by three military police officers” and denied gate clearance because of his arrest. To keep his job, O’Day went to the courthouse and obtained a printout of the criminal docket. He had a similar experience when another employer learned he had been arrested
O’Day enrolled in law school in 2016. In 2018, during his third year of law school, O’Day participated in a criminal justice clinic where he visited clients in prison. That year, his prison gate clearance was revoked because of his arrest. His supervising attorney urged him to consider filing a petition for factual innocence. It was then O’Day first learned of “such a remedy.” In the fall of 2018, the public defender agreed to file a petition for factual innocence on his behalf, but it was not until two years later that counsel filed the petition.
Claim of Factual Innocence
O’Day asserted he was entitled to a finding of factual innocence because the evidence at the preliminary hearing was inadequate for a holding order and “would not leave a person of ordinary care and prudence to believe there was an honest or even slight suspicion [he] was guilty.” The trial court concluded O’Day had not demonstrated he never should have been subject “to the compulsion of the criminal law, that there was no reasonable cause to arrest him in the first place, or that the record not only raises substantial questions as to guilt, but fully exonerates him.”
Sealing and Destroying Arrest Records
“Section 851.8 establishes the guidelines for sealing and destroying the arrest records of a person who is factually innocent.” (People v. Bermudez (2009) 172 Cal.App.4th 966, 969.) The statute provides, in “any case where a person has been arrested, and an accusatory pleading has been filed, but where no conviction has occurred, the defendant may, at any time after dismissal of the action, petition … for a finding that the defendant is factually innocent of the charges for which the arrest was made.” (§ 851.8, subd. (c).) A finding of factual innocence, however, shall not be made unless the trial court “finds that no reasonable cause exists to believe that the arrestee committed the offense for which the arrest was made.” (Id., subd. (b).) The defendant bears the initial burden of proof to show no such reasonable cause exists. (Ibid.) If the defendant makes the required showing, the burden of proof shifts to the prosecution to show the existence of reasonable cause.
For arrests and accusatory pleadings filed after January 1, 1981, a section 851.8 petition “may be filed up to two years from the date of the arrest or filing of the accusatory pleading, whichever is later…. Any time restrictions on filing for relief … may be waived upon a showing of good cause by the [defendant] and in the absence of prejudice.” (§ 851.8, subd. (l).) A trial court has “broad discretion to determine whether good cause exists” (People v. Jenkins (2000) 22 Cal.4th 900, 1037), and its discretionary determinations are typically reviewed for abuse of discretion. (Hernandez-Valenzuela v. Superior Court (2022) 75 Cal.App.5th 1108, 1123.) A trial court abuses its discretion when it acts “ ‘ “in an arbitrary, capricious, or patently absurd manner that resulted in a manifest miscarriage of justice.” ’ ” (People v. Jones (2013) 57 Cal.4th 899, 924.)
Two year limitation period in section 851.8
The two-year limitations period imposed in section 851.8, subdivision (l) — which applies to all petitions brought under the statute — “guards against the presentation of stale claims of factual innocence and encourages a swift conclusion to section 851.8 petitions.” (People v. Bermudez, supra, 172 Cal.App.4th at pp. 970, fn. 5, 972.) the statutory deadline “ ‘may be waived upon a showing of good cause by the [defendant] and in the absence of prejudice.’ ” (Id. at p. 970; People v. Gerold (2009) 174 Cal.App.4th 781, 786.)
A factual innocence petition must be filed within two years from the “date of the arrest or filing of the accusatory pleading, whichever is later.” (§ 851.8, subd. (l); Bermudez, at p. 972.) Here, the two-year limitations period began to run no later than April 2008 — when the first amended complaint was filed — and it expired no later than April 2010.The petition, filed more than a decade later, was untimely.
No Good Cause for delay in filing the petition
Section 851.8 does not define good cause People v. Drew (2017) 16 Cal.App.5th 253 (Drew)
identified several relevant factors, including “ ‘(1) the nature and strength of the justification for the delay, (2) the duration of the delay, and (3) the prejudice to [the opposing party] that is likely to result from the delay.’ ” Courts must also “consider all of the relevant circumstances of the particular case, ‘applying principles of common sense to the totality of circumstances.’ ”
Here, the delay in filing the petition was “substantial.” (Drew, supra, 16 Cal.App.5th at p. 258.) The charges were dismissed in August 2008 and the statute of limitations expired no later than April 2010. O’Day did nothing to “investigate potential relief” or “protect his rights.” It was not until 2018 that O’Day sought assistance from the public defender.
It was not an abuse of discretion for the trial court to find O’Day did not show good cause.
The Court noted that O’Day appears to be eligible for relief under Senate Bill No. 731, which will add section 851.93, subdivision (a)(2)(C)(ii), operative July 1, 2023.
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