People v. O'Day

Filed 11/18/22

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION THREE

THE PEOPLE,
Plaintiff and Respondent, A162303
v.
MATTHEW TIMOTHY O’DAY, (Sonoma County Super. Ct.
Defendant and Appellant. No. SCR5269391)

The prosecution charged Matthew Timothy O’Day with murder and
assault with a deadly weapon; the magistrate thereafter dismissed the
charges 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;
undesignated statutory references are to this code.) 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.
We affirm. We conclude the trial court did not abuse its discretion in
determining the petition was untimely and unsupported by a showing of good
cause.

1
 BACKGROUND
On the evening of December 14, 2007, about 40 people — many of
whom were drinking alcohol and smoking marijuana — attended a house
party in Santa Rosa.1 Much of the party took place in the living room, which
was dark and illuminated principally by a strobe light. Desiree F., then
about 20 years old, arrived at the party at approximately 11:30 p.m. and had
a shot of vodka.
Desiree saw O’Day arrive at the party with two other young men, Alex
Hopper and Donald Bittner. Other partygoers also saw the three young
men arrive together. Desiree knew O’Day — they had gone to high school
together — and they spoke briefly in the kitchen. About 15 minutes later, in
the early morning of December 15, a fight broke out in the living room. Three
people were stabbed, and Ben Floriani was killed. Several partygoers saw
O’Day flee after the stabbing.
Police arrived and interviewed partygoers who gave varying accounts
about what had happened. Several witnesses identified Hopper and Bittner
as being involved in the attack on Floriani. Desiree did not talk to police at
the scene. But several hours later, she went to the police station and
voluntarily submitted to an interview. Desiree told the police O’Day arrived
at the party with Hopper. She described the incident in detail and said she
saw O’Day make a stabbing motion towards Floriani’s chest before fleeing
with Hopper. Desiree witnessed the stabbing from a distance of 5 to 10 feet.
When shown a photo array, Desiree circled O’Day’s photo and wrote “Alex”
underneath it, but then scribbled his name out. She confidently told the

1Our summary of the offenses is derived from the preliminary hearing
transcript and evidence admitted at the hearing, including police reports and
witness interviews.

2
officer, “[t]hat’s the guy, I know it, that’s him.” Desiree was “more than . . . a
hundred and ten percent positive” she had described what she witnessed at
the party.
A few days later, the prosecution arrested O’Day and charged him and
three codefendants — Hopper, Bittner, and Noah Minuskin — with crimes
arising out of the incident. In April 2008, the prosecution filed a first
amended complaint charging O’Day, Hopper, and Bittner with murder; O’Day
and Hopper with personal use of a deadly weapon; and O’Day, Hopper and
Bittner with assault by force likely to produce great bodily injury. The
amended complaint charged Hopper with three additional counts of assault
with a deadly weapon and sentencing enhancements, and it charged
Minuskin with being an accessory after the fact.
Numerous witnesses testified at the preliminary hearing, which was
held over several months in the summer of 2008. Desiree testified she was
not wearing her glasses when Floriani was stabbed — a fact she had not
disclosed during her interview — and without them, a person would appear
slightly fuzzy at a distance of 9 or 10 feet. During the police interview, the
incident was “fresh” in Desiree’s mind because it had “just happened.” She
told the officer the truth about the incident. Later — after speaking with
a defense investigator and thinking “long and hard about it” — Desiree
testified she had “said the wrong thing” and “put the wrong name on the face
or the face on the wrong name.” She testified O’Day was near the kitchen
when the stabbing occurred, and some of the things she told the officer during
the interview may not have happened.
At the conclusion of the preliminary hearing in August 2008, the
magistrate described the case as “difficult . . . to rule on from an evidentiary
standpoint,” as nearly all percipient witnesses had consumed alcohol and

3
marijuana and the lighting conditions were “extremely poor.” Many
witnesses, the magistrate explained, were easily influenced by news accounts
and discussions with other witnesses, and some witnesses were “immature”
in that they gave information to law enforcement because they felt a “need
to be part of the incident.”
The magistrate noted that, of the testimony presented by dozens of
witnesses, only Desiree identified O’Day as being involved in Floriani’s
murder. Desiree was “inconsistent in her direct and cross-examination,” and
she admitted “what she had told the police about Mr. O’Day was not true
today and she was mistaken about [him].” The magistrate acknowledged
Desiree’s statement to police implicated O’Day but concluded her preliminary
hearing testimony was “contrary to her original statement,” her original
observations were made in a dark room without the aid of her glasses, and
her observations were “inconsistent with every other witness that testified.”
Thus, not “having found any credible evidence” against O’Day, the magistrate
dismissed the charges against him.
In September 2020 — more than 12 years later — O’Day petitioned for
a finding of factual innocence. At the outset, 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. In a supporting declaration, O’Day explained 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.” Although defense counsel did not expect the prosecutor
to refile the charges, 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

4
“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.”
In the years that followed, O’Day recovered from the emotional trauma
of his pretrial detention, and he worked to put his life back together by
attending college and gaining employment. Along the way — 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 (and prove to his employer the charges
had been dismissed), O’Day went to the courthouse and obtained a printout of
the criminal docket. Thereafter, he had a similar experience when another
employer learned he had been arrested; again he had to provide the employer
with a copy of the criminal docket to keep his job.
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. At that point, 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 — after delays caused by several circumstances, including the COVID-
19 pandemic — that counsel filed the petition.
O’Day next 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

5
there was an honest or even slight suspicion [he] was guilty.” In the petition
and in a supporting declaration, O’Day insisted the lack of credible evidence
presented by the prosecution at the preliminary hearing “exonerated him and
proved his innocence.”
The prosecution opposed the motion. At the hearing on the petition,
O’Day offered no additional evidence. Thereafter, the trial court issued
a written order denying the petition. It first found O’Day filed the petition
long after the two-year limitations period expired and he failed to establish
good cause for the delay. The court acknowledged the challenges O’Day faced
as a result of his pretrial incarceration, his laudable educational and
employment achievements, and the fact that trial counsel did not advise him
of the possibility of filing a petition for factual innocence. But the court found
those circumstances did not constitute good cause, as O’Day had not asserted
“he was counseled that he could not file such a petition. At no point was
there any legal impediment or barrier” to filing a petition, nor circumstantial
condition preventing the filing of the petition “such as incarceration or
medical inability.” And, the court observed, there were numerous instances
over the preceding 12-year period when O’Day “was reminded of his prior
arrest via an embarrassing confrontation with an employer or a security
agency, any of which would have served as inspiration to seek relief. Yet, it
was not until an incident involving the denial of gate clearance at a state
prison” that O’Day — a third-year law school student — “sought information
on relief from the prior arrest.”
The trial court next denied the petition on the merits. It described
Desiree’s confident and detailed identification of O’Day, the doubt she
experienced after being interviewed by a defense investigator, and her
preliminary testimony that she was mistaken in her identification. The court

6
acknowledged the magistrate had discharged O’Day, but it determined he
failed to establish no reasonable cause existed to believe he committed the
offenses for which he was arrested. It reasoned he “was present at the scene
on the night in question, and was identified by an eye witness, who appeared
to be reliable and without apparent reason to lie, as being involved. That no
other witnesses saw what she described is not conclusive in light of the
statements made by all the witnesses[.]” In sum, the 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.”
DISCUSSION
“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. (Ibid.)

7
 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.)
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.) But as stated above, 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.) O’Day seems to assume the statutory limitations
period began to run when the charges against O’Day were dismissed. Not so.
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

8
filed — and it expired no later than April 2010. (See Gerold, at p. 786.) The
petition, filed more than a decade later, was untimely.
But that does not end our inquiry. We must decide whether the trial
court abused its discretion in concluding O’Day failed to satisfy his burden to
demonstrate good cause for the late-filed petition. Section 851.8 does not
define good cause and O’Day does not proffer a definition. People v. Drew
(2017) 16 Cal.App.5th 253 (Drew) — not cited by the parties — provides
guidance. There, the court considered whether a defendant petitioning to
recall his sentence under section 1170.126, enacted as part of the Three
Strikes Reform Act of 2012 (Act), established good cause for failing to file the
petition by the statutory deadline. Like the statute at issue here, section
1170.126 authorizes a defendant to petition for relief within two years of the
date of the Act “ ‘or at a later date upon a showing of good cause.’ ” (Drew,
at p. 256.)
At the outset, Drew observed that section 1170.126’s inclusion of
“a limitations period subject to a ‘good cause’ exception” constituted an
implied determination “that not every delay in filing a recall petition would
be excusable.” (Drew, supra, 16 Cal.App.5th at p. 257.) Drew next
acknowledged the statute did not define good cause but noted courts had
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.’ ”
(Ibid.)
Applying these factors, Drew held the trial court did not abuse its
discretion in finding the defendant failed to show good cause for the late-filed

9
petition. (Drew, supra, 16 Cal.App.5th at p. 260.) The delay was
“substantial” (id. at p. 258) and the defendant did nothing “to investigate
potential relief for three and one-half years” between the effective date of the
Act and the filing of the petition “even though he was then serving a life
sentence that at least arguably was impacted by the [Act]. He did not contact
the court. He did not request assistance from the public defender’s office that
previously represented him. He did not inquire of anyone at the Department
of Corrections and Rehabilitation. Certainly, we do not suggest a good cause
showing requires that an untutored layman such as [the defendant]
undertake yeoman efforts in an effort to navigate the intricacies of the [Act].
But neither do we accept [defendant’s] claim on appeal that faced with years
during which there is no hint of activity or even de minimus effort by the
inmate to protect his rights, a trial court abuses its discretion when it
determines there is no good cause to dispense with the legislatively
prescribed deadline for filing recall petitions.” (Drew, at p. 260.)
Drew was likewise unpersuaded by the defendant’s assertion that there
was good cause because he lacked counsel, and he promptly filed his petition
for recall after learning of the potential for resentencing. (Drew, supra,
16 Cal.App.5th at p. 259.) This argument, the court reasoned, advocated for
“no time limits for filing a recall petition as long as no one told him he had
the ability to request resentencing. Were this contention accepted, it would
be tantamount to erasing the limitations period from the statute in all but
the most unusual of circumstances.” (Ibid.) In light of the lengthy delay, and
the defendant’s inactivity “unexplained except by the absence of a lawyer
proactively advising him regarding his rights and remedies,” Drew held it
was not an abuse of discretion for the trial court to conclude the defendant
failed to show good cause for the untimely petition. (Id. at p. 260.)

10
 Here, too. As the trial court acknowledged, 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. Nevertheless — despite feeling constant
humiliation — O’Day did nothing to “investigate potential relief” or “protect
his rights.” (Id. at p. 260.) The court also noted O’Day had experiences in
2014 and 2015 during which he suffered the adverse consequences of his
arrest, experiences that — in the court’s view — should have spurred him to
investigate an avenue for relief.2 Yet there is no evidence he asked the court,
the privately retained attorney who previously represented him, or the public
defender’s office for assistance in ameliorating these consequences. Not even
when he twice went to the courthouse to retrieve a copy of the criminal
docket. It was not until 2018 that O’Day sought assistance from the public
defender. The record permits a reasonable inference that his delay in seeking
relief was attributable, in least in part, to his desire to avoid calling undue
attention to his case lest the prosecutor refile the murder charge. (See id. at
p. 259, fn. 4.)
We acknowledge the emotional challenges O’Day faced after being held
in pretrial custody for charges that were later dismissed, and we commend
him on prioritizing employment and education upon his release. But we
cannot conclude it was an abuse of discretion for the trial court — after

2 The dissent faults the trial court for failing to “consider whether
O’Day’s inaction was objectively reasonable,” and suggests the court
committed “legal error.” (Dis. opn. of Tucher, P. J., post, at p. 6.) We
respectfully disagree. The court considered O’Day’s substantial delay in
filing the petition as well as his reasons for the delay. The court also
concluded that — in 2014 and 2015 — incidents occurred “which would have
served as inspiration to seek relief.” The court thus impliedly determined
O’Day’s inaction was objectively unreasonable.

11
reviewing the length of the delay, the proffered justification for the delay, and
the relevant circumstances of the case — to find O’Day did not show good
cause.3 (See People v. Valencia, supra, 64 Cal.App.5th at p. 644 [inmate’s
rehabilitative progress does not, as a matter of law, “constitute good cause to
excuse an untimely filing” under section 1170.126].) A delay beyond the
statutory deadline carries “consequences, and ‘good cause’ functions as
a barometer to evaluate the excuse for the delay and decide whether to
obviate those consequences.” (Drew, supra, 16 Cal.App.5th at p. 258.)
In his reply brief, O’Day urges us to look to habeas corpus
jurisprudence and measure the delay from the date he knew, or reasonably
should have known, of the legal basis for filing the factual innocence petition.
(See In re Robbins (1998) 18 Cal.4th 770, 784, superseded by statute on other
grounds as stated in In re Friend (2021) 11 Cal.5th 720.) We question the
wisdom of such an approach for the reason articulated in Drew, namely that
such an approach “would be tantamount to erasing the limitations period
from the statute in all but the most unusual of circumstances.” (Drew, supra,
16 Cal.App.5th at p. 259; but see People v. Bermudez (1989) 215 Cal.App.3d
1226, 1228–1230 [assuming without deciding delay attributable to
unrepresented defendant’s ignorance of the law was “excusable”].) But even

3 Prejudice from the delay is a relevant consideration, but we have no
occasion to consider that factor as the prosecution did not argue prejudice.
We also express no opinion on whether the existence of a legal impediment or
barrier — such as incarceration or incapacity — may be relevant to the good
cause determination. (See People v. Gerold, supra, 174 Cal.App.4th at p. 786;
People v. Valencia (2021) 64 Cal.App.5th 641, 648.) An obvious example of
good cause for exceeding the statutory deadline would arise when
exonerating evidence is discovered more than two years after the case is
resolved in the defendant’s favor. (See People v. Adair (2003) 29 Cal.4th
895, 905, fn. 4.) Here, no circumstances prevented O’Day from timely filing
the petition, and he offered no newly discovered exonerating evidence.

12
if we adopt the broad standard advocated by O’Day, we would still affirm; the
record permits a reasonable inference that, as far back as 2014 and 2015,
O’Day reasonably should have known of the need to investigate potential
avenues for relief.4
The trial court determined O’Day failed to demonstrate good cause for
the delay in filing the petition for factual innocence. Having carefully
reviewed the record and the parties’ briefing, we cannot conclude the court
abused its discretion. Reaching this result is not so much about how
“generously” we interpret good cause. (Dis. opn. of Tucher, P. J., post, at
p. 1.) Rather, under the applicable standard, our review is deferential — we
reverse a trial court’s discretionary decision only when it is “so irrational or
arbitrary that no reasonable person could agree with it.” (People v. Carmony
(2004) 33 Cal.4th 367, 377.) We cannot say that here.
Our conclusion makes it unnecessary to address O’Day’s contention
that the trial court erred in concluding he did not meet his burden of
establishing factual innocence, but we observe — and the Attorney General
agrees — O’Day appears to be eligible for relief under Senate Bill No. 731

4 The dissent correctly recites the standard for evaluating the
timeliness of a petition for habeas corpus — “ ‘when the petitioner or his
counsel knew or reasonably should have known the legal basis of the claim
and facts in support of that claim.’ ” (Dis. opn. of Tucher, P. J., post, at pp. 2,
5, italics added.) But even under that standard the petition is untimely as
the record affords an uncontradicted inference that, in 2008, O’Day’s trial
counsel should have known of the procedure to petition for factual innocence
and facts supporting such a petition. Additionally — and contrary to the
dissent’s suggestion — the Drew court disclaimed an intention to rely on the
habeas standard when evaluating good cause. (Compare Drew, supra,
16 Cal.App.5th at p. 259 with dis. opn. of Tucher, P. J., post, at pp. 1–2.) We
do as well. As stated above, that standard would functionally eliminate the
legislatively prescribed limitations period for factual innocence claims, as
defendants in all but the rarest of cases may allege no one advised them of
the availability of a petition for factual innocence. (Drew, at p. 259.)

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(2021–2022 Reg. Sess.; Stats. 2022, ch. 814, § 4), which will add section
851.93, subdivision (a)(2)(C)(ii), operative July 1, 2023.
DISPOSITION
The order denying the petition for factual innocence is affirmed.

14
 _________________________
Rodríguez, J.

I CONCUR:

_________________________
Petrou, J.

A162303

15
TUCHER, P. J., Dissenting.
O’Day has a plausible claim of factual innocence, since a magistrate
heard all of the evidence against him at a preliminary hearing in 2008 and
concluded there was “not . . . any credible evidence” he committed the
murder. (See People v. Adair (2003) 29 Cal.4th 895, 904–905; People v.
Esmaili (2013) 213 Cal.App.4th 1449, 1456–1460.) But we do not consider
the claim on its merits because O’Day did not file his petition until
September 2020, some 12 years and nine months after he was arrested and
charged with the crime. Penal Code section 851.8 requires that a petition be
filed within two years of the later of these events, except “upon a showing of
good cause by the petitioner and in the absence of prejudice.” (Pen. Code,
§ 851.8, subd. (l); undesignated statutory references are to the Penal
Code.) Here, the People have not argued prejudice and, until today, no
published decision has construed “good cause” as used in section 851.8.
I would interpret good cause more generously than do my colleagues.
Specifically, I would find good cause excuses the decade-long delay attributed
to petitioner being unaware that California law allows for such a thing as a
petition for factual innocence, or indeed that the law offers any potential
remedy for the difficulties his arrest continues to cause. I would also,
because the trial court took a different view, vacate at least that portion of
the court’s order that denies the petition for factual innocence as untimely.
“Good cause” is a capacious term, and like the majority I would look to
factors other courts have considered in deciding when to excuse a delay for
“good cause.” The majority embraces three factors derived from our speedy-
trial jurisprudence. (See maj. opn. ante, at p. 9, citing People v. Drew (2017)
16 Cal.App.5th 253, 257 (Drew) [drawing on cases interpreting section
1382].) In addition to these, I would also, as does Drew, consider the

1
timeliness standard for a petition for writ of habeas corpus. (See Drew, at
p. 259.)
With a habeas petition, “the trigger for timeliness is when the
petitioner or his counsel knew or reasonably should have known the legal
basis of the claim and facts in support of that claim.” (In re Douglas (2011)
200 Cal.App.4th 236, 243 (Douglas), citing In re Robbins (1998) 18 Cal.4th
770, 780 (Robbins).) This is “an objective, reasonable person standard,” not
one that tolerates willful ignorance. (Douglas, at p. 244.) Once alerted to the
possibility of a claim, a petitioner must act without substantial delay, or must
demonstrate either “good cause for the delay” or that “the claim falls within
an exception to the bar of untimeliness.” (Id. at pp. 242–243.) And a
petitioner who was previously represented by counsel was “entitled to rely on
his . . . counsel’s judgment,” as to whether he had a valid claim. (In re
Hampton (2020) 48 Cal.App.5th 463, 476 (Hampton) [vacating conviction of
defendant “unaware of his entitlement to [a heat of passion] instruction” until
given legal authority by a fellow prisoner].)
This timeliness standard, based on objective reasonableness, doomed
the habeas petition in Douglas. In 1997, Douglas pleaded no contest to a
misdemeanor that required him to register as a sex offender. (Douglas,
supra, 200 Cal.App.4th at p. 240.) The next day he signed a form advising
him about the registration requirement, and a deputy advised him orally
before releasing him from custody. (Id. at p. 241.) Thirteen years later,
Douglas brought a petition for writ of habeas corpus on the grounds that,
prior to entering his plea, he had not been advised of the registration
requirement. (Id. at p. 240.) The trial court granted the writ but the Court of
Appeal reversed, concluding Douglas’s petition was untimely. (Id. at pp. 241–
242.) As the appellate court explained, Douglas “likely knew of the

2
registration requirement on the day after he entered his plea, . . . and if he
truly did not, as he claims, he should have known.” (Id. at p. 243.) Douglas
“deliberately chose not to seek counsel,” instead “relying on his unreasonable
mistaken belief” that the registration requirement did not apply to him. (Id.
at p. 244, italics added.)
By analogy to the same objective reasonableness standard, Drew’s
petition to recall his sentence pursuant to the Three Strikes Reform Act of
2012 (TSRA) also failed as untimely. (Drew, supra, 16 Cal.App.5th at p. 255.)
The TSRA set a November 7, 2014 deadline for filing such petitions, unless a
petitioner established “ ‘good cause’ ” for a delayed filing. (Drew, at p. 255.)
Drew did not file his petition until almost two years after the deadline,
although he knew about the TSRA earlier. (Drew, at p. 255.) In the trial
court, Drew explained the untimeliness of his petition as a consequence of his
belief that his other life terms rendered him ineligible for relief. (Ibid.) This
was a subjective mistake that was not reasonable, the Court of Appeal
explained, so it did not “provide objective good cause for delay.” (Id. at p. 259
[Drew would have had a “well-supported argument” he was eligible, with “no
legal downside to” timely filing].) Moreover, on appeal Drew conceded that
the real reason he failed to file a timely petition was simply that he had no
“lawyer proactively advising him regarding his rights and remedies.” (Id. at
p. 260.) The trial court did not abuse its discretion in finding this fell short of
“ ‘good cause,’ ” Drew holds. (Ibid.)
O’Day’s case differs from Douglas’s and Drew’s in that O’Day’s failure
to discover his claim within the statutory period was neither willful ignorance
nor objectively unreasonable. O’Day had an attorney when the court
dismissed the charges against him, with whom he discussed “at length” the
future consequences of his arrest record, but all the attorney had to offer on

3
the subject was that “it would be illegal for an employer to discriminate
against [O’Day] because of” his arrest. The attorney did not tell O’Day of a
potential remedy in the form of a petition for factual innocence. Had he
known of it, O’Day represents he would have asked his lawyer to file a
petition “immediately.” Unlike Douglas, then, O’Day did not ignore
information that was clearly provided to him. Unlike Drew, O’Day was
completely unaware of the statutory remedy he would later invoke. Where
Drew knew about the TSRA and thus could reasonably be charged with a
failure to investigate his claim under it, O’Day actually took an initial step to
investigate whether he could do anything about his arrest record, discussing
the subject with his then-lawyer. In that discussion O’Day was left with the
impression (though not expressly told) that there was nothing he could do
about it. Based on his having received this at-best incomplete advice (see
Hampton, supra, 48 Cal.App.5th at p. 476), and because a petition for factual
innocence is a legal procedure beyond the ken of the normal layperson,
O’Day’s failure to investigate a claim he did not know he had was objectively
reasonable. In my view, O’Day cannot be charged with knowing he had a
claim until, much later, the possibility of a petition for factual innocence was
brought to his attention. The Attorney General accuses O’Day of having
“slept on his rights,” when it would be more accurate to say he was
completely unconscious of them. The difference is between one who has been
alerted to the possibility of his claim, and one like O’Day, who has not. (See
Douglas, supra, 200 Cal.App.4th at p. 242.)
The majority rejects this analysis with two arguments that merit
response. First, the majority points out that petitioner’s trial counsel in 2008
should have known of the possibility of a petition for factual innocence. (See
maj. opn. ante, at p. 13, fn. 4.) I agree, but do not think counsel’s constructive

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knowledge has any bearing on this case, after his engagement to defend
petitioner against these criminal charges ended.1
Second, the majority characterizes Drew as having “disclaimed an
intention to rely on the habeas standard.” (Maj. opn. ante, at p. 13, fn. 4.) I
read Drew differently. The Drew court explicitly relies on Douglas, noting it
is a habeas case. (See Drew, supra, 16 Cal.App.5th at p. 259.) The court
later opines that accepting Drew’s argument “no one told him he had” a claim
would eviscerate the good-cause standard. (Drew, at p. 259.) But despite
their surface similarities, Drew’s argument is very different from O’Day’s
because Drew himself knew about the TSRA, and therefore could have taken
steps to ascertain whether he had a claim under it. Accepting Drew’s claim
would have undermined the requirement for objective reasonableness. By
contrast, O’Day did not know about the relevant statute and was led astray
by the advice he received when he did discuss with counsel “what [he] could
do about the record of [his] arrest.” A finding of good cause in O’Day’s case
would not “functionally eliminate the legislatively prescribed limitations
period.” (Maj. opn. ante, at p. 13, fn. 4.) It would give full effect to the
legislative directive that we consider on the merits a claim that is more than
two years old if the age of the case does not prejudice the prosecution and
there is a good reason the petitioner did not file earlier. (§ 851.8, subd. (l).)

1 O’Day’s declaration states he was arrested at the age of nineteen and
represented by private counsel his family retained (with funds received as a
result of his brother’s death in the Iraq War). O’Day reports meeting with his
lawyer the day after his release from custody to discuss issues including what
he could do about the record of his arrest, but he reports no interaction with
this lawyer after receiving counsel’s advice. When, years later, he learned of
the possibility of a petition for factual innocence, O’Day approached Legal Aid
and was referred to the Sonoma County Public Defender’s Office. The
reasonable inference I draw from these facts is that he was unrepresented on
the factual innocence claim until the public defender agreed to take his case.

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 As for whether the trial court abused its discretion in finding no good
cause here, I see legal error in the trial court’s failure to consider whether
O’Day’s inaction was objectively reasonable. (See People v. Superior Court
(Humberto S.) (2008) 43 Cal.4th 737, 746 [trial court abuses discretion when
ruling rests on legal error].) Instead, the court found no good cause because
nobody counseled O’Day “he could not file such a petition,” there was no
“legal impediment or barrier” preventing him from filing one, and no
circumstances “such as incarceration or medial inability” rendered filing a
petition impossible. All true, but in my view, this set of reasons sets the bar
too high. A petitioner should not have to show some impediment made it
virtually impossible for him to have filed earlier. He need only establish
good—i.e., objectively reasonable—cause for his delay. The trial court noted
there were embarrassing incidents over the years that “would have served as
inspiration to seek relief.” (See also maj. opn. ante, at p. 11, fn. 2.) But
strong motivation to file sooner means nothing if O’Day had no reason to
believe a remedy might be available.
A factual innocence petition is, by its nature, filed by someone alleging
he or she was the victim of a mistake made in our criminal justice system.
The petition does not seek to overturn an existing conviction, but merely to
protect the successful petitioner from further consequences for that mistake.
In this context, I would not define “good cause” so narrowly as to make
timeliness harder to prove in a petition for factual innocence than it is in a
petition for writ of habeas corpus. For the decade-long period during which
O’Day was unrepresented, he neither knew nor “reasonably should have
known . . . the legal basis for [his] claim.” (Robbins, supra, 18 Cal.4th at
p. 780.) I would, accordingly, find the trial court abused its discretion by
charging this period against O’Day in determining the timeliness of his

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petition. Whether O’Day’s petition was untimely for other reasons, since it
was filed almost two years after he learned of the possibility of a petition for
factual innocence, or whether the trial court was correct in denying O’Day’s
petition on the merits are issues on which I express no opinion.

TUCHER, P. J.

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Superior Court of Sonoma County, Mark A. Urioste, Judge.

Walter K. Pyle & Associates and Walter K. Pyle, under appointment by the
Court of Appeal, for Defendant and Appellant.

Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney
General, Jeffrey M. Laurence, Assistant Attorney General, Moona Nandi and
René A. Chacón, Deputy Attorneys General, for Plaintiff and Respondent.

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