People v. O'Day
| Decision Date | 18 November 2022 |
| Docket Number | A162303 |
| Parties | The PEOPLE, Plaintiff and Respondent, v. Matthew Timothy O'DAY, Defendant and Appellant. |
| Court | California Court of Appeals Court of Appeals |
Walter K. Pyle & Associates and Walter K. Pyle, Berkeley, 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.
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.
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 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 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 "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 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 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 ...
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