People v. O'Day
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Based on a stabbing death at a party in 2007, O’Day was charged with murder and assault with a deadly weapon. The magistrate dismissed the charges at the conclusion of a preliminary hearing, citing a lack of credible evidence. More than 12 years later, O’Day sought 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 affirmed. Failure to comply with the two-year deadline was not excused by O’Day’s lack of awareness of the availability of a remedy. 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. The record permits a reasonable inference that his delay in seeking relief was attributable, at least in part, to his desire to avoid calling undue attention to his case lest the prosecutor refile the murder charge.
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