Opinion
A148136
02-23-2018
THE PEOPLE, Plaintiff and Respondent, v. DAVID LAWRENCE OLIVIER, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Contra Costa County Super. Ct. No. 51420363)
Defendant David Olivier engaged in sexually inappropriate behavior with his adopted daughter, Jane Doe, when she was a teenager. A jury convicted him of four felony counts of lewd acts upon a child aged 14 or 15 years based on "prolonged" kissing to which he confessed in a pretext call, but it was unable to return a verdict on the remaining charges. The trial court sentenced him to two years and eight months in prison, which was a paper commitment based on his presentence custody credits.
On appeal, Olivier contends that the trial court abused its discretion under Evidence Code section 352 and violated his federal due process rights by admitting evidence of his prior conduct with teenage girls. He also claims, and the Attorney General concedes, that an order to pay attorney fees must be stricken. We strike the order to pay attorney fees but otherwise affirm the judgment.
All further statutory references are to the Evidence Code unless otherwise noted.
I.
FACTUAL AND PROCEDURAL
BACKGROUND
Doe is one of seven siblings. Her parents were drug addicts, and throughout her early childhood, she moved among the homes of different relatives. When Doe was four, Olivier and his wife, Doe's grandmother's cousin, adopted Doe and her younger brother.
A few years after the adoption, the family moved to a home in Orinda. Olivier's wife was a consultant and traveled often for her job, and Olivier was the children's primary caretaker. Doe, who was 23 at the time of trial, testified that she and Olivier "were very close." Olivier often praised her and told her he loved her, and he showed her physical affection as well. Doe's brother testified that Olivier was noticeably more physically affectionate with Doe than he was with the brother.
Doe testified that when she was about 13, Olivier began inappropriately kissing her. Whereas before Olivier had merely given her "a peck" on the cheek or lips, it now became "French kissing and . . . it had tongue and it was very intimate and sensual." Olivier never kissed her this way in front of other people, and it usually occurred when he put her to bed at night. She estimated that the kissing occurred once a week when she was aged 13 to 15. At the time, Doe enjoyed it because it "sexually stimulated" her and made her feel loved.
Doe also described several other incidents of inappropriate sexual contact. First, when she was about 13, she sat on top of Olivier while he was lying on her bed. She felt his penis "rise" and he began "humping" her, not stopping until the crotch of his pants became wet. Second, she testified that she and Olivier often used the family's hot tub together at night. They would be naked, and they sometimes smoked marijuana together. On one such occasion, Olivier rubbed her back and fondled her breasts. Doe's brother testified that he was aware that Doe and Olivier were "[s]pending evenings together in the hot tub naked," which he considered "wildly inappropriate," but he did not testify to witnessing any sexual contact between Doe and Olivier.
For a long time, Doe believed that her physical relationship with Olivier meant "he loved [her] more than a child, that [she] was special." Explaining why she did not initially tell anyone, she said, "I liked it and . . . when he would get angry that was an outlet and it would calm the whole family down. And I felt that it was my role to be that person, that peacemaker just to make sure that everyone was okay." Olivier also told her that if she said anything, he might have to go to prison, and he would kill himself if he faced that possibility. She testified that "keeping [her] family together was the biggest and most important thing in [her] life," and she worried about jeopardizing the family by getting Olivier in trouble.
Doe testified that around the time she entered high school she revealed her relationship with Olivier to her best friend, Kelsey M., because Doe was "struggling" with both enjoying the contact and feeling "disgusted." Kelsey M. confirmed that Doe disclosed inappropriate physical contact with Olivier and asked her to keep it a secret, although according to Kelsey M. the disclosure did not happen until the girls were sophomores.
Doe had a close relationship with one of her other siblings, Chelsea S., and visited her in the summers in Sacramento. When Doe was 16, Chelsea S.'s best friend, Jessica B., told Doe that Jessica B.'s mother's boyfriend had molested her. Doe then told Jessica B. about the physical relationship with Olivier. According to Jessica B., Doe said that Olivier "treated her like the wife and that was her responsibility to take care of him and to be what he wanted her to be." Soon after, Jessica B. told Chelsea S. that Doe had a secret and Chelsea S. should talk to her sister about it. After Chelsea S. persisted in asking Doe, Doe finally revealed what was happening between her and Olivier.
Although Doe made Chelsea S. promise not to tell anyone, Chelsea S. told her parents, who apparently alerted the authorities. The following fall, when Doe was a junior in high school, she was called to the principal's office to speak to a male Contra Costa County Sheriff's detective. Doe was caught off-guard and did not understand what was going on until the detective said he wanted to talk about Olivier. Doe admitted at trial that she lied to the detective by saying that "nothing happened" and that she had told her friends and sister about Olivier "for attention." Doe was afraid that if she told the truth and Olivier was investigated, her family would "break up." As the defense's sole witness, the detective testified that he did not act in an intimidating way during the interview and that Doe never mentioned telling Kelsey M. about Olivier.
After the detective interviewed Doe, Olivier moved out of the house. Doe felt "[h]urt and betrayed" by her adoptive mother because Doe did not get a chance to say goodbye to Olivier, and she regretted telling the other girls about him. Soon afterward, Doe moved in with another family, where she was still living at the time of trial.
Several years later, when Doe was 20, another detective contacted her. Doe felt more comfortable with this detective because she was a woman, and Doe eventually disclosed Olivier's inappropriate behavior. Explaining why she was ready to report Olivier, Doe testified, "[M]y family was already broken up, and I had done therapy and some self-work, and I just got to that point where I thought I was worth it. I thought I was worth, you know, getting justice for something that I think was so horrible and that still affects me today."
At one of Doe's meetings with this detective, Doe called Olivier, and a recording of the pretext call was played for the jury. During the call, Olivier acknowledged that he "prolonged kisses and stuff" and thought "that [was] wrong." He repeatedly denied having any romantic feelings toward Doe, but he also characterized her as "a goddess" and stated that he might love her differently if he were "30 years younger or something like that" because he "always thought of [her] as an ideal girl."
Olivier was initially charged with 42 counts of various sex offenses against a minor. In June 2015, the trial court declared a mistrial after a jury acquitted him of four charges and hung on the remaining counts. The People then filed an amended information charging Olivier with three felony counts of lewd acts upon a child under 14 years, one based on humping in the bedroom and two based on kissing, and five felony counts of lewd acts upon a child aged 14 or 15 years, one based on fondling in the hot tub and four based on kissing, two when Doe was 14 and two when she was 15.
The first three charges were brought under Penal Code section 288, subdivision (a), and the remaining charges were brought under Penal Code section 288, subdivision (c)(1). --------
Another trial occurred in early 2016. At a pretrial hearing, the prosecutor stated that the charges "represent[ed] three years of almost daily kissing a minor." Olivier responded, "I kissed her two or three times a ---" before his counsel and the trial court interrupted him. After the court explained that what he said could be used against him, Olivier stated, "I admit to it." A transcript of this hearing was admitted at trial.
The jury convicted Olivier of the four charges of lewd acts upon a child aged 14 or 15 years based on kissing. The jury foreperson indicated the jury was unable to reach a verdict on the remaining counts, and the trial court asked if it could do anything to help the jury reach a consensus. The foreperson responded, "Um, yeah, I'm sure there is, but short of an admission, . . . that's probably the only thing that will change our mind." After learning the jurors were about evenly split on these counts, the court declared a mistrial.
The trial court sentenced Olivier to a total term of two years and eight months in prison, comprised of a term of two years for one of the convictions based on kissing when Doe was 14, a consecutive term of eight months for the other conviction based on kissing when Doe was 14, and two concurrent terms of two years each for the convictions based on kissing when Doe was 15.
II.
DISCUSSION
A. The Trial Court Properly Admitted Evidence About Olivier's Other Hot Tub Conduct.
Olivier claims that his convictions must be reversed because the trial court erroneously admitted testimony about his use of a hot tub with Doe, Chelsea S., and Jessica B. We conclude that the court did not err by admitting this evidence and that even if there had been an error, it was patently harmless.
1. Additional facts.
Before trial, the prosecutor moved under section 1108 to admit testimony by Chelsea S. that Olivier "made . . . comments about her body, her breasts, and her development [that] made her feel uncomfortable." The prosecutor also sought to introduce Chelsea S.'s testimony that Olivier had entered a hot tub with her and other girls and made them uncomfortable. The prosecutor argued that this testimony was "just proper testimony on direct or cross, and . . . even proper under [section] 1108."
The trial court excluded the testimony about Olivier's comments to Chelsea S. under section 352, but it permitted the prosecutor to "elicit testimony that a group of these girls were in the hot tub and that Mr. Olivier came to join them and how the individual witness felt about that." Olivier's counsel objected under section 352 and on relevance grounds, stating, "I think . . . it could lead the jury to conclude that he's some sort of creep . . . and I think any teenage girl might feel uncomfortable with an older man[,] regardless of who he is[,] joining them in a hot tub." The court responded that it was "fair game for the witness to testify as to how [she] felt about [Olivier getting in the hot tub] without going into any details [that had been] excluded."
At trial, Chelsea S. testified that on one occasion she, Doe, and a female cousin were in the hot tub at the home of a family friend when Olivier joined the girls. Chelsea S. explained that the incident made her feel "uncomfortable," explaining, "[H]e is a grown man and we were teenagers at the time and . . . to have someone so much older than us when we are in our bathing suits and we are trying to have girl time and spend time together and he just gets in." She also denied, however, that he "physically [did] anything" other than be present in the tub or said anything to make her feel uncomfortable.
Similarly, Jessica B. testified about an instance when she, Chelsea S., and Doe were in a hot tub at Lake Tahoe and Olivier joined them. Jessica B. said she had "never felt more uncomfortable" because he was "looking at [their] chest[s]." It is unclear from her testimony whether this happened on the same occasion that Chelsea S. described.
2. Discussion.
Olivier contends that the admission of the testimony about his other hot tub conduct violated section 352 and his federal due process rights. We are not persuaded.
Under section 352, a trial court "in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury." We review rulings on the admissibility of evidence under section 352 for an abuse of discretion. (People v. Merriman (2014) 60 Cal.4th 1, 74.) Under this standard, we do not reverse "unless it is shown [that] ' "the trial court exercised its discretion in an arbitrary, capricious, or patently absurd manner that resulted in a manifest miscarriage of justice." ' " (Ibid.)
Initially, the Attorney General contends that Olivier forfeited his objection to the testimony by Jessica B. indicating that Olivier stared at her chest. The Attorney General points out that the parties did not discuss this aspect of Jessica B.'s testimony before trial, and when she made the statement, Olivier objected only on foundation grounds. But the Attorney General claims that Olivier thereby forfeited an objection under section 1108, not section 352, and on appeal Olivier concedes the evidence was admissible under section 1108 and raises a claim of error only under section 352. Therefore, we will consider all the challenged testimony in addressing the merits of Olivier's claim.
The parties disagree about the basis on which the trial court admitted the challenged evidence. Olivier assumes that it was admitted under section 1108 as evidence of a prior sex offense, and the Attorney General claims that it was admitted "simply because it was relevant to disputed issues at trial." We need not resolve this issue. As stated above, Olivier does not challenge the evidence's admissibility under section 1108, and even assuming he is correct that a court must be especially "vigilant" in applying section 352 to evidence of prior sex offenses, we perceive no error.
In determining whether to exclude evidence of a prior sex offense under section 352, trial courts "must consider such factors as [the prior offense's] nature, relevance, and possible remoteness, the degree of certainty of its commission and the likelihood of confusing, misleading, or distracting the jurors from their main inquiry, its similarity to the charged offense, its likely prejudicial impact on the jurors, the burden on the defendant in defending against the uncharged offense, and the availability of less prejudicial alternatives to its outright admission, such as . . . excluding irrelevant though inflammatory details surrounding the offense." (People v. Falsetta (1999) 21 Cal.4th 903, 917.) We agree with the Attorney General that the challenged evidence was not unduly prejudicial in light of these factors. The evidence was probative of Olivier's inappropriately sexual behavior toward teenage girls, and it evoked the charged conduct in a hot tub. It was also significantly less inflammatory than the evidence of the charged offenses because it involved no physical contact. The court did not abuse its discretion under section 352 in admitting the challenged evidence.
We also reject Olivier's assertion that the trial court's ruling violated his federal due process rights. The admission of evidence does not violate due process unless "it makes the trial fundamentally unfair." (People v. Partida (2005) 37 Cal.4th 428, 439, italics omitted.) " 'Only if there are no permissible inferences the jury may draw from the evidence can its admission violate due process. Even then, the evidence must "be of such quality as necessarily prevents a fair trial." ' " (People v. Albarran (2007) 149 Cal.App.4th 214, 229.) Olivier fails to explain how the evidence at issue rendered his trial fundamentally unfair, and we conclude that it did not.
Finally, even if the trial court's ruling had violated either state evidentiary law or federal due process, the error was harmless. Olivier was not convicted of the charge based on his activity with Doe in a hot tub, and the jury foreperson's comments strongly suggest that the jury was unprepared to convict him of any crime to which he had not admitted. Therefore, any error was harmless beyond a reasonable doubt (see Chapman v. California (1967) 386 U.S. 18, 24) and it is not reasonably probable he would have received a more favorable outcome had the evidence not been admitted. (See People v. Watson (1956) 46 Cal.2d 818, 836.)
B. The Order to Pay Attorney Fees Must Be Stricken.
Olivier argues that the minute order from the sentencing hearing and the abstract of judgment must be modified to strike an order that he pay $500 in attorney fees. We agree.
Under Penal Code section 987.8, a trial court may "order a defendant who has received legal assistance at public expense to reimburse some or all of the county's costs." (People v. Viray (2005) 134 Cal.App.4th 1186, 1213.) Here, however, at the sentencing hearing the trial court did not orally order Olivier to pay attorney fees, much less hold a hearing on his ability to pay as required. (Pen. Code, § 987.8, subd. (b).) Instead, it appears that the attorney fees notation on the minute order was a clerical error. Therefore, the minute order and the abstract of judgment must be modified to strike the attorney fees order. (See People v. Mitchell (2001) 26 Cal.4th 181, 185.)
III.
DISPOSITION
The minute order of April 8, 2016, and the abstract of judgment are modified to strike the order that Olivier pay $500 in attorney fees. The clerk of the superior court is directed to forward a certified copy of the amended abstract of judgment to the Department of Corrections and Rehabilitation. As so modified, the judgment is affirmed.
/s/_________
Humes, P.J. We concur: /s/_________
Dondero, J. /s/_________
Banke, J.