People v. Oliver

Decision Date23 September 2020
Docket NumberE070859
Citation54 Cal.App.5th 1084,269 Cal.Rptr.3d 201
Parties The PEOPLE, Plaintiff and Respondent, v. James Anthony OLIVER, Defendant and Appellant.
CourtCalifornia Court of Appeals Court of Appeals

Certified for Partial Publication.*

Randi Covin, Willits, under appointment by the Court of Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, A. Natasha Cortina and Alan L. Amann, Deputy Attorneys General, for Plaintiff and Respondent.

OPINION

McKINSTER, J.

Defendant James Alexander Oliver challenges his convictions for human trafficking Jane Doe (count 1) and D.A. (count 4), and his sentence. He contends: (1) his conviction on count 4 for human trafficking an adult in violation of Penal Code 1 section 236.1, subdivision (b), (hereafter section 236.1(b) ) must be reversed because the offense includes the element the victim did not consent to his or her restraint or confinement, and there is no substantial evidence D.A. did not consent; (2) his conviction on count 4 must be reversed because the trial court erred by not instructing the jury sua sponte on the element that D.A. did not consent to her restraint or confinement; (3) his conviction on count 1 for human trafficking a minor in violation of section 236.1, subdivision (c), must be reversed because the trial court erred by permitting the People to admit hearsay evidence of Jane Doe's age at the time of the alleged offense; and (4) during sentencing, the trial court erred by not considering his present ability to pay various fines and fees, as mandated by People v. Dueñas (2019) 30 Cal.App.5th 1157, 242 Cal.Rptr.3d 268 ( Dueñas ), so we must strike those fines and fees and remand for a hearing on his ability to pay.

In the published portion of this opinion, we conclude the lack of the victim's consent is not an element or an affirmative defense of the offense of human trafficking an adult in violation of section 236.1(b) ; the record contains substantial evidence from which a jury could conclude beyond a reasonable doubt that defendant trafficked D.A.; and defendant forfeited his claim of Dueñas error with respect to the maximum restitution fine imposed at sentencing, and his claims of reversible error about other fines and fees lack merit.

In the unpublished portion of the opinion, we conclude the trial court accurately instructed the jury on human trafficking as alleged in count 4; defendant forfeited his claim of evidentiary error on count 1 by not timely and specifically interposing a hearsay objection below; and his trial counsel did not render ineffective assistance of counsel by failing to so object.

Therefore, having found no reversible error, we affirm the judgment.

I.PROCEDURAL BACKGROUND

By information, the People charged defendant with human trafficking of a minor (Jane Doe) for a sex act ( § 236.1, subd. (c)(1), count 1), pimping a minor (Jane Doe) 16 years of age or older (§ 266h, subd. (b)(1), count 2), pandering by procuring a minor (Jane Doe) over 16 years of age (§ 266i, subd. (b)(1), count 3), human trafficking D.A. with the intent to pimp her ( § 236.1(b), count 4), pimping D.A. (§ 266h, subd. (a), count 5), and pandering by encouraging D.A. to become a prostitute (§ 266i, subd. (a)(2), count 6). In a first trial, the jury convicted defendant on counts 2, 5, and 6, but the trial court declared a mistrial on the remaining counts because the jury was deadlocked. The People filed a first amended information realleging counts 1, 3, and 4. Following a retrial, a second jury found defendant guilty on the remaining counts.

The trial court sentenced defendant to state prison for 22 years eight months, consisting primarily of an aggravated sentence of 20 years for his conviction on count 4 for human trafficking D.A. The court expressly found that defendant lacked the present ability to pay attorney fees for his appointed counsel or the costs for presentence investigation. However, the trial court imposed a $40 court operations fee for each of his six convictions ($240) ( Pen. Code, § 1465.8 ); a $30 criminal conviction assessment for each of his six convictions ($180) ( Gov. Code, § 70373 ); a maximum restitution fine of $10,000 ( Pen. Code, § 1202.4, subd. (b)(1) ); and a maximum parole revocation restitution fine of $10,000, stayed pending successful completion of parole ( Pen. Code, § 1202.45, subd. (a) ). In addition, on count 4, the court imposed a fine of $96,000 "[b]ased on the significant economic benefit provided to [defendant] over the course of his exploitation" of D.A. Defendant did not object to the fines and fees on any basis.

Defendant timely appealed.

II. FACTS2

D.A., who was 23 years old during defendant's 2018 retrial, testified that she first met defendant when she was 11 years old. When she was 15 years old, D.A. began dating defendant's son, who was a classmate. The relationship ended a month or two later when defendant's son punched D.A. in the face. D.A. spoke to defendant about the assault and told him she did not want to go home with a mark on her face. Defendant told her she "didn't have to worry about it and that it was fine to be with him for awhile." Soon thereafter, D.A. began a sexual relationship with defendant, who was almost 20 years her senior. She testified, defendant "tried, you know, touching me and stuff and at first I kind of wasn't with it, but then it got to happening a little too much and I just gave up." D.A. began having sexual intercourse with defendant, and they "were together for a lot of years after that."

Defendant told her, "You are my bitch now," meaning "I belonged to him now and I was to do what [I] was told."

D.A. testified that, starting when she was 15 years old and continuing for seven to eight years, she "worked" for defendant as a prostitute "selling [her] body for money." At that point, she was living with defendant in a motel room in Fresno. D.A. testified defendant told her where to "stroll," which is "where prostitutes walk," and how to conduct herself with a client and while she was "walking," i.e., what and what not to do. Defendant instructed D.A. to "use protection" and to always "use a condom." He bought condoms for D.A. to use while prostituting herself, but "[a] lot of times [she] would buy them [herself]." Defendant also told her to "always keep [herself] protected" by having mace or a knife with her in case "a client wanted to turn on [her]."

D.A. worked as a prostitute every day. If she did not want to work, defendant would argue with her and sometimes use physical violence to get her to work. D.A. charged clients according to the time they spent together, but defendant did not want her to charge less than $100. She gave all her earnings to defendant and kept none for herself. A few times, she tried to keep some of her money, but "it would end up going right back to him because we would need it for other things." The money D.A. earned as a prostitute paid for hotel rooms, food, marijuana that she and defendant smoked, and clothing.

D.A. procured her "dates or clients" by "strolling" the streets and from the Internet. When she worked on the street, D.A. kept in communication with defendant by cellular telephone.3 Before taking a client to the hotel room, she would text defendant a "peace sign" to let him know she was on the way and for him to leave the room. Defendant also used text messages to direct D.A. in how to comport herself. In one instance, D.A. argued with defendant over the phone while working on the street. Defendant sent her a text message, telling her she was not to "do the walk down the street ranting into the phone."

Besides Fresno, D.A. testified she worked for defendant as a prostitute in other California cities,4 and she traveled by train, sometimes "automatic," meaning traveling by herself. D.A. testified that even when she traveled alone, she "wasn't necessarily alone, I was still being tracked." Defendant tracked D.A. with an application installed on her cellular phone. Once activated, the application allowed defendant "to know [her] exact location" and for D.A. to "check in" with him.

D.A. testified defendant was not violent with her too often at first but, as time passed, "it became more and more often." Defendant would use physical violence if she "didn't do what he wanted me to do," or if she "said something that he didn't like." For example, in 2011, when she was 16 or 17 years old, defendant hit her across the face with a belt in the Fresno motel room where they were staying. D.A. had been with her mother all day long. When she returned, defendant accused her of having sex with someone and hit her with a belt. When the police responded to a report of a domestic disturbance and knocked on the door to the motel room, defendant was with her in the room. D.A. was crying and had a swollen lip.

D.A. did not immediately tell the police "everything that was going on." Later, the police asked D.A. some questions and she told them "bits and pieces," but she was still young, and she lied to cover up for defendant so he would not get in trouble. She told one officer that nothing physical had happened, and she told another officer that she had fallen and hit her head on a dresser. D.A. told the police she was a prostitute, but she said defendant did not make her give him all the money she earned. Instead, D.A. said she gave defendant money because she wanted to and because he protected her and bought her clothing. At first, D.A. denied that she had sexual intercourse with defendant but later admitted to having had sex with him three times. Eventually, she told the police defendant was upset when she came back to the motel late. He yelled at her, and then he took a belt and hit her once across the face. Although D.A. went home with her parents after that incident, she stayed in a relationship with defendant.

Defendant was also physically...

To continue reading

Request your trial
33 cases
  • People v. Montes
    • United States
    • California Court of Appeals Court of Appeals
    • January 15, 2021
    ...to ability to pay. ( People v. Taylor (2019) 43 Cal.App.5th 390, 400–401, 256 Cal.Rptr.3d 631 ; accord, People v. Oliver (2020) 54 Cal.App.5th 1084, 1100–1101, 269 Cal.Rptr.3d 201.) Courts have generally declined to apply the forfeiture doctrine where the minimum restitution fine was impose......
  • People v. Pettigrew
    • United States
    • California Court of Appeals Court of Appeals
    • March 25, 2021
    ...the unemployed defendant (who suffered from cerebral palsy ) had the ability to pay while she was on probation." ( People v. Oliver (2020) 54 Cal.App.5th 1084, 1100 ( Oliver ).) And in People v. Kopp (2019) 38 Cal.App.5th 47 ( Kopp ), review granted Nov. 13, 2019, S257844,8 our colleagues i......
  • People v. Cortez
    • United States
    • California Court of Appeals Court of Appeals
    • August 30, 2021
    ...v. Jones (2019) 36 Cal.App.5th 1028, 1035 [“Wages in California prisons currently range from $12 to $56 a month”]; see People v. Oliver (2020) 54 Cal.App.5th 1084, 1101.) Therefore, any trial court error in failing to appellant's ability to pay the other fines and fees was harmless at worst......
  • People v. Montoya
    • United States
    • California Court of Appeals Court of Appeals
    • September 16, 2021
    ..."Ordinarily, consent of the victim is not a defense unless lack of consent is an element of the offense." ( People v. Oliver (2020) 54 Cal.App.5th 1084, 1094, 269 Cal.Rptr.3d 201.) "Many sex crimes expressly include the element that the act was accomplished against the victim's will." ( Ibi......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT