target="D060323_files/props0002.xml">
Olvera v. Giles
Filed 7/10/13
Olvera v. Giles CA4/1
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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115
COURT
OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION
ONE
STATE
OF CALIFORNIA
CHERI OLVERA,
Plaintiff and Appellant,
v.
BRIAN GILES,
Defendant and Respondent.
D060323
(Super.
Ct. No. 37-2008-00096893-CU-CO-CTL)
APPEAL from a judgment of the
Superior Court of
County, Jeffrey B. Barton, Judge.
Affirmed.
Herronlaw, Matthew V. Herron;
Stephen M. Hogan; BarryFiske and Su L. Barry for Plaintiff and Appellant.
Law Office of James D. Scott and
James D. Scott; McKenna Long & Aldridge and Charles A. Bird for Defendant
and Respondent.
Appellant Cheri Olvera and
respondent Brian Giles lived together from April 2003 to June 2008. When the relationship ended, Olvera sued
Giles for breach of contract, seeking $10 million in damages, and for
theories. Giles cross-complained for
damages for domestic violence, for return of a diamond engagement ring he
alleged was valued at almost $108,000 and for conversion of personal property.
After several days of trial, the jury returned a verdict awarding
Giles the engagement ring and denying both parties all other relief. In so doing, the jury found that both Olvera
and Giles "intentionally or recklessly" caused or attempted to cause
bodily injury to each other, or to place the other "in reasonable
apprehension of imminent serious bodily injury," but that neither Giles's
nor Olvera's actions or conduct caused the other "to suffer injury,
damage, loss or harm."
Olvera does not challenge, at least directly, any of the jury's
findings. Instead, she attacks a single
evidentiary ruling of the trial court,
contending the court erred when, pursuant to Evidence Code
the source of a surveillance video played in part for the jury concerning an
alleged domestic violence incident captured on the video involving her and
Giles that took place in 2006 in a bar in Phoenix.
According to Olvera, because witnesses called by Giles testified that
Olvera previously had told them she had a copy of a video that, if necessary,
she would use against Giles, Olvera contends she should have been allowed to
testify that she received a copy of the video from Arizona prosecutors with
whom she refused to cooperate, who had charged Giles with misdemeanor domestic
violence arising from the 2006 bar incident.
Olvera further contends that if this evidence had been admitted, it
would have rebutted Giles's argument that Olvera possessed the video in order
to get money from him and would have led to a contrary finding that she was in
fact harmed by Giles's acts of domestic violence.
As we explain, we reject Olvera's contentions and affirm the judgment.
A. Brief Overview
Giles was a professional baseball
player. Giles and Olvera met in October
2001. At some point after they began
dating, Olvera moved in with Giles while he played for the Pittsburgh Pirates. They lived together, including while Giles
played in San Diego for the San Diego Padres, until June 2008 when Olvera moved
back to Houston, Texas.
The record shows that Olvera and Giles accused each other of engaging
in acts of domestic violence against the other.
Olvera proffered testimony that during the course of their six-year relationship,
Giles was abusive and controlling and would hit, grab, push and kick her. Olvera admitted that many times she and Giles
would argue while they were drinking alcohol.
Giles disputed this testimony and proffered his own testimony that
particularly after she had been drinking, Olvera often started vulgar arguments
with him in the presence of others and that Olvera hit, or threatened to hit,
Giles and his friends and also threatened to end prematurely his professional
baseball career by poking out his eye with the spike of her high heel shoe.
B.
Of significance in this proceeding, in 2006 an
incident occurred between Olvera and Giles in a bar in Phoenix, Arizona (the
bar incident). Olvera testified the
incident occurred on August 27 after Giles had played a day baseball game in
Colorado. Olvera did not attend that
game but instead met Giles in Phoenix where Giles was scheduled to play
next. Olvera had a "few"
alcoholic beverages while on the flight to Phoenix and another alcoholic
beverage at the hotel bar while she waited for Giles to arrive. After dinner, they went to the bar where the
incident occurred. The parties agree
they argued while at the bar and were not getting along. Giles testified Olvera seemed a "little
drunk" at the bar. Olvera instead
claimed she was merely "tipsy."
At some point, Giles insisted they leave the bar. He paid the bill and turned to walk out. Olvera testified she believed they both
needed some time to cool off and thus she decided to remain at the bar. Olvera testified Giles returned to the bar,
grabbed her by the back of the neck and demanded she leave with him. At that point, Olvera got up and walked in
front of Giles to leave the bar.
The parties dispute what happened next. Olvera testified that once they walked past
some curtains toward the exit of the bar, Giles again grabbed her by the neck
and pushed her to the ground. Giles,
however, testified that when they went down a dark hallway and through the
curtains to leave the bar, a stranger approached Giles and told him not to talk
to the "lady" like that and that shortly thereafter Olvera fell to
the ground because she was intoxicated and was wearing very high heels. The bar incident was recorded by the bar's
video surveillance camera, and a portion of it was admitted into evidence and
played for the jury.
The Phoenix police investigated the bar incident, interviewed
eyewitnesses and obtained the video surveillance of the incident. As a result of that investigation, Giles was
charged with misdemeanor battery. Giles subsequently entered a plea of nolo
contendere, or no contest, to the charge subject to his successfully completing
an anger management course and his attending Alcoholics Anonymous (AA)
meetings. When Giles completed these
requirements, the case was dismissed.
DISCUSSION
A. Brief
Additional Background
Giles pretrial
moved to exclude evidence of his nolo contendere plea arising from the bar
incident, the police report of that incident and the video surveillance tape
from the bar.
title="">[2] The court ruled to exclude under Penal Code
section 1016, subdivision (3) any evidence of Giles's nolo contendere plea.
any reference to the anger management classes and AA meetings Giles attended
and, unless Olvera could lay a foundation for its admission, to exclude the
police report of the bar incident.
However, as to the surveillance video, the court ruled it would conduct
an Evidence Code section 402 hearing to determine whether Olvera also could lay
a foundation for its admission into evidence.
The record
shows Olvera authenticated the surveillance video through the deposition
testimony of a Phoenix city attorney who had been subpoenaed to testify. Olvera also testified regarding the events
depicted on a portion of the surveillance video. The court ruled that three "clips"
of the tape could be played at trial.
Immediately
after Olvera finished testifying regarding the bar incident, the jury was shown
the portion of the surveillance tape ruled admissible by the trial court. Using a "pointer," Olvera described
for the jury what she believed the tape showed, including Giles pushing her to
the ground after they had walked through the curtains toward the exit.
Giles
subsequently called Denise Vierra as a witness.
Vierra testified she and Giles's sister, Kamila Fraser, were best
friends. Vierra testified that one
evening in December 2006, she and her husband went to the home where Giles and
Olvera were living and, at some point that night, Olvera got mad and threw an
iPod and docking station that were playing music in the front of the
house. When Giles responded that Olvera
should leave, Vierra testified that Olvera "went after" Giles. Vierra intervened and grabbed Olvera's arm to
keep her from Giles. Later that same
evening, Vierra testified Olvera, who was still angry at Giles, claimed she had
"something" on Giles "and that he [Giles] better not mess with
her." Vierra testified that it was
not until later that she actually saw the video of the bar incident.
Fraser also
testified regarding this incident in December 2006. Fraser said Olvera became enraged because a
"playlist" created by a friend of Giles allegedly had made Olvera
jealous. When Olvera "went
after" Giles, Fraser testified she and Vierra intervened, pulled Olvera
aside and took her into the office area of the home. At that point, Olvera was "very
upset" and "intoxicated" and started "badmouthing"
Giles, saying she "hated him."
It was during this "rant[]," according to Fraser, that Olvera
said she "had a tape somewhere hidden in the home that if he [Giles]
pushed her if she needed to she'd [Olvera] use it against him, and it would
ruin him [Giles]." When Fraser
asked Olvera to elaborate, Olvera declined other than to say there was an
"incident" in Phoenix. Fraser
testified this was the first time she had heard about a tape or an
"incident" in Phoenix.
At the
conclusion of Fraser's testimony, at a sidebar, Olvera asked the court to conduct
a section 402 hearing on the issue of whether Olvera should be allowed to
examine Fraser regarding her knowledge of the bar incident and, specifically,
whether she then knew her brother had been charged for misdemeanor battery as a
result. Although the trial court had
ruled to exclude evidence of Giles's criminal prosecution stemming from the bar
incident, Olvera argued the court should revisit that ruling, given Fraser's
testimony regarding Olvera's statements about the tape during the December 2006
incident, and allow her "to admit a portion of the criminal case as part
of [her] case."
In the section
402 hearing, Fraser testified that at the time of the incident in December 2006
when Olvera during her "rant" mentioned a tape, Fraser did not know
about the bar incident or that a misdemeanor complaint dated November 1,
2006—or any "official proceedings"—had been filed against her
brother. Moreover, Fraser testified that
when Olvera mentioned the tape that evening, Fraser did not even know what
Olvera was talking about, and the only information she then had was the
information provided by Olvera. Fraser
stated that Olvera never said where she got the tape and, in fact, Fraser at
that time was unsure whether the "tape" Olvera was talking about was
an audiotape or a videotape.
Fraser
testified she approached her brother about a week later, told him what Olvera
had said the night they had all been together and asked him if any of it was
true. According to Fraser, Giles then
explained to her what had happened in Phoenix.
At the
conclusion of the hearing, Olvera asked the court to admit into evidence the
one-page misdemeanor complaint against Giles.
The court denied that request, and Olvera excused Fraser as a witness.
Olvera
subsequently revisited the issue of admitting the one-page misdemeanor
complaint when she notified the trial court that she had used the wrong exhibit
number in referring to the document. In
response, the court stated it had not admitted the document, although it had
taken judicial notice of it and had ruled to exclude the plea of nolo
contendere pursuant to Penal Code section 1016, subdivision (3).
The record
shows Olvera next asked the trial court to admit the one-page misdemeanor
complaint to impeach Fraser's testimony regarding her lack of knowledge of the
August 2006 bar incident at the time of the December 2006 incident, when Olvera
first mentioned the tape and the "incident" in Phoenix:
"[Olvera's
counsel]: Your Honor, and just -- we sort of did this in a rush yesterday with
the witness [i.e., Fraser] and the [section] 402 [hearing], but what I -- I
didn't say it then. [¶] What I meant to say was Ms. Fraser's
testimony about the video discussion that occurred at Christmastime at that
point in time when she testified she didn't know about this complaint against
her brother is -- should -- that this document is now -- just the complaint,
not [the] plea, but just the one-page complaint should be admitted for that
purpose, and we should be able to argue that that testimony is not believable,
given the fact that this case had been filed against her brother by then. [¶] . . . [¶]
"THE
COURT: Okay. I think the [section] 402 hearing that we
held regarding her testimony did allow the plaintiff to explore the issue. And I think her testimony that she was not
aware of that until after Ms. Olvera made the statement and she talked to her
brother right after or days after -- I can't remember exactly what she said --
would obviate the need for the admission of that conviction record. It would also constitute impeachment on a
collateral issue. [¶] So I think we'll leave it at that, unless
there's something else.
"[Olvera's
counsel]: Just on this topic, if we have a moment. It would be our intent with Ms. Olvera on
rebuttal to ask her about this video, where it came from, when she got it, and
for what purpose. And the testimony, the
tenor of the testimony would be is that the prosecutor contacted her, provided
the video, asked her to look at it, because she was reluctant in terms of cooperating
as a witness in that proceeding.
[¶]
. . . Plaintiff believes . . . that Ms.
Olvera should be able to explain what the video was and how she got it.
"THE
COURT: Okay. Why doesn't each side give that some thought,
and we'll show up at 8:45 on Monday, and we'll argue that further."
The record
shows that when trial reconvened, Olvera argued she should be able to testify
she received the video of the bar incident from a prosecutor because otherwise,
"the jury's given a completely false impression about what this video was
and that somehow Ms. Olvera had obtained something, maybe directly from the
bar, to be used to attempt to extort Mr. Giles." In response, Giles argued the fact Olvera
obtained the video from the prosecutor was "just remotely probative and
certainly outweighed by the prejudicial effect." The trial court subsequently ruled during a
sidebar conference that Olvera could not testify that she obtained the tape of
the bar incident from a prosecutor at the same time it denied Giles's request
to examine Olvera regarding a $1,500 check she had written from Giles's bank
account to a friend of hers that Giles claims was to purchase Vicodin.
B. Governing
Law and Standard of Review
As noted ante, Olvera
contends the trial
court erred in excluding evidence regarding how she came into possession of the
surveillance video from the bar. The
record shows the court excluded this evidence under section 352, which in part
states: "The court in its
discretion may exclude evidence if its probative value is
substantially outweighed by the probability that its admission will . . .
create substantial danger of undue prejudice, of confusing the issues, or of
misleading the jury."
We review the trial court's decision
to exclude evidence under section
(2006) 142 Cal.App.4th 154, 168 (Thompson).) "Under this standard, the trial court's
ruling will not be disturbed, and reversal of the judgment is not required,
unless the trial court exercised its discretion in an arbitrary, capricious, or
patently absurd manner that resulted in a manifest miscarriage of justice. [Citation.]" (Ibid.)
"'If a
proper objection under section 352 is raised, the record must affirmatively
demonstrate that the trial court did in fact weigh prejudice against probative
value. The trial court need not make
findings or expressly recite its weighing process, or even expressly recite
that it has weighed the factors, so long as the record as a whole shows the
court understood and undertook its obligation to perform the weighing
function. [Citations.]' [Citation.]" (Boeken
v. Philip Morris Inc. (2005) 127 Cal.App.4th 1640, 1685.)
A trial court
has broad discretion to exclude under section 352 otherwise relevant evidence
where its probative value is substantially outweighed by the probability that
its introduction will create a substantial danger of undue prejudice. (§ 352; Thompson, supra, 142 Cal.App.4th at p.
171.) "[E]vidence should be excluded as unduly
prejudicial when it is of such nature as to inflame the emotions of the jury,
motivating them to use the information, not to logically evaluate the point
upon which it is relevant, but to reward or punish one side because of the
jurors' emotional reaction. In such a
circumstance, the evidence is unduly prejudicial because of the substantial
likelihood the jury will use it for an illegitimate purpose." (Vorse v. Sarasy (1997) 53 Cal.App.4th
998, 1009.) In other words, evidence is
unduly prejudicial where it has very little effect on the issues but uniquely
tends to evoke an emotional bias against one party and thus poses an
intolerable risk to the fairness of the proceedings. (Ajaxo Inc. v. E*Trade Group Inc.
(2005) 135 Cal.App.4th 21, 45; Piscitelli v. Salesian Society (2008) 166
Cal.App.4th 1, 11.)
C. Analysis
Although
Olvera does not challenge directly the rulings of the trial court excluding
from evidence Giles's nolo contendere plea to the misdemeanor battery charge
arising from the bar incident, or the police report and one-page misdemeanor
complaint filed against Giles in that incident, her contention the court erred
when it refused to allow her to testify she obtained the video of the bar
incident from a prosecutor is tantamount to a challenge to those very
rulings.
Indeed, the
record shows that after Vierra and Fraser testified regarding the statements
made by Olvera during her "rant" in December 2006 when Olvera threw
the iPod and docking station, Olvera initially sought to introduce into evidence
the one-page November 1, 2006 complaint charging Giles with misdemeanor
battery. It was only after the trial
court denied Olvera's multiple requests to admit the complaint that she sought
to introduce her own testimony that the prosecutor in the bar incident gave her
the surveillance video.
Assuming
arguendo the source of the video was relevant evidence (Evid. Code,
§ 350), we conclude the trial court properly exercised its discretion
under Evidence Code section 352 when it excluded Olvera's testimony about the
source of the video, Giles's nolo contendere plea, the police report regarding
the bar incident and the one-page complaint charging Giles with the misdemeanor
crime, given the language of Penal Code section 1016, subdivision (3) and given
the finding of the trial court—which we conclude is supported by substantial
evidence—that the probative value of such evidence was substantially outweighed
by the danger of undue prejudice. (See
Evid. Code, § 352, subd. (b).)
Moreover, we
separately conclude the trial court properly exercised its discretion in
excluding this evidence as its admission likely would have necessitated an
"undue consumption of time" as provided in section 352, subdivision
(a), embroiling the jury in a mini-trial on what was then a five-year-old
misdemeanor matter. Our conclusion is
buttressed by the fact that at the time of the bar incident, Olvera refused to
cooperate with law enforcement, a fact that gave rise to multiple inferences both
favorable and unfavorable to Olvera, as noted by Giles, and by the fact that
both parties engaged in myriad acts of domestic
violence against each other—as found by the jury—throughout the course of
their relationship. (See
863, 946 [noting that a trial court does not abuse its discretion in excluding
under section 352 marginally relevant evidence in order "'to prevent
. . . trials from degenerating
into nitpicking wars of attrition over collateral . . . issues'"].)
In addition,
we note that it was Olvera—and not Giles—who played portions of the video for
the jury and extensively relied on the video to support her domestic violence
cause of action against Giles. We
further note Giles did not argue for any inference about how Olvera obtained
the video and, in fact, the record shows Giles moved in limine to exclude
altogether evidence of the video. We
thus conclude that when Olvera played portions of the video to the jury over
the objection of Giles, she herself opened the door to the limited testimony of
Vierra and Fraser regarding Olvera's statements in December 2006 about having
"something" she could use against Giles if he displeased her.
We also reject
Olvera's contention that evidence regarding the source of the video was
admissible under section 356.
name="_ftnref5" title="">[5] This section provides: "Where part of an act, declaration,
conversation, or writing is given in evidence by one party, the whole on the
same subject may be inquired into by an adverse party; when a letter is read,
the answer may be given; and when a detached act, declaration, conversation, or
writing is given in evidence, any other act, declaration, conversation, or
writing which is necessary to make it understood may also be given in
evidence."
Courts have qualified
Evidence Code section 356, and its precursor, Code of Civil Procedure section
1854, "to the extent that the court may in its discretion exclude those
portions of a statement which in no way tend to explain the inconsistency
between the admission of a party and [the proffered] testimony." (Berg
v. Sonen (1964) 230 Cal.App.2d 434, 441 (Berg).)
Here, the
testimony Olvera was not allowed to introduce—regarding the source of the
video—did not explain any inconsistency involving the video evidence already
admitted (see Berg,
was it necessary to make her statements from the December 2006 incident
"understood" for purposes of section 356.
The same is
true with respect to the testimony of Vierra and Fraser. As to Vierra, she did not even mention the
video in her testimony, instead stating that Olvera made statements in December
2006 that she had "something" on Giles and that he better not
"mess" with her, or words to that effect.
As to Fraser,
the record shows the court conducted a hearing pursuant to section 402 and,
based on Fraser's testimony, was satisfied that when Olvera told Fraser in
December 2006 that she had some sort of tape and would use it if necessary
against her brother, Giles, Fraser then did not know about the bar incident or
the surveillance video. We thus conclude
there was no error under section 356 when Olvera was precluded from giving
testimony regarding the source of the video of the bar incident. (See Sprague
v. Equifax, Inc. (1985) 166 Cal.App.3d 1012, 1035 [noting that the
remainder of an item of evidence is admissible under § 356 "'if it
has "'some bearing upon, or connection with, the admission or declaration
in evidence,'"'" but also noting that in such circumstances,
"admission of the rest of a statement is limited to those parts relevant
to or necessary for an understanding of the part already admitted"].)
Finally, for
the reasons given ante, we reject
Olvera's contention that even without section 356 she should have been able to
testify regarding the source of the video of the bar incident to explain her
"own conduct" concerning the video.
In support of her contention, Olvera relies on Brooks v. E. J. Willig Truck Transp. Co. (1953) 40 Cal.2d 669 (
Briefly, in
jury that an employee's decision to drive away from the scene of an accident
might be considered as a circumstance showing "consciousness of
responsibility" on the employee's part for the accident and death of a
pedestrian. (Brooks, supra, 40 Cal.2d
at p. 676.) In affirming this
instruction, the court noted that the failure to stop and render aid supported
an inference of responsibility and noted this inference "of course, may be
refuted, and a defendant is entitled to explain his [or her]
conduct." (Ibid.) The court further
noted that the trial court had erred when it refused to allow the employee to
explain why he did not stop and render aid after he hit the victim but that no
prejudice resulted from the error because that evidence was developed elsewhere
and because the defendant employer's own attorney acquiesced in the trial
court's ruling. (Ibid.)
Here, Olvera
does not challenge any of the jury instructions or the inferences to be drawn from
those instructions, unlike the defendant in Brooks. For this reason alone, we find
the trial court from explaining why he did what he did, in the instant case
Olvera was not precluded from testifying regarding the statements she made to
Vierra and Fraser during her "rant" in December 2006, including, by
way of example only, that she did not make those statements, or if she did,
what she meant by them.
name="_ftnref6" title="">[6]
Because, as
noted ante, the trial court properly exercised its discretion in excluding
Olvera's testimony regarding the source of the video of the bar incident
pursuant to section 352, and because Olvera in any event was not prohibited
from testifying concerning the December 2006 incident and the various
statements attributed to her stemming from that incident, we conclude for these
separate reasons that Brooks does not
apply here.
title="">[7]
DISPOSITION
The judgment
is affirmed. Costs on appeal are awarded
to Giles.
BENKE, J.
WE CONCUR:
McCONNELL,
P. J.
McDONALD,
J.
name="_ftn1" title="">[1] All statutory references are to the
Evidence Code unless otherwise noted.
name="_ftn2" title="">[2] The record does not include Giles's
motion in limine to exclude the surveillance video.
