Opinion
E067408
02-09-2018
THE PEOPLE, Plaintiff and Respondent, v. ERIC NORMAN OLSEN, Defendant and Appellant.
Joshua L. Siegel, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Barry Carlton, Seth Friedman, and Sabrina Y. Lane-Erwin, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super.Ct.Nos. WHCJS1600164 & FWV038654) OPINION APPEAL from the Superior Court of San Bernardino County. William Jefferson Powell IV, Judge. Affirmed. Joshua L. Siegel, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Barry Carlton, Seth Friedman, and Sabrina Y. Lane-Erwin, Deputy Attorneys General, for Plaintiff and Respondent.
Defendant and appellant Eric Norman Olsen served a mere five years in prison after he admitted to committing lewd acts on children while working as a substitute teacher at elementary schools and pled no contest to six counts of lewd acts on a child. (Penal Code, § 288, subd. (a).) Defendant appeals from the trial court's order denying his motion to vacate under section 1473.6. We affirm.
Section references are to the Penal Code except where otherwise indicated.
FACTS AND PROCEDURE
On November 7, 2006, the People filed an information charging defendant with six counts of lewd acts on a child, involving six different Jane Does.
On February 16, 2007, defendant pled no contest to six counts of lewd acts on a child.
On July 6, 2007, the trial court sentenced defendant to five years in prison.
Defendant filed a petition for writ of habeas corpus in propria persona on July 18, 2008, in the trial court. The petition raised three grounds: selective prosecution, violation of the corpus delicti rule, and outrageous conduct by the prosecution by way of premature release of unsupported information to the press. The trial court denied the petition on July 21, 2008.
We hereby grant defendant's motion for judicial notice, filed April 3, 2017, of defendant's July 17, 2008, habeas corpus petition and the trial court's July 21, 2008, order denying the petition.
After defendant was released from custody in 2010 and discharged from parole in 2015, he filed a motion to vacate the judgment of conviction under section 1473.6. Defendant initially filed the motion in early 2016. On March 29, 2016, the trial court ruled the motion was, "[n]ot reviewable by trial court. Must proceed and shall be the same procedure as a writ of habeas corpus. Court grants People's Motion to strike the defendant's Motion to vacate for breach of victim's privacy rights without prejudice so that it may be refiled. Court further orders that Jane Does be protected from public disclosure by returning the Court copy to the Petitioner." Defendant refiled the motion on August 1, 2016. The court deemed it a petition for writ of habeas corpus.
The basis for defendant's motion was that, after conducting further review of the trial record, he discovered he could "establish factual innocence for the allegation which induced him to enter into the plea agreement." Defendant argued that the detective who provided the testimony that identified him for that allegation had committed perjury. Specifically, Detective Yarrington testified at the preliminary hearing that when he interviewed Jane Doe No. 3 at her current elementary school, she had identified defendant as a substitute teacher who played the trumpet. However, defendant attached to the petition a transcript of an undated interview with Jane Doe No. 3, in which Detective Yarrington brought up that defendant would make music in class and asked Jane Doe No. 3 if she remembered defendant making music with an instrument. Jane Doe No. 3 was unable to remember an instrument and then changed the subject.
Jane Doe No. 3 also spontaneously identified defendant by name. "My favorite one was Mr. Olsen. He was nice."
On October 31, 2016, the court denied the petition on three procedural grounds without addressing the substance of defendant's claim: first, defendant was no longer in actual or constructive custody; second, the petition was untimely; and third, defendant had already raised this same issue in a previous petition.
Defendant appealed.
DISCUSSION
Defendant argues the trial court erred when it denied his petition under section 1473.6 because it applied an incorrect legal standard and because the motion stated a prima facie case for relief. Defendant asks that the matter be remanded to the trial court to evaluate his motion under the correct legal standard. We conclude that, while section 1473.6 is the proper procedure for challenging a conviction when no longer in custody and defendant did not previously raise this issue in his petition for habeas corpus, the trial court properly denied the petition because it was untimely.
Section 1473.6, subdivision (a), provides that a person no longer in custody may file a motion to vacate a judgment on the ground of "newly discovered evidence" that a government official: (1) committed fraud that undermines the prosecution's case; (2) provided false testimony at the trial; or (3) fabricated evidence.
More important for this appeal, subdivision (b) of section 1473.6 defines " 'newly discovered evidence' " as "evidence that could not have been discovered with reasonable diligence prior to judgment." Further, section 1473.6, subdivision (d), requires that such a motion "must be filed within one year of . . . [¶] The date the moving party discovered, or could have discovered with the exercise of due diligence" the misconduct or fraud of the government official.
Here, defendant bases his claim of government wrongdoing on the difference between Detective Yarrington's testimony at the preliminary hearing and the transcript of an interview Detective Yarrington had with Jane Doe No. 3, in which she could not remember that defendant played the trumpet. The problem for defendant is that preliminary hearing testimony is part of his "trial" record, and the interview of Jane Doe No. 3 was apparently transcribed on July 22, 2011. It appears that defendant has had his trial record since at least 2008, which is when he filed his petition for writ of habeas corpus. Defendant asserts in his petition that, "[t]he delay in the discovery of the claims and facts is not the fault of the defendant," and that he "had never previously possessed or read these documents." However, he does not specify when he came into possession of the documents so that the court could conclude that he complied with the one-year time limit set forth in section 1473.6, subdivisions (d), cited ante, that the motion "must be filed within one year of . . . [¶] The date the moving party discovered, or could have discovered with the exercise of due diligence" the misconduct or fraud of the government official.
We assume for the purpose of this appeal that the transcript was not part of defendant's trial record. --------
The trial court correctly denied the petition on the ground that it did not meet the timeliness requirements set forth in section 1473.6.
DISPOSITION
The court's order denying defendant's petition is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RAMIREZ
P. J. We concur: CODRINGTON
J. FIELDS
J.