Kondrot v. Russell

Filed 5/15/08 Kondrot v. Russell CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

Appeal from an order of the Superior Court of Orange County, Nancy A. Pollard, Judge. Affirmed.

Chris Russell, in pro. per., for Defendant and Appellant.

No appearance for Plaintiff and Respondent.

Christopher Russell appeals from a domestic violence restraining order issued for the protection of his former girlfriend, Kristen Kondrot. He contends the court: (1) failed to give him a full and fair hearing before issuing the order; (2) erred in holding the hearing prior to the disposition of criminal charges against him; and he challenges the sufficiency of the evidence to demonstrate that Kondrot was actually injured by any domestic violence. We affirm.

The record before us demonstrates the court did continue the hearing once, at the request of Russells counsel, and proceeded to hold the hearing on a subsequent date only after Russells counsel expressly agreed it was appropriate to do so. That was not error. Moreover, Russells claim the court denied him a full and fair hearing appears to be based upon its refusal to consider certain hearsay evidence consisting of a third-party witness statement and an investigators report which he proffered during the hearing. That was likewise not error, as neither the witness nor the investigator were present in court and available to be cross-examined.

And finally, Kondrots testimony, standing alone, was sufficient to support the conclusion she was the victim of domestic violence. We cannot reassess the credibility of that testimony, or any other aspect of the evidence, on appeal.

FACTS

Kondrot filed her request for a restraining order on September 21, 2006. In her application, Kondrot declared that she and Russell were living together, and either were or had been in a dating relationship. She related an incident of abuse that had occurred on September 16, 2006, when Russell came at me. I called the police, he broke my phone threw it at me said he was going to kill me, tried to prevent me from leaving the residence. She also claimed he [sho[o]k[] me, twisted me, pushed, grab[b]ed.

The case was initially set for hearing on February 26, 2006. At the commencement of that hearing, Russells counsel informed the court that Russells criminal case was set for a jury trial on March 13, 2006, and expressed concern that he would not be able to get a fair hearing on the restraining order while that case was pending. The court agreed that since the jury trial has already been set on March 13, Ill continue this. Ill reissue the restraining order for one more time. I just dont want it to be dragged on and on and on. The court continued the case to March 27, 2006.

At that continued hearing, Russells counsel reported that although the criminal case had not yet been resolved, it was going to be settle[d] that day, and he was ready to proceed with the restraining order hearing.^[1] Despite having been advised of his right against self-incrimination under the Fifth Amendment of the United States Constitution, Russell elected to waive that right and testify at the hearing.

Kondrot, who was not represented by counsel in the proceeding, testified first. She confirmed the content of her application for a restraining order, relating that the incident began when she returned from work and found Russell, who was not then employed, at home with a friend, Claudio. Kondrot believed that Russell and Claudio had been committing crimes and she did not want Claudio in her home. She insisted he leave, or she would call the police. She then went into her bedroom and shut the door.^[2]

Russell kicked open [the] door, came into the room, and started yelling. Kondrot told him get out or Im calling the police right now. Kondrot then got on the phone to call the police. [Russell] snapped my phone in half. I went running for the front door. Its a double dead bolt. You need a key to get out. He pulled the key. I went running for the sliding glass door. He tried to throw me down and prevent me from leaving and locking the door. I started screaming. I think he got scared and that is when I got outside and I left the residence.

Kondrot also testified that three or four weeks prior to the September 16, 2006 incident, she and Russell had gotten into a confrontation. Russell was drunk, and shook me so hard, I had severe, severe whiplash. Russell then drove her to the hospital, where she was treated and released after about four hours.

The next witness was Claudio Bicer, Russells friend who was present in the home at the beginning of the September 2006 incident. Bicer testified that when Kondrot came home, she told Russell to get [him] out of the house. Russell came out and apologized and then Bicer just left.

Russell then testified. With respect to the September 2006 incident, he claimed Kondrot had come home, and was immediately hostile and profane to him and Bicer. Bicer was uncomfortable and chose to leave. Russell tried to tell Kondrot that it was inappropriate to speak to people the way she had. She flipped open her phone, and he grabbed the top of it in an effort to calm her down and get her to talk to him. She then pulled away and hit him with her fist. He was afraid she would hit him again, possibly with the phone, and so he held it, causing the phone to snap[] in half. He then told Kondrot she was crazy, got up and left the room.

Russell further testified that after he stayed in the living room for a few minutes to let Kondrot calm down, he went back to the bedroom and knocked on the door. When she didnt answer, he entered. She told him to get out. He did. After approximately five more minutes passed, Kondrot came out of the bedroom, walked across the living room and through a sliding glass door into the back yard. She unlocked a padlock securing the back gate, removed the lock, and threw it over her shoulder as she exited.

Russell stated he later left the home to get some food, saw Kondrot at a nearby Wal-Mart, and again attempted to speak with her. She told him to get away, and he did. Approximately an hour after he had returned home with his food, Russell was visited by Sheriffs deputies who asked him to step outside and subsequently arrested him.

Russell also testified that Kondrot suffered from psychological issues, was possibly suicidal, and had engaged in self-mutilation during their relationship. He related one incident in which he had awakened in the middle of the night to find Kondrot standing at the foot of the bed with a large butcher knife crying. Russells response to that incident was that he grabbed my dog and blanket and pillow, and I went and barricaded myself in my office . . . and slept on the floor. Although he believed Kondrot was spiraling out of control, Russell never made any attempt to have her committed for treatment of these psychological issues.

Russells counsel also offered the court a statement from Mr. Francisco Garcia, but acknowledged he was not in court and available for cross-examination. The court rejected the statement on that basis. The court also rejected a proffered report . . . done by an investigator in Russells criminal case on the same basis. As the court explained: That is hearsay unless the investigator is here . . . .

After hearing the parties closing arguments, the court issued the requested restraining order. The court stated it found Russell to be lacking in credibility, and was particularly troubled by his claims regarding Kondrots alleged mental instability. Referring to the alleged incident in which Kondrot was standing at the end of the bed in the middle of the night, holding a butcher knife and sobbing, the court noted there could be no better justification for having someone committed under Welfare and Institutions Code section 5150, and it found the story highly incredible.

The court made findings that domestic violence had occurred, that Russell was the perpetrator, that he was not acting in self-defense, and that Kondrot was the victim. The court then issued a restraining order effective for a period of five years.

I

We recognize that Russell is representing himself in propria persona, and may not have the benefit of legal training. However, that does not affect the standards we must apply in determining whether he has sufficiently set forth his arguments on appeal.

When a litigant is appearing in propria persona, he is entitled to the same, but no greater, consideration than other litigants and attorneys . . . . (Nelson v. Gaunt (1981) 125 Cal.App.3d 623, 638.) Pro per litigants are restricted to the same rules of evidence and procedure as is required of those qualified to practice law before our courts. (Doran v. Dreyer (1956) 143 Cal.App.2d 289, 290.)

In this case, many of Russells contentions are not cognizable on appeal, because it is not enough for an appellant to merely allude to the existence of trial court errors, while leaving it to the appellate court to conduct what is, in essence, an independent review and analysis of the record. As explained in Eistrat v. J. C. Wattenbarger & Sons (1960) 181 Cal.App.2d 57, 63, [i]t is not the province of a reviewing court to search the record in order to ascertain whether it contains evidence that will sustain a contention made by either party to the appeal. Moreover, [w]hen an issue is unsupported by pertinent or cognizable legal argument it may be deemed abandoned and discussion by the reviewing court is unnecessary. (Landry v. Berryessa Union School Dist. (1995) 39 Cal.App.4th 691, 699-700.) It is not the appellate courts obligation to search for legal authority supporting a partys contentions. (Davies v. Krasna (1966) 245 Cal.App.2d 535, 560.)

Thus, the arguments made by Russell in support of his claim that the court denied him a full and fair trial are insufficient. For example, Russell complains that the court refused to allow evidence supporting my innocence, such as the synopsis from my private investigator and refusal to consider the sworn written testimony of my witnesses, Francisco Garcia and Andrew Hoover who could contribute compelling evidence substantiating my innocence. He cites Evidence Code sections 1237, 1324, 1370 and 1380 in support of his implicit contention that the courts refusal constituted error. What he does not do is: (1) describe the substance of the evidence he contends was wrongfully excluded; (2) offer any citations establishing the location of either the evidence or the courts rulings regarding its exclusion in our record; (3) explain how that evidence relates to the issues in dispute; (4) set forth the substance of the statutes he cites; or (5) explain how those statutes relate to either the evidence or the courts refusal to consider it.

Russell also asks us to take note of . . . statements made by Ms. Kondrot at the trial of this matter that are inconsistent with her police report. Although he does provide citations to record for the allegedly inconsistent testimony, he makes no effort to relate that testimony to the police report, which is not in our record; and he does he even attempt to characterize the inconsistencies or why they would be of particular significance. This effort is insufficient on its face to demonstrate any error.

In any event, we have no problem determining the trial court acted correctly in rejecting both Russells proffer of a statement from Mr. Garcia, and his proffer of the investigators report.^[3] Because neither Garcia nor the investigator were present and available for cross-examination at the hearing, both the statement and report were inadmissible as evidence . (Evid. Code,  1200.)^[4]

With respect to the alleged inconsistencies between Kondrots police report and her testimony, it is the job of the trier of fact in this case the trial court to ascertain their significance. On appeal, we must presume in favor of the trial courts order, and indulge all inferences in support of it. (In re Marriage of Arceneaux (1990) 51 Cal.3d 1130, 1133.) On the record before us, there is simply no basis to conclude the court erred.

II

As to Russells claim the evidence is insufficient to support the conclusion Kondrot was actually the victim of domestic violence, the law is clear that Kondrots claim of injury, given under oath, is sufficient in and of itself to establish the truth of her claim.

Except where additional evidence is required by statute, the direct evidence of one witness who is entitled to full credit is sufficient for proof of any fact. (Evid. Code, 411.) Although an appellate court will not uphold a judgment or verdict based upon evidence inherently improbable, . . . [t]o warrant the rejection of the statements given by a witness who has been believed by a trial court, there must exist either a physical impossibility that they are true, or their falsity must be apparent without resorting to inferences or deductions. [Citations.] Conflicts and even testimony which is subject to justifiable suspicion do not justify the reversal of a judgment, for it is the exclusive province of the trial judge or jury to determine the credibility of a witness and the truth or falsity of the facts upon which a determination depends. [Citation.] [Citations.] (Bradley v. Perrodin (2003) 106 Cal.App.4th 1153, 1166, quoting People v. Thornton (1974) 11 Cal.3d 738, 754, emphasis added; disapproved on other grounds in People v. Flannel (1979) 25 Cal.3d 668, 684, fn. 12.)

In this case, Kondrot testified not only to the incident in September of 2006, but also to a separate incident approximately a month earlier, in which Russell had shaken her so badly she sustained a severe whiplash and had to be treated at a hospital. While Russell may argue strenuously that this claim was fabricated, the court was entitled to conclude otherwise, based upon its own determination that Kondrots testimony was the more credible.

III

Finally, Russell asserts the court erred in holding the hearing prior to the disposition of criminal charges against him. However, he waived any such claim when he through his counsel expressly agreed that it was appropriate to proceed. By failing to object at that time, he lost the ability to do so now. (Saret-Cook v. Gilbert, Kelly, Crowley & Jennett (1999) 74 Cal.App.4th 1211, 1228 [arguments not made in the trial court are waived for purposes of appeal.].)

The order is affirmed. As Kondrot has made no appearance on appeal, no costs are awarded.

BEDSWORTH, J.

WE CONCUR:

SILLS, P. J.

ARONSON, J.

Publication Courtesy of California free legal resources.

Analysis and review provided by Spring Valley Property line Lawyers.

San Diego Case Information provided by www.fearnotlaw.com

^[1] Russell has requested we take judicial notice of the dismissal of the criminal case. The request is denied, because the mere pendency of a criminal case as opposed to a conviction is irrelevant to the issuance of the restraining order in this case. We would also refuse a request to take judicial notice of a conviction if there had been one.

^[2] According to Kondrot, at the time of the September incident, she and Russell had been broken up for about six months, and were occupying separate bedrooms in the home. They were both in the midst of preparations to move out.

^[3] Our record does not reflect any effort to introduce evidence from Andrew Hoover.

^[4] Evidence Code section 1200 states in pertinent part: (a) Hearsay evidence is evidence of a statement that was made other than by a witness while testifying at the hearing and that is offered to prove the truth of the matter stated. [] (b) Except as provided by law, hearsay evidence is inadmissible.