Filed 3/26/18 R.G. v. Pena CA5


NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

R.G.,

Plaintiff and Respondent,

v.

GRISELDA PENA,

Defendant and Appellant.

F073699

(Super. Ct. No. 15CEFL06406)


OPINION

THE COURT*
APPEAL from a judgment of the Superior Court of Fresno County. D. Tyler Tharpe, Judge.
Griselda Pena, in pro. per., for Defendant and Appellant.
Joel M. Murillo for Plaintiff and Respondent.
-ooOoo-
Appellant Griselda Pena appeals following the denial of her motion to reconsider or dismiss a domestic violence restraining order issued against her under California’s Domestic Violence Prevention Act (DVPA). Appellant contends the court abused its discretion when issuing the restraining order because she did not commit an act of domestic violence. Appellant also contends the court prejudicially erred when it rejected her evidence regarding the incident, offered in the form of police reports. For the reasons set forth below, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
The incident leading to the domestic violence restraining order in this case arose out of a dispute between appellant and her former live-in boyfriend, R.G. Although the events leading to the relationship’s conclusion are unclear, it appears the two owned a property in Madera and lived together until the boyfriend left the house unexpectedly and, apparently, entered into a relationship with another woman. A dispute over the property then arose, which led to a separate litigation between the two.
According to appellant, on the night in question she arrived at R.G.’s new residence late at night, knowing he would be home, to discuss their pending litigation peacefully, because she was unable to reach him otherwise. R.G.’s daughter met her outside, was rude to her, and both parties called the police. Appellant claims the police told her to leave and she did so. She contends no domestic violence occurred.
R.G. provided a different version of facts. According to him, appellant arrived at his new home yelling and screaming. She tried to open the door but could not, then turned to knocking on his bedroom window. R.G.’s daughter then went outside to tell appellant to leave and, ultimately, called the police. The police arrived and told appellant to leave. She complied, but returned later. At that time, she left a threatening voicemail message telling R.G. that she knew his car and movements, and that at any moment she could appear in front of him. R.G. also detailed several incidents of alleged violence from when the two lived together and explained the latest incident caused him to suffer from anxiety.
Appellant alleges much of R.G.’s story is fabricated. At the hearing, she attempted to introduce police reports suggesting the police had not actually come to the residence. These documents were not accepted by the court, although the court asked appellant specifically about her version of events. Appellant stated the police never arrived. The court also asked appellant directly whether she had left R.G. “a voicemail where you said something to the effect, I know where you work, I know where you go, I’m going to find you, I’m going to stand in front of you and we’re going to talk about these things . . . ?” Appellant responded “No.” A later playback of R.G.’s voicemail messages included the following statement, “So therefore, call me and . . . listen carefully what—to what I’m going to tell you, I know all the places where you go. I know every place where you go. I know what you do. I know where you go, where you go. I know absolutely all of that and you know that that is so, okay. So if you . . . do not answer my phone call as a true, man, as it should be, you know that the one that is going to see this woman in front of you on the day that you least expect so just keep that in mind. I will be—I will appear in front of you.”
Based on the statements made by appellant in the voicemail, the court determined it was “satisfied that a two year domestic violence restraining order should go in place” and issued such an order. Appellant later moved the court to reconsider or dismiss the restraining order based on additional facts she claimed demonstrated R.G. was lying in his testimony. The court found appellant did not meet the burden to explain why such documents and evidence were not offered at the first hearing and confirmed the evidence received was sufficient to satisfy the requirements for a domestic violence restraining order.
This appeal timely followed.
DISCUSSION
Appellant argues two errors. In the first, she contends the evidence was insufficient to support a domestic violence finding and, thus, the court abused its discretion. In the second, appellant contends the court prejudicially erred by rejecting her proffered evidence concerning whether the police arrived at R.G.’s home.
Standard of Review and Applicable Law
“A granting or denial of injunctive relief is generally reviewed by the appellate court based upon the abuse of discretion standard. [Citation.] This standard applies to the grant or denial of a protective order under the DVPA. [Citations.] In reviewing the evidence, the reviewing court must apply the ‘substantial evidence standard of review,’ meaning ‘ “whether, on the entire record, there is any substantial evidence, contradicted or uncontradicted,” supporting the trial court’s finding. [Citation.] “We must accept as true all evidence . . . tending to establish the correctness of the trial court’s findings . . . , resolving every conflict in favor of the judgment.” ’ ” (Burquet v. Brumbaugh (2014) 223 Cal.App.4th 1140, 1143.)
Under Family Code section 6203, subdivision (a), “ ‘abuse’ [under the DVPA] means any of the following: [¶] (1) To intentionally or recklessly to cause or attempt to cause bodily injury. [¶] (2) Sexual assault. [¶] (3) To place a person in reasonable apprehension of imminent serious bodily injury to that person or to another. [¶] (4) To engage in any behavior that has been or could be enjoined pursuant to Section 6320.” Under subdivision (b), “[a]buse is not limited to the actual infliction of physical injury or assault.” Family Code Section 6320, subdivision (a) further provides: “The court may issue an . . . order enjoining a party from molesting, attacking, striking, stalking, threatening, sexually assaulting, battering, credibly impersonating as described in Section 528.5 of the Penal Code, falsely personating as described in section 529 of the Penal Code, harassing, telephoning, including, but not limited to, making annoying telephone calls as described in Section 653m of the Penal Code, destroying personal property, contacting, either directly or indirectly, by mail or otherwise, coming within a specified distance of, or disturbing the peace of the other party, and, in the discretion of the court, on a showing of good cause, of other named family or household members.” (See Burquet v. Brumbaugh, supra, 223 Cal.App.4th at pp. 1143–1144.) Disturbing the peace is broadly interpreted to mean destroying the mental or emotional calm of the other. (Id. at pp. 1146–1147)
With respect to the contested evidentiary rulings, “[a]lthough the complete exclusion of evidence intended to establish an accused’s defense may impair his or her right to due process of law, the exclusion of defense evidence on a minor or subsidiary point does not interfere with that constitutional right. [Citation.] Accordingly such a ruling, if erroneous, is ‘an error of law merely,’ which is governed by the standard of review announced in People v. Watson (1956) 46 Cal.2d 818, 836.” (People v. Cunningham (2001) 25 Cal.4th 926, 999.) Under this standard, “the judgment should be reversed only if it is reasonably probable that the defendant would have obtained a more favorable result absent the error.” (People v. Garcia (2008) 160 Cal.App.4th 124, 133.)
The Court Did Not Abuse Its Discretion
Appellant’s primary argument before this court is that her conduct was not sufficient to satisfy the definition of harassment under Code of Civil Procedure section 527.6. More broadly, appellant contends none of her conduct rose to the level of abuse warranting a restraining order, focusing on the fact the police reports do not allege a crime was committed when she was at R.G.’s house. We do not agree.
As noted above, the grounds upon which a domestic violence restraining order may issue are much broader than any physical abuse or statutory harassment. Indeed, domestic violence in this context does not require actual physical violence, abuse is enough, which can include merely disturbing the peace of another. (Phillips v. Campbell (2016) 2 Cal.App.5th 844, 852–853.) In this case, appellant was asked whether she had left any potentially threatening messages for R.G. as a result of the incident in question. In response, appellant wrongly stated she had left no such messages. When the court was played a message directly contradicting appellant’s statement, it concluded it had sufficient evidence to support the restraining order.
Upon review, we must make all reasonable inferences in support of the judgement. Here, it was reasonable for the court to rely on appellant’s failure to accurately describe her conduct on that evening to conclude that appellant’s conduct was intended to harass or otherwise disturb the peace of R.G. The court could therefore reasonably reject appellant’s claim that the message was intended to be completely nonthreatening. Such conduct supports an injunction under Family Code section 6320 and, thus, was sufficient to support the court’s judgment.
Our conclusion does not change in light of the allegation the court improperly excluded evidence demonstrating R.G.’s narrative included falsehoods as well. The evidence offered allegedly contradicts the narrative that the police arrived and forced appellant to leave. Even if we accept this evidence as true and admissible, any error in excluding the evidence is harmless in this instance, as it would not have affected the court’s judgment. The court made clear it was relying on evidence concerning whether and why appellant left a voice message for R.G. to support the restraining order. Whether appellant was or was not contacted by the police during the relevant incident has no bearing on the court’s proper conclusion that she was dishonest about the nature of her conduct, its decision to issue a restraining order in light of that dishonesty, or appellant’s act of leaving a threatening message.
DISPOSITION
The judgment is affirmed. In the interests of justice, each side shall bear their own costs on appeal.