Filed 3/15/22 Dominguez v. Sanchez CA2/2

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION TWO

APPEAL from an order of the Superior Court of Los Angeles County, Randall F. Pacheco, Judge. Affirmed.

Community Legal Aid SoCal, Sarah Reisman, Erica T. Embree, Janista Lee; Gibson, Dunn & Crutcher, Michael J. Holecek, Samuel Eckman, Melanie Sava and Jacob U. Arber for Appellant.

Pillsbury Winthrop Shaw Pittman, Bruce A. Ericson and Pauleen Truong for the Domestic Violence Legal Empowerment and Appeals Project, the California Women’s Law Center, Sanctuary for Families, Inc., the Cyber Abuse Task Force, the Family Violence Appellate Project, and the Victim Rights Law Center as Amici Curiae on behalf of Appellant.

No appearance for Respondent.

* * * * * *

Salina Sanchez (appellant) appeals from an order denying her petition for a domestic violence restraining order (DVRO) against Edward Dominguez (respondent). Appellant argues that the trial court abused its discretion in admitting into evidence a recording made on respondent’s cell phone. Appellant argues that no substantial evidence supports the trial court’s factual determination that the recording was not surreptitious, and the trial court was required to make an additional determination that appellant affirmatively consented to the recording. Appellant further argues that the admission of the recording constituted a miscarriage of justice, and the trial court applied the wrong legal standard in denying her petition for a DVRO.

We find substantial evidence in the record that supports the trial court’s decision on the factual issue of appellant’s knowledge of the recording. As to consent, appellant forfeited this issue by failing to raise it in the trial court. Further we find that even if the recording had been admitted in error, such error would be harmless under the circumstances of this case, as ample additional evidence supported the trial court’s decision that a DVRO was not warranted.

As to the issue of the proper legal standard applied by the trial court, appellant forfeited the issue by failing to raise it below. Appellant has failed to meet her burden of showing reversible error, and we affirm the order.

BACKGROUND

Appellant and respondent, who do not live together, have a two-year-old daughter, E. In May 2020 respondent filed a petition for custody of E.

Appellant’s allegations

Appellant filed a request for a DVRO in August 2020 seeking to protect herself and E. from respondent, alleging that an incident of domestic violence took place on August 16, 2020. She alleged that after she and respondent returned from a trip, respondent became upset and began an argument. Appellant testified that after a long day of traveling and no food for nearly 12 hours, she was suffering from hypoglycemia. Respondent “got mad” because she wanted to go get food. Respondent insisted that they unpack first. He was yelling and cursing. Appellant informed respondent that she wanted to go to respondent’s mother’s house to pick up the baby, but respondent pushed her onto the bed and told her he wanted to have sex. Appellant alleged that respondent then shoved her three times in the living room until she “escaped” to the bathroom and tried to close the door. Respondent pushed open the bathroom door while appellant was trying to dial 911, grabbed appellant’s phone and threw it in the shower. The 911 operator attempted to call back, but appellant could not answer her phone because respondent was holding her.

At a point during the August 16, 2020 incident, respondent recorded a video of the interior of appellant’s home. The court described “pictures of the disheveled room, with [respondent] explaining that, in his view, [appellant] is out of control, and then [appellant] yells something at him about going to get the daughter.”

Respondent later agreed to take appellant to his mother’s house, but when they got in the car they again argued. Appellant alleged that respondent held her by the arm and threatened to take E. away from appellant. Respondent called his mother and asked her what he should do. Respondent’s mother told him to let go of appellant. He did, and appellant got out of the car and began walking towards respondent’s mother’s home. Appellant also called the police. The police came, met appellant and took her report. Upon arriving at respondent’s mother’s house, appellant attempted to take E., but respondent refused. Appellant called the Long Beach police, who arrived and took the baby from respondent and gave her to appellant.

Appellant alleged that a second incident of domestic violence occurred on July 26, 2020, at 1:00 a.m. Appellant alleged that respondent came to her residence drunk and high and fell over while holding the baby. As soon as he fell, he let the baby go, and she was not injured. Appellant helped him to his feet, and a few minutes later he was throwing up in the sink. Appellant asked him to leave, but he remained in the front of her residence until 5:00 a.m. drinking with neighbors.

Appellant also alleged that respondent has an “alcohol and marijuana problem.” She stated that he smokes marijuana from the time he wakes until he goes to sleep, transports the child while under the influence, and smokes a drug called “wax.” Appellant alleged that respondent “fights and abuses me routinely.”

Respondent’s evidence

Respondent presented a very different description of the relationship between the parties. First, he claimed that he had never and would never strike, injure or harass appellant. In his opinion, appellant’s accusations were a means to “skew” the request for custody that respondent previously filed. Respondent indicated that appellant is the one that “is very volatile and can get very physical real fast.” Respondent attested that appellant has struck him on multiple occasions.

Respondent denied appellant’s allegations regarding the July 26, 2020 incident. He admitted having gone to appellant’s home around 1:00 a.m., and that E. was asleep in her crib. When E. awoke for her normal feeding, respondent picked her up, played with her and fed her. Respondent admitted that he was feeling nauseous and believed it was from eating pizza earlier. He admitted throwing up and falling asleep at appellant’s house. Respondent claimed that he was awakened by appellant hitting him and screaming at him because she had gone through his phone while he was asleep. Respondent left the house to avoid confrontation. Appellant’s neighbor was outside and asked respondent if he was alright, as appellant was still cursing at him. Respondent spoke with the neighbor for about 30 minutes and then went home.

Respondent described the events of August 16, 2020, differently from appellant. Respondent explained that, upon returning from the trip after dark, appellant wanted to walk to get some food. Respondent suggested that they put away things from the trip so that the place would be ready for E. when they picked her up. Respondent noted that the place was messy. Appellant became angry and started throwing things around the room. Sex was never discussed. Respondent admitted that he took out his phone and recorded the “stuff being everywhere,” and appellant demanded that respondent give her his phone. Respondent complied, and appellant ran to the bathroom with his phone, screaming that she was calling the police. Respondent asked her to calm down and took back his phone. Appellant was agitated and flailing her arms around when she fell into the shower. Respondent helped her up, and they agreed to go get E.

While in respondent’s car, appellant again demanded that respondent give her his phone. Appellant threatened to soak respondent’s phone with the water in her water bottle. Respondent took the water bottle from appellant and then called his mother for help. Appellant got out of the car and walked away. Respondent followed in the car for a few moments to make sure appellant was walking towards his mother’s home. He then went on to the home where his mother and E. were waiting. Appellant then called the police to get E. away from respondent, although respondent asserted that, due to a prior agreement, he was supposed to have E. that night.

Respondent said no conduct on his part that night was abusive, physically or emotionally, nor has there ever been. Respondent pointed out that there had been no police activity surrounding any allegations of domestic violence against him nor had there been any third party complaints. Respondent asked that the DVRO petition be denied.

The recording at issue

During the August 16, 2020 incident after appellant and respondent got into respondent’s car, respondent began recording with his phone, which he placed on the floor in the back of his car. The recording lasts under three minutes. It begins during an exchange between the parties. Appellant can be heard imploring respondent in a raised and distressed voice to delete a photo. Respondent appears to be attempting to prevent appellant from spilling liquid in his car. Appellant appeals to respondent in an agitated voice, stating, “I just want you to do what I ask and that’s it.” Respondent accuses her of threatening to “wet my shit” because of this. Appellant repeats, “I said to delete the thing and then we won’t even have this, this will be put away.” As the heated conversation continues, it is unclear what image or recording appellant is referring to on respondent’s phone. During the recording neither party makes reference to violence. They do not theaten each other with violence, nor do they make reference to any recent violence against each other.

Temporary restraining order

On August 25, 2020, the trial court granted a temporary restraining order as requested by appellant. The court awarded appellant custody and denied respondent visitation rights. The matter was set for hearing.

Hearing

The hearing on the DVRO petition was held on September 24, 2020. Both appellant and respondent were present and with counsel. As the hearing commenced the trial court noted, “I would like to hear anything further from [appellant], regarding the incident or—and other incidents . . . . I can ask for a narrative, you can do question-and-answer, I accept offers of proof. Both parties are under oath, right next to their attorney.” In addition to testimony, both parties offered photographic evidence and audio recordings. As impeachment evidence, respondent offered a video of appellant on top of him, beating him, before she was caught by a third party entering the room.[1] Regarding the events of August 16, 2020, respondent offered a video of appellant “trashing the room in a fit of anger.” Finally, respondent offered the audio recording that is the subject of this appeal, made while the parties were in respondent’s car in which appellant asks respondent to “let [her] see the phone and to delete the stuff.”

Respondent also offered the testimony of his mother, who would have testified for impeachment purposes that appellant was the violent party in the relationship. The court deemed it unnecessary to hear the testimony and accepted that respondent’s mother would testify that she had received phone calls from respondent during times when appellant alleged that respondent was restraining her.

The court noted that “both parties have filed declarations basically saying that the other party is someone no one in their right mind would have anything [to] do with.” The court heard and viewed evidence presented by the parties, including live testimony from both parties regarding the alleged incidents of domestic violence.

Admission of the recording at issue

Appellant’s attorney objected to the admission of the audio recording taken in the car on the ground that appellant did not know she was being recorded. Respondent’s counsel noted that the dialogue appeared to suggest that appellant was aware that a recording was taking place, as she vocalized “don’t do it.”

The trial court then framed the question as whether or not the recording was surreptitious. The court asked to listen to the audio so that it could make this factual determination. After listening to the recording, the trial court stated, “it does appear that the conversation itself is about a recording, so it’s not as if the recording was surreptitious.” The court then admitted the recording on the ground that it was not surreptitiously recorded.

Later the court inquired of respondent: “How is it that the recording starts where it starts? Was previous conduct recorded? When was it turned on and when was it turned off?” Respondent responded, “Once we got in the car, I just took out my phone because she was already acting very erratic. I took out my phone, pressed record, and I put it on the floor in the back.” The court asked, “And when did it get turned off?” Respondent responded, “After she exited my vehicle.” At no time did any attorney ask appellant or respondent whether appellant was aware that the recording was being made.

Trial court decision denying the DVRO

The trial court denied appellant’s request for a DVRO, finding that appellant had not adequately established grounds for such an order. The court explained its rationale at length. After acknowledging the significance of video recordings in domestic cases, the court stated:

“I believe that both parties are inappropriate when they argue. Of course in the videos I’ve seen, [respondent] was acting in a more—[respondent] was acting in a more passive manner, and in fact, in the video from the past, was completely in defensive mode, but I’m not na[ï]ve enough to think that [respondent] is . . . never himself a perpetrator in these vicious arguments that the parties have.

“In the video I was shown from the past, it was clearly [appellant] who was the primary physical aggressor, and in that video, the only physical aggressor. In the audio from the car, it was [appellant] who was basically out of control and actually said that ‘if you erase the video, I’ll calm down,’ kind of a remarkable threat to make.”

In addition, the court noted that “in the midst of the rant in the car, there was nothing about being pushed and so on.”

The court observed, “the question is whether it’s been established even by a preponderance of the evidence that it was really [respondent], who was the primary aggressor in that tussle, and I don’t think it has.” The court further noted that the parties’ relationship appeared to be over:

“I opened this hearing commenting about the utterly dysfunctional nature of the relationship. The one good thing here is, restraining order or not, it appears that it’s over, and the only interaction between the parties would be in relation to the child. But I don’t think, given what I’ve seen and heard, that the restraining order has been adequately established.”

Posthearing proceedings

On November 23, 2020, appellant filed a petition for writ of mandate, seeking immediate review of the denial of her petition for a DVRO. This court denied the writ, noting that the order was reviewable by way of appeal. (Sanchez v. Superior Court (Nov. 25, 2020, B308986).)

On March 18, 2021, appellant filed her notice of appeal from the order of September 24, 2020.

DISCUSSION

1. 1. 1. 1. Standards of review

A trial court’s decision to grant or deny a restraining order is reviewed for abuse of discretion. (Rodriguez v. Menjivar (2015) 243 Cal.App.4th 816, 820.) “‘“The appropriate test for abuse of discretion is whether the trial court exceeded the bounds of reason. When two or more inferences can reasonably be deduced from the facts, the reviewing court has no authority to substitute its decision for that of the trial court.”’” (In re Marriage of G. (2017) 11 Cal.App.5th 773, 780.) We will not disturb a trial court’s evidentiary ruling “‘“except on a showing the trial court exercised its discretion in an arbitrary, capricious, or patently absurd manner that resulted in a manifest miscarriage of justice.”’” (Briley v. City of West Covina (2021) 66 Cal.App.5th 119, 132.) “A miscarriage of justice results only if ‘it is reasonably probable that a result more favorable to the appealing party would have been reached in the absence of the error.’” (Ibid., quoting People v. Watson (1956) 46 Cal.2d 818, 836.)

However, a trial court’s discretion is not unfettered. “‘[A] discretionary order based on an application of improper criteria or incorrect legal assumption is not an exercise of informed discretion and is subject to reversal.’” (Cooper v. Bettinger (2015) 242 Cal.App.4th 77, 90.)

We review the trial court’s factual findings for substantial evidence. (Sabbah v. Sabbah (2007) 151 Cal.App.4th 818, 822.) Under this standard, “[o]ur sole inquiry is ‘whether, on the entire record, there is any substantial evidence, contradicted or uncontradicted,’ supporting the court’s finding.” (Ibid.) “‘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.’” (Id. at p. 823.) Where the parties do not fully develop a factual issue below, we may exercise our discretion to decline to consider it on appeal. (Bikkina v. Mahadevan (2015) 241 Cal.App.4th 70, 93.)

1. 1. 1. 2. Admission of audio recording

Appellant argues that the trial court erred in admitting the audio recording from respondent’s car while the parties were en route to respondent’s mother’s home to pick up E. Penal Code section 632 (section 632) makes it a crime to record a confidential communication “without the consent of all parties” to the communication. (§ 632, subd. (a).) The statute further prohibits evidence obtained as a result of such surreptitious recording from being admissible in any judicial proceeding. (§ 632, subd. (d).)

Appellant argues that the trial court’s factual finding that appellant was aware of the recording is not supported by the record. Further, appellant argues that the trial court erred in failing to consider section 632’s requirement that all parties must consent to the recording. Thus, appellant argues, even if appellant knew about the recording, because she did not consent to it, the recording was unlawful and should have been excluded from the hearing.

We discuss appellant’s arguments below and conclude that the trial court did not abuse its discretion in admitting the audio recording into evidence. Further, we find that even if the audio recording had been erroneously admitted into evidence, any such error would have been harmless under the circumstances of this case.

1. 1. 1. 1. 1. Factual finding that appellant knew of the recording
1. Applicable law

Generally, a party objecting to evidence bears the burden of showing that such evidence should be excluded. It is the objecting party’s “obligation to ‘fairly inform the trial court, as well as the party offering the evidence, of the specific reason or reasons the objecting party believes the evidence should be excluded, so the party offering the evidence can respond appropriately and the court can make a fully informed ruling.’” (People v. Cua (2011) 191 Cal.App.4th 582, 601 (Cua).)

In addition, the objecting party must accurately inform the court of the legal basis for the objection. “‘Trial judges are not supposed to have the numerous, varied, and complex rules governing the admissibility of evidence so completely in mind and of such ready application that under an omnivagant objection to a question they can apply with legal accuracy some particular principle of law which the objection does not specifically present.’” (People v. Partida (2005) 37 Cal.4th 428, 434 (Partida).)

When a party declines to provide the trial court with a full legal or factual background for an objection, we must assume counsel had tactical reasons why counsel may have chosen not to do so. (Cua, supra, 191 Cal.App.4th at p. 601.)

2. Events at the hearing

As respondent played the audio recording for the court, appellant’s counsel objected on the ground that it appeared the recording was being taken from inside respondent’s pocket. Appellant’s counsel then stated that the audio recording should be deemed inadmissible due to appellant’s apparent lack of knowledge of the recording. Appellant’s counsel stated, “I believe it’s Penal Code 636.” The court acknowledged the existence of such a statute, stating, “I think it’s Family Code 2020, or I’m not sure. The reference is Penal Code 6-something.”

Respondent’s counsel responded that “the audio speaks for itself” and argued that appellant’s words indicated that she was aware that the recording was going on. After some further discussion with the parties, the court stated, “The question is whether the recording itself is surreptitious. So please proceed to listen to it, and then I’ll listen to it and analyze the objection. And it’s not Family Code 2020, I forget the number.”

At no time did either party bring the correct Penal Code section number to the attention of the court, nor did either party draw the court’s attention to any statutory requirement of consent. At no time did counsel inquire of the parties, who were present in court, whether appellant was aware of, or consented to, the recording. Thus, the trial court was left to guess.

After listening to the audio, the trial court stated, “it does appear that the conversation itself is about a recording, so it’s not as if the recording was surreptitious.” Appellant’s counsel later inquired, “I’m sorry, Your Honor, did we get a ruling on the objection?” The court stated, “Yeah. I’m admitting it. I don’t believe it was surreptitiously recorded.”[2]

3. Substantial evidence supported the trial court’s decision that appellant was aware of the recording

The audio recording contains an agitated discussion between the parties in which appellant is asking that respondent delete something from his phone. Appellant refers to the item as a “thing” and a “photo” at various times during the conversation.[3] Appellant can be heard yelling and making various threats if respondent does not “delete it.” Appellant can also be heard yelling that respondent just “do what I ask” and “do it now.” Upon reviewing the recording, we find sufficient support for the trial court’s decision that the conversation involved a recording. While it is not clear what recording the parties are discussing in the audio, the trial court could have reasonably inferred it was the recording being made simultaneously. It was appellant’s burden to show otherwise if the trial court was making a mistake of fact. (Cua, supra, 191 Cal.App.4th at p. 601.) Appellant did not clarify the record, even though she was present in court, and the court had invited her to present all relevant evidence.

In response to questions from the court, respondent testified to his actions leading up to the recording. “Once we got in the car, I just took out my phone because she was already acting very erratic. I took out my phone, pressed record, and I put it on the floor in the back.” Although no party sought to clarify whether appellant observed respondent’s actions, the trial court was justified in drawing the inference that appellant, who was sitting next to respondent in the car, was able to observe him take out his phone and press record.[4]

In reviewing the evidence on appeal, “[o]ur sole inquiry is ‘whether, on the entire record, there is any substantial evidence, contradicted or uncontradicted,’ supporting the court’s finding.” (Sabbah v. Sabbah, supra, 151 Cal.App.4th at p. 822.) Although the evidence may support more than one inference, “‘“we may not substitute our deductions for the trial court’s. [Citation.] We may overturn the trial court’s factual findings only if the evidence before the trial court is insufficient as a matter of law to sustain those findings.”’” (Lake v. Reed (1997) 16 Cal.4th 448, 457.) Here, the ambiguous evidence presented to the court supported its conclusion that appellant was aware of the recording made in the car.

4. Appellant did not meet her burden of challenging the admission of the recording

It is the objecting party’s obligation to create a factual record underlying its challenge to the admission of evidence. (Cua, supra, 191 Cal.App.4th at p. 601.) This allows the trial court to make a fully informed ruling. (Ibid.)

The trial court in this matter invited the parties to present whatever evidence they were inclined to present. The court stated:

“I would like to hear anything further from [appellant], regarding the incident or—and other incidents, since we’re not restricted simply to what’s pled in the request for the order. So what more is there to add? And I can ask for a narrative, you can do question-and-answer, I accept offers of proof. Both parties are under oath, right next to their attorney.”

In spite of this invitation, neither of the parties’ counsel inquired of appellant whether she was aware of the audio recording at the time it was being made, or whether she was able to observe respondent’s act of pressing record when she was presumably sitting in proximity to him in the car. When a party declines to provide the trial court with a full legal or factual background for an objection, we must assume counsel had tactical reasons for choosing not to do so. (Cua, supra, 191 Cal.App.4th at p. 601.) This includes, of course, the possibility that appellant may have provided an honest answer that did not support the objection.[5]

We decline to undermine the trial court’s factual finding under the circumstances of this case. The limited evidence presented regarding appellant’s knowledge of the recording supported an inference that she was aware of it. In addition, the parties were present in court and the factual record could have been easily clarified.

1. 1. 1. 1. 2. Consent

Appellant argues that even if she knew about the recording, the court still committed error when it held that the recording was admissible. Appellant argues that section 632 requires the consent of all parties, not merely their knowledge.[6]

Appellant fails to provide a citation to the record showing that she raised the issue of consent at the trial court level. As shown above, counsel did not cite the correct Penal Code provision to the trial court, much less draw the court’s attention to the consent requirement. The trial court stated, “The question is whether the recording itself is surreptitious. So please proceed to listen to it, and then I’ll listen to it and analyze the objection. And it’s not Family Code 2020, I forget the number.” Appellant fails to provide a citation to the record revealing any subsequent clarification of the legal standard, any reference to consent, or any clarification of the correct code provision.

If appellant’s objection was based on lack of consent, appellant was obligated to raise this specific issue before the trial court. Appellant was required to state her objection on the record so as to “‘make clear the specific ground of the objection or motion.’” (Partida, supra, 37 Cal.4th at p. 433, italics omitted.) A party’s “‘“failure to make a timely and specific objection’ on the ground asserted on appeal makes that ground not cognizable.”’” (Id. at p. 434.) As appellant failed to bring this argument to the attention of the trial court, it is forfeited on appeal. (People v. Romo (2016) 248 Cal.App.4th 682, 695 [“‘“A party cannot argue the court erred in failing to conduct an analysis it was not asked to conduct.”’”].)

1. 1. 1. 1. 3. Harmless error

We further conclude that even if the trial court erroneously admitted the audio recording, any such error would have been harmless under the circumstances of this case. An evidentiary ruling, even if erroneous, is not reversible absent a miscarriage of justice. (Cal. Const., art. VI, § 13; People v. Watson, supra, 46 Cal.2d at p. 836.) “[A] ‘miscarriage of justice’ should be declared only when the court, ‘after an examination of the entire cause, including the evidence,’ is of the ‘opinion’ that it is reasonably probable that a result more favorable to the appealing party would have been reached in the absence of the error.” (Watson, at p. 836.)

Upon review of the record in this case, the admission of the approximately three minute audio recording, even if erroneous, does not call into question the trial court’s ultimate decision. The court did consider the subject recording, but mainly noted its lack of reference to any recent violence between the parties.[7] The court noted that in the audio appellant was “basically out of control,” and made the “remarkable threat” “if you erase the video, I’ll calm down.” Significantly, the recording was only one of many pieces of evidence that the trial court considered, including live testimony from both parties, who were present in court. The court noted that it was also persuaded by “the video . . . from the past,” in which appellant “was the primary physical aggressor, and in that video, the only physical aggressor.” The admissibility of that video “from the past,” which showed appellant on top of respondent, hitting him, is not in question.

We therefore conclude that even if the audio recording in question was admitted in error, it is not reasonably probably that a result more favorable to appellant would have been reached.

1. 1. 1. 3. Applicable legal standard

Finally, appellant argues that the trial court examined the evidence under the wrong legal standard. Appellant notes that the trial court stated, “the question is whether it’s been established even by a preponderance of the evidence that it was really [respondent], who was the primary aggressor in that tussle, and I don’t think it has.” Appellant argues that the primary aggressor question is only relevant in the context of a mutual restraining order under Family Code section 6305. Where, as here, only one party is seeking a DVRO, the standard is proof of past abuse by a preponderance of the evidence. (Fam. Code, § 6300; In re Marriage of Everard (2020) 47 Cal.App.5th 109, 122.) Appellant argues that the trial court transgressed the confines of the applicable principles of law by applying the wrong legal standard.

Preliminarily we note that appellant fails to provide a citation to the record showing that she raised this issue at trial. Appellant made no objection following the trial court’s quoted statement above. Appellant’s failure to raise the issue at trial forfeits it on appeal. (People v. McCoy (2013) 215 Cal.App.4th 1510, 1535.)

Further, we may presume that, even if the trial court made a misstatement regarding the legal standard, it did not apply the wrong legal standard. (In re Marriage of Arceneaux (1990) 51 Cal.3d 1130, 1133 [“A judgment or order of a lower court is presumed to be correct on appeal, and all intendments and presumptions are indulged in favor of its correctness.”].) The trial court’s concluding statement made no reference to the primary aggressor standard. Instead, the trial court stated, “I don’t think, given what I’ve seen and heard, the [need for a] restraining order has been adequately established.” This statement does not suggest that the trial court applied the primary aggressor standard previously quoted. Instead, it shows that the trial court made a factual finding that appellant had not established the need for a restraining order.

Finally, appellant fails to show that the trial court’s misstatement regarding the applicable standard led to a miscarriage of justice. (Cal. Const., art. VI, § 13.) It was appellant’s burden to show such a miscarriage of justice. (Christ v. Schwartz (2016) 2 Cal.App.5th 440, 455.) Family Code section 6300 provides that a restraining order “may be issued” if the petitioner shows, “to the satisfaction of the court, reasonable proof of a past act or acts of abuse.” (Fam. Code, § 6300, subd. (a).) Here, the trial court weighed the evidence regarding the specific incidents alleged by appellant and found respondent’s evidence more credible. Appellant fails to describe or reference any further “past act or acts of abuse” that the trial court might have considered in granting the petition. The court did not believe that respondent was the aggressor in the alleged incident of August 16, 2020, and expressed doubt that there was any violence at all between the parties on that date. The court also apparently accepted respondent’s version of the events of July 26, 2020. Thus, appellant failed to prove a prior act of abuse by respondent. Under the circumstances, the trial court properly denied the restraining order under the appropriate standard. Further, the trial court noted, “The one good thing here is, restraining order or not, it appears that it’s over, and the only interaction between the parties would be in relation to the child.” Appellant has failed to establish prejudice from the court’s purported error.

DISPOSITION

The order is affirmed.

________________________

CHAVEZ, J.

We concur:

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LUI, P. J.

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HOFFSTADT, J.

[1] The court commented that this video showed appellant “on top of [respondent], hitting at him with both hands, looks like he’s covering up. And then once the person who’s taking the video comes in, [appellant] gets off of [respondent].”

[2] The trial court also made reference to a recent court case indicating that “it’s not a violation of the Penal Code . . . when a participant in the conversation records it.” However, this unnamed case was not the basis for the court’s ruling, which was factual. Therefore, we decline to address any contentions regarding the unknown case.

[3] Appellant confirms on appeal that the references to a “photo” were mistaken and that appellant was in fact referring to a video made earlier inside of her apartment. At no time did appellant’s counsel make this clarification at the hearing, nor inquire of appellant as to what photo she was referring. This lack of clarity left the court to make its best assessment as to the recording being discussed.

[4] Appellant asserts that respondent admitted that all of this occurred at night and it was dark in the car, which is why there is no video imagery on the recording. However, appellant did not raise this point at the hearing. In addition, cars often have interior lights that go on when a door opens. Phone screens also light up. Respondent’s references to the time of day do not undermine the evidence suggesting that appellant knew of the recording. Nor are we inclined to reverse the trial court’s factual finding based on a detailed, posthearing analysis of the evidence that was not provided to the trial court.

[5] We note that, at the end of the hearing, the trial court offered appellant a further opportunity to put anything she felt necessary on the record. The court stated: “All right. Is there anything more to present from [appellant’s] point of view, . . . since there’s some confusion over . . . .” Appellant’s counsel interrupted the court, stating, “I think the only thing, Your Honor, that [appellant] has not yet testified to is the fact that she has a few medical conditions that leave her extremely weak.” Given this final, open invitation to provide the court with additional evidence, we must assume appellant’s decision not to testify to her purported lack of knowledge of respondent’s recording was a tactical decision.

[6] As set forth above, the record reveals that appellant’s counsel cited “Penal Code section 636” at the hearing. Appellant does not provide a citation to the record showing that counsel drew the court’s attention to section 632.

[7] Specifically, the court noted, “[I]t does make a difference, in analyzing the August 16th incident, that in the midst of the rant in the car, there was nothing about being pushed and so on.”