Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Fresno County Nos. 06CEFL06073, 06CEFL06086 David Kalemkarian, Judge.
Kimball J.P. Sargeant, under appointment by the Court of Appeal, for Objector and Appellant.
No appearance by Petitioner and Respondent.
OPINION
Before Vartabedian, Acting P.J., Dawson, J. and Kane, J.
Robert R. appeals from a 2007 order declaring his twin daughters, R.R. and E.R. free from his custody and control (Fam. Code, § 7820 et seq.). The Fresno County Superior Court based its decision on the following alternate grounds: appellant abandoned his children (§ 7822), and appellant was convicted of felonies, the underlying facts of which proved his parental unfitness (§ 7825). Appellant last supported his children and had contact with them in 1999 while he and respondent were in the midst of acrimonious marital dissolution proceedings. The trial court found his testimony that he did not intend to abandon the children was not credible. Appellant was subsequently convicted of soliciting the rape and murder of his former wife (the respondent here) and the murder of her family law attorney.
All statutory references are to the Family Code unless otherwise indicated.
Appellant’s appointed appellate counsel advised this court, pursuant to In re Sade C. (1996) 13 Cal.4th 952, that he would not be filing an opening brief. Instead, he provided a multi-page summary of the appellate record and asked that we grant appellant time to file his own brief. After we extended time for appellant to personally file a letter brief, he filed his own letter brief with this court.
In it, appellant accuses his former wife, her present husband, her family law attorney, the deputy district attorney who prosecuted him, his criminal defense attorney, his court-appointed attorney in this case, as well as a family law attorney appellant attempted to hire many years earlier, of various misdeeds. Appellant in turn asks this court to independently investigate his wide-ranging accusations. He also offers evidence from outside the appellate record for this court’s consideration. In addition, appellant claims repeatedly that his testimony was true and correct, suggesting it was only his testimony that was trustworthy. Finally, he contends he has appealed his felony convictions and has uncovered exonerating evidence.
By his varied arguments, appellant appears to misunderstand the role of an appellate court. It is not the function of the appellate court to investigate an appellant’s accusations outside of the record, as appellant would have us do. Rather, an appealed-from judgment or order is presumed correct. (Denham v. Superior Court (1970) 2 Cal.3d 557, 564.) As a reviewing court, we indulge all intendments and presumptions to support the judgment on matters as to which the record is silent. It is an appellant’s burden to affirmatively show error on the record. (Ibid.) In this case, appellant has failed to affirmatively show any error on the appellate record before us. By his failure to do so, we may deem appellant to have abandoned his appeal. (In re Sade C., supra, 13 Cal.4th at p. 994.)
In addition, it is the province of the trial court, not the appellate court, to decide questions of fact. (Tupman v. Haberkern (1929) 208 Cal. 256, 262-263.) “[I]n examining the sufficiency of the evidence to support a questioned finding, an appellate court must accept as true all evidence tending to establish the correctness of the finding as made, taking into account, as well, all inferences which might reasonably have been thought by the trial court to lead to the same conclusion. Every substantial conflict in the testimony is, under the rule which has always prevailed in this court, to be resolved in favor of the finding.” (Bancroft-Whitney Co. v. McHugh (1913) 166 Cal. 140, 142.) We may not reweigh or express an independent judgment on the evidence. (In re Laura F. (1983) 33 Cal.3d 826, 833.) In this regard, issues of fact and credibility are matters for the trial court alone. (In re Amy M. (1991) 232 Cal.App.3d 849, 859-860.) To the limited extent appellant makes reference to the evidence before the trial court and his credibility at trial, it appears he invites us to reweigh the evidence and decide the case in his favor. This we cannot do, as explained above.
Further, although reviewing courts have the power to take evidence and make factual findings under Code of Civil Procedure section 909, such authority should be exercised sparingly and then ordinarily only to affirm the judgment. (Kabisius v. Board of Playground & Recreation (1935) 4 Cal.2d 488, 494; Tupman v. Haberkern, supra, 208 Cal. at p. 270.) Absent exceptional circumstances, we should make no such findings. (In re Zeth S. (2003) 31 Cal.4th 396, 405.) Clearly, appellant does not seek to affirm the judgment with the new evidence he proposes. Also, he fails to establish exceptional circumstances to warrant our factfinding.
Finally, it is the role of the appellate court to decide questions of law. (Tupman v. Haberkern, supra, 208 Cal. at pp. 262-263.) At best, appellant raises potential legal questions regarding the services of his trial counsel and the impact of his appeal from his felony convictions. However, neither one amounts to an arguable issue for reversal, as it was uncontroverted that appellant last supported his children and had contact with them in 1999. The only dispute was whether appellant intended to abandon his children. However, as noted previously, the court did not find appellant’s testimony in this respect credible. Appellant’s attack against his trial counsel and argument regarding his criminal appeal in no way detract from the court’s finding that appellant abandoned his children. That finding standing alone supported the court’s decision to free the children from appellant’s custody and control. (§ 7822, subd. (a).)
We therefore conclude appellant’s arguments do not amount to claims that the juvenile court committed an error affecting the outcome of this case (In re Sade C., supra, 13 Cal.4th at p. 994) and will affirm.
DISPOSITION
The order terminating parental rights is affirmed.