Opinion
C096659
08-09-2023
J.R., Plaintiff and Respondent, v. J.F., Defendant and Appellant.
NOT TO BE PUBLISHED
(Super. Ct. No. CV20212036)
MESIWALA, J.
Respondent J.R. (the uncle) got a civil harassment protective order against his nephew and sheriff's deputy, appellant J.F. (the nephew). Before granting the order, the trial court heard testimony that the nephew used firearms in a threatening manner. The five-year protective order against the nephew included a mandatory firearm relinquishment requirement. The nephew requested an exemption to the relinquishment requirement under Code of Civil Procedure section 527.9, subdivision (f), arguing firearm possession is a condition of his employment and presenting a psychologist's evaluation concluding he does not pose a threat of harm. (Undesignated statutory references are to the Code of Civil Procedure.) The trial court denied the request, and the nephew challenges that denial on appeal. We find that the trial court acted within its discretion and affirm.
FACTUAL AND PROCEDURAL BACKGROUND
A. The Protective Order
The uncle manages a family ranch on a large tract of rural property where he also lives. The nephew's mother, who is the uncle's sister, also lives on part of the property. In his petition for a civil harassment protective order, the uncle alleged the nephew had been harassing and threatening his family over several years and had been using firearms on the property in violation of a strict prohibition.
The evidence of the nephew's use of firearms on the property included the following. "[A]round 15 years ago," there was a baptism ceremony in the backyard of the ranch with 30 people, 10 of whom were children. The nephew "came driving behind the house . . . with his dog running beside him." Other dogs were attracted over, and the nephew's dog "ducked underneath [the] rear wheel" of the nephew's car and the nephew "ran over his dog." The nephew "got out of the vehicle, pulled out a rifle, fired it," and yelled," 'I'm going to fucking kill you'" in front of everyone at the event. The record does not make clear to whom or what the threat was directed.
In 2013 or 2014, the uncle's son-in-law was jogging through the property and heard a gunshot close by. He turned a corner and saw the nephew lying in the middle of a dirt road used by the family and the farm's employees. The nephew was shooting at a target near where the son-in-law had just been. The son-in-law also said he had seen the nephew "discharge a firearm impulsively out of anger."
In July 2013, farm irrigation had been shot, causing flooding on the property's vineyards. The nephew admitted to shooting in the area for birds, denied intentionally shooting the irrigation pipes, but offered to pay for the repair. According to the uncle, the pipes could have been shot in this manner only intentionally.
In June 2014, the uncle formally revoked in a letter the nephew's right to hunt or use firearms on the property.
Since the letter, the nephew continued shooting on the property to kill squirrels, gophers, birds, and beavers. In April 2020, the nephew drove onto the property, pointed his gun out the window and fired, then drove away. And in 2021, the nephew killed coyotes off the property and brought the carcasses on to the property and took a picture with them and a rifle.
The uncle stated the nephew's "use of his guns after he confronts me and my family makes us feel intimidated and worried about what he might do to us."
On November 18, 2021, the trial court issued a temporary restraining order against the nephew covering the uncle and his family. The order also prohibited the nephew from possessing any firearms, required him to sell or store any firearms in his possession to a licensed gun dealer within 24 hours of being served with the order, and required him to file with the court within 48 hours a form proving he had turned in, sold, or stored his firearms. The court highlighted this requirement with handwritten stars and an advisement on the order: "[The uncle] with assistance of sheriff should follow up on [the nephew] filing [a relinquishment form] [within] 48 [hours] of service of" the temporary restraining order.
Over four days in December 2021, the trial court held a court trial on the order and heard testimony from the uncle, the uncle's daughter, the uncle's son-in-law, the nephew's mother, the nephew, and three unrelated witnesses.
The trial court then issued a five-year protective order under section 527.6 on the same terms as the temporary restraining order, including the firearm relinquishment requirement. The trial court stated the "elements of a restraining order are clearly satisfied by clear and convincing evidence" based on testimony the nephew often harassed and threatened the uncle's family. The trial court also found, "The guns were being used regardless of a direct letter that said [the nephew] could not use guns, and so safety is paramount."
The trial court also emphasized the nephew's failure to timely and accurately relinquish his firearms. Specifically, the nephew previously filed a form stating four firearms were stored with a licensed gun dealer and the nephew signed the form under penalty of perjury that he did not own or possess any other firearms. But during the nephew's testimony on December 16, he admitted he owned several other guns that were at his parents' house on the property. The trial court described this failure to disclose and relinquish all firearms as "criminal conduct."
On December 17, the nephew filed another firearm relinquishment form listing 31 additional firearms he sold to a licensed gun dealer that morning.
B. Firearms Relinquishment Exemption Petition
The nephew filed a petition for an exemption to the relinquishment of firearms requirement to permit him to carry a firearm while on or off duty. The nephew's petition provided a letter from the sheriff's office stating the nephew is employed as a deputy and the sheriff's office "does not have unarmed sworn deputy sheriff positions" so "a sworn deputy must be allowed to possess and carry a service weapon(s)."
A psychologist evaluated the nephew at the request of the nephew's counsel. The psychologist's report stated the psychologist had reviewed the case material and the nephew's work history and had interviewed the nephew. The report concluded the nephew "does not pose a threat of harm to the protected party by virtue of retaining his right to carry his duty weapon."
On February 22, 2022, the trial court held a hearing on the petition. After argument by the parties, the court denied the request. The court noted again that the uncle had told the nephew not to use guns on the property, yet the nephew fired guns numerous times, including in the vicinity of the uncle's home and family.
The trial court also found relevant the "series of actions" related to the nephew's late and incomplete firearm relinquishment forms that initially failed to disclose 31 guns. The court stated it put on the temporary restraining order "two stars on both sides of it to highlight the importance of" the requirement to turn in firearms within 48 hours. In addressing the psychologist's report, the trial court stated, "[the doctor] had no knowledge whatsoever of any of these concerns that the Court has. The doctor was not notified of anything, the amount of guns that the [the nephew] owns or owned and his problems turning them in or any of the details about using a gun on the property against the direction of the property owner." The court concluded by stating: "[A] person [who] would do that is a threat.... They've used the guns for years and years and years, even though they were told don't use the guns, and then the Court tells them turn in the guns and they don't turn in the guns, and then they meet with a doctor, and they don't tell the doctor the real concern that the Court has.[¶] So this is not the type of case that justifies a [section] 527.9[,] [subdivision] (f) exemption."
The nephew timely appealed.
DISCUSSION
The nephew contends the trial court abused its discretion by denying him the peace officer firearm exemption. We disagree.
I
Firearm Relinquishment Standards
All persons subject to a protective order under section 527.6 "shall not own, possess, purchase, receive, or attempt to purchase or receive a firearm or ammunition while the protective order is in effect." (§ 527.6, subd. (u)(1).) On issuance of a protective order against a person, "the court shall order that person to relinquish any firearm" in their possession "within 24 hours of being served with the order" and the person shall file with "the court a receipt showing the firearm was surrendered to the local law enforcement agency or sold to a licensed gun dealer within 48 hours after receiving the order." (§ 527.9, subd. (b).)
A "court may" grant an exemption to permit a person covered by a protective order to possess a firearm in two limited circumstances under section 527.9, subdivision (f). The first permits the court to order possession of a "particular firearm . . . only during scheduled work hours and during travel to and from his or her place of employment." (§ 527.9, subd. (f).) In this circumstance, the person must establish: (1) "a particular firearm is necessary as a condition of continued employment"; and (2) "the current employer is unable to reassign the respondent [here nephew] to another position where a firearm is unnecessary." (Ibid.)
The second circumstance is "in any case involving a peace officer," where "a court may allow the peace officer to continue to carry a firearm, either on duty or off duty." (§ 527.9, subd. (f).) For this circumstance, the person must establish: (1) he or she is a peace officer; (2) who must carry a firearm as "a condition of employment"; (3) "whose personal safety depends on the ability to carry a firearm"; and (4) "if the court finds by a preponderance of the evidence that the officer does not pose a threat of harm. Prior to making this finding, the court shall require a mandatory psychological evaluation of the peace officer and may require the peace officer to enter into counseling or other remedial treatment program to deal with any propensity for domestic violence." (Ibid.)
II
Analysis
The nephew contends he met the statutory requirements for the exemption, yet the trial court improperly: (1) rejected the psychologist's report, and (2) relied on the same behavior supporting the protective order to evaluate whether the nephew posed a threat of future harm for the exemption.
The uncle contends the nephew never established statutory eligibility because the nephew failed to present evidence that the nephew's personal safety depends on the ability to carry a firearm. Even if the nephew did, the uncle still contends the trial court properly discounted the psychological report and properly considered past circumstances in determining potential future risk of harm.
We assume the nephew established the threshold requirements of eligibility for the exemption's application, but we reject each of his contentions challenging the trial court's denial of the exemption.
A. Psychologist's Evaluation
The nephew first contends the trial court abused its discretion because "[t]here is no authority in section 527.9 for a trial court to reject the mandatory psychological evaluation on the ground the evaluator did not consider factors within the purview of the court and not the psychologist." The uncle counters that "[t]he trial court was free to give little or no weight to the written report." We find the uncle's position more persuasive.
Interpretation of a statute is a question of law we review independently. (People ex rel. Lockyer v. Shamrock Foods Co. (2000) 24 Cal.4th 415, 432.) "In interpreting a statute, our primary goal is to determine and give effect to the underlying purpose of the law. [Citation.] 'Our first step is to scrutinize the actual words of the statute, giving them a plain and commonsense meaning.' [Citation.] . . . However,' "the 'plain meaning' rule does not prohibit a court from determining whether the literal meaning of a statute comports with its purpose or whether such a construction of one provision is consistent with other provisions of the statute." '" (Goodman v. Lozano (2010) 47 Cal.4th 1327, 1332.)
The nephew is correct that the exemption provision does not provide explicit authority for a trial court to discount a psychological evaluation on the basis the trial court did here. But there are no explicit requirements for how a trial court must consider the psychological evaluation. The statute states, "the court shall require a mandatory psychological evaluation." Such evaluation was made and provided to the trial court prior to its decision; the statute does not require more. Instead, the weight of the psychological evaluation is within the trial court's discretion.
Adding the limitations, the nephew asserts would both conflict with the statutory language and be inconsistent with the rest of the firearm relinquishment provision. Relinquishment is mandated because a court has already determined the person poses some level of threat by granting the protective order. (Cf. Olson v. Doe (2022) 12 Cal.5th 669, 682 [finding § 527.6 purpose, "when warranted by the circumstances, is to prevent threatened future injury"]; Ritchie v. Konrad (2004) 115 Cal.App.4th 1275, 1297 [finding, under a similar relinquishment provision, automatic relinquishment justified because the person has already been determined to "represent[] a substantial threat to inflict physical harm on another person"].)
The trial court, therefore, had discretion how to consider the psychological evaluation. And when reviewing a discretionary decision, the psychological evaluation or otherwise, we will not reverse" 'unless" 'the court exercised its discretion in an arbitrary, capricious or patently absurd manner that resulted in a manifest miscarriage of justice.'" '" (People v. Clark (2016) 63 Cal.4th 522, 572.) "[A]s long as there exists 'a reasonable or even fairly debatable justification, under the law, for the action taken, such action will not be here set aside, even if, as a question of first impression, we might feel inclined to take a different view from that of the court below as to the propriety of its action.'" (Gonzales v. Nork (1978) 20 Cal.3d 500, 507.)
Here, the trial court's decision to give the report little to no weight was within its discretion. The trial court highlighted the firearm relinquishment requirement for the nephew in the temporary restraining order. In response to this order, the nephew sold four firearms and signed a form under the penalty of perjury that he did not own any firearms other than the four listed. Yet he admitted at trial this was incorrect and then reported and relinquished 31 additional firearms. The trial court acknowledged this could constitute criminal conduct and emphasized the nephew's failure to timely and accurately report and relinquish firearms in its opinion ordering the five-year protective order. The psychologist was not provided this information regarding the nephew's failings in determining whether the nephew posed a threat of harm. Thus, the trial court could reasonably find that the utility of the psychologist's evaluation was undermined.
B. Evidence Considered
The nephew next challenges the trial court reusing the same evidence supporting the protective order to deny the exemption. He specifically argues: (1) this results in improper punishment for past acts, and (2) the trial court must consider evidence related only to a future use of a "particular firearm." We disagree.
We find no statutory support in the nephew's attempt to sever the relinquishment statute from the underlying protective order. The nephew was required to relinquish his firearms because of the behavior leading to the protective order. And the only statutory requirement imposed on the threat-of-harm analysis is the psychological evaluation. But there is no mandate that courts consider only the psychological evaluation or that some other evidence must be analyzed. So, the plain language supports analyzing whether the nephew posed a future threat of harm with the aid of the psychological evaluation in light of the behavior leading to the protective order, not to its exclusion.
Specifically, to the nephew's first point, he is correct "injunctive relief is not intended to punish the restrained party for past acts of harassment." (Yost v. Forestiere (2020) 51 Cal.App.5th 509, 520.) But relying on the nephew's past behavior to disallow firearm possession is not punishment for past acts, but the use of past harmful behavior to "establish[] the reasonable probability the acts will be repeated in the future." (Scripps Health v. Marin (1999) 72 Cal.App.4th 324, 332.) Harassment to justify a protective order must be a" '[c]ourse of conduct,'" defined as "a pattern of conduct composed of a series of acts over a period of time, however short, evidencing a continuity of purpose." (§ 527.6, subd. (b)(1).) So injunctive relief cases necessarily rely on behavior in the past to forestall the continuance of the behavior. (Harris v. Stampolis (2016) 248 Cal.App.4th 484, 501.)
Next, the nephew articulates his second evidentiary point as: "The 'threat of future harm' evaluation must be limited to whether wrongful acts involving the 'particular firearm' the officer seeks to exempt from relinquishment would occur in the future." This requirement also does not exist in the statute. The "particular firearm" language is in the first scenario, not the peace officer exemption circumstance that the nephew argues applies. In any case, this language requires trial courts to permit possession of only a "particular firearm" and imposes a burden on persons seeking an exemption to establish "a particular firearm is necessary as a condition of continued employment." It does not require a trial court to make a finding of harm related to a particular firearm.
The trial court's decision was therefore based on properly considered evidence. The court found that the nephew had harassed and threatened the uncle and his family over several years by misusing firearms. The trial court found that the nephew routinely fired guns on the property near the uncle's home and family, violating a long-standing prohibition against firearm use on the property. The nephew's failure to timely and accurately relinquish his firearms was also central to the trial court's finding. The trial court's consideration of this evidence when considering whether the nephew should be permitted to possess a firearm was within the court's discretion. We close by noting again that the question is not whether we as the reviewing court" 'might feel inclined to take a different view from that of the court below'" but rather . . . is whether "there exists 'a reasonable or even fairly debatable justification, under the law, for the action taken.'" (Gonzales v. Nork, supra, 20 Cal.3d at p. 507.) Here, there exists that" 'reasonable or even fairly debatable justification.'" (Ibid.)
DISPOSITION
The trial court's order is affirmed. The uncle (respondent) is entitled to his costs on appeal. (Cal. Rules of Court, rule 8.278(a)(1), (2).)
We concur: KRAUSE, Acting P. J. BOULWARE EURIE, J.