Opinion
NOT TO BE PUBLISHED
San Francisco County Super. Ct. No. CCH-07-565948
Sepulveda, J.
The City and County of San Francisco (City) obtained a restraining order protecting its mayor, Gavin Newsom, from defendant Han Shin who allegedly “has a disturbing obsession” with Mayor Newsom. (Code Civ. Proc., § 527.8.) Defendant Shin appeals. Shin represents himself on appeal, and essentially contends that the evidence is insufficient to support the restraining order. We find substantial evidence and affirm the order.
I. FACTS AND PROCEDURAL BACKGROUND
The City filed a petition for a restraining order against Shin on February 21, 2007. The petition was brought under the Workplace Violence Safety Act, which permits employers (including cities) to seek a restraining order on behalf of an employee (including an elected officer) who has suffered “unlawful violence or a credible threat of violence” at the workplace. (Code Civ. Proc., § 527.8, subds. (a), (d).) “ ‘Unlawful violence’ ” is statutorily defined as any assault or battery, or criminal stalking. (Code Civ. Proc., § 527.8, subd. (b)(1).) A “ ‘[c]redible threat of violence’ ” is “a knowing and willful statement or course of conduct that would place a reasonable person in fear for his or her safety, or the safety of his or her immediate family, and that serves no legitimate purpose.” (Code Civ. Proc., § 527.8, subd. (b)(2).)
The City’s petition for a restraining order focused largely upon Shin’s course of conduct toward Mayor Newsom, which allegedly posed a credible threat of violence. The petition was founded on three declarations, and the testimony of a City police inspector with the mayor’s security detail. Shin failed to appear at the March 7, 2007 petition hearing or send a representative, despite personal service of the petition two weeks earlier. We turn to a recitation of the evidence presented at the hearing.
A. Declaration of Officer Fleming
Franco Fleming is a City police officer assigned to the mayor’s security detail. Officer Fleming declared: “On February 10, 2007 while working as the Mayor’s bodyguard at a town hall meeting held at 100 Whitney Young Circle in the Bayview District I noticed Han Shin in the front row taking several pictures of the mayor. By the angle of Mr. Shin’s camera it appeared that he was photographing the Mayor’s lower body, from the waist down. During the forum the Mayor’s jacket slipped off his chair and fell to the ground. Mr. Shin picked up the Mayor’s coat, wiped it off in a caressing manner and placed it on his lap. I approached Mr. Shin to retrieve the coat and informed Mr. Shin that he can not touch the Mayor’s property. Mr. Shin refused to hand the coat to me, stood up and placed the coat back on the Mayor’s chair, sat down and appeared to meditate when he returned to his seat. Throughout the rest of the forum Mr. Shin constantly tried to obtain the Mayor’s attention in a flirtatious manner. When the Mayor attempted to leave the event and enter his car, Mr. Shin aggressively grabbed the Mayor and would not allow us to shut the car door. After Mr. Shin ignored our request to leave, my partner Barrett Chan forced his way between the Mayor and Mr. Shin eventually separating the two.”
Officer Fleming’s declaration continues: “On February 12, 2007 I was working as the Mayor’s security guard at the Marriage Equality USA [event] held on the first floor of City Hall. When I arrived with the Mayor I noticed Mr. Shin standing close to the Mayor’s podium in a restricted area. He was approximately two feet away from the Mayor with his camera in the Mayor’s face taking pictures. I asked Mr. Shin to stand in the area designated for the public located behind the ropes. Mr. Shin refused to walk in the direction I gestured towards, [and instead] he walked towards the podium and behind the ropes on the opposite side of the Mayor. I noticed that Mr. Shin was wearing purple gloves and he continued to take photographs of the Mayor throughout the Mayor’s speech. At the completion of the event, Mr. Shin stopped us as I escorted the Mayor to the elevators. He asked the Mayor to take a picture with [Mr. Shin’s] father, which the Mayor agreed to do. Then Mr. Shin held on to the Mayor and asked to take a picture with him, [and] the Mayor agreed. Mr. Shin was not happy with the first picture and asked the photographer to take another, he continued to do this several more times until I eventually stepped in front of the camera and attempted to break Mr. Shin apart from the Mayor. Mr. Shin insisted on one more picture before letting go of the Mayor.”
Shin’s aggressive behavior continued two days later. Officer Fleming stated: “On February 14, 2007 I was working as the Mayor’s security guard. When I arrived at the Mayor’s office at approximately 3:15 PM Mr. Shin was in the office and I was informed that he had been there since 2:00 PM. While waiting in the office he offered a pen to the Mayor’s appointment secretary for Valentine’s Day which she graciously refused to accept. Then Mr. Shin turned to me[,] introduced himself[,] and asked several questions. I was not conversational with Mr. Shin and he became frustrated. He sat down[,] opened his suitcase, pulled out a copy of a book which he authored and proceeded to tape pictures of the Mayor into his book. At 5:30 we locked the door and informed Mr. Shin that the Mayor’s office was closed, after two to three minutes Mr. Shin walked outside. Mr. Shin then went into the hallway and refused to leave until the Mayor himself came out and told him to leave. Sheriff Deput[ies] arrived to check on the situation. Mr. Shin would not leave and demanded to see “ ‘President Newsom.’ ” That evening after I dropped the mayor off at his apartment I received a message noting that Mr. Shin tried to enter the Mayor’s apartment.”
B. Declaration of Security Guard Ong
The security guard at Mayor Newsom’s apartment building, Van Lester Sy Ong, provided a description of Shin’s efforts to enter the mayor’s apartment. The security guard declared: “When I was working late in the evening on Valentine’s Day, at approximately 1:00 AM February 15, 2007, Han Shin entered the lobby of the building and advanced towards the elevators. When I stopped Mr. Shin to ask where he was going, he replied ‘I am here to see a lady at number 1902.’ Knowing [who] lived in apartment 1902, I asked Mr. Shin if he was looking for [L.C.]. He replied yes so I escorted him to the nineteenth floor. Ms. [L.C.] was in the hallway when we reached the nineteenth floor. When Mr. Shin approached her, Ms. [L. C.] informed me that she did not recognize Mr. Shin so I escorted Mr. Shin to the lobby. [¶] When we reached the lobby Mr. Shin showed me two pictures, one of Mayor Gavin Newsom and Mr. Shin and another of the Mayor standing next to an Asian man wearing only a diaper. Mr. Shin then asked, “ ‘Is Mr. 2001 here?’ ” referring to the mayor. When I told Mr. Shin that the Mayor was not in, he asked to wait for him. I said no and escorted Mr. Shin out of the building.”
Shin remained outside the building. The building security officer said: “I noticed Mr. Shin sitting in a Mercedes parked in front of the building, so I approached the car and knocked on the window. Although the window was cracked open Mr. Shin did not acknowledge my presence. While watching Mr. Shin I noticed that he was putting on dark gloves and reaching for a briefcase in the back of the vehicle. I decided to go back into the building and call the police. Afterward I saw Mr. Shin drive away slowly.”
C. Declaration of Inspector Ramsey
The incident at Mayor Newsom’s apartment building led to a police investigation of Shin and a search of Shin’s vehicle on February 15, 2007. Inspector James Ramsey of the City police department declared that the search found a “[m]ap of San Francisco with a circle highlighting the specific intersection where Mayor Newsom lives and a line from the circle following streets to the Bay Bridge”; two magazine articles about the mayor; numerous photographs of the mayor, including a laminated photograph, an enlarged photograph and photographs of Shin with the mayor; six “copies of the book Beauty for the World authored by Shin containing taped/glued in photographs of Shin and the Mayor”; purple latex gloves; and a cassette player containing a cassette labeled “President Gavin Newsom.”
Inspector Ramsey further declared that he interviewed Mayor Newsom on February 16, 2007, about Shin and Shin’s entry into the mayor’s apartment building. The mayor said he never invited Shin to the apartment. The mayor explained that Shin was a long-time supporter who often attended public meetings but had been behaving “ ‘bizarrely’ ” lately. As an example, Mayor Newsom said Shin attended a recent public meeting wearing purple latex gloves, and grabbed the mayor’s arm. Mayor Newsom said he was concerned and alarmed by Shin’s recent actions.
D. Testimony of Inspector Lindberg
Inspector Jeff Lindberg of the City police department testified at the petition hearing on March 7, 2007. Inspector Lindberg said that the mayor’s security detail first “became aware” of Shin three years earlier but security interests were “heightened” in February 2007 as a result of the incidents described in the declarations. Inspector Lindberg testified about those same incidents, and then proceeded to describe other incidents.
The inspector testified that Shin was involved in a criminal incident on February 8, 2007, “wherein he was charged with evading, felonious evading of a police officer, driving at high speeds up to 135 to 140 miles an hour to [elude] a marked vehicle with the San Mateo County Sheriff’s Department.” The inspector also described a criminal incident in San Ramon on February 28, 2007, involving allegations that Shin assaulted a witness. Inspector Lindberg testified: “Mr. Han Shin went to [the] residence of one of our witnesses in our particular case, and subsequently has been charged with first degree burglary, three counts of [Penal Code] 245, aggravated assault, in addition to vandalism.” Inspector Lindberg said he was present when Shin was taken into police custody later that night, and that Shin resisted arrest and “demonstrated violence by assaulting one of the police officers.”
Inspector Lindberg concluded his testimony with his opinion that Shin was a threat to Mayor Newsom: “there is no doubt in my mind, based upon the hundreds of investigations I have done, based upon threats against public officials, that Mr. Shin does pose a threat to the mayor.”
E. Restraining order issued
The trial court issued an order prohibiting defendant Shin from threatening, stalking, or following Mayor Newsom. The court ordered Shin to stay at least 100 yards away from Mayor Newsom and the mayor’s residence, work place, and vehicles. The restraining order had a period of three years from its date of issuance on March 7, 2007.
II. DISCUSSION
California provides protective measures against threatened violence. A person who has been stalked, threatened, or otherwise seriously harassed may petition a court to enjoin such conduct. (Code Civ. Proc., § 527.6 [further section references are to this code, except as noted]; Grant v. Clampitt (1997) 56 Cal.App.4th 586, 591-592.) The Workplace Violence Safety Act at issue here, section 527.8, “was enacted to allow employers to seek protections comparable to those offered under section 527.6 to enjoin workplace threats or acts of violence against employees.” (Robinzine v. Vicory (2006) 143 Cal.App.4th 1416, 1423.) In short, section 527.8 enables employers to seek the same remedy for its employees as section 527.6 provides for natural persons. (Scripps Health v. Marin (1999) 72 Cal.App.4th 324, 333-334.) The two sections are substantially the same. (Robinzine, supra, at pp. 1423-1424.)
“To obtain injunctive relief under section 527.8 an employer must prove its employee has suffered unlawful violence or a credible threat of violence from an individual that can reasonably be construed to have occurred in the workplace. (§ 527.8, subds. (a), (e).) In addition, the employer must demonstrate by clear and convincing evidence that it is reasonably likely such unlawful violence may occur in the future absent a restraining order.” (City of Los Angeles v. Animal Defense League (2006) 135 Cal.App.4th 606, 615.) In reviewing an injunction issued under section 527.8, “[w]e apply the substantial evidence test, resolving all factual conflicts and questions of credibility in favor of [the employer] as the prevailing party, and drawing all inferences in support of the trial court’s findings.” (USS-Posco Industries v. Edwards (2003) 111 Cal.App.4th 436, 444.)
A. The restraining order is supported by substantial evidence
The City proved its mayor suffered unlawful violence or a credible threat of violence from Shin in the workplace. As noted earlier, “ ‘unlawful violence’ ” is statutorily defined as any assault or battery, or criminal stalking. (§ 527.8, subd. (b)(1).) A “[c]redible threat of violence” is “a knowing and willful statement or course of conduct that would place a reasonable person in fear for his or her safety, or the safety of his or her immediate family, and that serves no legitimate purpose.” (§ 527.8, subd. (b)(2).)
The evidence established that Shin grabbed Mayor Newsom at City Hall (his work place) and refused to release him. Officer Fleming declared that Shin, on February 12, 2007, “held on to the Mayor” while demanding photographs be taken. Inspector Lindberg, when testifying at the evidentiary hearing, repeated that Shin had “physically grabbed” Mayor Newsom on that occasion. This was a battery: “The least unprivileged touching may constitute a criminal battery.” (Pen. Code, § 242; County of Santa Clara v. Willis (1986) 179 Cal.App.3d 1240, 1251, fn. 6.) More disturbing is Shin’s course of conduct, both inside and outside City Hall. Two days before grabbing Mayor Newsom at City Hall, Shin also “aggressively grabbed the Mayor” as he was entering a car following a public appearance and blocked the mayor’s bodyguards from shutting the car door. Officer Fleming declared that one of the guards had to force his way between Shin and the mayor to separate Shin from the mayor. Two days after grabbing Mayor Newsom at City Hall, on February 14, 2007 (Valentine’s Day), Shin sat in the mayor’s outer office for three and a half hours and refused to leave City Hall even after the office was closed. Later that same night, Shin went to the mayor’s residence and tried to gain entry with a ruse. Shin told the apartment building security guard that he was there to see another tenant and then, after that lie was revealed, showed the guard photographs of Shin with the mayor to suggest a personal relationship. Even after being escorted from the building, Shin sat outside in his car until the security guard confronted him. This course of conduct posed a credible threat of violence; it was sufficient to “place a reasonable person in fear for his or her safety” and served “no legitimate purpose.” (§ 527.8, subd. (b)(2).) Shin is not even a City resident, and thus had no civic purpose in trying to gain access to the mayor.
The evidence also established a reasonable likelihood that violence might occur in the future absent a restraining order. Shin showed no signs of relenting in his obsessive pursuit of Mayor Newsom. In fact, the events of February 2007 show an alarming acceleration of Shin’s efforts at gaining access to the mayor. Over the course of a week, Shin twice grabbed the mayor at public events, sat in the mayor’s office for several hours, and finally tried to gain entry into Mayor Newsom’s private residence after midnight. Inspector Lindberg testified that he witnessed an arrest of Shin on another matter later that month, and that Shin “demonstrated violence by assaulting one of the police officers.” We recognize that Shin has been an avid fan of the mayor and has never verbally threatened harm to him. But the lack of express threats provides no comfort. A threat may be implied by a pattern of conduct, and may exist in a relationship of admiration as well as animosity. This district court of appeal has previously found a credible threat of violence, and upheld a stalking conviction, where the defendant displayed an obsessive desire to be with the victim. (People v. Falck (1997) 52 Cal.App.4th 287, 297-299.) As observed in that case, “it is a sad truth, and one commonly reported, that persons such as appellant, in the grips of an obsession, have killed or harmed the object of that obsession, even while maintaining that they have no desire to cause harm.” (Id. at p. 298.)
B. Shin’s arguments on appeal are unavailing
We have considered all of Shin’s arguments raised on appeal, and find none availing. Shin maintains that Inspector Lindberg’s statements at the evidentiary hearing should be disregarded. Shin first argues that the inspector’s statements “were not formal testimony made under oath.” It does appear from the reporter’s transcript that the trial court failed to administer the usual oath before receiving the inspector’s testimony. (§§ 2093-2094; Evid. Code, § 710.) While a judge may depart from the usual oath and administer an alternative “oath, affirmation, or declaration in an action or a proceeding in a manner that is calculated to awaken the person’s conscience and impress the person’s mind with the duty to tell the truth,” the judge here simply told Inspector Lindberg to “testify in his own words,” without administering any oath. (§ 2094, subd. (b).)
It is questionable whether a simple directive to “testify,” even to an experienced police officer, is adequate to impress the witness’s mind with the duty to tell the truth. However, any procedural deficiency in failing to administer a formal oath was waived by the failure to object at the hearing. (People v. Duffy (1930) 110 Cal.App. 631, 635-636.) A timely objection would have alerted the trial court to the oversight, and allowed correction. It is now too late to raise the matter. Where “ ‘a witness is permitted to testify without having been previously sworn and that fact is known at the time, the defect must be taken advantage of at once and a failure to do so is such acquiescence in the testimony as will preclude objection after verdict.’ ” (Ibid.)
Shin says he was unable to attend the hearing to lodge objections or produce evidence because he was in police custody, and claims his absence denied him the opportunity to present his side of the story. But a party to civil proceedings does not have an absolute right to be personally present at the proceedings. (Arnett v. Office of Admin. Hearings (1996) 49 Cal.App.4th 332, 338.) Shin was personally served with the City’s petition on February 21, 2007, two weeks before the hearing. The petition was served along with instructions advising Shin that he could file a written response. Also, Shin was arrested on February 28, 2007, which means he had a week before his arrest to begin preparing a response to the petition, and a week after his arrest to request a continuance if he wished to attend the hearing. Shin had a fair opportunity to challenge the City’s evidence, and failed to do so.
Another argument that Shin raises on appeal is the claim that the trial court wrongly considered Inspector Lindberg’s testimony about criminal charges filed against Shin. Shin is correct, of course, that a criminal defendant is presumed innocent and unadjudicated allegations of criminal misconduct are not evidence that he committed the charged crimes. We are confident the trial court did not give Inspector Lindberg’s testimony any weight it did not deserve, and we have not considered the criminal charges as proof of violent conduct by Shin in weighing the sufficiency of the evidence. The material portions of Inspector Lindberg’s testimony relate to Shin’s conduct with Mayor Newsom and the mayor’s staff from February 10 to 15, 2007, and the inspector’s personal observation of Shin’s arrest later that month in which Shin resisted the police. Reliance upon Inspector Lindberg’s report of criminal charges filed against Shin is wholly unnecessary to finding sufficient evidence to support issuance of the restraining order.
In fact, all of Inspector Lindberg’s testimony could be disregarded and there would still be sufficient evidence in the record. Shin’s claim that Inspector Lindberg’s testimony was unsworn or otherwise improper is therefore immaterial given the largely cumulative nature of the inspector’s testimony. The witness declarations provide the critical support for the restraining order. The trial court reached the same conclusion after reading the declarations. Even before hearing from Inspector Lindberg, the court observed that “there appear[] to be sufficient facts to grant the restraining order.” The observation was apt. Substantial evidence supports the restraining order.
III. DISPOSITION
The order is affirmed.
We concur: Ruvolo, P. J., Rivera, J.