Opinion
F061588 Super. Ct. No. R1502FL6285
01-10-2012
In re the Marriage of RISHARD and HEATHER JACKSON. RISHARD JACKSON, Appellant, v. HEATHER JACKSON, Respondent.
Wayne Silva for Appellant.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
OPINION
APPEAL from a judgment of the Superior Court of Kern County. Kenneth G. Pritchard, Commissioner.
Wayne Silva for Appellant.
No appearance by Respondent.
Appellant Rishard Jackson (Rishard) appeals from a November 2, 2010, minute order and a November 18, 2010, amended order of the superior court granting respondent Heather Jackson's (Heather) request for a protective order under the Domestic Violence Prevention Act (DVPA) (Fam. Code, § 6200 et seq.). The order was issued after a noticed hearing at which conflicting testimony was presented. Rishard contends that the order is not supported by substantial evidence. Heather is unrepresented on this appeal and has filed no brief. Her failure to file a respondent's brief "means that we 'decide the appeal on the record, the opening brief, and any oral argument by the appellant,' [(which the parties waived)] (Cal. Rules of Court, rule 8.220(a)(2), formerly rule 17(a)), examining the record and reversing only if prejudicial error is shown." (Nakamura v. Parker (2007) 156 Cal.App.4th 327, 334.) Because Rishard challenges the sufficiency of the evidence to support the order, and because much of the evidence presented by Rishard conflicted with evidence presented by Heather, we will begin with a restatement of the standard under which an appellate court reviews the sufficiency of the evidence to support a lower court order or judgment. We will then briefly restate the law applicable to the granting of domestic violence restraining orders under the DVPA. Finally, we will highlight the evidence presented to the superior court, and explain why in our view that that evidence amply supports the order issued.
All further statutory references are to the Family Code unless noted otherwise.
Rishard also makes two other perfunctory contentions of error. First, he contends that the court abused its discretion by ordering him to complete a 16-week anger management program without making findings as to the alleged acts that constituted domestic violence. His argument omits any mention whatsoever of section 6343, a provision of the DVPA, which states in pertinent part "[a]fter notice and a hearing, the court may issue an order requiring the restrained party to participate in a batterer's program approved by the probation department as provided in Section 1203.097 of the Penal Code." Second, he contends in an argument making no citations to the record, that "there is no substantial evidence to support the court's attorney fees award." (Full capitalization and emphasis omitted.) The domestic violence restraining order from which he appeals contains no order requiring appellant to pay attorney fees. Rishard's notice of appeal does purport to also appeal from a November 2, 2010, minute order of the superior court, and the minute order does state that the court ordered Rishard to pay Heather $3,000 in attorney fees, but the minute order also describes the court's ruling on the parties' custody dispute, and the attorney fees were presumably incurred in connection with the court's determination of the issue of custody. The court's actual order granting joint legal and physical custody of the minor child has not been appealed and does not appear in the record on this appeal. We therefore find no merit to these perfunctorily asserted contentions.
--------
THE SUBSTANTIAL EVIDENCE RULE
"When a trial court's factual determination is attacked on the ground that there is no substantial evidence to sustain it, the power of an appellate court begins and ends with the determination as to whether, on the entire record, there is substantial evidence, contradicted or uncontradicted, which will support the determination, and when two or more inferences can reasonably be deduced from the facts, a reviewing court is without power to substitute its deductions for those of the trial court. If such substantial evidence be found, it is of no consequence that the trial court believing other evidence, or drawing other reasonable inferences, might have reached a contrary conclusion. [Citations.]" (Bowers v. Bernards (1984) 150 Cal.App.3d 870, 873-874.)
Substantial evidence is evidence "'of ponderable legal significance, ... reasonable in nature, credible, and of solid value.' [Citations.]" (Bowers v. Bernards, supra, 150 Cal.App.3d at p. 873.) "When two or more inferences can be reasonably deduced from the facts, the reviewing court is without power to substitute its deductions for those of the trial court." (Crawford v. Southern Pacific Co. (1935) 3 Cal.2d 427, 429; see Western States Petroleum Assn. v. Superior Court (1995) 9 Cal.4th 559, 571.)
"[W]e resolve all conflicts in favor of the prevailing party and view the evidence in the light most favorable to that party. [Citation.] We give the prevailing party the benefit of every reasonable inference from the evidence." (City and County of San Francisco v. Golden Gate Heights Investments (1993) 14 Cal.App.4th 1203, 1211.) It has been observed that when sufficiency of the evidence is an issue, and when the evidence presented is in conflict, or when more than one reasonable inference may be drawn from the evidence, "a summary of the evidence abstracted from the record and stated in the manner required by the standard we have described rarely makes pleasant reading for the losing party." (Toole v. Richardson-Merrell Inc. (1967) 251 Cal.App.2d 689, 719.)
THE DOMESTIC VIOLENCE PREVENTION ACT
"The DVPA defines domestic violence as 'abuse' perpetrated against enumerated individuals, including a former spouse or cohabitant. (§ 6211, subds. (a), (b).) Its purpose is to prevent the recurrence of acts of such abuse and to provide for a separation of those involved in order to resolve its underlying causes. (§ 6220.) To this end, the DVPA provides for the issuance of restraining or 'protective' orders, either ex parte or after hearing, that enjoin specific acts of abuse. The act defines 'abuse' as either an intentional or reckless act that causes or attempts to cause bodily injury; an act of sexual assault; an act that places a person in reasonable apprehension of imminent serious bodily injury to himself or herself or to another; and an act that involves any behavior that has been or may be enjoined under section 6320. (§ 6203.) The behavior that may be enjoined under section 6320 includes 'molesting, attacking, striking, stalking, threatening, sexually assaulting, battering, harassing, [and making] annoying telephone calls as described in Section 653m of the Penal Code.' (§ 6320.) A court may also enjoin 'disturbing the peace of [another] party, and, in the discretion of the court, on a showing of good cause, of other named family or household members.' (§ 6320.) A trial court is vested with discretion to issue a protective order under the DVPA simply on the basis of an affidavit showing past abuse. Specifically, it 'may' issue an order 'with or without notice, to restrain any person for the purpose of preventing a recurrence of domestic violence and ensuring a period of separation of the persons involved, if an affidavit ... shows, to the satisfaction of the court, reasonable proof of a past act or acts of abuse.' (§ 6300.)
"The foregoing provisions of the DVPA confer a discretion designed to be exercised liberally, at least more liberally than a trial court's discretion to restrain civil harassment generally. For example, the 'abuse' that may be enjoined under sections 6203 and 6320 is much broader than that which is defined as civil harassment. (Cf. Code Civ. Proc., § 527.6, subd. (b).) Moreover, an order after hearing may enjoin civil harassment only on proof by clear and convincing evidence. (Code Civ. Proc., § 527.6, subd. (d).) This stringent standard of proof does not apply to an order after hearing restraining abuse under the DVPA. (See § 6340, subd. (a).)" (Nakamura v. Parker, supra, 156 Cal.App.4th at p. 334.)
Because the definition of "abuse" under the DVPA is so broad, "the requisite abuse need not be actual infliction of physical injury or assault." (Conness v. Satram (2004) 122 Cal.App.4th 197, 202.)
"A grant or denial of injunctive relief is generally reviewed for abuse of discretion. [Citation.] This standard applies to a grant or denial of a protective order under the DVPA. [Citation.]" (Gonzalez v. Munoz (2007) 156 Cal.App.4th 413, 420.) Under the DVPA, the definition of "abuse" includes "[t]o place a person in reasonable apprehension of imminent serious bodily injury to that person or to another." (§ 6203, subd. (c).) Thus, a spouse or former spouse need not actually cause, or threaten to cause, bodily injury for a protective order to issue. Heather's argument to the court was that she was fearful of what Rishard might do, because of behavior he had been exhibiting. Heather's request for a restraining order was brought while the parties' dissolution proceeding was ongoing and in the midst of disagreements between them about the care and custody of their five-year-old daughter. A finding of abuse under the DVPA "necessarily triggers" a rebuttable presumption found in section 3304, subdivision (a), "that an award of sole or joint physical or legal custody of a child to a person who has perpetrated domestic violence is detrimental to the best interest of the child ...." (S.M. v. E.P. (2010) 184 Cal.App.4th 1249, 1267.) A request for a domestic violence restraining order brought by a party to a custody dispute who has not suffered or been threatened with actual physical violence must be viewed with that reality in mind, but here we note that the court which issued the restraining order also simultaneously ruled that the parties were to have joint legal and joint physical custody of the child, and so the presumption was apparently rebutted in this case.
THE ORDER IS SUPPORTED BY SUBSTANTIAL EVIDENCE
Rishard and Heather were married in 2002. Their daughter was born in 2004, and they separated in May of 2009. At some point, Heather became romantically involved with Erik Sjothun, and the two began living together in January of 2010. In April 2010, Rishard and Heather agreed that their daughter would spend half her time with each parent. At about that same time, Rishard's aunt, Carole Cannon, offered to provide child care for their five-year-old daughter at no cost, and Rishard and Heather agreed to accept this offer.
Heather's request for a domestic violence restraining order was filed on September 14, 2010, simultaneously with her request for sole legal and physical custody of the child. A hearing was held on October 6, 2010, on the custody issues and on October 12 and October 22, 2010, on the domestic violence restrain order request. The witnesses who testified in support of Heather's request for a domestic violence restraining order sought protection not only for herself, but for Erik Sjothun also. The witnesses who testified in support of the request for a domestic violence restraining order were Heather, Rishard's aunt Carole Cannon (who is a sister of Rishard's mother), and Carole Cannon's husband Ray Cannon.
Carole Cannon testified that when Rishard came to her house to drop off and pick up his daughter, he would tell her that Heather was crazy, that Heather was going to come back to him, that he knew what Heather was doing all the time, that he had "spies" who told him what she was doing, that he didn't like Erik, and that if Erik was out of the picture Heather would come back to him. She testified that Rishard "hates" Erik and that "one time, when we were at his house, he said he'd gotten so mad at Eric [sic] that he took his pistol and unloaded it and then dry fired it over a hundred times while pretending that he was shooting Eric."
At some point, Carole Cannon had an argument with Rishard because Carole had a puppy the little girl would play with, and Carole allowed the child to take the puppy with her to Heather's house, but not to Rishard's house. Carole testified that she thought the puppy would not be safe around the dogs at Rishard's house, at least one of which she believed was "half pit."
Shortly after, Carole Cannon offered to go to Rishard's house to pick up the child on mornings when Rishard had to work. Rishard had to leave at 3:30 a.m. to get to his workplace to begin his 5:00 a.m. to 2:30 p.m. work shift. He would have a sitter stay with the child, and then the sitter would bring the girl to Carole Cannon's house later in the morning. Carole testified that she told Rishard she wanted to "stop the constant rotation of baby-sitters," and that Rishard got angry and told Carole her services as a daycare provider for the child were no longer needed. She testified that Rishard was "so angry" that her husband asked him to leave. This occurred "[a]bout the middle of September" in 2010, apparently just before Heather's request for a domestic violence restraining order was filed. Heather continued to use Ms. Cannon as a daycare provider, and at some point Carole Cannon herself was so fearful of Rishard that she herself sought to obtain a restraining order against him.
Ray Cannon's testimony largely corroborated the testimony of Carole Cannon. Ray Cannon testified that he would talk with Rishard during Rishard's visits to the Cannon home. Ray Cannon testified without objection: "[I]t was very evident that Rishard loved [Heather], and he still loves her very much. He is very angry about the divorce, very hurt by the divorce." Ray Cannon further testified that Rishard told him that Rishard was planning on trying to get custody of Rishard's and Heather's daughter, and that he [Rishard] had spies out. Ray Cannon testified that during the incident which resulted in him asking Rishard to leave the Cannon home, Rishard's "voice, his stature, his demeanor" made it clear that Rishard was "angry." The parties also stipulated that the court could consider the declaration Ray Cannon had submitted in support of Heather's request for a domestic violence restraining order. In that declaration Ray Cannon declared: "Rishard told me if he didn't win and have full custody of [the child], no one could have her. He also said that if Eric [sic] was gone there would be no problem and Heather would come back to him. He said ... he was using spies to find out everything that Heather was doing. He would question me and my wife as to everything Heather was doing, what time she called what she was wearing and who she was with."
In the course of appellant's own October 22, 2010, testimony, he testified that earlier that week, he had called the police and told them that another child's mother, who appellant refused to identify and who had been dropping her own child off at school, had told him she had seen Erik Sjothun with "his hand up our daughter's dress." Appellant testified that the police officer with whom he spoke told him to contact the school, and so appellant made the same report to the school principal.
Heather testified that she was afraid of Rishard. She testified that Rishard had told her "he knew who was at my house and what time they were there." She testified that earlier in their marriage she had reported to her husband's military command that he was abusive, and that in August of 2009 she had sought a domestic violence restraining order against him but then "dropped" that request "so that he could have his job." Her testimony did not mention any specific incident of appellant having struck her or having threatened to strike her. However, she did testify that once, in 2005, she hit appellant over the head with a ceramic candlestick "in self-defense," but gave no further details about that incident. It appears that her request for a domestic violence restraining order was based primarily on her fears and concerns about what Rishard had been saying to the Cannons.
The superior court apparently concluded that Heather had a reasonable apprehension of imminent serious bodily injury to herself or to Erik Sjothun. "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." (Shamblin v. Brattain (1988) 44 Cal.3d 474, 478-479; Gonzalez v. Munoz, supra, 156 Cal.App.4th at p. 420.) We cannot conclude that the court exceeded the bounds of reason here in concluding that Heather was genuinely apprehensive and that her apprehension was reasonable under the circumstances.
DISPOSITION
The superior court order granting the domestic violence protective order is affirmed.
____________________________
Franson, J.
WE CONCUR:
____________________________
Levy, Acting P.J.
____________________________
Kane, J.