Opinion
NOT TO BE PUBLISHED
Appeal from an order of the Superior Court of Orange County, Super. Ct. No. 05P000881, Nancy A. Pollard, Judge.
Daniel M. Scott, in pro. per., for Defendant and Appellant.
Kerwin & Associates and William F. Kerwin for Plaintiff and Respondent.
OPINION
RYLAARSDAM, ACTING P. J.
Defendant Daniel M. Scott appeals from a restraining order issued against him in favor of plaintiff Thuy Le under the Domestic Violence Prevention Act (Fam. Code, § 6200 et seq.; DVPA; all further statutory references are to the Family Code.) He raises several issues, including claims of insufficiency of the evidence supporting the order, violation of his Sixth Amendment right to a speedy trial based on a continuance for plaintiff to produce a witness, violation of the Eighth Amendment based on a travel restriction, and violation of the First, Fourth, and Fourteenth Amendments because the court ordered him to destroy all tapes and DVDs in his possession showing sexual activity between him and plaintiff. Finding none of these claims meritorious we affirm.
FACTS AND PROCEDURAL HISTORY
Plaintiff and defendant had a sexual relationship beginning in approximately 2002 and had a daughter in 2005. After they terminated the relationship, in March 2007 plaintiff filed a request for a domestic violence restraining order, making a myriad of requests and claims. As relevant to this appeal, plaintiff sought to bar defendant from coming within 100 yards, stalking, harassing, or contacting her in any manner. She also asked that she be allowed to record any communications from defendant that violated the order. Further, she sought to modify an existing custody and visitation order.
In her petition plaintiff claimed defendant had made many threats and on one occasion had sent to her a graphic e-mail at work, which showed them engaged in sexual conduct. She alleged he had “made [her] lose [her] previous job and threatened to get [her] fired” from her current job. She stated defendant had threatened to kill himself three different times within three weeks prior to filing the petition, told her he had “nothing to lose.” Because defendant had no relatives in California, she was afraid he would take their daughter and flee. She claimed defendant, on one occasion, had taken their child from day-care and told her “he wouldn’t return her.” She sought an order requiring defendant to have written permission to take their daughter outside of Orange County.
Plaintiff also claimed defendant followed her, continually called her cell phone, despite having a blocked number even after she changed it, and sent her numerous e-mail and text messages; she attached copies of some of the messages to her petition.
Defendant denied all the allegations and requests, claiming plaintiff filed the action because, after they had recently resumed their relationship, she became angry at him for having a liaison with another woman. He also alleged plaintiff had interfered with the current custody and visitation order.
At the hearing, plaintiff’s testimony mirrored the allegations made in the petition. She also testified that defendant made graphic videos of her without her knowledge. Defendant disputed this and brought four videos for the court to view. He testified they were made during their relationship and with her knowledge and consent. After the judge reviewed the tapes, she found plaintiff was “not an unwitting victim.” However, she ultimately found defendant had sent the picture to plaintiff’s work e-mail. The court granted the restraining order.
The order prohibits defendant from contacting plaintiff, stalking, harassing, or disturbing her peace, and requires he stay at least 100 yards from her. Plaintiff was given permission to record communications from defendant that violated the order. The court also ordered that neither party could take their child outside California without a court order or written, notarized permission from the other. In addition, it confirmed the existing custody order and visitation schedule.
DISCUSSION
1. Introduction
Under the DVPA, a court may issue an order “to restrain any person for the purpose of preventing a recurrence of domestic violence . . . if an affidavit . . . shows, to the satisfaction of the court, reasonable proof of a past act or acts of abuse.” (§ 6300.) The order may “enjoin[] a party from molesting, attacking, striking, stalking, threatening, sexually assaulting, battering, harassing, telephoning, . . . coming within a specified distance of, or disturbing the peace of the other party . . . .” (§ 6320.)
2. Sufficiency of the Evidence
Defendant contends there was no evidence supporting issuance of the order. Specifically he relies on the court’s comments to plaintiff during the hearing that if plaintiff did not have proof that defendant sent the pornographic e-mail, her statement that “it would not have been anybody else” was not sufficient and that copies of other e-mails with defendant’s header on them “[did not] tell [the court] anything.”
But after additional questions and answers, the court found that, although plaintiff was “not completely truthful” about her knowledge of the tapes being made, it did not believe defendant’s claim that plaintiff had sent the e-mail to herself to set him up and interfere with his custody and visitation. Instead it found that defendant or someone on his behalf had sent it. This was sufficient evidence to support the order.
On appeal, our only role is to decide if, “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, [we are] without power to substitute [our] deductions for those of the trial court.” (Bowers v. Bernards (1984) 150 Cal.App.3d 870, 873-874, italics omitted.) We must accept all evidence supporting the successful party, disregard the conflicting evidence, and draw all reasonable inferences to uphold the verdict. (Minelian v. Manzella (1989) 215 Cal.App.3d 457, 463.) “[W]e view the evidence in the light most favorable to the trial court’s findings. [Citation.]” (Plate v. Sun-Diamond Growers (1990) 225 Cal.App.3d 1115, 1125.) Thus, it is not our role to reweigh the evidence, redetermine the credibility of the witnesses, or resolve conflicts in the evidence, and we will not disturb the judgment if there is evidence to support it. (Reichardt v. Hoffman (1997) 52 Cal.App.4th 754, 766.)
Here the court weighed the testimony and documentary evidence, considered the credibility of the parties, and ruled in plaintiff’s favor. Because there was sufficient evidence to support the order, it does not matter that defendant presented contrary evidence. Because we do not evaluate evidence, we may not consider the several pages in his brief disputing plaintiff’s evidence and explaining his version of what probably happened.
3. Continuance
Defendant claims his Sixth Amendment right to speedy trial was violated when the court granted plaintiff a continuance to produce a witness. He also seems to contend he had no notice of the original ex parte hearing. These are not grounds for reversal.
The record is sparse as to what actually occurred vis-à-vis a continuance. We have only the transcript from the continued hearing, not the original hearing. Although unclear, it appears the court might have continued the original hearing so plaintiff could produce a witness. Assuming that is what happened, defendant’s rights were not violated. The Sixth Amendment applies only to criminal actions. A domestic violence petition is not a criminal action. (See Christian Research Institute v. Alnor (2007) 148 Cal.App.4th 71, 89; People v. Hayden (1994) 22 Cal.App.4th 48, 55.) And continuances are within the sound discretion of the trial court. There is nothing here to indicate the court’s ruling was unfair to defendant or beyond the bounds of the court’s discretion.
Further, the apparent lack of notice to defendant of the original hearing did not prejudice him. He had notice of the hearing at issue and appeared and contested the petition. That is sufficient to satisfy due process.
4. Restriction on Travel
Defendant challenges the order that he may not take his daughter outside of California without a court order or written permission from plaintiff, claiming it is cruel and unusual punishment because his parents live in Nevada. We disagree.
The Eighth Amendment prohibition on cruel and unusual punishment applies only to criminal sentences. (Ingraham v. Wright (1977) 430 U.S. 651, 671 [97 S.Ct. 1401, 51 L.Ed.2d 711]; Ochoa v. Superior Court (1985) 39 Cal.3d 159, 174.) As noted above, issuance of a domestic violence restraining order is not a criminal conviction.
Further, defendant’s right to travel is not restricted. What is limited is his right to take his child out of state without permission. This is specifically authorized by section 3048, subdivision (b)(2)(C) [if measure needed to prevent abduction of child, appropriate to restrict parent from taking child out of state].
The court’s order was supported by plaintiff’s testimony that defendant had no ties to the state and had threatened to take their daughter and not come back. It is reasonable to infer that the court believed these claims and that they were the basis for the order. This is sufficient evidence, defeating defendant’s claim there was none.
And, contrary to what defendant seems to believe, the travel restriction applies to plaintiff as well, so his concern about her being a flight risk was addressed by the court.
5. Destruction of the Tapes
Defendant also challenges the court’s order that he destroy all CD’s, DVD’s, videotapes, and “any representations of all sexual activity between” the parties, claiming it violated his constitutional rights. This claim has no merit.
Defendant asserts that because the tapes were made with plaintiff’s consent and “[i]t was never proven . . . that [he] made any threat . . . or even implied a threat” with them, he had a First Amendment right to keep them, and the order violated his Fourth Amendment right against an unreasonable seizure.
But the evidence is contrary. While the court did find plaintiff consented to making the tapes, it also found defendant sent a pornographic picture taken from one of them to plaintiff’s office e-mail. After the court ordered destruction of the tapes on hand, plaintiff stated she feared defendant would send more from additional media in his possession. Defendant’s prior misuse of the tapes and the potential he would do so again constituted sufficient evidence to justify the court’s decision.
Moreover, defendant did not object to the destruction order. He consented to the order to destroy the tapes he had presented, offering to leave them with the court, saying he “[did not] need them for any reason” and did not protest the second order to destroy all remaining tapes. This constitutes a waiver of his claims.
Finally, we reject defendant’s claim that the court’s failure to order plaintiff to destroy any tapes she had violated his Fourteenth Amendment right to equal protection. Defendant did not request such an order. Moreover there was no evidence plaintiff had misused or threatened to misuse the tapes.
DISPOSITION
The order is affirmed. Respondent is entitled to costs on appeal.
WE CONCUR: BEDSWORTH, J., O’LEARY, J.