Opinion
D071764
07-27-2018
In re the Marriage of J. G.J., Respondent, v. C.J., Appellant.
Estevan R. Lucero for Appellant. No appearance for Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. Nos. DVN25776, DN188037) APPEAL from an order of the Superior Court of San Diego County, William Y. Wood, Judge. Affirmed. Estevan R. Lucero for Appellant. No appearance for Respondent.
Our recent opinion In re Marriage of G. (2017) 11 Cal.App.5th 773 (Marriage of G.) explained that not every violent act justifies issuance of a domestic violence restraining order (DVRO) pursuant to the Domestic Violence Prevention Act (Fam. Code, § 6200 et seq.). We expressly recognized that the trial court may appropriately consider traditional principles of self-defense in deciding whether the petitioner seeking a DVRO has suffered "abuse" within the meaning of section 6203. (Marriage of G., at p. 776.) These traditional principles allow the initial victim of aggression to employ reasonable force to resist the aggressor, but do not protect such a victim who responds with excessive force. (Id. at pp. 776, 780.)
All statutory references are to the Family Code unless otherwise indicated. --------
In this case, Wife G.J. argued with and then physically attacked her Husband C.J. while they sat in the front seats of the family van parked at the side of the road. Husband responded by grabbing Wife and shoving her head against the windshield of the vehicle with sufficient force that it cracked the glass. Not surprisingly, the trial court found Husband's behavior "shocking" and issued a DVRO in favor of Wife and the three children.
This is not a case in which the trial court misunderstood the appropriate role of self-defense in determining whether domestic abuse occurred. As we read the record, this is a situation in which the court found that even if Wife started the physical altercation, Husband responded with clearly excessive force. Because more than substantial evidence supports the trial court's conclusion, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
The facts that provide the basis for the trial court's order were testified to by Wife, Husband, and the couple's 15-year-old daughter. The broad outlines of what happened are not in dispute. Husband was driving the family van. Wife was in the front passenger seat, with the three children in the rear seats. While stopped at a red traffic light, Wife became upset when she thought Husband was paying too much attention to a woman crossing the street. They began to argue and Husband pulled the van over to the curb. The argument escalated to physical violence when Wife punched Husband. In response, Husband grabbed Wife—he says by the shoulders, she says by her hair—and shoved her head against the front windshield with sufficient force that the glass cracked.
Although other allegations were made in Wife's request for a DVRO, the trial court focused on the fight in the family van. Directing his comments to Husband, the judge stated:
"[T]here was an event within the last couple years where there was physical violence between you and the petitioner. And it's not the request of the Court today to determine who the principal aggressor was in that particular set of circumstances. The evidence is that each of you had some offensive contact with the other person. All three of you have corroborated that in the course of an argument you shoved your wife's head so hard into the windshield of the van that it cracked the windshield. And I find that to be a shocking -- really shocking event. . . . [¶] Regardless of whether she hit you, the Court isn't being asked to issue a restraining order to protect you from her. The evidence is undeniable that you struck her with sufficient force that her head cracked the windshield."The court ultimately concluded that "[o]n the basis of what occurred in the [van] I do find that domestic violence has occurred. I do find it by a preponderance of the evidence, and I am going to issue a restraining order. [¶] You shoved your wife's [head] into the windshield and cracked it in front of your children."
DISCUSSION
Relying on Marriage of G., supra, 11 Cal.App.5th 773, Husband contends the trial court misunderstood the law regarding self-defense in the context of a domestic violence incident and erred in failing to determine whether Wife was the initial aggressor. He further argues there was no substantial evidence to support a finding that he inflicted "abuse" on Wife within the meaning of section 6203. (Id. at p. 776.)
Marriage of G. was a case in which the trial court refused to issue a DVRO based on its finding that the injury-causing conduct by the husband was a reasonable response to violent acts initiated by the wife. The court "specifically rejected [the wife]'s argument that [the husband] used excessive force in responding to her actions . . . ." (Marriage of G., supra, 11 Cal.App.5th at p. 778.) Concluding that traditional self-defense principles apply in the domestic violence context, we held that the trial court did not err in "consider[ing] the circumstances that led to the infliction of [the wife's] injury when evaluating her request for the DVRO." (Id. at p. 779.)
In our view, Husband's argument here is premised on a misreading of the trial court's ruling. Husband points to the court's statements that it was not being asked "to determine who the principal aggressor" or "to issue a restraining order to protect you from her" as indicating the judge did not understand that self-defense was a potentially valid defense to Wife's claim. But read in context, it is clear the court was not rejecting the concept of self-defense. Rather it concluded that regardless of who initiated the violence, Husband's violent response to his Wife's actions was excessive and unreasonable.
As we explained in Marriage of G., the legal right to employ violence in response to violence is premised on the response being reasonable in nature and degree. " 'The right to use force against another has long been limited by the condition that the force be no more than " 'that which reasonably appears necessary, in view of all the circumstances of the case, to prevent the impending injury.' " When the amount of force used is justifiable under the circumstances, it is not willful and the actor may escape liability for intentionally injurious conduct that is otherwise actionable. But if force is applied in excess of that which is justified, the actor remains subject to liability for the damages resulting from the excessive use of force.' " (Marriage of G., supra, 11 Cal.App.5th at pp. 779-780, citations and italics omitted, quoting Calvillo-Silva v. Home Grocery (1998) 19 Cal.4th 714, 730-731.)
Here, the trial court acknowledged the evidence that Wife initiated the physical violence, but determined this fact was immaterial not because self-defense was not a viable legal concept but rather because whatever the provocation, Husband's response was excessive and unreasonable. This is made crystal clear by the court's statement that characterized as "shocking" Husband's act of "shov[ing W]ife's head so hard into the windshield of the van that it cracked the windshield." A reasonable response by Husband would not be "shocking." But a "shocking" resort to an unnecessary level of violence is, almost by definition, excessive and unreasonable.
Moreover, the evidence was plainly sufficient to support the trial court's findings. Husband admitted that the force was sufficient to cause the windshield to crack. Although her head did not break through the glass, Wife characterized the windshield as "shattered." The daughter described it as a "long crack," eight to ten inches in circumference—"just one big spiderweb." This testimony was more than adequate to sustain a finding that Husband's response was excessive.
DISPOSITION
The order is affirmed. Respondent is entitled to costs on appeal.
DATO, J. WE CONCUR: BENKE, Acting P. J. O'ROURKE, J.