Opinion
D071407
03-27-2018
NORAM MOHAMED, Plaintiff and Respondent, v. MOHAMED ATTIA, Defendant and Appellant.
Mohamed Attia, in pro. per., for Defendant and Appellant. Noram Mohamed, in pro. per., for Plaintiff and 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. No. DV043764) APPEAL from a judgment of the Superior Court of San Diego County, Matthew Braner, Judge. Affirmed. Mohamed Attia, in pro. per., for Defendant and Appellant. Noram Mohamed, in pro. per., for Plaintiff and Respondent.
Mohamed Attia (Attia) and Noram Mohamed (Mohamed) had been married for about four months when Mohamed sought a domestic violence restraining order preventing Attia from contacting her. (Fam. Code, § 6300.) Mohamed alleged both physical and verbal abuse, and sought a three-year order. After an evidentiary hearing, the court found Mohamed did not establish the claimed physical abuse. But the court found Mohamed met her burden to show Attia had verbally and emotionally abused her, and this abuse warranted a one-year protective order against Attia.
All unspecified statutory references are to the Family Code.
Attia challenges the sufficiency of the evidence supporting the order, and contends the court committed evidentiary errors. We reject Attia's contentions and affirm.
I. Factual Summary
Under well-settled appellate principles, we view the factual record in the light most favorable to the court's findings and order. (See Achene v. Pierce Joint Unified School Dist. (2009) 176 Cal.App.4th 757, 761.)
Background
Mohamed and Attia met in February 2016. Both are from Egypt. They were introduced by Mohamed's father. When they met, Attia was a United States citizen, and Mohamed was in the country on a temporary visitor's visa. According to Mohamed, Attia proposed marriage shortly after they met and did not want to delay the marriage. Mohamed testified she was initially reluctant because she was employed in Egypt and had many close family members there, but she soon agreed to the marriage.
Within three months of their first meeting, on May 1, Attia and Mohamed married and moved into Attia's home in Riverside. From the beginning the couple had problems. Mohamed testified that Attia was abusive sexually. She said he called her names, and did not allow her to leave the house without him.
Less than two months after they married, Mohamed learned she was pregnant. On that day or the next day, when she did not want to have sex with him, Attia began yelling at Mohamed, scaring her. Mohamed testified Attia "kept saying swear words in Arabic, like I'm a whore, I'm a bitch, and he kept calling the whole family names . . . [and] saying a lot of insulting words. He said that I'm just a stupid immigrant and that . . . nobody would look at my shitty face. And [when] I tried to leave the room—for one and a half hour he kept me in the room insulting me and degrading me, and then he grabbed me from the wall to the bed and then he kept insulting and throwing money at my face." According to Mohamed, Attia said that if she "ever called the police, [she] should [also] call an ambulance."
Later that day or the next day, Attia apologized. Shortly after, on about July 3, Mohamed went to San Diego to stay with the couple's mutual friends, Tamar and his wife. Several days later, Attia persuaded Mohamed to take a trip with him to Catalina. Attia testified that during the trip, Mohamed was happy and the couple got along very well, and produced photographs to support this assertion. Mohamed testified that the trip was terrible for her because Attia insulted her throughout the trip.
After the trip, Mohamed asked for a divorce, but Attia did not agree. On July 17, Mohamed went back to stay with Tamar.
On about July 31, Attia and Mohamed went to a mediation led by two Muslim religious leaders in an attempt to resolve the couple's marital difficulties. During the three-hour mediation (also attended by their mutual friends Tamar and his wife), Attia told Mohamed she needed to come back home and live with him, and she refused. Mohamed testified that at the end of the meeting, Attia grabbed her arm in an aggressive manner. Attia denied doing so, and each of the other witnesses said they did not see this action.
Restraining Order Petition
Less than two weeks later, on August 11, 2016, Mohamed petitioned for a domestic violence restraining order. (§ 6300.) She supported the petition with her declaration stating that Attia had been physically and emotionally abusive throughout the marriage, and discussed various examples, including forcing her to have sexual relations, yelling at her, preventing her from leaving the home, and forcing her to hug him.
Attia opposed the petition, stating that Mohamed's "accusations are all untrue," and claimed Mohamed filed the petition "because she knows if there is a violent history with a spouse then immigration would help her and approve her green card."
In a supplemental declaration, Mohamed provided additional examples of emotional abuse, including specific derogatory names he had called her and stating that Attia raised "his hand as if he was going to strike me repeatedly." Mohamed reported that she has nightmares, is depressed, and "feel[s] trapped." She said she had "come to learn I am in a cycle of violence and abuse by this man and I need help to break it."
After several continuances, in October 2016 the court held a two-day evidentiary hearing. Both parties were represented by counsel.
Summary of Mohamed's Case
At the hearing, Mohamed testified that Attia had engaged in the verbal and physical abuse summarized above. When asked why she was seeking a restraining order, Mohamed said that Attia told her many times that he is "vindictive" and that "with his power and money he can do anything." She said that based on his past actions, she is very scared of him.
Mohamed submitted a series of text messages between the parties, and they were admitted as exhibits at trial. Attia did not designate these documents as part of the appellate record, but the parties' testimony reflects the content of some of the texts. One of Mohamed's texts to Attia describes that Attia had accused her of being "a rotten scum bag" and "a whore." In his responsive texts, Attia apologized and said, "this is not for publicity, please" and "don't tell on me, please." Attia also later texted that " 'If I want to use my power no one, not your dad, will matter to me.' "
Mohamed also called two witnesses: (1) a Muslim religious leader who had known Attia for many years and who performed the couple's marriage ceremony (we shall refer to this witness as "Sheikh"); and (2) Mohamed's father. As detailed below, Attia objected to these witnesses on grounds that Mohamed had not provided prior written notice they would be called at the hearing. (See § 217, subd. (c).) The court overruled this objection but stated it would permit substantial latitude during cross-examination.
In his testimony, Sheikh corroborated Mohamed's claim that Attia had pursued the marriage, and that Mohamed was initially reluctant to marry Attia. Sheikh also testified that after they married, Mohamed called him crying and complaining that Attia had been verbally abusive towards her. Sheikh made clear that he never saw, and Mohamed never told him about, any physical abuse committed by Attia.
Over Attia's counsel's objections (discussed below), the court allowed counsel to read a letter that Sheikh had written after Mohamed had filed the restraining-order petition. The letter was consistent with Sheikh's testimony that Mohamed had complained about Attia's verbal abuse, and provided additional details about this conduct. For example, Sheikh's letter stated that during the marriage, Mohamed came to his home, " 'crying and in total emotional damage.' " The letter also stated that Attia acknowledged "he [had] called [Mohamed] names and insulted her," but Attia had apologized and said he would not do that again. Mohamed later called Sheikh, crying and saying that Attia was "pressuring and harassing her and that she couldn't take it anymore."
After the letter was read, the court stated it would not consider any portions of the letter that related specific statements made by either party to Sheikh.
Mohamed's father, who lives in New York, testified very briefly. He said he first met Attia in 2014, and at that time Attia told him he would like to marry Mohamed, after Attia saw Mohamed's photograph. Two years later, in April 2016, Attia came to New York because he wanted to meet Mohamed for an arranged marriage. Mohamed's father testified that he is a United States citizen and applied several years ago for a permanent visa for Mohamed to live in this country.
Summary of Attia's Defense Case
Attia testified in his own defense. He strenuously denied he had engaged in any verbal or physical abuse against Mohamed. He said Mohamed's testimony was false and she had married him only to get a "green card" through a visa program for domestic violence victims. Attia said he is a well-respected businessman. He testified that he had not sought to get married, but Mohamed's father called him and asked him to meet his daughter. Attia said that shortly after they married, Mohamed acted in a strange manner (including cooking in the dark and placing heavy towels on the windows) and Mohamed raised numerous complaints about trivial matters, such as how he slept and how he walked.
Attia called an Imam and Islamic teacher as a supporting witness. This Imam conducted the July 31 mediation, and testified that he never saw Attia grab Mohamed's arm in an aggressive manner, and that he was in a position to have seen this conduct if it had occurred.
Attia also called Tamar, Attia's close friend for more than 20 years. On direct examination, Tamar testified that he was at the July 31 mediation and he did not see Attia aggressively grab Mohamed. On cross-examination, Tamar testified that Mohamed called him early in the marriage, crying and saying that Attia had called her names. Tamar heard Attia repeatedly apologize to Mohamed. According to Tamar, Attia said he did not mean to be abusive, and that it was a mistake and he was nervous and upset. Tamar said that Attia promised it would never happen again, but Tamar acknowledged that Mohamed continued to complain about Attia's treatment toward her.
Closing Arguments
During closing arguments, Mohamed's attorney said Mohamed was seeking a protective order because Attia was "abusive and controlling," and court intervention is necessary because she does not feel "safe and protected," and she fears the "abuse will continue and escalate if he goes unrestricted." Counsel argued the evidence showed Attia had physically and verbally abused Mohamed. Counsel said Attia "needs to know he cannot communicate with her, he cannot abuse her, and he cannot control her." Mohamed asked for a permanent restraining order of at least three years.
Attia's counsel responded that Mohamed did not meet her proof burden. He argued there was no credible evidence that Attia had engaged in any physical abuse. Counsel acknowledged that although "there [may have been] some name calling going back and forth," this conduct did not "amount to abuse as defined by the statute." Attia's counsel also noted that the purpose of a restraining order is to ensure separation between the parties, and argued these parties would have little or no contact because they were in the process of annulment/dissolution proceedings, and child custody issues would be handled in a separate custody action.
Court's Ruling
After considering the evidence, the court found Mohamed did not meet her burden to show physical or sexual abuse. But the court found credible the evidence showing "there was emotional abuse [and] verbal abuse" warranting a restraining order. The court found a one-year order was sufficient to ensure Mohamed was protected. The court stated that although it would have had a difficult time reaching a decision based solely on the testimony of the two parties, other evidence assisted the court in reaching its conclusions. Specifically, the court stated that two witnesses (Sheikh and Tamar) corroborated Mohamed's testimony that Attia had been verbally abusive. The court observed:
"[I]t's one thing if one spouse denounces the other during a spat. It's another thing [if] the abuse is chronic. And it's another thing if the abuse, to some degree . . . , crosses the line. The court finds the evidence is pretty strong that the abuse was continuous, and . . . that [it] crossed the line in [that Attia used] words like whore, slut, scum bag [against Mohamed], and asshole in reference to [Mohamed's] father[.] . . .The court also found that Attia has a temper, and ordered him to complete anger management training, counseling, and a domestic violence recovery program, noting that successful completion of these courses would "go a long way towards overcoming any presumptions regarding the child."
"[Attia's] friend of 20 years Tamar talked about how [Attia] repeatedly apologized for using those words. It's important to put in context the fact that using those words and causing emotional abuse, if this were a sliding scale, . . . certainly verbal abuse may not be as severe as physical and sexual abuse. But the statute really doesn't differentiate in terms of what is needed to trigger the court granting a restraining order.
"[T]his marriage [was] a horrible mismatch practically from the start. And when you got folks in a bad marriage with completely contrary expectations of . . . what that marriage should entail, . . . it's either going to end in dissolution [or] annulment . . . . There is a child, however."
DISCUSSION
I. Domestic Violence Prevention Act
The court issued the protective order under the Domestic Violence Prevention Act (Act), which permits a court to issue an order restraining a spouse from having contact with his or her spouse upon "reasonable proof of a past act or acts of abuse." (§§ 6300, 6200, 6211, subd. (a).)
The Act broadly defines "abuse" to include physical abuse, sexual assault, threatened physical abuse, and numerous forms of harassment. (§§ 6203, 6320.) The statutory definition includes nonviolent conduct. (See §§ 6203, subd. (b), 6320, subd. (a); In re Marriage of Nadkarni (2009) 173 Cal.App.4th 1483, 1498-1499 (Nadkarni); Conness v. Satram (2004) 122 Cal.App.4th 197, 201-202.) "[S]ection 6320 broadly provides that 'disturbing the peace of the other party' constitutes abuse . . . ." (Nadkarni, at p. 1497.) "[T]he plain meaning of the phrase 'disturbing the peace of the other party' in section 6320 may be properly understood as conduct that destroys the mental or emotional calm of the other party." (Ibid.) The type of conduct that can support a protective order is "much broader than that which is defined as civil harassment" under the civil harassment statute, and the proof standard is preponderance of the evidence. (Nakamura v. Parker (2007) 156 Cal.App.4th 327, 334).
A family court has discretion in determining whether a restraining order is justified. (Sabato v. Brooks (2015) 242 Cal.App.4th 715, 723; Gonzalez v. Munoz (2007) 156 Cal.App.4th 413, 420.) The court abuses its discretion only if it exceeds the bounds of reason, fails to apply correct legal standards, or acts without evidentiary support. (Gonzalez, at pp. 420-421.) In determining whether substantial evidence supports the court's order, we view the evidence in the light most favorable to the order. (Phillips v. Campbell (2016) 2 Cal.App.5th 844, 849-850; In re Marriage of Drake (1997) 53 Cal.App.4th 1139, 1151 (Drake).) We do not reweigh the evidence or second-guess the credibility of a witness. (In re Marriage of Balcof (2006) 141 Cal.App.4th 1509, 1531 (Balcof).)
An appellate court must presume "the trial court acted duly and regularly and received substantial evidence to support its findings." (Stevens v. Stevens (1954) 129 Cal.App.2d 19, 20; accord, Bell v. H.F. Cox, Inc. (2012) 209 Cal.App.4th 62, 80.) An appellant has the burden to overcome this presumption.
II. Substantial Evidence Challenge
Attia contends insufficient evidence supported the court's finding that he emotionally and verbally abused Mohamed. Attia forfeited the argument by failing to comply with appellate rules governing substantial evidence review. Additionally, on our independent review of the entire record, we conclude Attia's contention fails on its merits.
With respect to forfeiture, when an appellant contends the evidence is insufficient to support a finding, the appellant must set forth in the opening brief all the evidence material to that finding, including the evidence unfavorable to his or her position. (Foreman & Clark Corp. v. Fallon (1971) 3 Cal.3d 875, 881; City of Riverside v. Horspool (2014) 223 Cal.App.4th 670, 674, fn. 3.) "[T]he appellant has the duty to fairly summarize all of the facts in the light most favorable to the judgment." (Boeken v. Philip Morris, Inc. (2005) 127 Cal.App.4th 1640, 1658; accord, Schmidlin v. City of Palo Alto (2009) 157 Cal.App.4th 728, 738.) An appellant must state fully, with transcript citations, the evidence claimed to be insufficient to support the trial court's findings. (In re Marriage of Fink (1979) 25 Cal.3d 877, 887; see Nwosu v. Uba (2004) 122 Cal.App.4th 1229, 1246.)
An appellant must also designate all relevant portions of the record, including the opposing party's trial exhibits. (Estrada v. Ramirez (1999) 71 Cal.App.4th 618, 620, fn. 1; see Pringle v. La Chapelle (1999) 73 Cal.App.4th 1000, 1003; Hodges v. Mark (1996) 49 Cal.App.4th 651, 657.) "An appellate court will consider the sufficiency of the evidence to support a given finding only after a party tenders such an issue together with a fair summary of the evidence bearing on the challenged finding, particularly including evidence that arguably supports it." (Huong Que, Inc. v. Luu (2007) 150 Cal.App.4th 400, 409-410.) Unless this is done, the asserted error is deemed waived. (See Foreman & Clark Corp. v. Fallon, supra, 3 Cal.3d at p. 881.)
In his appellate briefs, Attia fails to comply with these rules. He describes the factual record without discussing Mohamed's testimony or evidence, and does not include any record citations supporting his factual assertions. He focuses on his own version of the events, and discusses evidence outside the record. He failed to designate Mohamed's exhibits for inclusion in the appellate record, precluding us from a full review of the relevant facts.
On this record, Attia has forfeited his right to challenge the sufficiency of the evidence. (See Chicago Title Ins. Co. v. AMZ Ins. Services, Inc. (2010) 188 Cal.App.4th 401, 416; City of Lincoln v. Barringer (2002) 102 Cal.App.4th 1211, 1239.) But even if we were to reach Attia's contention, substantial evidence supports the court's findings that Attia had verbally and emotionally abused Mohamed.
Mohamed has likewise violated numerous rules in her respondent's brief. Most important, she fails to cite to the record in support of her factual assertions and she discusses information outside the record. We disregard Mohamed's statements that violate court rules. It remains Attia's burden to establish reversible error, and he has not met that burden on appeal. (See In re Marriage of Riddle (2005) 125 Cal.App.4th 1075, 1078, fn. 1; Miles v. Speidel (1989) 211 Cal.App.3d 879, 881.)
Mohamed testified that Attia regularly called her derogatory names, yelled at her, insulted and degraded her, and would not allow her to leave the house on her own. She testified that she was fearful of Attia, and that he had threatened her by raising his hand against her and by stating that she should call an ambulance if she ever called the police. Mohamed said Attia told her that her father could not save her. This testimony meets the statutory definition of abuse—disturbing Mohamed's peace and destroying her mental and emotional calm. (See Nadkarni, supra, 173 Cal.App.4th at p. 1497.)
Contrary to Attia's assertions, it was not necessary that Mohamed produce supporting medical evidence. Section 6300 states: "The court may issue [a restraining order] based solely on the affidavit or testimony of the person requesting the restraining order." Additionally, Mohamed produced corroborating evidence, including Attia's text messages apologizing for his actions and telling Mohamed not to "tell" on him; Sheikh's observations that Mohamed had been emotionally distressed about Attia's actions toward her; and Tamar's testimony that Attia had called Mohamed derogatory names.
In challenging the court's factual conclusion, Attia relies primarily on evidence that is not in the record. For example, he states that Sheikh had been "kicked out from" various mosques and he "has been accused by the Mosque leaders of inappropriate translation of" religious texts. Even assuming this evidence had any relevance to the issues before the court, it is not properly before this court because it was not presented in the trial court. Additionally, Attia argues that Sheikh was not qualified to provide expert opinions. However, Sheikh did not testify as an expert. The court considered Sheikh's testimony only with respect to his first-hand observations, which had particular credibility because he had known Attia for a long time, conducted the couple's marriage ceremony, and met with the couple several times in an attempt to help resolve the issues.
Attia also discusses witness testimony denying that Attia grabbed Mohamed's arm after the mediation. However, the court specifically found Mohamed did not meet her burden to show physical abuse, and thus found these witnesses credible on this issue. The court's finding that there was a lack of evidence on Mohamed's physical abuse claims did not preclude it from concluding she proved her case with respect to verbal and emotional abuse.
Attia argues that Mohamed was not credible and the court made the wrong inferences from the evidence. However, as an appellate court, we do not reweigh the evidence or second-guess witness credibility. (Balcof, supra, 141 Cal.App.4th at p. 1531.) We are required to draw all reasonable inferences favoring the court's ruling. (Drake, supra, 53 Cal.App.4th at p. 1151.) A trier of fact is required to reject evidence only " 'when it is inherently improbable or incredible, i.e., " 'unbelievable per se,' " physically impossible or " 'wholly unacceptable to reasonable minds.' " [Citations.]' " (Lenk v. Total-Western, Inc. (2001) 89 Cal.App.4th 959, 968.) There is nothing in the record showing the court was required to reject Mohamed's evidence under these standards.
III. Evidentiary Challenges
Attia contends the court erred in (1) permitting Mohamed's witnesses to testify and (2) allowing Mohamed's counsel to read a letter during the hearing written by Sheikh. We find no prejudicial error.
A. Written Notice of Witnesses
1. Background
On the first day of the hearing (which had been continued several times), Mohamed's counsel said she intended to call as a witness: (1) Sheikh; and (2) Mohamed's father, who she said had unexpectedly flown from New York the day before. Attia's counsel objected based on Mohamed's failure to provide written notice of these witnesses, citing section 217. Attia's counsel noted he had served Mohamed's counsel with Attia's witness list, including contact information and a summary of the expected testimony, and Mohamed had not filed a responsive witness list. Attia's counsel complained that this was a "trial by ambush."
Mohamed's counsel countered that "my experience with restraining orders is you show up with the witnesses and they testify." The court replied, "we calendared this for an evidentiary hearing so that is slightly different." After considering the parties' arguments, the court said it was going to permit Sheikh to testify, but it was "going to keep a really, really, really tight leash on this. . . . I am going to allow some latitude on cross given the fact that he wasn't on a witness list." The court made a similar ruling as to Mohamed's father's testimony.
2. Analysis
Section 217, subdivision (c) states: "A party seeking to present live testimony from witnesses other than the parties shall, prior to the hearing, file and serve a witness list with a brief description of the anticipated testimony. If the witness list is not served prior to the hearing, the court may, on request, grant a brief continuance and may make appropriate temporary orders pending the continued hearing."
Mohamed did not comply with this witness-list requirement. However, the court did not prejudicially err in allowing the hearing to go forward with the witness testimony.
First, Attia did not ask for a continuance, which would have been the appropriate remedy. Instead, he merely sought to strike the testimony. There is nothing in section 217 requiring a court to preclude a witness from providing relevant testimony.
Second, Attia's counsel did not provide an offer of proof as to the reason he needed prior notice to cross-examine Sheikh or Mohamed's father, and there is nothing in the record showing additional preparation time would have assisted Attia's case. For example, it is undisputed Attia knew Sheikh for many years, and was aware that Sheikh had worked with the couple in attempting to resolve their differences, and that Sheikh had spoken with Mohamed on many occasions and had seen her upset and distraught. Mohamed's father's testimony was brief, and concerned primarily how the couple met. He did not testify about, or witness, any of the alleged abuse.
Third, Sheikh provided favorable testimony to Attia, making clear that he never saw Attia engage in physical abuse against Mohamed, and denied that Mohamed had ever told him about any such abuse.
Fourth, it is not clear Mohamed's counsel had any prior notice that Mohamed's father was available to testify, as he unexpectedly traveled from New York shortly before the hearing.
We agree with Attia that Mohamed should have complied with section 217 and provided prior notice of her intent to call these two witnesses. However, to prevail on an evidentiary challenge on appeal, an appellant must establish the evidentiary error was prejudicial, amounting to a miscarriage of justice. (See F.P. v. Monier (2017) 3 Cal.5th 1099, 1107-1108.) A trial court error does not warrant reversal unless there is a reasonable probability that in the absence of the error, a result more favorable to the appealing party would have been reached. (Christ v. Schwartz (2016) 2 Cal.App.5th 440, 447; Code Civ. Proc., § 475.)
On our evaluation of the entire record, there was no prejudicial error. Attia did not seek a continuance or make an offer of proof at the hearing regarding any additional information necessary to effectively cross-examine these witnesses. There is nothing on the record showing the evidence would have been any different had Attia's counsel been given additional time to prepare for the two witnesses.
B. Sheikh's Letter
1. Background
During direct examination, Mohamed's counsel asked Sheikh whether he wrote her a letter after Mohamed first filed her restraining order petition in August 2016. Attia's counsel objected to the letter being admitted or read, noting the letter is hearsay; it was not written under penalty of perjury; and Attia did not have prior notice of the letter, stating that it was "being sprung on us today."
Mohamed's counsel responded that the letter was admissible under the "past recollection recorded" hearsay exception. (See Evid. Code, § 1237.) In support, Mohamed's counsel elicited Sheikh's foundational testimony that he wrote the letter on August 18, 2016, in response to Mohamed's request for a letter if he was unable to attend the evidentiary hearing; he could not currently recall all the details of Mohamed's interactions with Attia because "I have almost every day people just come and talk"; when he wrote the letter, everything was fresh in his memory; and he was telling the truth when he wrote the letter.
The court then took a lunch break, which allowed Attia's counsel the opportunity to review the letter with Attia and prepare for any cross-examination on the letter. After the lunch break, counsel renewed his objection, which the court overruled. Because Sheikh had trouble reading the letter (he had problems with his eyes), the court allowed Mohamed's counsel to read the letter into the record.
As set forth in our factual summary, the letter stated that Attia admitted calling Mohamed derogatory names and had apologized for it. The letter also contained additional details about Mohamed's reactions to Attia's conduct, including that she was crying and appeared "really scared" of Attia.
After the letter was read, the court said it would not consider the portions of the letter that reflected statements made to Sheikh by either party. The court was apparently concerned those statements were potentially protected by the penitential-communication privilege.
C. Analysis
Attia contends the court erred in admitting the letter under the past-recollection-recorded hearsay exception, which permits the admission of a testifying witness's writing as substantive proof of the contents of the writing if the witness has insufficient memory to testify fully and accurately to the facts contained in the writing. (Evid. Code, § 1237, subd. (a); see People v. Cowan (2010) 50 Cal.4th 401, 465.) "The writing may be read into evidence" after a proper foundation is laid to assure trustworthiness. (Evid. Code, § 1237, subd. (b).)
Specifically, Evidence Code section 1237 provides for the admission of a past recollection recorded if: (1) the statement would have been admissible if made by the witness while testifying; (2) the witness is unable to adequately recall and testify fully and accurately about the matter in question; (3) the recorded statement was made by the witness when the fact was fresh in the witness's mind; (4) the writing is affirmed by the witness as true; and (5) the document is offered after the witness authenticates the writing as an accurate record. (§ 1237, subd. (a); see People v. Cowan, supra, 50 Cal.4th at pp. 464-467.)
Mohamed satisfied these requirements. Sheikh testified he wrote the letter shortly after he witnessed the relevant events. He indicated he did not recall all of the details of the interactions between Mohamed and Attia because he counsels many individuals. He testified that the statements in the letter were true. The statements in the letter—primarily concerning Sheikh's observations of events occurring before and during the couple's brief marriage—would have been admissible had he testified to them at the hearing. Further, Attia's counsel had the opportunity to fully cross-examine Sheikh as to the statements made in the letter. Additionally, the court stated it would not consider any portion of the letter that reflected statements made by either party to Sheikh.
On this record, the court did not err in allowing counsel to read the letter, and in considering portions of the letter in its evaluation of the evidence.
DISPOSITION
Affirmed. Appellant to bear respondent's costs on appeal.
HALLER, J. WE CONCUR: McCONNELL, P. J. DATO, J.