Opinion
B294057
03-05-2020
LUCIA TORRES-TRILLO, Plaintiff and Respondent, v. NELSON ANTHONY RIVERA, Defendant and Appellant.
Foothill Law Group, Karen S. Darling and Desiree Meguerditchian for Defendant and Appellant. No appearance for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Los Angeles County Super. Ct. No. 18PSRO00130) APPEAL from an order of the Superior Court of Los Angeles County. Sarah Heidel, Judge. Affirmed. Foothill Law Group, Karen S. Darling and Desiree Meguerditchian for Defendant and Appellant. No appearance for Plaintiff and Respondent.
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MEMORANDUM OPINION
Nelson Rivera appeals a three-year Domestic Violence Restraining Order (DVRO) entered in favor of his ex-girlfriend Lucia Torres-Trillo. We affirm.
A DVRO may issue to prevent future domestic violence "if an affidavit or testimony . . . shows, to the satisfaction of the court, reasonable proof of a past act or acts of abuse." (Fam. Code, § 6300, subd. (a).) "Abuse" includes "plac[ing] a person in reasonable apprehension of imminent serious bodily injury to that person or another" or "engag[ing] in any behavior that has been or could be enjoined pursuant to [Fam. Code,] Section 6320." (Fam. Code, § 6203, subds. (a)(3), (4).) Conduct enjoined by Family Code section 6320 includes molesting, stalking, threatening, harassing, contacting, or disturbing the peace of the protected party. (Fam. Code, § 6320, subd. (a); see In re Marriage of Davila & Mejia (2018) 29 Cal.App.5th 220, 226.) We review the issuance of a DVRO for abuse of discretion. (Ibid.) We review factual findings supporting a DVRO for substantial evidence. (Ibid.)
Following hearings during which both Rivera and Torres-Trillo testified, the court found the DVRO was warranted based on two violent incidents and a series of text messages. In July 2017, Rivera showed up at Torres-Trillo's workplace and confronted her. She asked him to leave, and he refused. He then ripped a phone cord out of the wall when she tried to call the police. She called the police from her cell phone and filed a police report, which was attached to her DVRO application.
In January 2018, Rivera showed up at Torres-Trillo's sister's home and banged on the door, demanding Torres-Trillo come outside to talk to him. He said if she did not, he would "continue to bother" her. She refused because she was afraid. Torres-Trillo's mother, who was present, testified Rivera looked "aggressive."
Torres-Trillo received the disturbing and harassing text messages in January and February 2018, each from a different phone number. In the texts, the sender accused Torres-Trillo of having an affair with boxer Oscar de la Hoya; said the sender was "angry" with her; said he would go for "a long time" and "a year or more" until she apologized; accused her of sleeping with other people; and threatened if she did not apologize he would "photo shop your face and tag all of your friends," referring to social media. The court found Rivera sent these messages using an app to obtain the different numbers.
Rivera denied the confrontations occurred and denied sending the text messages. Instead, he offered evidence and testified to his own version of events. The court did not find him credible. The court thought Torres-Trillo had also lied, but it credited her core testimony that the incidents occurred and issued the DVRO for three years.
Rivera challenges the sufficiency of the evidence, but he ignores our standard of review and simply sets out his evidence, urging us to reweigh it. He also challenges the trial court's finding Torres-Trillo was partly credible. We can entertain neither argument. (Nevarez v. Tonna (2014) 227 Cal.App.4th 774, 786 [" 'We have no power to judge the effect or value of the evidence, to weigh the evidence, to consider the credibility of witnesses or to resolve conflicts in the evidence or the reasonable inferences which may be drawn from that evidence. [Citation.]' "].) We are not convinced the core portions of Torres-Trillo's testimony were so inherently improbable that we may ignore them on appeal. (Ibid.) As found by the trial court, the two incidents and the text messages sufficiently supported a finding of "abuse" justifying the DVRO.
Rivera contends the court could not consider the text messages because Torres-Trillo did not specifically include them in her initial application for a DVRO. That is true, but she did not necessarily have to, so long as Rivera was "placed on notice of the general allegations." (In re Marriage of Davila & Mejia, supra, 29 Cal.App.5th at p. 222 [domestic violence victim does not have "a pleading obligation that he or she describe all individual actions taken by the alleged abuser in the DVRO request in order to later testify about those acts at the hearing, as long as the alleged abuser is placed on notice of the general allegations"].) As part of the January 2018 incident, Torres-Trillo alleged Rivera said if she did not go outside, he would "continue to bother" her. The text messages showed he made good on that threat. They therefore fell within the "general allegations" of the DVRO application.
In any case, the court initially issued the DVRO based in part on the text messages, but then vacated the order and granted Rivera's motion for reconsideration to conduct discovery on the origin of the text messages. The court held another hearing and permitted Rivera to present expert testimony that the sender or senders could not be identified by looking at the messages themselves. On this full record, the court reissued the DVRO. This procedure gave Rivera ample notice and allowed him to vigorously defend against the text messages. (See In re Marriage of Davila & Mejia, supra, 29 Cal.App.5th at p. 227 [noting restrained party had opportunity to respond to petitioner's testimony].)
Relatedly, Rivera argues Torres-Trillo failed to authenticate the text messages because each message came from a different phone number and none could be attributed to Rivera by simply looking at them, so they were irrelevant. His expert witness explained there are applications available on the Internet that enable a sender to send a text message from a random phone number, and, yes, they could not be attributed to a particular sender by looking at them. But Torres-Trillo testified she believed Rivera was using that kind of application to send those text messages to her. The court found the messages "referenced things that are pertinent" to Rivera, "including his jail time, that video shoot that he's referenced in different places." This evidence sufficiently supported the trial court's finding Rivera sent the text messages. (Evid. Code, § 1401; People v. Calhoun (2019) 38 Cal.App.5th 275, 313 ["Authenticity may be established by the contents of the writing, or other means, including circumstantial evidence, and the author's testimony is not required."].)
Last, Rivera argues the text messages should have been excluded as hearsay. Because the court found Rivera sent the messages, they fell within the hearsay exception for party admissions. (Evid. Code, § 1220.)
DISPOSITION
The order is affirmed. Respondent Torres-Trillo has not made an appearance on appeal, so Rivera will bear his own costs.
BIGELOW, P. J. WE CONCUR:
GRIMES, J.
WILEY, J.